STATE OF OREGON, Plаintiff-Respondent, v. LEE ROY STOWELL, Defendant-Appellant.
Multnomah County Circuit Court 16CR40152; A165177
Oregon Court of Appeals
May 6, 2020
466 P3d 1009 | 304 Or App 1
Bronson D. James, Judge.
Argued and submitted December 19, 2018
Defendant was convicted of first-degree burglary,
Reversed and remanded.
Erica Herb, 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.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
ARMSTRONG,
Defendant, who was convicted after jury trial of first-degree burglary,
We summarize the evidence in light of both parties’ theories of the case, and review for legal error. This case concerns a home-invasion burglary. The facts are straightforward. The victims returned to their home and discovered numerous items missing from inside the home, including passports, blank checks, tax documents, electronics, women‘s apparel, and the key to a truck belonging to one of the victims. The truck itself that had been parked outside also was missing. Police investigated and determined that the entry point was a kitchen window that had been forced open after its screen had been cut. A criminalist was able to lift a fingerprint from the window that he later determined belonged to defendant.
Three days after the burglary, an officer executing a search warrant related to another matter discovered in a car belonging to Brandy Littlepage passports and blank checks stolen from the victims. The officer who sеarched Littlepage‘s car also found other items that he believed to be stolen, as well as cutting tools. The stolen truck was recovered, parked and locked, with the ignition intact, approximately a week after the burglary. Items in the truck included women‘s clothing that did not belong to the victims,
Defendant was questioned several weeks after the burglary. When defendant was shown some of the items found in Littlеpage‘s car, he denied knowledge of them. When asked if he knew Brandy Littlepage, defendant paused briefly, then said “Amanda.” When shown a picture of Littlepage, he indicated that he knew her as Amanda, that he had met her when he began using methamphetamine about a month earlier, and that he had purchased methamphetamine from her.
Defendant was charged with first-degree burglary in an indictment that alleged that he unlawfully and knowingly entered and remained in the victims’ residence with the intent to commit the crimes of theft and unlawful use of a vehicle. The indictment also alleged unlawful use of the stolen truck, and that defendant had knowingly committed theft of personal property valued at $1,000 or more.
In its opening argument, the state asserted that, because defendant‘s fingerprint was found on the victims’ window, and because a woman who was connected to him ended up with some of the items stolen from the victims, the jury should infer that defendant cоmmitted those offenses. Defense counsel countered, in opening, that multiple inferences could be drawn from the evidence that the state would present, leaving room for reasonable doubt that defendant had committed the offenses. Neither party specifically argued in opening about defendant‘s potential liability as an aider and abettor.
After the evidence described above was adduced by the state, the prosecutor presеnted in closing argument a theory that defendant had cut the screen, forced open the window, entered the victims’ home himself in order to steal their belongings, and drove away in the truck. The prosecutor also argued, in the alternative, that the jury could convict on an aid-and-abet theory by finding that defendant opened the window with the intent to facilitate theft, and Littlepage entered the home and took the items. In response, defense counsel acknowlеdged that defendant‘s fingerprint was on the window but argued that the state had presented no evidence that he had entered the house. Counsel noted that women‘s clothing had been taken from the home and more women‘s clothing had been found in the truck, and that Littlepage‘s vehicle contained not only items stolen during the burglary, but also cutting tools. Counsel argued that the state‘s evidence of defendant‘s fingerprint on the window was insufficient to support an inference that hе was assisting Littlepage or anyone else to enter the home with intent to steal, and that no evidence connected him to the stolen truck. Counsel observed that the theft of the truck derived from the burglary of the home, because the keys for the truck had been inside the home. She argued that the evidence connected Littlepage to the crimes but was not sufficient to establish that defendant had assisted Littlepage with intent to facilitate the crimes. She arguеd that the fact that he touched the window established at most that he had trespassed on the property. She suggested that the viable inference to draw from the state‘s evidence was that defendant unwittingly became involved with and opened the window for Littlepage, not knowing that Littlepage was a professional thief. The jury was given standard instructions on aid-and-abet liability but was not given an instruction that it needed to concur on whether defendant was liable as a рrincipal or as an aider and abettor. The jury returned a verdict of guilty on all three counts. The verdicts did not indicate whether the jury convicted defendant on an aid-and-abet theory of liability.
