Defendant appeals his convictions for first-degree rape (Count 1), ORS 163.375,
The undisputed facts relevant to our decision are as follows. In 2003, defendant married and began to live with the victim’s mother along with the victim, the victim’s brother, and his own son. In 2009, the victim’s mother reported to the Marion County Sheriff’s Office that defendant had been “mentally, sexually, and physically abus [ing] ” the victim repeatedly for the preceding four years. In February 2010, the victim, then 15 years old, told Detective Hingston that defendant had sexual intercourse with her in the bedroom, bathroom, kitchen, and living room of the family home. She also told Hingston that defendant had vaginally penetrated her eight times with a toy rocket and that she had performed oral sex on him aрproximately three times. Hingston recorded those statements in an investigative report submitted on February 18, 2010.
Shortly thereafter, defendant was indicted on one count each of rape in the first degree, sodomy in the first degree, and unlawful sexual penetration in the second degree.
The state provided notice tо defendant of its intent to rely at trial on statements made by the victim to a forensic interviewer and to Hingston. The notice provided, in part, that the state intended to rely at trial on hearsay statements made by the victim
“[t]o Detective Hingston from the Marion County Sheriff’s Office on February 9, 2010. The statement is set forth in Detective Kingston’s report submitted February 18, 2010 and is contained beginning on page 3 of the report and ending on page 5. The report was made previously available in discovery.”6
At trial, defendant objected to Hingston’s testimony about several statements the victim made to him about defendant’s sexual conduct with her, arguing that the statements were hearsay and that they were not аllowable under the child abuse exception to the hearsay rule, OEC 803(18a)(b), because
At trial, the victim testified about defendant’s sexual conduct toward her in their home. The victim testified that defendant touched her in a sexual way “more than once” with his penis and fingers, and that those acts occurred “[s]ometimes on the couch[,]” “[s]ometimes on a tablet,]” and “[s]ometimes in Mom and [defendant]’s — Mom’s room.” In response to questioning, the victim provided some detail about those locations — for examрle, that her autistic brother would be in his room engrossed in video games and that her mom would be at work when defendant would have sex with her on the kitchen table, during which defendant would pull off her clothes, and that she was too afraid to scream or yell for help. She also answered affirmatively to the state’s question, “When [defendant] would put his penis in your vagina, did he ever use a lubricant?” The victim testified that when she was 11 or 12 years old, defendant would use his fingers to penetrate her “sometimes on the couch.” She also testified that defendant would remain silent “when” he vaginally penetrated her with a red toy rocket. The victim also testified that defendant engaged in sodomy with her, saying that defеndant “used to grab my hair and put my face on him, on his [penis]” and that he would have her put her face against his penis “most of the time.” The victim did not identify any of those occurrences of sexual abuse by a specific date or time. Defendant, for his part, denied that any of the incidents of sexual contact took place.
Hingston testified that the victim had told him that defendant had sexual intercourse with her in the bedroom and bathroom, and on the kitchen table and the couch. According to Hingston, the victim had also told him that defendant had vaginally penetrated her eight times with a toy rocket and that she had performed oral sex on defendant about three times. He also testified that the victim had described defendant using baby oil as a lubricant before having sexual intercourse with her. Regarding the victim’s statements, Hingston commented that “it was hard to get details from [the victim] and specifics” and that “it was real difficult for her to kind of capture what I was looking for and explain it.” He noted, however, that “victims of continued abuse [when] it happens over a prolonged period of time, that a lot of times, you know, details get mixed up and— and — and everything kind of gets mooshed together.”
The state sought to corroborate the victim’s and Kingston’s testimony about defendant’s sexual abuse with evidence that, during the period of time that the charged offenses took place, defendant was “controlling” of the victim and her mother and that defendant acted in a sexually inappropriate manner around the victim. Defendant placed security cameras throughout the home, including cameras with a view of the victim’s bedroom and the bedroom he shared with the victim’s mother. Those cameras provided a continuous feed to a monitor in defendant’s bedroom. The windows were sealed shut and the front door was dead-bolted; the victim testified that she did not feel that she had freedom in her house. Additionally, there was a passcoded key lock on the door to the bedroom that defendant shared with the victim’s mother, which would chime upon opening. Defendant kept the victim by his side constantly, often keeping her home from school, and the victim’s mother testified that it was difficult to talk to her daughter because of defendant’s interference. The victim’s mother also testified that defendant had declared more than once that he intended to marry the victim. Defendant had also taken and uploaded photos of the victim that included images of her breast and her pubic hair, as well as a photo of the victim eating a corn dog; the victim testified that defendant had taken the latter photo after urging her to “pretend like it’s [defendant’s penis] in your mouth.”
