STATE OF OREGON, Plaintiff-Respondent, v. SAMUEL TROY BURRIS, Defendant-Appellant.
Washington County Circuit Court 17CR74539; A168682
Washington County Circuit Court
March 10, 2021
309 Or App 604 (2021) | 483 P3d 1213
Janelle F. Wipper, Judge.
Submitted March 10, 2020; portion of supplemental judgment awarding restitution reversed, remanded for resentencing, otherwise affirmed March 10, 2021
Defendant appeals from a judgment of conviction for two counts of first-degree sexual abuse,
Portion of supplemental judgment awarding restitution reversed; remanded for resentencing; otherwise affirmed.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
DeVORE, P. J.
Portion of supplemental judgment awarding restitution reversed; remanded for resentencing; otherwise affirmed.
DeVORE,
Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse,
On appeal, defendant raises five assignments of error. First, as to his convictions for
We write primarily to address defendant‘s first assignment of error. As to that first assignment, while we agree with defendant that the trial court erred in failing to instruct the jury as to the definition of “sexual contact,” we ultimately conclude that error was harmless given the evidence and arguments presented at trial. As to defendant‘s second assignment, we reject defendant‘s challenge to the imposition of attorney fees with the limited discussion in the footnote below.3 Third, consistent with our decision in State v. White, 296 Or App 445, 439 P3d 569, rev den, 365 Or 195 (2019) (J. White), decided after the trial court entered the supplemental judgment, we agree with defendant that the portion of the restitution award payable to CARES was legally erroneous. And, finally, for the reasons given in State v. Chorney-Phillips, 367 Or 355, 359, 478 P3d 504 (2020), we decline to exercise our discretion to review as plain error defendant‘s challenges to the court‘s nonunanimous jury instruction. Accordingly, we reverse the portion of the supplemental judgment ordering restitution to CARES, remand for resentencing, and otherwise affirm both judgments.
The relevant background facts were undisputed at trial. The charges in this case arose from two separate incidents at Portland area Dollar Tree stores. In September 2017, a caller contacted the Washington County Sheriff‘s Office and reported that she had been shopping at a Dollar Tree store the previous day when a man approached her two daughters, P and A, and exposed his penis. P and A, who were seven and four years old at the time of trial, had been browsing toys in a separate aisle from their mother when a man approached them. P told her mother that the man was standing about a foot away from the girls and was holding a shopping basket. As he stood there and smiled at the girls, the man moved the basket, exposed his unzippered pants and penis, and masturbated. During this incident, P felt as if the man was going to touch her, but he did not actually touch either girl.
P and A sensed that the man was doing something bad and ran to find their mother. As P pointed out the man to her mother, the man paid and quickly left the store. The mother and P told the investigators that the man was white with brown hair, had a beard, and was tall and overweight.
The second incident occurred in October 2017 at a different Dollar Tree store. In that incident, the mother called 9-1-1 from the store and reported that a man had approached her daughters, C and J, who were seven and six at the time of the incident, and touched both of their buttocks. Like the victims in the September incident, C and J had been browsing in an aisle separate from their mother when the man approached them. The sisters later told the investigators that the man approached them from behind, rubbed their buttocks, and laughed. He then stood in front of the girls with his penis exposed and masturbated. Later, when explaining why they were frightened and went to tell their mom, C explained that the man had touched her “private area” and J explained that “he touched [her] there and [she] didn‘t want to be touched there.”
When the girls found their mother in the store and explained what had happened, they pointed out the man and said, “Mommy, that‘s that guy. That‘s the guy.” The girls’ mother then took a picture of the man before he left the store. As in the September incident, the man was white, over six feet tall,
A grand jury charged defendant by indictment with two counts of first-degree sexual abuse,
Defendant was subsequently tried by a jury. At trial, defendant agreed that those “crimes did occur,” but argued that someone other than defendant had committed the crimes in both incidents. Defendant argued that, in relation to the photograph of him at the Dollar Tree during the October incident, he had been in the “wrong place and at the wrong time.”
When instructing the jury, the trial court first defined various terms that appeared in the relevant statutes.4 The court defined “sexual and intimate parts as a matter of law“:
“You are instructed that male and female genitals are sexual parts as a matter of law. You are instructed that female breasts are intimate parts as a matter of law.”
