STATE OF OREGON, Plaintiff-Respondent, v. TANYA FAITH ROLFE, Defendant-Appellant.
16CR32503; A165455
Benton County Circuit Court
Argued and submitted March 26, 2019, reversed and remanded June 3, 2020
304 Or App 461; 468 P3d 503
At the start of defendant‘s jury trial for violating a stalking protective order (SPO),
Reversed and remanded.
Matthew J. Donohue, Judge.
Matthew Blythe, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Kirsten M. Naito, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
LAGESEN, P. J.
Reversed and remanded.
At the start of defendant‘s jury trial for the misdemeanor of violating a stalking protective order (SPO),
The relevant facts are procedural in nature. Defendant and B had an affair. B ended it after defendant told B‘s wife about the affair. He explained to defendant that he did not want any more contact with her. Defendant nevertheless continued to attempt to contact B and his 14-year-old daughter, L, by phone and through Facebook. Defendant gave L several phones over the course of six months, and, on several occasions, defendant and L spoke on the phone. In each instance that B discovered a phone from defendant in L‘s possession, he gave it to the Benton County Sheriff‘s Department.
On May 14, 2016, B awoke to discover that L was missing from her bedroom. L had run away and was found at defendant‘s house.
B filed for a temporary SPO, and defendant was served notice of the SPO on May 17, 2016. Two days later, B found another iPhone that defendant had given L and put it in his closet while he waited for the police to take it. While waiting, he “heard it buzzing or making some *** noise,” so he looked at it and saw a message requesting that the phone be returned to the owner, listing defendant‘s phone number as the contact number. Later that evening, another message showed up on the phone:
“Text email facebook me how delivery will occur This is an emergency loaner phone don‘t shoot it or harm device this is intended for emergency help [defendant‘s phone number.]”
B called the police, and defendant was charged by information with violating an SPO,
Defendant exercised her right to a jury trial. At trial, the state based its case on the second message. Defendant testified that she wrote the message, but that she sent it before service of notice of the SPO. She explained
“I would ask that you consider one more thing. If the defense argument is to hold water, that that text message was somehow sent once before—
“*****
“That would give us with the quandary what if one sets up a system where you can send a threatening email or a text or whatever to someone, let‘s say every 72 hours, I don‘t care how you do it, let‘s say you do it by sky writing, it doesn‘t matter, just every 72 hours a threatening message is going to be sent. When you‘re served with a temporary stalking protective order you must cease all communication. Cease all communication, so if you‘ve already set those in motion, and this is just if you believe that theory, you must cease all those in motion.”
Defendant did not object to the state‘s new theory of criminal liability—that she violated
Defendant appeals, arguing that
In Oregon, six-person jury verdicts must be unanimous to support a conviction.1 See State v. Sagdal, 258 Or App 890, 896, 311 P3d 941 (2013), aff‘d, 356 Or 639, 343 P3d 226 (2015); State v. Greeley, 220 Or App 19, 23 n 3, 184 P3d 1191 (2008). That unanimity requirement means that a jury must agree on more than just a defendant‘s guilt. It also must agree on “just what a defendant did“:
“The unanimity rule *** 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. Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected
unless this prerequisite of jury consensus as to the defendant‘s course of action is also required.”
State v. Boots, 308 Or 371, 380-81, 780 P2d 725 (1989) (quoting United States v. Gipson, 553 F2d 453, 457-58 (5th Cir 1977)); see also State v. Lotches, 331 Or 455, 468-69, 17 P3d 1045 (2000) (“[T]he unanimity rule requires that the jury agree as to ‘just what defendant did’ to bring himself within the purview of the particular subsection of the aggravated murder statute under which he was charged.“).
To ensure that this requirement is met in cases in which the evidence gives rise to the risk that jurors could have differing views on “just what a defendant did” to commit a charged offense, the jury must be given a concurrence instruction, that is, “a jury must be instructed concerning the necessity of agreement on all material elements of a charge in order to convict.” Lotches, 331 Or at 472. Whether a trial court errs by failing to give a jury concurrence instruction is a question of law. State v. Teagues, 281 Or App 182, 187-88, 383 P3d 320 (2016) (citing State v. Ashkins, 357 Or 642, 648, 357 P3d 490 (2015)).
Oregon distinguishes two types of situations requiring a concurrence instruction: (1) “when a statute defines one crime but specifies alternative ways in which that crime can be committed” and (2) “when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime.” State v. Pipkin, 354 Or 513, 516-17, 316 P3d 255 (2013). In the second situation—the situation that defendant argues this case presents—where a defendant is charged with a single occurrence of an offense but the evidence would allow the jury to find “any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator,” either the state must elect what occurrence it is relying on or the trial court must deliver a concurrence instruction. Ashkins, 357 Or at 659.
