State v. Burris, 483 P.3d 1213

Two separate incidents at Portland-area Dollar Tree stores in Sept. and Oct. 2017: a man exposed himself and masturbated; in the October incident the man also rubbed two girls’ buttocks. Victims were ages 4–7 at trial.
Defendant was identified from a photograph and a photo array; charged with two counts of first-degree sexual abuse (touching buttocks), two counts of public indecency (exposure), and four counts of endangering the welfare of a minor (masturbation).
At trial Burris conceded the acts occurred but argued mistaken identity (that someone else committed the acts). The jury convicted on all eight counts unanimously.
Trial court instructed on “sexual or intimate parts” and the “intimacy test” but did not give the statutory definition of “sexual contact.” The state read the statutory definition of “sexual contact” in closing.
Supplemental judgment ordered $2,500 in court-appointed attorney fees and $7,088 restitution payable to CARES, CICA, and the victims’ insurer. Burris appealed, raising instructional error, attorney-fee imposition, restitution to CARES (and related restitution), and use of a nonunanimous instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to instruct jury on statutory definition of “sexual contact”	Court’s omission was harmless here because state read the definition and evidence showed contact occurred immediately before masturbation	Omission was plain error because “sexual contact” is an element and must be defined	Trial court plainly erred in omitting the definition but error was harmless on these facts; conviction affirmed
Imposition of court-appointed attorney fees	Record showed the court made a record about ability to pay and evidence existed	Imposition was plain error because record insufficient to show ability to pay	Not plain error on this record; fee imposition affirmed
Restitution to CARES (and related restitution to CICA/insurer)	State ultimately conceded CARES award was legally erroneous; other restitution may also be improper	CARES (and related insurance/CICA awards) not proper crime-victim restitution for minors’ CARES evaluation costs	CARES restitution reversed; case remanded for resentencing so court can address CICA/insurer restitution issues
Use of nonunanimous jury instruction	Instruction was provided under then-available law	Instructional form challenged as plain error	Appellate court declined to exercise plain-error review given unanimous verdict (following State v. Chorney-Phillips); challenge not reviewed

State v. Chorney-Phillips, 367 Or 355 (declining plain-error review of nonunanimous instruction)
State v. Lopez-Minjarez, 350 Or 576 (framework for asking whether a verdict could be based on the erroneous instruction)
State v. Bistrika, 261 Or App 710 (missing element plus prosecutor argument can produce legally erroneous verdict)
State v. Payne, 366 Or 588 (parties’ trial arguments relevant when assessing harm from omitted instruction)
State v. J. White, 296 Or App 445 (court held CARES not a victim for restitution purposes)
State v. Moreno-Hernandez, 365 Or 175 (addresses restitution and available remedies on resentencing)
State v. Allida, 300 Or App 819 (trial court erred by ordering restitution to CICA/insurer for CARES evaluation costs)
Neder v. United States, 527 U.S. 1 (omitted-element constitutional error may be harmless beyond a reasonable doubt)