State v. Rodriguez-Castillo

¶1concurring.

¶2The analysis of the issue of whether the trial court erred by not instructing the jury that 10 or more of its members must agree on the same set of underlying facts as to Count 7 of the indictment is informed by three Oregon Supreme Court cases: State v. Lotches, 331 Or 455, 17 P3d 1045 (2000), cert den, 534 US 833 (2001); State v. Hale, 335 Or 612, 75 P3d 448 (2003), cert den, 541 US 942 (2004); and State v. Sparks, 336 Or 298, 83 P3d 304, cert den, 543 US 893 (2004). Unlike the lead opinion and Chief Judge Brewer’s dissent, I do not believe that the holding in any of those cases is controlling in this case. I therefore write separately to explain my position.

¶3The seminal case governing the above issue in this case is State v. Boots, 308 Or 371, 780 P2d 725 (1989). In that case, the defendant was charged with aggravated murder based on two separate subsections of the aggravated murder statute. The trial court affirmatively instructed the jury that the law did not require it to agree unanimously on either theory so long as all jurors agreed that the state had proved some combination of one or both of the alleged aggravating factors. The Supreme Court held that the instruction given by the court was erroneous because it relieved the jury from confronting the question of whether elements of either theory had been proved beyond a reasonable doubt. 308 Or at 375.

¶4Lotches, Hale, and Sparks, cases that followed Boots, all shared one common characteristic: the defendant in each case argued on appeal that the trial court should have *504instructed the jury that it had to agree unanimously on the same underlying crime to find the defendant guilty of aggravated murder as charged in a particular count and, because the defendant had not objected to the jury instructions in that regard in the trial court, the defendants asked the court to exercise its discretion to review the claimed error as error apparent on the face of the record.

¶5In Lotches, the state charged the defendant with three counts of the aggravated murder of a single victim, based on underlying alternative counts of attempted first-degree robbery, attempted second-degree kidnapping, and attempted murder. The trial court did not instruct the jury that it had to agree on the same set of facts in order to convict the defendant on a particular count. The Supreme Court held that, although the defendant had not raised the claim of error at trial, the legal point was obvious because Bootshad established that a jury must be instructed that it must agree on all material elements of a charge in order to convict. 331 Or at 472. The court concluded therefore that there existed error apparent on the face of the record. Id.

¶6In Hale, the state charged the defendant with six counts of aggravated murder based on the underlying crime of sexual abuse and four counts of aggravated murder based on the underlying crime of murder. The trial court did not instruct the jury that it had to agree on the same facts to convict the defendant on a particular count. Based on its reasoning in Lotches, the court concluded that error apparent on the face of the record had occurred because, in part, error was obvious, i.e., not reasonably in dispute. 335 Or at 627.

¶7A different result, however, occurred in Sparks, where the Supreme Court affirmed the defendant’s multiple convictions for aggravated murder and his death sentence. There, as in Lotches and in Hale, the trial court failed to instruct the jury that it had to agree on the same set of facts in order to convict the defendant on a particular count. On review, the defendant also argued that the trial court erred in failing to ensure jury unanimity on the charges of aggravated murder that were based on the underlying crimes of sexual abuse, kidnapping, and attempted rape. Specifically, the defendant pointed to evidence presented by the state that *505each crime could have been committed either in the defendant’s bedroom where he first took the victim or near the railroad embankment where the victim’s body was found, or in both places. 336 Or at 312-13.

¶8Although the Sparks court held that the first and third elements of the plain error doctrine were satisfied, it concluded that the legal point raised by the defendant was not “obvious” or error apparent on the face of the record. The court reasoned that it was not “obvious” that “a jury’s failure to agree unanimously on the precise location where defendant may have perpetrated the underlying crimes against the single victim would violate the jury unanimity rule.” Id. at 317. The court explained:

“Nothing about the crimes charged in this case demonstrates that the precise location of the underlying crimes constitutes a material element of those crimes on which the jury must agree unanimously. In fact, the location of those crimes more logically constitutes a ‘factual detail’ that does not require jury unanimity. Boots, 308 Or at 379. The line between those facts that are essential to the crime and those that are merely factual details may not always be clear. However, defendant does not explain why the location of the underlying crimes constitutes a fact that the law makes essential to those crimes, as Bootsdiscussed, and we cannot agree, without more, that defendant’s legal proposition is ‘obvious,’ as this court applied that standard in Hale and Lotches.”

¶9Id.

¶10The facts in this case differ significantly from the facts in Boots, Lotches, Hale, and Sparks. The indictment in this case charged defendant with committing one count of unlawful sexual penetration in the first degree (Count 1), one count of unlawful sexual penetration in the second degree (Count 2), eight counts of sexual abuse in the first degree (Counts 3 to 10), and one count of indecency (Count 11). Ultimately, defendant was acquitted on all counts except Count 7.