We first turn to the question whether the trial court plainly erred in failing to instruct the jury that its members needed to concur on whether defendant acted as a principal or as an aider and abettor to the charged offenses. In State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013), the court addressed the question whether the jurors nеeded to concur as to whether the defendant committed third-degree assault as a principal or as an aider and abettor. The court noted that, “[w]hen a statute specifies alternative means of committing a crime, the initial question is what, as a matter of legislative intent, are the elements of the crime that
The court then turned to whether the error in failing to give a jury concurrence instruction in that case was harmless. In Phillips, the defendant was convicted of third-degree assault, and there was evidence that the defendant either hit the victim himself or hit the victim‘s brother to keep him from aiding the victim. Although the state presented both direct and aid-and-abеt liability theories, the court noted that, under its case law concerning third-degree assault, a defendant can “cause” a victim‘s injury not only by directly inflicting it, but also when the defendant‘s conduct was “‘so extensively intertwined with [another person‘s] infliction of the [victim‘s] injury’ that defendant‘s conduct ‘caused’ the injury.” Id. at 606-07 (quoting State v. Pine, 336 Or 194, 206, 82 P3d 130 (2003) (brackets in Phillips)). The court noted that “the jury could find that, by hitting the brother to keep him from coming to the victim‘s aid, defendant ‘caused’ the victim‘s injury, as this court defined that term in Pine.” Id. at 607-08. Thus, the court concluded, eithеr version of the facts presented to the jury would have established direct liability rather than aid-and-abet liability. And, although the jury had been instructed on aiding and abetting and could have found the defendant guilty on that theory, “when the only act that could have constituted aiding and abetting the infliction of physical injury * * * also constituted ‘causing’ that injury * * *, we fail to see how any error in requiring jury concurrence on one theory or the other prejudiced defendant.” Id. at 608.
The failure to give a jury-concurrence instruction on aiding-and-abetting liability can constitute plain error, State v. Miranda, 290 Or App 741, 754, 417 P3d 480 (2018), and the state acknowledges that the trial court‘s failure to instruct on this matter constituted plain error. We agree. The state further argues, however, that we should not exercise our discretion to correct the error because it was harmless under the circumstances presented here, citing Phillips for the proposition that the error was harmless. The state asserts that, because it is unlikely that any juror convicted without finding that defendant opened the window, although some jurors may have concluded that he entered the house and personally committed the theft crimes while others concluded he aided and abetted another in committing those crimes, the jurors all necessarily found that defendant had the requisite intent and any jurors “who found him guilty as a principal necessarily found facts sufficient to convict him as an accomplice.” We disagree. The state‘s two theories of the case as presented to the jury were that (a) defendant acted alone in breaking into the victims’ residence and stealing items, or (b) defendant assisted Littlepage by opening the window to allow Littlepage to enter the victims’ residence to steal the items. Jurors who found defendant guilty as a principal would not necessarily have found facts to convict him as an aider and abettor, because the state‘s theоry of direct liability
Where evidence is presented of different acts by a defendant that could have constituted the charged offenses, jury concurrence is required in order to avoid an impermissible “mix and match” verdict where some jurors would find a defendant guilty based on one act and other jurors would find a defendant guilty based on another. See State v. Ashkins, 357 Or 642, 658-59, 357 P3d 490 (2015) (so noting); Mellerio v. Nooth, 279 Or App 419, 436, 379 P3d 560 (2016), rev den, 361 Or 803 (2017) (same).
Thus, we reject the state‘s argument that we should not exercise discretion to correct the error on the ground that it is harmless. See State v. Gaines, 275 Or App 736, 747-49, 365 P3d 1103 (2015) (rejecting plain-error harmlessness argument involving direct or accomplice liability for robbery). Based on the considerations set forth in Miranda, 290 Or App at 755 (lack of harmlеssness, gravity of the error, and little chance that counsel made a strategic choice in failing to request instruction), we exercise discretion to correct the error.
