STATE OF OREGON, Plaintiff-Respondent, v. JESSE JEROME PHILLIPS, aka Jessey Jerome Phillips, Defendant-Appellant.
Multnomah County Circuit Court 18CR03448; A169250
Multnomah County Circuit Court
July 8, 2021
Argued and submitted August 5, 2020; petition for review denied November 24, 2021 (368 Or 788)
313 Or App 1; 493 P3d 548
Defendant appeals a judgment of conviction for fourth-degree assault constituting domestic violence,
Reversed and remanded.
Melvin Oden-Orr, Judge.
Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
ORTEGA, P. J.
Reversed and remanded.
ORTEGA,
Defendant appeals a judgment of conviction for fourth-degree assault constituting domestic violence,
Defendant raises two additional assignments of error. The first asserts that the trial court erred by excluding a defense witness‘s testimony based on a discovery violation. Given our disposition of defendant‘s challenges to the nonunanimous jury instruction and verdicts, we need not address that
We begin by discussing the jury instruction issue. We review the trial court‘s jury instructions for legal error. State v. Harper, 296 Or App 125, 126, 436 P3d 44 (2019). A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error allows the jury to reach a legally erroneous outcome. Id.
The facts relevant to the instruction are not disputed. Defendant and Largaespada were in a romantic relationship and share a daughter, M. At the time of the events at issue, the couple did not reside together, and Largaespada had exclusive custody of M, who was then two years old. On the day of the incident, defendant, Largaespada, M, and Largaespada‘s son were watching television at Largaespada‘s home. Defendant and Largaespada began quarrelling, and Largaespada left with her son to diffuse the situation. She returned home to find defendant and M gone. She tried calling defendant and, when he did not answer, called his sister-in-law and then the police. She then spotted defendant driving so she drove alongside him and told him to return their daughter immediately. Both defendant and Largaespada returned to the parking lot of Largaespada‘s apartment. When she went to retrieve M from the passenger side seat, defendant grabbed M and put her on his lap. Largaespada then went around to the driver side to retrieve M from his lap, but defendant resisted. Largaespada finally succeeded and, while M was in her arms, defendant spit in Largaespada‘s face. She reacted by grabbing his shirt collar and attempted to spit on him but could not develop enough saliva to do so. Defendant hit Largaespada in the face with a closed fist. Defendant then left and Largaespada reported the incident to the police, and defendant was charged with fourth-degree assault constituting domestic violence,
At trial, the court granted defendant‘s request to include a self-defense instruction based on the evidence that, after defendant spit on Largaespada, she grabbed his shirt, and then he hit her. The court explained that its “assumption is that if there was a swing, that is the self-defense in response to the grabbing of the shirt.” In response to that ruling, the state requested Uniform Criminal Jury Instruction (UCrJI) 1110, the “initial aggressor” instruction.2 Defendant objected, asserting that the record lacked evidence to support giving that instruction. He argued that spitting was not an act of aggression for purposes of the initial aggressor instruction. He relied on State v. Doris, 51 Or 136, 94 P 44 (1908), for the proposition that merely offensive words are not sufficient to deprive someone of the right to self-defense, and then likened spitting to offensive words. The state responded that harassment is aimed at “offensive physical contact” and that spitting in the face constitutes offensive physical contact and was the initial act of aggression. The court agreed with the state and granted its request for the instruction.
In challenging the initial aggressor instruction on appeal, defendant argues that spitting does not qualify as an act of aggression for purposes of the instruction because it is not a threat or use of physical force. He argues that an aggressor must employ “violence” by threatening or striking another person and that, because spitting is not an act of aggression, there was no evidence to support the giving of the instruction. The state maintains
A person may use physical force in self-defense against “what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.”
“Notwithstanding
ORS 161.209 (Use of physical force in defense of a person), a person is not justified in using physical force upon another person if:“*****
“(2) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force[.]”
UCrJI 1110, the initial aggressor instruction, parrots
The trial court must give a party‘s requested jury instruction if there is evidence to support it and it correctly states the law. Sufficient evidence to support giving an instruction exists when, viewing the record, “it would be rational for a factfinder” to find in support of the party‘s theory. State v. Wolf, 288 Or App 613, 616-17, 406 P3d 1105 (2017). One form of instructional error is when a court gives an instruction that correctly states the law but “there is no evidence in the record to support giving the instruction.” Montara Owners Assn. v. LaNoue Development, LLC, 357 Or 333, 348, 353 P3d 563 (2015). Defendant alleges that type of error here, arguing that spitting at Largaespada could not have made him an “initial aggressor” under
To evaluate whether defendant could have been an initial aggressor under
Defendant argues that Oregon‘s self-defense statutory scheme is adapted from Michigan and New York statutes on the same subject and notes that New York has interpreted the initial aggressor limitation to require the use or threatened use of physical force. Commentary § 24; see
We disagree. When interpreting Oregon statutes, the question is what the Oregon legislature that enacted that statute intended. As noted above, the initial aggressor section, although modeled on the wording in the Michigan and New York statutes, was a codification of Oregon case law. As such, we look to our case law and not that of other states to determine the intent of the legislature in enacting that statute. Commentary § 24 at 24 (providing that the section is “basically a codification of Oregon case law doctrines“).
We agree that “provocation by mere words, if unaccompanied by any overt act of hostility” will not cause a person to become an initial aggressor for
Defendant also contends that the trial court erred when it instructed the jury that it could reach a nonunanimous verdict and when it accepted nonunanimous verdicts for Counts 1 and 2. The state partially concedes defendant‘s contentions and asserts that only Count 1, the felony fourth-degree assault conviction, should be reversed. In the state‘s view, defendant‘s conviction for Count 2, harassment, should not be reversed because it is a Class B misdemeanor and the Sixth Amendment right to a jury trial does not apply to such offenses.
We accept the state‘s concession and reverse Count 1, in light of Ramos. We also conclude that Count 2 must be reversed for the reasons set forth in State v. Heine, 310 Or App 14, 21, 484 P3d 391 (2021) (concluding that “due process requires jury unanimity to convict a criminal defendant when the defendant is tried by a jury, regardless of the nature of the offense for which the defendant is on trial“).
Reversed and remanded.