¶11Before voir dire, the trial court read the indictment to the jury pool count by count. When the court came to Count 7 in the indictment, it told the prospective jurors:

*506“Count 7, same date, time, and place in question, but as an act of similar nature on occasion separate and distinct from the acts alleged in Counts 1 through 6 above, the defendant, on a date on or between December 1st, 2001 and August 31st, 2002 in Lincoln County, State of Oregon did unlawfully intentionally subject [the victim], a person under the age of 14, to sexual contact by touching her vagina, a sexual or intimate part of [the victim.]”

¶12(Emphasis added.) The court made similar statements regarding Counts 8, 9, and 10. Each time, he told the jury that those counts were “separate and distinct from the acts alleged” in Counts 1 to 6.

¶13After a jury was empaneled, the trial court gave the jury some precautionary instructions, including:

“Members of the jury, the law that applies to this case will be given to you in part in these precautionary instructions. After you have heard the evidence and the arguments of the attorneys, I will give you further instructions regarding the legal rules that you must follow in deciding this case.

“Your duty is to decide the facts from the evidence. You and you alone are the judge of the facts. You’ll hear the evidence, decide the facts, then apply those facts to the law that the Court will give you. That’s how you’ll reach your verdict. …

…

“The opening statements and the closing arguments of the lawyers are intended to help you understand the evidence, although their statements and arguments are not part of the evidence. …

«* Hi * ❖ *

“After the opening statements, the evidence will be presented. At the conclusion of the evidence, the lawyers will make their closing arguments. I’ll then instruct you as to the law that applies to this case, and you’ll begin your deliberations.”

¶14(Emphasis added.)

¶15At the end of the evidence in the case, the prosecutor made her initial closing argument. She told the jury, in part, that

*507“[t]he things that [the victim] told you concern two separate events. She told you — well, three. She told you about one time, after playing a Mexican card game, that the defendant fondled her in the hallway. That act does not constitute any of the charges.

“The scenarios that you’re concerned with in this case are the time that [the victim] told you the defendant’s wife went to Salem. That day she was touched, and that night she was touched, and those resulted in these charges down here in the bottom.

“[The victim] also told you about another time that she was on the couch watching television and the defendant fondled her, and those acts resulted in Counts 1 through 11,[1] and I’ve called that on here, ‘The night the defendant dragged [the victim] to the kitchen.’ Okay, because that’s what she told Detective Lane[.] He covered her mouth and dragged her to the kitchen.”

¶16Later in her closing argument, the prosecutor told the jury, “The second set of charges, Count 7 through 10, all deal with the day that the defendant’s wife went to Salem [.]”

¶17After the parties finished closing arguments, the trial court completed its instructions to the jury. The court instructed the jurors that it was their “sole responsibility to make all decisions about the facts of this case” and that, “[w]hen I tell you what the law is on a particular subject, … you must follow the Court’s instructions.” Initially, in its final instructions, it told the jury:

“This being a criminal case, ten or more jurors must agree upon your verdict. When you’ve arrived at a verdict, presiding juror will sign the appropriate verdict form. Then at least ten of you that concur in that verdict will also sign it. … There are 11 verdict forms and you need to sign and return each of them.”

¶18After instructing the jury as to certain legal definitions pertinent to the charges, the court then turned to the charges themselves. As to each count, it instructed as to each element in each count, distinguishing the counts from each other and *508telling the jury what the state was required to prove in order to prevail on that count.

¶19It is axiomatic that jurors are presumed to have followed the court’s instructions. See, e.g., Holger v. Irish, 316 Or 402, 420, 851 P2d 1122 (1993). When that presumption is applied to this case, it is apparent that no error occurred. Alternatively, even if error occurred, it is not error apparent on the face of the record. The record is clear that the jury was told that at least 10 of its number had to agree on each verdict form that was signed, that the court described the elements of each count and what the state was required to prove under those counts, and that the jury was informed by the court that Count 7 referred to an “act” on an “occasion separate and distinct from the acts alleged in Counts 1 through 6.” Unlike in Boots, Botches, and Hale, where the danger existed that the jury in each case did not agree on just what the defendant did to bring himself within the purview of the particular count with which he was charged, the jury was told in this case that Count 7 referred to “an act of similar nature on [an] occasion separate and distinct from the acts alleged in Counts 1 through 6.” If it is presumed, as it must be, that the jury followed the instructions given by the trial court, then it necessarily follows that, when it rendered a verdict of guilty on the separate verdict form provided by the court for Count 7, the required number of jurors agreed on what defendant did to bring himself within the purview of that charge.

