Defendant appeals a judgment of conviction for attempted burglary in the first degree with a firearm and numerous other offenses. ORS 164.225; ORS 161.405; ORS 161.610. Defendant contends,
inter alia,
that, under
State v. Boots,
“We review the trial court’s jury instructions for errors of law. In determining whether instructional error requires reversal, we consider the jury instructions as a whole in assessing potential prejudice.”
State v. Rennells,
In 2008, defendant was separated from his wife. In August 2008, wife was living with her boyfriend in his Keizer apartment along with wife’s two young daughters, the younger of whom is also defendant’s daughter. On August 28, 2008, wife called defendant to express her anger at him regarding an incident in a public park earlier that day during which defendant had confronted the boyfriend about his relationship with wife. After that phone conversation, defendant drove to the Keizer apartment complex and parked his truck in front of wife and the boyfriend’s apartment. When she saw defendant arrive, wife went out of the apartment and angrily *4 confronted him in the parking lot. Wife told defendant that she hated him and did not want to be with him. Defendant then grabbed wife, but she freed herself, and eventually defendant turned and walked away. Shortly thereafter, however, defendant returned to his truck in front of the apartment.
While defendant and wife had been arguing in the parking lot, another tenant had alerted the apartment complex resident manager about the disturbance. The manager went to investigate and encountered wife, who was upset, near her apartment entrance and saw defendant standing at his truck with the door ajar. After determining that the situation was beyond her control, the manager told wife to take her children inside and dialed 9-1-1. Wife went into the apartment, and the manager and wife’s boyfriend remained outside while the manager spoke to the 9-1-1 operator. At that point, defendant pulled a riñe out of his truck cab and walked toward the manager and the boyfriend, who were both facing him. The manager pushed the boyfriend into his apartment and followed behind him. The manager then locked the external door, took wife and the two girls into the bathroom, and locked the bathroom door while the boyfriend remained in the living room and locked the windows.
Defendant approached the apartment door, kicked it, and yelled, “I am going to kill you.” Defendant also said that he was going to kill himself. Defendant attempted to load the rifle but failed and became frustrated. He then threw the rifle down on the ground near the apartment door and ran away. A police officer apprehended defendant as he was leaving the apartment complex.
The state charged defendant with, inter alia, attempted first-degree burglary with a firearm. 2 Count 1 of the indictment alleged, in part:
*5 “The defendant, on or about August 28, 2008, in Marion County, Oregon, did unlawfully and intentionally attempt to enter a dwelling * * * with the intent to commit the crime of Unlawful Use of a Weapon, Menacing, Assault and Murder therein”
(Emphasis added.) The case proceeded to trial before a jury, and the court instructed the jury on Count 1 as follows:
“Oregon law provides that a person commits the crime of attempted burglary in the first degree if the person intentionally attempts to enter unlawfully into a dwelling with the intent to commit a crime therein. In this particular case for count one, to establish the crime of attempted burglary in the first degree, the State must prove beyond a reasonable doubt each of the following five elements: First, that the act occurred in Marion County. Second, that the act occurred on or about August 28, 2008. Third, that [defendant] intentionally attempted to enter unlawfully in the premises described in the charge. Four, that the premises described in the charge is a dwelling. And five, that at the time of the attempt to enter unlawfully [defendant] had the intent to commit the crime of unlawful use of a weapon, menacing, assault, or murder therein.”
(Emphasis added.)
After the court dismissed the jury for deliberation, defendant, pursuant to ORCP 59 H, excepted to that jury instruction during the following colloquy:
“THE COURT: Okay. Any exceptions to the jury instructions?
“[DEFENSE COUNSEL]: Yes, Your Honor, just a couple. As I had indicated before, with regard to the attempted burglary in the first degree with a firearm, we would except to the — I guess the—
“THE COURT: The‘or’?
“[DEFENSE COUNSEL]: The ‘or,’ yeah.
«‡ ‡ ‡
“And we would have asked that the State at least elect one or that there be a requirement that ten or more agree *6 on what the crime is that [defendant] would have — alleged to have been committed. * * *
“THE COURT: I note your exception and hope that [the prosecutor is] correct. It’ll all be on his shoulders.
“[DEFENSE COUNSEL]: Well, and curiously, you know, I think I had mentioned — we talked about Boots[,308 Or 371 ,] as being one of the cases out there, and I think there was another one — [State v. Sparks,336 Or 298 ,83 P3d 304 (2004),] * * *.
“* * * I think I’ve said everything I need to say, Your Honor.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: And I understand — we talked about most of these in chambers and I think the Court — I hope none of it came as a surprise to you.
“THE COURT: I’ll note your exceptions.
