261 P.3d 60
Or. Ct. App.2011Background
- Defendant Bruce Pipkin was convicted of first‑degree burglary, fourth‑degree assault, and menacing in Oregon.
- Appeal challenges: denial of judgment of acquittal on the assault count for lack of evidence of physical injury.
- Also argues that Boots concurrence instruction should have been given to require juror agreement on a theory of the crime.
- Court concludes that entering and remaining with requisite intent are two alternative methods to commit the same crime, so Boots instruction unnecessary.
- Facts viewed in state’s favor: Pipkin forcibly entered, attacked the victim after breaking a window, and also harmed another person in the apartment.
- Court affirms convictions and resolves the burglary/concurrence issue in Pipkin’s favor under Oregon precedents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fourth‑degree assault | State: evidence shows substantial pain or impairment. | Pipkin: no evidence of impairment or substantial pain. | Evidence supports substantial pain/impairment; acquittal denied. |
| Need for Boots concurrence instruction on assault theory | Boots requires jurors to agree on theory of crime. | No need to require agreement on the theory. | No Boots instruction required; alternative means to same crime do not mandate concurrence. |
| Concurrence instruction for first‑degree burglary elements | Boots applies to burdens of proof on multiple theories. | Different theories of burglary require agreement. | No concurrence instruction required; entering and remaining unlawful are alternative means of a single crime; White governs. |
Key Cases Cited
- State v. Boots, 308 Or. 371 (1989) (concurrence required when multiple theories constitute separate offenses; not required for alternative means of a single offense)
- State v. King, 316 Or. 437 (1993) (two subsections describe a single offense; jury need not agree on which test results established being under influence)
- State v. White, 341 Or. 624 (2006) (entering and remaining unlawful are two alternative means to the same burglary element; not separate convictions)
- State ex rel. Juv. Dept. v. Greenwood, 107 Or. App. 678 (1991) (substantial pain can support an assault conviction; duration matters)
- State v. Phillips, 242 Or. App. 253 (2011) (concurrence discussion in context of Boots and alternative theories)
- State v. Lotches, 331 Or. 455 (2000) (error for failing to require agreement on all material elements of a charge)