¶20Nonetheless, according to the dissent, “[t]he jurors were not instructed that they had to agree as to which incident constituted which count.” 210 Or App at 520 (Brewer, C. J., dissenting). But the argument on the record before us presents a different issue from the issue that existed in Botches and Hale. Those cases are about the failure of a trial court to instruct sua sponte regarding the need for jury concurrence on a particular count where the state’s charges are based on alternative theories of aggravated murder. This case involves allegations of two separate incidents in 10 counts, the “kitchen” incident and the “day defendant’s wife went to Salem” incident. The danger addressed in Boots, Botches, and Hale was that the jury may have considered the evidence fungible without concurring on a particular theory. But that danger does not exist where, as in this case, the trial *509court identified Count 7 as referring to an incident on an “occasion separate and distinct from the acts alleged in Counts 1 through 6.” Rather, when understood correctly, what defendant complains about in this case is the lack of an instruction telling the jury that Counts 1 through 6 referred to the “kitchen” incident and that Count 7 referred to the “day defendant’s wife went to Salem” incident. But, if defendant thought that such an instruction was necessary because there was the potential for confusion as to which count applied to which incident, he could have asked for one. Because of the difference in issues between this case and Lotches and Hale, there was no sua sponte obligation on the part of the trial court to give a Boois-type instruction.

¶21Chief Judge Brewer’s dissent also asserts that “[t]his case presents substantially the same problem that existed in [State v.] Houston[, 147 Or App 285, 935 P2d 1242 (1997)].” 210 Or App at 520 (Brewer, C. J., dissenting). Butin Houston, the defendant requested that the state elect a specific date as a basis for its delivery of a controlled substance charge, a request that the trial court denied. That denial was followed by a request from the defendant that the court instruct the jury that “there had to be a single occasion when all of the elements establishing the crime simultaneously occurred together at the same time and at least ten of your number must agree upon that occasion.” 147 Or App at 288 (emphasis omitted). The trial court declined to give that instruction and, during the closing argument, the state argued to the jury that it had established “half a dozen incidents of delivery and that any of them would suffice to support a verdict of guilty.” Id.Under the circumstances, we concluded that the same problem existed that had existed in Bootsand therefore that the court had erred.

¶22This case is unlike Houston in several ways. Here, defendant made no motion to require the state to elect a specific event as the basis for its charges, probably because it was understood by everyone which counts applied to which incidents. Also, as pointed out above, defendant requested no instruction on the subject of which counts applied to which incidents. Finally, unlike in Houston, the prosecutor in this case specifically told the jury which counts applied to which incidents rather than contending that any incident would *510suffice to support a guilty verdict on the charge of delivery of a controlled substance.

¶23The significance of the requirement of preservation should not be overlooked, particularly where different instructions and different legal theories are involved. In Boots, the court affirmatively instructed the jury that the required number of jurors did not have to agree on the manner in which the crime of aggravated murder was committed. On appeal, this court held that the claim of error regarding the instruction was properly preserved in the trial court. State v. Boots, 94 Or App 713, 717 n 4, 767 P2d 450 (1989). Similarly, the defendant in Houston preserved his claim of error in the trial court by moving to require the state to elect and by requesting that the jury be expressly instructed that 10 of its number had to agree on a particular incident. Here, unlike in those cases, even if there were error, defendant did not preserve any claim of error in the trial court that the jury was confused about which incident applied to which count.

¶24Assuming, however, that there was error, defendant’s lack of preservation of this issue in the trial court requires an analysis under ORAP 5.45. Under that construct, the cases that are most closely analogous to this case are Botches and Hale. However, neither case involved the kinds of charges, instructions, and verdict forms that exist in this case, and therefore the plain error analysis in this case requires considerations that were not present in those cases. It suffices to say that I agree for the reasons expressed above and advanced by the lead opinion that any error in this case is reasonably in dispute and does not qualify as “obvious” or “plain error.”

¶25One point made in support of Chief Judge Brewer’s conclusion regarding “plain error” deserves further comment. Chief Judge Brewer focuses, in part, on the fact that the prosecutor explained to the jury during closing argument that Counts 1 to 6 concerned a different incident from Counts 7 to 10. Relying on a statement in Botches that the “prosecutor’s arguments were not a legally sufficient substitute for necessary jury instructions [,]” 331 Or at 469, Chief Judge Brewer posits that, as a result, the purported shortcomings in the *511trial court’s instructions cannot be remedied by the prosecutor’s explanation to the jury. 210 Or App at 524 (Brewer, C. J., dissenting).