At the close of defendant’s trial, he requested that the trial court instruct thе jury as follows:
“In order to reach a lawful guilty verdict as to any count, 10 jurors must agree on what factual occurrence constituted the crime. Thus, in this case, in order to reach a guilty verdict on any count, 10 jurors must agree on which factual occurrence constituted the offense.”
The trial court declined that request, instead instructing the jury that, in order to establish the crimes charged, 10 of the 12 of them must agree that the state established beyond a reasonable doubt the elements indicated in the charges of the indictment. For Count 3, the instructions did not mention specifically defendant’s finger as the object used for the unlawful penetration, as indicated in the indictment. Defendant took exception to those instructions, arguing that the jury was not asked “to necessarily agree on a specific act that constitutes the crime.”
We begin with defendant’s contention that the trial court erred in admitting the hearsay statements and review the trial court’s determination that the state met OEC 803(18a)(b)’s notice requirements for legal error. Chase,
“A statement made by a person concerning an act of abuse as defined in *** ORS 419B.005 [governing child abuse reporting] * * * is not excluded by [the rule against hearsay] if the declarant * * * testifies at the proceeding and is subject to cross-examination].] *** No statement maybe admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown.”
(Emphasis added.) The rule’s purpose is to apprise an opposing party of the other party’s proposed hearsay evidence so that it can have a reasonable opportunity to prepare for trial by developing other evidence, preparing for cross-examination if the declarant will testify at trial, filing a preliminary motion to limit use of the evidence, or modifying intended voir dire. State v. Iverson,
Under OEC 803(18a)(b), the notice must provide details of the evidence that the party seeks to admit and list the particular statement sought to be admitted. State v. Olsen,
We clarified those two particularity requirements in State v. Riley,
Defendant relies primarily on Chase for his argument that the state failed to meet the requirements of OEC 803(18a)(b) because the notice’s reference to Kingston’s report did not provide “any ‘particulars of any statement’ or ‘the substance of the victim’s hearsay statements or how they would be offered’ at trial.” The state responds that the notice met the particularity requirement because it was not rеquired to provide verbatim recital of the hearsay statements and that the notice included the date on which the statement was made, reference to a particular report, including the page numbers directing defendant to where in the report the statements could be found, and, by naming the detective in the report, an identification of the witness who would testify to the hearsay statements — all information, it contends, that was more specific than the notices we found lacking in Chase and Olsen.
We agree with the state that the notice satisfied the particularity requirements of OEC 803(18a)(b). The notice provided the following particulars about the hearsay statements sought to be offered by the state and: (1) they were made by the victim, to Hingston, on February 9, 2010; (2) they were included in Kingston’s report submitted on February 18, 2010, in pages three to five; and (3) the report was made available to defendant in discovery. That degree of detail contrasts significantly with the notice in Chase, which referenced “foregoing and subsequent reports” included in 53 pages of discovery without details about the statements sought to be offered or who would offer them. Here, the notice provided the date of the statements, and included to whom and by whom they were made, with specific enough detail regarding the statements’ location in the report to allow defendant to discern their substance. Furthermore, the notice identified Hingston as the recipient of the statements, indicating that Hingston could be available to testify at trial, as he did for the grand jury. Accordingly, we reject defendant’s contention that the trial court erred in admitting the evidence at issue.
We turn next to defendant’s argument that the trial court erred when it rejected his requested jury instruction that “10 jurors must agree on which factual occurrence constituted” each offense. On appeal, defendant argues that, “[w]ithout instructing the jury that it had to agree on ‘what factual occurence constituted the crime,’ the court allowed individual jurors to pick-and-choose alleged incidents, without ever [e]nsuring that 10 jurors agreed that defendant’s actions on a particular occurrence constituted each offense.”
We review the trial court’s failure to give a requested instruction for legal error. State v. Brown,
We begin with a discussion of Boots to provide a context for our discussion of the offered instruction. In Boots, the defendant was charged with aggrаvated murder, which is a murder accompanied by one of 17 different factual circumstances.