We begin with the foundational case on this issue, Boots. There, the defendant was tried for aggravated murder on two different factual theories: One was that the murder was committed in the course of a robbery, and the other was that it was committed to conceal the identity of the robbers. Boots, 308 Or at 373-74. The defendant was convicted after the trial court instructed the jury that “[a]ny combination of twelve jurors agreeing that one [factual theory] or the other or both occurs is sufficient to establish this offense.” Id. at 375. On review, the Supreme Court began by noting that the factual findings required for conviction under either alternative were different—a defendant could murder someone during a robbery without attempting to conceal his identity or murder someone to conceal the identity of a robber without participating in the robbery. Id. The court summarized the problem: “In short, the instruction relieves the jury from seriously confronting the question whether they agree that any factual requirement of aggravated murder has been proved beyond a reasonable doubt, so long as each juror is willing to pick one theory or another.” Id.
The state argued that jurors should not have to “unanimously choose beyond a reasonable doubt which of several alternate ways the defendant actually participated, even though all agree that he was, in fact, a participant.” Id. at 378-79. The court rejected that argument, concluding that concurrence is required as to what factually a defendant did to commit a charged offense:
“[T]he question [is not] whether a jury could ‘choose’ between different ways in which a defendant participated in the crime. It is not a matter of ‘choosing’ but of fact-finding. If more than one way is charged and proved to the jury‘s unanimous satisfaction, the jury need not ‘choose’ and there is no difficulty. The problem arises precisely when none of the alternative ways has been proved to the satisfaction of all jurors, when one or more jurors is in doubt about each of the alternatives charged. We are not speaking here of factual details, such as whether a gun was a revolver or a pistol and whether it was held in the right or the left hand. We deal with facts that the law (or the indictment) has made essential to a crime.”
Id. at 379. In other words, the unanimous jury requirement imposes a “prerequisite of jury consensus as to the defendant‘s course of action.” Id. at 380.
Boots makes it plain that a concurrence instruction was required in this case, in view of the state‘s factually distinct act and omission theories. To prove that defendant committed the crime with which she was charged, the state was required to prove (among other things) that defendant engaged in conduct violating the SPO after she was served with the SPO and that she had the requisite mental state at the time that she engaged in that conduct, that is, that defendant, “subsequent to the service of the order, has engaged intentionally, knowingly or recklessly in conduct prohibited by the order.”
failing to instruct the jury that it needed to concur on the material facts showing that, “subsequent to the service of the order,” defendant engaged “in conduct prohibited by the order,”
Contesting this conclusion, the state argues that, “[i]n the cases that defendant cites as presenting multiple occurrences of the charged crime, the need for a concurrence instruction arose because the record would have allowed multiple convictions of the charged crime, but the state had charged only a single count.” Indeed, many cases describe the scenario requiring a concurrence instruction as “when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime.” Pipkin, 354 Or at 517; see also Ashkins, 357 Or at 649 (using “multiple, separate occurrences” wording); Teagues, 281 Or App at 189 (same). And, to be sure, the need for concurrence instructions often arises in that context. But, under Boots, we do not understand that to be the only context in which a concurrence instruction is required, and we do not understand our Supreme Court to have strayed from the fundamental Boots principle: “[A] jury must be instructed on ‘the necessity of agreement on all material elements of a charge in order to convict,‘”
As to whether we should exercise our discretion to correct the trial court‘s plain error in failing to deliver a concurrence instruction, defendant relies on State v. Sippel, 288 Or App 391, 406 P3d 207 (2017). As in this case, the state in Sippel introduced a second factual theory of liability for the first time in its rebuttal closing argument, the trial court failed to issue a jury concurrence instruction, and the defendant was found guilty. Id. at 392. On appeal, the defendant argued that not issuing a concurrence instruction created the risk that the defendant “would be convicted without the requisite number of [the jury‘s] members agreeing on what conduct actually constituted the offense.” Id. at 393. The state conceded the point, and we agreed, concluding that the trial court‘s “failure to give the necessary concurrence instruction—even in the absence of a request by defendant for such an instruction—was plainly erroneous.” Id. at 394. We exercised our discretion to correct the error, explaining that “there was no plausible strategic reason for the failure to request the instruction and this court was not persuaded that a sufficient number of jurors concurred on a single theory of liability.” Id. (citing State v. Bowen, 280 Or App 514, 535-36, 380 P3d 1054 (2016)).
For reasons similar to those articulated in Sippel and also in Slaviak, 296 Or App at 815, we conclude that we should exercise our discretion to correct the plain Boots error here. In particular, we do so because the record evidences a genuine risk that the jury did not unanimously agree as to what, factually, defendant did to commit the charged offense, in violation of her right to unanimity on that point.
Reversed and remanded.