State v. Frey
273 P.3d 143
Or. Ct. App.2012Background
- Defendant Frey was convicted of attempted first-degree burglary with a firearm and multiple related offenses under ORS 164.225, 161.405, and 161.610.
- The indictment alleged Frey unlawfully and attempted to enter a dwelling with the intent to commit a crime therein (unlawful use of a weapon, menacing, assault, or murder).
- The trial court instructed the jury on Count 1 with five elements, including that Frey intended to commit a crime therein, but did not require concurrence on the specific crime.
- During post-instruction colloquy, Frey’s counsel preserved an objection under ORCP 59 H and argued that the jury should have been required to concur on the specific crime Frey intended to commit, i.e., a Boots instruction.
- The incident giving rise to the charges occurred August 28, 2008, at a Keizer apartment complex, where Frey confronted a wife, pulled a rifle, threatened to kill, and was apprehended leaving the scene.
- The Oregon Court of Appeals held Boots requires jury concurrence on the specific crime intended to be committed, reversed the attempted burglary conviction, and remanded for resentencing on other counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Boots requires jury concurrence on the specific crime intended | Frey: Boots requires 10 jurors to concur on the particular crime intended | State: concurrence on the specific crime is not essential | Boots required; reversal and remand for attempted burglary conviction |
| Whether Sanders governs the need to plead/prove the specific crime | Frey: Sanders supports requiring specificity | State: Sanders not controlling for this context | Sanders applies; the specific crime intended is essential to the charge |
| Whether the issue was properly preserved for review | Frey preserved error via post-instruction exception | State: preservation not satisfied | Issue preserved under ORCP 59 H; reached on merits |
| Whether the Boots requirement applies when the indictment lists independent alternative crimes | Frey: distinct potential crimes require separate concurrence | State: concurrence may be implicit if the state elects a theory | Boots applies; lacks state election to fix a single crime; requires concurrence on specific crime |
Key Cases Cited
- State v. Boots, 308 Or. 371 (Or. 1989) (jury concurrence required for material facts before convicting)
- State v. Sanders, 280 Or. 685 (Or. 1977) (indictment must specify the crime intended to be committed)
- State v. Pauley, 213 Or. App. 423 (Or. App. 2007) (instructional error review; prejudice assessment for jury instructions)
- State v. Lotches, 331 Or. 455 (Or. 2000) (concurrence principles in complex burglary theories)