In concluding that the trial court’s instruction was erroneous, the court reasoned that the two aggravating circumstances — robbery and concealing the perpetrator’s identity — were not interchangeable; the circumstances of each element could be proved by different factual scenarios. Id. at 375. Moreovеr, the court noted that it is obvious that, if the charge of killing in furtherance of a robbery, or the charge of killing to conceal the identity of the perpetrators of a robbery, stood alone, the jury would have to agree unanimously on the factual circumstances that constituted each of those crimes. Id. at 377. The need for unanimity “should be no less obvious,” the court stated, “when the state charges a defendant [under both of the aggravating circumstance subsections of ORS 163.095].” Id. The court, in line with its analysis that the different aggravating circumstances in each subsection of the statute implicated different factual theories, distinguished between facts that are mere “factual dеtails” and facts that legally are “essential to a crime”; the former do not require juror unanimity or concurrence, and the latter do. Id. at 379.
In addition to its statutory analysis of the aggravated murder statute, the court looked to United States v. Gipson, 553 F2d 453 (5th Cir 1977), to support its holding. Id. at 380. In that case — also relied upon by defendant in this case — the defendant was charged “as a person who ‘receives, conceals, stores, barters, sells or disposes of a stolen vehicle in interstate commerce [,]” and the trial court instructed the jury that it did not have to agree on which one of those acts the defendant had committed. Id. The Fifth Circuit remanded the case for a new trial, holding that the “[jury] unanimity rule thus requires jurors to be in substantial agrеement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.” Gipson, 553 F2d at 457-58.
Recently, the Oregon Supreme Court, in State v. Pipkin,
In looking back on its case law since Boots, the Supreme Court in Pipkin identified two categories of cases in which a jury concurrence requirement has been addressed. The first, which is represented by Boots itself, is the situation where a criminal statute specifies alternative means of committing a crime.
In Lotches, the defendant was charged with, among other crimes, multiple counts of aggravated murder involving different victims. On plain error review, the court addressed whether Boots applied when the instructions did not specify which of multiple factual occurrences adduced at trial supported the underlying felonies for the aggravated murder charges.
The court relied on Boots and Gipson as support for its holding that a jury concurrence instruction was required. Id. at 467-69. The court stated that, “because the aggravated murder instructions that were given did not either limit the jury’s consideration to a specified underlying felony or require jury unanimity concerning a choice among alternative felonies, each instruction carried the same danger that this court had condemned in Boots!’ Id. at 469. Additionally, Lotches called attention to the Boots court’s approval of Gipson as a basis for requiring a jury concurrence instruction, also quoting that decision: ‘“The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.’” Id. at 468 (quoting Gipson, 553 F2d at 455-56) (emphasis in Lotches).
In Hale, also a plain error case, the defendant was charged with aggravated murder with the underlying circumstances of third-degree sexual abuse and murder. There were, however, multiple possible perpetrators and victims for the underlying crimes.
“because the instructions that the jury was given with respect to each of the aggravated murder counts based on the crimes of third-degree sexual abuse and murder did not either limit the jury’s consideration to a specific instance of third-degree sexual abuse or murder, committed by a particular perpetrator against a particular victim,or require jury unanimity concerning a choice among alternative scenarios, each instruction carried an impermissible danger of jury confusion as to the crime underlying each count.”
Id. The court concluded that the trial court’s failure to require jury unanimity when there were different possible victims and perpetrators of the underlying counts was plain error. Id. As it had in Boots and Botches, the court in Hale again referred to Gipson for support, stating that the unanimous jury rule “requires that the jury agree as to just what the defendant did to bring himself within the purview of the particular [offense] under which he was charged.” Id. (emphasis added). However, given that the court in Pipkin has now clarified that Gipson is no longer a valid basis for the category of jury concurrence instruction cases represented by Boots and King, it is doubtful that Gipson still can serve as a basis for the second category of cases represented by Botches, Hale, and this case. What survives is the Supreme Court’s concern, based on Article I, section 11, regarding the need for jury concurrence as to essential facts and regarding an impermissible danger of jury confusion.
Finally, in Sparks, the court concluded that the trial court’s failure to provide a Boots instruction was not plain error because the facts did not implicate the same concerns identified in Lotches.
“In Lotches, there were multiple possible victims for each of the underlying crimes. Similarly, in Hale, there were multiple possible victims and two possible perpetrators of each of the underlying crimes. In both of those cases, the jury was presented with multiple factual theories for each of the underlying crimes. It is not reasonably in dispute that a jury’s failure to agree unanimously on either the victim or the perpetrator of the crime would violate the jury unanimity rule, because both those facts are material elements of the underlying crimes.”
