Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Theriault

Court of Appeals of Oregon

October 23, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
SEAN PATRICK THERIAULT, Defendant-Appellant.

          Argued and submitted May 31, 2019

          Multnomah County Circuit Court 17CR03181 Jerry B. Hodson, Judge.

          Eric Johansen, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

Defendant appeals a judgment of conviction for fourth-degree assault constituting domestic violence. ORS 163.160; ORS 135.230. Defendant assigns error to the trial court's denial of his midtrial motion to require the state to elect which of his acts it was relying on to establish the elements of that crime, and the court's refusal to give a jury concurrence instruction.

         Held:

Because the state charged defendant with one count of fourth-degree assault but presented evidence at trial of multiple separate acts by defendant that could constitute that crime, the trial court erred by failing to instruct the jury that the requisite number of jurors must agree on which act constituted the crime in order to find defendant guilty. The court's error was not harmless because, considering the evidence and record as a whole, jurors could have based their verdicts on different occurrences.

         [300 Or. 244] Judgment of conviction for assault in the fourth degree constituting domestic violence reversed and remanded; otherwise affirmed.

         [300 Or. 245] SHORR, J.

         Defendant appeals from a judgment of conviction for fourth-degree assault constituting domestic violence. ORS 163.160; ORS 135.230. On appeal, defendant assigns error to both the trial court's denial of defendant's motion- made at trial-to require the state to elect which of defendant's acts it was relying on to establish the elements of that crime, and the trial court's refusal to give a "Boots" jury concurrence instruction. See State v. Boots, 308 Or. 371, 376-79, 780 P.2d 725 (1989), cert den, 510 U.S. 1013 (1993) (explaining the importance of jury concurrence on the material elements of a crime). We conclude that, because the state charged defendant with one count of fourth-degree assault but presented evidence at trial of multiple separate acts by defendant that could constitute that crime, the trial court erred in denying defendant's requested jury concurrence instruction. Accordingly, we reverse and remand.

         The state charged defendant with one count of strangulation constituting domestic violence, ORS 163.187, and one count of fourth-degree assault constituting domestic violence, ORS 163.160; ORS 135.230. The operative amended information broadly stated the elements of both crimes and stated that defendant committed those crimes on or about January 17, 2017. The amended information did not further allege the specific occurrences of those alleged crimes.

         "In determining whether a concurrence instruction was required, we must consider all pertinent evidence admitted at trial." State v. Slaviak,296 Or.App. 805, 806, 440 P.3d 114 (2019). The facts underlying the assault charge occurred during a period of one to two hours. The state put on evidence that, during that time, defendant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.