We turn to defendant‘s remaining assignment of error, because it is likely to arise on remand. Defendant contends that the trial court erred in failing to give his requested instruction concerning mens rea on the theft charge. Defendant requested the following instruction:
“(1) For theft in the first degree, in order to find the defendant guilty, yоu must find he was negligently unaware that the value of the property stolen was valued at $1,000 or more.
“(2) To find that he was negligently unaware that the value of the property stolen was more than $1,000, you must find he failed to be aware of a substantial and unjustifiable risk that the property stolen was valued at $1,000 or more. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
“(3) If the state has proven that the defendant intended, knew or was reckless as to the property being valued at $1,000 or more, then the state has also satisfied the requirement of proving the defendant was negligent.”
The trial court declined to give the instruction, concluding that it did not comport with our decision in State v. Jones, 223 Or App 611, 196 P3d 97 (2008), rev den, 345 Or 618 (2009).
On appeal, defendant acknowledges that we held in Jones that the state was not required “to prove a defendant‘s intent to steal property worth at least [$1,0003] in order to convict him of first-degree theft.” Id. at 621. He contends, however, that Jones addressed only whether the mentаl state of “intentional” must be proven with respect to that element and did not foreclose the possibility that the state was required to prove the lesser mental state of criminal negligence with respect to the value of the stolen goods.4 In support of his argument, defendant cites State v. Simonov, 358 Or 531, 368 P3d 11 (2016), asserting that it stands for the broad proposition that, if a statute does not prescribe a culpable mental state for a given element of a crime, culpability “is established only if a person acts intentionаlly, knowingly, recklessly, or with criminal
As explained below, defendant is incorrect that Jones does not foreclose his argument and is incorrect that Simonov undermines our analysis in Jones. In Jones, the defendant, who had been convicted of first-degree theft, argued that the state had failed to adduce sufficient evidence that he knew the value of the items stolen. The state responded that it was not required to prove a culpable mental state with respect to the value of the property. 223 Or App at 616. In concluding that the state was correct, we first noted that
To the extent that defendant is suggesting in the present case that Jones did not foreclose the possibility that a lesser mental state than “intentional” might apply to the element of first-degrеe theft concerning the value of the property, we disagree. In Jones, we stated that “we do not understand defendant to assert that a ‘knowing’ mens rea applies to
Simonov did not undermine our conclusions in Jones. In Simonov, the court considered whether unauthorized use of a vehicle,
“If a statute defining an offense in the Criminal Code includes a single mental state ‘but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense.’ ORS 161.115(1) .“If, as with the UUV statute,
ORS 164.135(1)(a) , the statute does not prescribe a culpable mental state for all or some of the material elements of the offense, ‘culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.’ORS 161.115(2) . Those four enumerated states do not freely apply to any element; rather, they each apply only to particular types of elements.”
358 Or at 538-39 (citing State v. Crosby, 342 Or 419, 428-29, 154 P3d 97 (2007)). The court reiterated: “To identify which mental state applies when a statute does not prescribe a culpable mental state for material elements of the offense, it is necessary to determine the type or types of those elements.” Id. at 539 (emphasis added).
To be sure, in its broad-ranging discussion оf what types of elements require proof of which mental states, and in particular drawing distinctions between “conduct” and “circumstance” elements, the court in Simonov did not confine itself to crimes such as unauthorized use of a vehicle that are within the Criminal Code and prescribe no mental state and thus are analyzed under
“when an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element, and (unless different mental states are specified in the statute defining the offense), the minimum culpable mental state is knowledge. In contrast, when an element of a Criminal Code offense describes an accessory fact that accompanies the defendant‘s conduct, it is a circumstance element for which (again, unless different mental states are specified), the minimum culpable mental state is criminal negligence.”
Id. at 546 (emphases added). Thus, the court was describing the analysis for crimes within the Criminal Code that do not specify mental states and, thus, are governed by
Defendant‘s proposed analysis in the present case conflates the requirements of
The mental state prescribed in
In sum, the trial court did not err in refusing to give defendant‘s proposed jury instruction on mens rea. It did, however, plainly err in failing to give a jury concurrence instruction with respect to aid-and-abet liability, and we exercise our discretion to correct that error.
Reversed and remanded.