The court then explained the “intimacy test,” as relevant to the touching of C‘s and J‘s buttocks:
“A body part is intimate if the person touched regarded it as intimate and either the defendant knew that the person touched regarded it as intimate, or any reasonable person would know the part is intimate.
“In order to find that a body part is intimate, you must find beyond a reasonable doubt that [C] (Count 1), [J] (Count 2)[,] regarded the part touched as intimate, and either:
“(1) The defendant knew that [C] (Count 1), [J] (Count 2)[,] regarded the part as intimate; or
“(2) Any reasonable person would know the part touched is intimate.”
The trial court then identified, in relevant part, the elements of each of the substantive crimes with which defendant was charged. For first-degree sexual abuse, the court instructed:
“Oregon law provides that a person commits the crime of sexual abuse in the first degree if the person did unlawfully and knowingly subject[] another person to sexual contact and the other person is less than 14 years of age.
“In this case, to establish the crime of sexual abuse in the first degree, the state must prove beyond a reasonable doubt the following elements:
“(1) The act occurred on or about October 11, 2017;
“(2) [Defendant] unlawfully and knowingly subjected [C] (Count 1), [J] (Count 2), to sexual contact; to wit her buttocks; and
“(3) [C] (Count 1), [J] (Count 2)[,] was less than 14 years of age.”
(Emphasis added.)
The court also included the then-standard nonunanimous jury instruction and a typical reminder that the jurors should “[b]ase [his or her] verdict on the evidence and these instructions” and that “[t]he lawyers’ statements and arguments are not evidence.” Beyond raising minor grammatical issues, defendant did not object to those instructions.
The trial court did not include a definition of “sexual contact” as an element of the first-degree sexual abuse charges. The state, however, in its closing, read a full definition of “sexual contact” to the jury, defining the term as: “any touching of the sexual or intimate parts for the purpose of arousing your own sexual desire or someone else‘s.” In the
The jury unanimously found defendant guilty of all eight counts.
On appeal, among other arguments listed above, in his first assignment of error, defendant asserts for the first time that the trial court erred by failing to give an instruction stating the statutory definition of “sexual contact.” In response, the state agrees that the court erred in failing to instruct the jury on the definition of “sexual contact,” but argues that the error was harmless in light of the particular nature of this record. For the reasons that follow, we agree with the state.
In charging the jury, the trial court must state to them all matters of law necessary for the jury‘s information in giving their verdict.
With that standard in mind, preliminarily, we agree with defendant and the state that the trial court‘s failure to instruct the jury as to the definition of “sexual contact” was plain error. See ORAP 5.45(1); Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991) (court can exercise discretion to review an unpreserved error of law apparent on the record). However, we do not exercise our discretion to correct the error because the error was harmless. See, e.g., State v. Kerne, 289 Or App 345, 349-52, 410 P3d 369 (2017), rev den, 363 Or 119 (2018) (trial court plainly erred by failing to instruct the jury as to the requisite culpable mental state with respect to the element of forcible compulsion but declining to exercise discretion to correct because the error was harmless); State v. Ross, 271 Or App 1, 10-12, 349 P3d 620, rev den, 357 Or 743 (2015) (same).
In determining whether that error harmed defendant, our main inquiry is “whether the jury‘s guilty verdict on one or more of the charges could have been based on the theory of criminal responsibility contained in the erroneous instruction.” State v. Lopez-Minjarez, 350 Or 576, 585, 260 P3d 439 (2011). To do so, we evaluate the erroneous instruction in light of the jury instructions as a whole. State v. Beagley, 257 Or App 220, 226-27, 305 P3d 147 (2013). When evaluating the erroneous instruction, we look not only to the other instructions given, but to the contentions of the parties at trial as well. State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020); see also State v. Bistrika, 261 Or App 710, 728, 322 P3d 583, rev den, 356 Or 397 (2014), cert den, 577 US 828 (2015) (same). Where the trial court fails to elaborate on the meaning of an element of the charged crime, we have held that the arguments of the state at trial combined with the instructions as a whole, particularly the resulting “instructional vacuum,” can operate together to permit the jury to reach a legally erroneous conclusion. Bistrika, 261 Or App at 729-30.