¶26That conclusion, however, fails to consider the context within which the prosecutor’s statements took place in this case. In Lotches, the issue was whether the defendant committed murder in the course of robbery (Count I), kidnapping (Count II), or attempted murder (Count III). The aggravated murder instructions given by the trial court did not limit the jury’s consideration to a specified underlying felony, and they did not require jury unanimity concerning the choice given to the jury among the alternative underlying felonies. The effect of those omissions created the same danger that the affirmative instruction in Boots had created — the danger that a verdict could be returned without the required number of jurors agreeing on the same factual circumstances. Based on its decision in State v. Brown, 310 Or 347, 356, 800 P2d 259 (1990) (holding that the arguments of counsel in the aggravated murder of a witness case could not supplant the need for the jury to be instructed about the required causal link between the murder and the victim’s status as a witness), the Lotches court concluded that the prosecutor’s arguments were not a legally sufficient substitute for the necessary jury instructions. 331 Or at 469. It followed, in the court’s view, that the error in failing to give such instructions was “obvious” because

“[i]t has been clear in Oregon, at least since Boots, that a jury must be instructed concerning the necessity of agreement on all material elements of a charge in order to convict. The factual distinctions between the present case and Boots are not such that a court reasonably could doubt what its duties respecting jury instructions would be.”

¶27331 Or at 472 (emphasis added).

¶28The prosecutor’s arguments in this case, unlike in Lotches and in Brown, did not supplant jury instructions regarding the material elements of each count. Indeed, as recited above, the trial court expressly instructed the jury as to the material elements of each count, and the jury had been told previously by the trial court that Count 7 alleged “sexual *512contact by touching [the victim’s] vagina” on an “occasion separate and distinct” from the acts alleged in Counts 1 through 6. Because the trial court had already informed the jury of that difference in the allegations in the various counts, the prosecutor could properly argue to the jury how, in her view, the evidence produced by the state applied to each count. Because the prosecutor’s closing argument was made within the legal framework provided by the court’s instructions and because the jury was repeatedly instructed that it was to base its verdict on the facts that it found and the law as given to it by the court, it follows that the dissent’s reliance on Lotches and Brownis misplaced.

¶29Finally, I disagree with the lead opinion’s conclusion that Sparks is controlling in this case. Sparks involves circumstances where the location of the crime was not essential to determining whether the state had proved the material elements of the underlying crime as a predicate to proving the charge of aggravated murder. In that case, the defendant argued with respect to certain counts that the trial court erred in failing to ensure jury unanimity on the charges of aggravated murder based on the underlying crime of sexual abuse. Specifically, he contended that the jury should have been instructed that it had to unanimously agree as to whether the sexual abuse occurred in the defendant’s bedroom where he first brought the victim or the railroad embankment where the police found her body. However, in rejecting that argument, the Sparks court reasoned that the precise location of the sexual abuse was not material to any element of the crimes charged as Boots required and that “the location of those crimes more logically constitutes a ‘factual detail’ that does not require jury unanimity.” 336 Or at 317. The Boots court explained the distinction between “factual details” and facts essential to the elements of the crime charged in the following terms:

“If more than one way [of committing a crime] 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 *513whether a gun was a revolver or a pistol and whether it was held in the right or the left hand. We deal with the facts that the law (or the indictment) has made essential to the crime.”

¶30Boots, 308 Or at 379 (emphasis added).

¶31The test then under Boots concerns what facts the law or the indictment has made essential to the crime charged. In this case, the fact that the crime alleged in Count 7 concerned the day that defendant’s wife went to Salem is an essential detail to the material elements alleged in Count 7 because that evidence separates Count 7 from Counts 1 to 6 and the incidents that underlie their allegations. For that reason, that evidence became essential to the jury determination of guilt under Count 7 and implicated the need for at least 10 jurors to agree concerning that factual incident. Consequently, the lead opinion errs when it characterizes that evidence together with its accompanying details as mere “factual details” for which no jury concurrence was required.

¶32In summary, this case represents a different category of case than Botches, Hale, and Sparks. Botches and Hale are cases in which error for purposes of appeal was not preserved, but because of the similarity to Boots, the need of the trial court to give a jury unanimity instruction was apparent. Sparks represents a category of case that is distinguishable from the Boots line of cases because no unanimity of agreement is required for mere factual details that are not essential to the material elements of the crimes charged, i.e., no error occurred in not giving a jury unanimity instruction, whether requested or not. This case represents a third category of case — different from Boots, Botches, Hale, and Sparks — in that the trial court instructed and provided verdict forms in a manner that eliminated the danger that Boots addressed. But even if error occurred in this case under Boots, it is not “obvious error” under ORAP 5.45 because of the instructions and the verdict forms given by the court to the jury.

¶33As to the other issues in this case, I agree with the lead opinion’s reasoning.

¶34For the above reasons, I concur with the lead opinion’s result in this case but not with all of its reasoning.