State v. Theriault

                                        243

 Argued and submitted May 31; judgment of conviction for assault in the fourth
degree constituting domestic violence reversed and remanded, otherwise affirmed
                                October 23, 2019


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   SEAN PATRICK THERIAULT,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       17CR03181; A165703
                                   

    Defendant appeals a judgment of conviction for fourth-degree assault constituting domestic violence. ORS 163.160; ORS 135.230. Defendant assigns error to
the trial court’s denial of his midtrial motion to require the state to elect which of
his acts it was relying on to establish the elements of that crime, and the court’s
refusal to give a jury concurrence instruction. Held: Because the state charged
defendant with one count of fourth-degree assault but presented evidence at trial
of multiple separate acts by defendant that could constitute that crime, the trial
court erred by failing to instruct the jury that the requisite number of jurors
must agree on which act constituted the crime in order to find defendant guilty.
The court’s error was not harmless because, considering the evidence and record
as a whole, jurors could have based their verdicts on different occurrences.
    Judgment of conviction for assault in the fourth degree constituting domestic
violence reversed and remanded; otherwise affirmed.




    Jerry B. Hodson, Judge.
   Eric Johansen, 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.
   Greg Rios, 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.
244                                      State v. Theriault

  SHORR, J.
   Judgment of conviction for assault in the fourth degree
constituting domestic violence reversed and remanded; otherwise affirmed.
Cite as 

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        SHORR, J.
         Defendant appeals from a judgment of conviction
for fourth-degree assault constituting domestic violence.
ORS 163.160; ORS 135.230. On appeal, defendant assigns
error to both the trial court’s denial of defendant’s motion—
made at trial—to require the state to elect which of defendant’s acts it was relying on to establish the elements of that
crime, and the trial court’s refusal to give a “Boots” jury concurrence instruction. See State v. Boots, 

,

 (1989), cert den, 

 (1993) (explaining the importance of jury concurrence on the material
elements of a crime). We conclude that, because the state
charged defendant with one count of fourth-degree assault
but presented evidence at trial of multiple separate acts by
defendant that could constitute that crime, the trial court
erred in denying defendant’s requested jury concurrence
instruction. Accordingly, we reverse and remand.
         The state charged defendant with one count of
strangulation constituting domestic violence, ORS 163.187,
and one count of fourth-degree assault constituting domestic violence, ORS 163.160; ORS 135.230. The operative
amended information broadly stated the elements of both
crimes and stated that defendant committed those crimes
on or about January 17, 2017. The amended information did
not further allege the specific occurrences of those alleged
crimes.
         “In determining whether a concurrence instruction was required, we must consider all pertinent evidence
admitted at trial.” State v. Slaviak, 

,

 (2019). The facts underlying the assault charge
occurred during a period of one to two hours. The state put
on evidence that, during that time, defendant committed
several acts that resulted in injuries to defendant’s former
girlfriend, E.
          The following facts are taken from E’s testimony
at trial. E and defendant ended their relationship in early
January, but E continued to stay with defendant at various
friends’ houses. E and defendant slept at a friend’s apartment
the night of January 16. The following day, after defendant’s
friends had left the apartment, E and defendant started
246                                        State v. Theriault