Here, the charge of first-degree sexual abuse, as set out in the trial court‘s instructions, required the state to prove three things: (1) the specific date on which the abuse occurred; (2) that the victims were less than 14 years old; and (3) that defendant subjected the victims to “sexual contact.”
First, examining the given instructions as a whole, the trial court defined “sexual or intimate part” and the “intimacy test” in its instructions as a precursor to explaining the elements of all relevant crimes. Based on that test, the jury would likely have understood that it needed to determine whether
Second, however, the court did not instruct the jury that “sexual contact” also means that the contact with the intimate part was “for the purpose of arousing or gratifying the sexual desire of either party.”
Our remaining inquiry thereby reduces to whether the instructions as a whole, combined with the arguments presented by the parties at trial, could have permitted the jury to reach the legally erroneous conclusion that defendant subjected the victims to “sexual contact” without doing so for the “purpose of arousing or gratifying the sexual desire of either party.”6
Considering the evidence at trial, which defendant did not dispute, the state presented a photograph of defendant leaving the Dollar Tree shortly after a man had touched C and J on the buttocks. Prior to the mother taking the photograph of defendant, the victims had pointed to defendant and identified him to their mother as the man who had touched them. Directly after the man touched the victims, both testified that he stood in front of them and masturbated, which is evidence that the jury could find is highly persuasive on the point that the touching was for the purpose of “arousing or gratifying” a person‘s “sexual desire.”
At trial, defendant conceded that the charged crimes had occurred. In closing arguments, defense counsel argued that
“the [s]tate is right in several ways. One of the ways the [s]tate is right is these crimes did occur.
“There‘s no doubt that somebody came up to these children at the Dollar Tree, exposed themselves and, in the case of the Farmington Dollar Tree, touched these young girls.”
(Emphasis added.) Defendant did not dispute that someone touched the victims’ buttocks. Nor did defendant dispute that the same person had his penis exposed and was masturbating when, or immediately after, the touching occurred. Defendant‘s entire argument at trial boiled down to the state having charged “the wrong person” and that defendant was “the wrong man.” Based on that argument, then, defendant did not present a legal theory where the definition of “sexual contact” would have provided legal authority to support defendant‘s theory of innocence. See Payne, 366 Or at 610-11 (examining whether the defendant‘s legal theory at trial affected the practical value of a missing instruction).
The state‘s arguments also did not unduly guide the jury toward a verdict based on a legally erroneous theory. Here, unlike in Bistrika, where the state exploited the instructional vacuum of a missing element with arguments that permitted the jury to reach a legally erroneous verdict, the state did not suggest in its arguments that the jury could find defendant guilty of sexual abuse without finding “sexual contact.” Instead, the state read the entire definition of “sexual contact” to the jury, under the impression that the court had already done so.7
In his third assignment of error, defendant challenges the $1,171.13 portion of the restitution award payable to CARES. The state concedes that, under J. White, the trial court erred in awarding restitution to CARES and that we should reverse and remand for resentencing. We agree and accept the state‘s concession; accordingly, we reverse the restitution award payable to CARES and remand for resentencing. See J. White, 296 Or App at 450-52 (concluding that CARES was neither a victim nor suffered economic damages for purposes of crime victim restitution).
The state further acknowledges that, despite the fact that defendant did not object to nor assign error to the restitution payable to CICA and the child victims’ insurer, under State v. Moreno-Hernandez, 365 Or 175, 442 P3d 1092 (2019), and State v. White, 299 Or App 165, 449 P3d 924 (2019) (T. White), the trial court also erred in awarding restitution to those entities based on the victims’ medical expenses. See State v. Allida, 300 Or App 819, 820, 455 P3d 1042 (2019) (holding that trial court erred by ordering restitution to CICA and insurer for costs of CARES evaluation for minor victim); T. White, 299 Or App at 168 (explaining under similar circumstances that a child‘s insurance company is not a qualifying victim because unemancipated minor did not suffer economic damages under
In sum, we conclude that the trial court‘s instructional error was harmless, and we reject defendant‘s challenge to the imposition of attorney fees and the nonunanimous jury instruction. We conclude, however, that the trial court erred in awarding restitution to CARES, and we reverse that portion of the supplemental judgment and remand for resentencing. Otherwise, we affirm both judgments.
Portion of supplemental judgment awarding restitution reversed; remanded for resentencing; otherwise affirmed.