Id. at 316 (emphases in original). The defendant did not provide an explanation of why the location was “essential to the crime” and not a “factual detail,” and the court, therefore, held that it was not “obvious” that “the precise location of the underlying crimes constitutes a material element of those crimes on which the jury must agree unanimously. Id. at 317. In fact, the location of those crimes more logically constitutes a Tactual detail’ that does not require jury unanimity. Boots,
Two of our cases also bear on the analysis of whether a jury concurrence instruction is necessary in circumstances such as these. State v. Garcia,
We return to the issue presented in this case: whether it was error for the trial court to decline to instruct the jury that it had to agree on which factual occurrence constituted each of the crimes charged, where, for each, “the evidence permitted] the jury to find multiple, separate oсcurrences of that crime.” See Pipkin,
Here, defendant has not explained why the evidence of multiple instances of sexual abuse by defendant involves factual differences that are “essential to the crime” or cause an “impermissible danger of jury confusion.” As to Count 1, first-degree rape, the victim testified that she was raped “ [s] ometimes on the couch. Sometimes on a table. Sometimes in [her mother’s] room.” Defendant fails to make any argument that the location of the rape for which hе was convicted is an essential fact, nor was the evidence sufficiently distinct to allow the jurors to distinguish various instances from each other. For Count 2, the victim described incidents of sodomy in general terms, and Hingston testified that the victim told him that the defendant had the victim engage in oral sex “approximately three times” or “used to grab [her] hair and put [her] face on him, on his [penis].” Defendant does not point to any differences among those incidents that are essential to the crime or could cause juror confusion. Finally, for Count 3, second-degree unlawful penetration, the victim and Hingston testified that the finger penetration with which defendant was charged occurred “somеtimes.”
To summarize, when the evidence supports multiple, separate occurrences for a single offense but does not provide the jurors with enough specifics to distinguish one occasion from another in a way that would allow them to draw conflicting conclusions regarding the crime committеd, a jury instruction requiring concurrence as to which factual occurrence constituted the crime charged is not required. The factual details suggesting separate incidents of the crimes in this case
Affirmed.
Notes
ORS 163.375(1) provides:
“A person who has sexual intercourse with another person commits the crime of rape in the first degree if:
“(c) The victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child [.]”
ORS 163.405(1) provides:
“A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
“(c) The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse [.]”
In turn, ORS 163.305(1) defines “deviate sexual intercourse” as “sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.”
ORS 163.408 provides, in part, that “a person commits the crime of unlawful sexual penetration in the second degree if the person penetrates the vagina, anus or penis of another with any object other than the penis or mouth of the actor and the victim is under 14 years of age.”
We reject without discussion defendant’s two remaining assignments of error, one, a challenge to the trial court’s discretion to exclude evidence under OEC 403, and, the other, his assertion that the trial court failed to рrovide a less satisfactory evidence jury instruction.
Defendant was also charged with unlawful use of a firearm, but that charge did not result in a conviction.
The report also stated that the
“notice should be sufficient to give [defendant] proper notice of specifically which statements of the child victim [the state] intend [s] to offer as hearsay evidence at trial. If this notice is insufficient, and [defendant is] not sure of the exact statements [the state] intend [s] to offer, notify [the state prosecutor] by July 13, 2011 and [the state prosecutor] will ensure [defendant’s] questions are answered and [defendant is] satisfied [he] know[s] which statements will be offered. If [the state prosecutor] do [es] not hear by July 13,2011 that [defendant] believe [s] this notiсe is insufficient, [the state prosecutor] will consider it sufficient and will ask the Court to so find.”
Because we conclude that the notice satisfied the particularity requirements of OEC 803(18a)(b), we need not address whether this part of the notice was a “courtesy,” as argued by the state, or an improper shift of the burden to provide particularity to defendant, as argued by defendant.
In Olsen, the notice indicated only that the state intended ‘“to offer child hearsay evidence pursuant to OEC 803(18a) and (24) at the trial.’”
Pipkin concerned the propriety of a jury concurrence instruction in the context of a charge of first-degree burglary, which occurs when a person “enters or remains unlawfully” in a dwelling “with an intent to commit a crime therein.” ORS 164.225; ORS 164.215. The defendant’s requested jury instruction provided that at least 10 jurors had to agree on whether the defendant either entered the dwelling unlawfully or remained unlawfully in the dwelling, or did both.
Another example of that situation is State v. King,
“The elements of plain error are: the error must be one of law; (2) the legal point must be obvious, that is, not reasonably in dispute; and (3) to reach the error, ‘ [w] e need not go outside the record or choose between competing inferences to find it[.]”’ Sparks,
Defendant does not assert that the trial court’s failure to identify in the instructions that defendant’s finger was the object used for the unlawful penetration was erroneous where both the indictment and the prosecutor’s arguments identified defendant’s finger as the penetration object. Under State v. Pauley,