“[DEFENSE COUNSEL]: Thank you.”
The jury ultimately convicted defendant of attempted first-degree burglary with a firearm and six other related counts. ORS 164.225; ORS 161.405; ORS 161.610. Defendant appeals from the ensuing judgment.
Defendant assigns error to the trial court’s failure to instruct the jury that it had to agree on which specific crime defendant intended to commit when defendant attempted to enter the apartment. The state responds that defendant’s Boots argument is unpreserved because (1) there is no adverse ruling to appeal, (2) there is no request for a jury concurrence instruction in the trial record, and (3) defendant failed to identify the alleged error to the trial court as required by ORCP 59 H. 3 Moreover, the state argues, the *7 trial court was not required to give the so-called “Boots instruction” because the specific crime that defendant intended to commit is not a material fact essential to the conviction for attempted burglary.
The state’s preservation argument fails because the above-recited colloquy shows that defendant squarely presented the issue to the trial court by way of a postnstructional exception, as required by ORCP 59 H and, thus, satisfied the procedural and prudential preservation requirements.
See Peeples v. Lampert,
The jury concurrence requirement derives from the Oregon Constitution, statute, and case law. Article I, section 11, of the Oregon Constitution provides, in part, “In all criminal prosecutions * * * in the circuit court ten members of the jury may render a verdict of guilty or not guilty.” In addition, ORS 136.450(1) requires that “the verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors.” In
Boots,
the Supreme Court held that the jury must agree on all of the material facts leading to a conviction.
The issue that this case presents is whether the specific crime that defendant intended to commit is a material fact upon which the jury must concur in order to convict defendant of attempted burglary. The state contends that the jury need only agree that defendant intended to commit
a
crime and that the
specific
crime that defendant intended to commit is not essential to the burglary conviction. Defendant remonstrates that, under
Boots,
the jury must agree on the specific crime that defendant attempted to commit when he attempted to enter the apartment. In particular, defendant invokes
State v. Sanders,
In
Sanders,
the defendant, who was charged with second-degree burglary, demurred to the indictment, which was phrased in the language of the predicate statute, ORS 164.215(1),
viz.,
that the defendant “did * * * unlawfully * * * enter a building * * * with the intent to commit a crime therein.”
On appeal, the Supreme Court reversed, holding that the trial court had erred in denying the demurrer. In so holding, the court emphasized,
inter alia,
that “[f]or many years the Oregon practice with burglary statutes of various
*9
forms has been to specify the particular crime intended at the time of the breaking and entering.”
Sanders,
That principle controls here. The test for “whether a
Boots
instruction is required is whether the law or the indictment has made the fact at issue ‘essential to the crime charged.’ ”
State v. Pauley,
We note, moreover, that this case does not involve a circumstance in which the indictment charged alternative crimes, each of which is a lesser-included or greater-included offense of the others. If that were the case, jury concurrence on (at least) the lesser-included offense would be necessarily implicit, even in the absence of a Boots instruction. Rather, here, the indictment charged four independently distinct offenses as alternative crimes that defendant allegedly intended to commit upon entry — presenting the potential that the jury could have convicted on any number of nonconcurrent permutations. Thus, without instructing the jurors on concurrence, and absent the state’s election, there is no way to ensure that 10 jurors agreed on which alleged crime *10 (or crimes) defendant intended to commit. That result violates the Boots jury concurrence requirement. Accordingly, we reverse and remand.
Conviction for attempted first-degree burglary reversed and remanded; remanded for resentencing; otherwise affirmed.
Notes
Defendant raises further assignments in his pro se brief. We reject them without further discussion.
As pertinent here, ORS 164.225(1) provides, in part, “A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling[.]”
ORS 164.215(1), in turn, provides, “Except as otherwise provided in ORS 164.255, a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.”
Finally, ORS 161.405(1) provides, “A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”
ORCP 59 H provides:
“H(l) A party may not obtain review on appeal of an asserted error by a trial court in submitting or refusing to submit a statement of issues to a jury pursuant to subsection C(2) of this rule or in giving or refusing to give an instruction to a jury unless the party who seeks to appeal identified the asserted error to the trial court and made a notation of exception immediately after the court instructed the jury.
*7 “H(2) A party shall state with particularity any point of exception to the trial judge. A party shall make a notation of exception either orally on the record or in a writing filed with the court.”
See also State v. Pauley,
To be sure, Sanders pertained to a completed second-degree burglary, while defendant here was charged with attempted burglary. Nevertheless, we discern no principled reason why Sanders’s rationale should not be equally applicable in this context, and the state has identified none. Indeed, respondent’s brief does not even mention, much less substantially address, Sanders.