to argue. Defendant took E’s phone and held it out of her
reach. Defendant then “proceeded to push [E] down onto the
ground.” While on the ground or soon after she was pushed,
E took defendant’s wallet and threatened to throw the wallet
over the apartment balcony unless defendant returned her
phone. In response, defendant “grabbed [E] by the throat”
and choked her “with one hand.” E threw the wallet over
the balcony, and defendant released E. Defendant left the
apartment to find his wallet.
         While defendant was outside locating his wallet,
E locked the apartment door. When defendant returned, E
let defendant back inside, still hoping that he would return
her phone. As E opened the door, defendant “pushed his way
into the door and pushed [E], and [she] fell on the floor.” E
recounted falling onto a baby’s “bouncer chair” and hitting
her “neck right on the side of it.”
          After E fell, she and defendant continued arguing,
and E resumed her attempts to retrieve her phone. E testified that defendant blocked the door and refused to let E
leave the apartment. At some point during the argument,
E sat near the balcony door to smoke a cigarette. When E
finished smoking, defendant pulled her “on top of him” by
her neck. Defendant was lying on his back with “his arm
around [her] neck … strangling [her]” and holding her
“[i]n a chokehold.”
         When defendant let go of E, she was able to take her
phone from defendant’s back pocket. E ran out the front door
of the apartment and used her phone to call a friend. While
E spoke to her friend on the phone, defendant followed her
outside and ripped the phone from E’s hand, cutting her
nose with his fingernail.
         Defendant returned to the apartment and E followed. When inside, E sat on the couch, while she and defendant continued to argue. At that point, a resident of the
apartment, Booth, came home briefly, and E and defendant
stopped arguing. Booth “was doing something in the kitchen,”
and he asked E what was going on. E responded that defendant had “just been throwing [her] around [the] apartment
for the last hour.” Booth “didn’t really say anything” and left
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the apartment. Defendant and E resumed arguing, and E
was still seated on the couch when defendant approached
the couch and held E down by the wrists. As defendant held
her down, E “knock[ed] his glasses off his face” and “bent
them in half.” Defendant “got mad, really mad, and the
next thing [E knew] he was punching [her] in the face and
mouth.” E testified that defendant hit E with his fist on the
mouth once, and twice on her head, resulting in a cut lip,
swelling, and bruising to her face, head, and forehead.
         Now holding E by the forearms, defendant told E
to find his glasses, and then released his grip. E positioned
herself on the couch on her knees and looked behind the
couch. Defendant “grabbed [her] off the couch and started
choking [her]” for the third time. Again, defendant released
E, who ran outside through the front door, where the residents of the apartment were waiting. The police arrived
shortly thereafter.
         Describing her injuries from that day, E testified
that she “had head contusions, [her] neck was killing [her],”
and “[her] entire body hurt.” She attributed significant neck
pain to hitting her neck on the baby furniture. When the
prosecutor showed E photographs of her injuries, E noted
bruising on her face and forehead, a cut on her lip, bruising on her ribcage, and redness on her neck. A bruise on
her elbow came from “smacking [her] arm against the wall
when [defendant] was choking [her] at one point,” which E
estimated was after defendant first took her phone. Other
bruises on her arms and wrists were caused by defendant
“grabbing [E’s] wrists and holding [her] arms at certain
points.” When asked how long the bruising on her body
lasted, E replied “about a week and a half.”
         A medical report from E’s hospital visit that evening was admitted into evidence. Medical staff wrote that E
was punched and elbowed in the head and face. The report
contained several descriptions of injuries, including bruising to her face, head, and elbow, as well as “excoriations” to
her neck.1
    1
      The judge later instructed the jury that the term “excoriation” is defined as
“one, the act of abrading or wearing off the skin, chafing and excoriation of the
skin; two, a raw, irritated lesion.”
248                                        State v. Theriault

          The responding police officer, Hunzeker, also testified. During his testimony, Hunzeker recounted defendant’s
description of the incident. Defendant told Hunzeker that
both he and E were “pushing and grabbing one another,”
and that “they both fell into the wall, and … that’s where
she hit her face.” According to defendant, E later climbed on
defendant’s back, so defendant “hip-tossed” E onto the couch.
At that point defendant “got on top of her on the couch,”
and “she grabbed his glasses and threw them behind the
couch.” As they were “struggling on the couch,” defendant
“accidentally hit [E] in the face with [his] hand.” Defendant
also told Hunzeker that, when E tried to get away from
him, defendant “grabbed her by the arms” and “might have
caused her pain because he was so upset.” Hunzeker testified that he noticed blood on defendant’s knuckles but could
not identify the source. When Hunzeker later spoke to E,
she told Hunzeker that defendant “punched her two times in
the head and face” and put her in a headlock twice. During
that conversation, E complained of lip, nose, and head pain.
Hunzeker noticed redness and bruising on her head and a
cut on her lip. After additional interviews with two other
witnesses, Hunzeker’s impression of the incident was that it
was not a “one hundred percent fight.” In his view, “a fight
happened, there were some arguments,” then “one [person]
came in and it stopped a little bit. He left and it went on a
little bit,” then “the two [apartment residents] came in and
[the fight] stopped.”
          After the state’s case-in-chief, defendant moved the
trial court to require the state to elect which of the alleged
acts and injuries the state would rely on as the basis for
the assault charge, to ensure the requisite number of
jurors agreed on the particular act constituting the crime.
Defendant also requested that the court instruct the jury
that the requisite number of jurors must agree on which act
constituted the crime in order to find defendant guilty of
assault. The court denied both motions. The jury convicted
defendant of assault but acquitted defendant of the strangulation charge.
          Defendant now appeals, assigning error to the trial
court’s denial of defendant’s motion to require the state
to elect and its failure to give defendant’s requested jury
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instruction. With respect to both assignments of error,
defendant argues that the state charged defendant with
one count of fourth-degree assault but presented evidence
at trial that defendant committed several acts that could
constitute that crime. Accordingly, defendant asserts that
either the state was required to elect which act formed the
basis for the assault charge or defendant was entitled to an
instruction requiring the jury to concur as to that act. In
response, the state contends that jury concurrence was not
required in this case because defendant engaged in a single,
ongoing course of conduct constituting assault, rather than
multiple separate occurrences of the crime.
          A trial court faced with meritorious motions for
the state’s election and a jury concurrence instruction must
grant one or the other. See State v. Ashkins, 

, 

 (2015) (when the state charges a single
crime, but the evidence is sufficient for the jury to find that
there were multiple, separate occurrences of that crime,
“the state either must elect which occurrence constituted the
charged crime or, alternatively, the defendant is entitled to
an instruction that ten or more jurors must concur on which
occurrence constituted that crime” (emphases added)); State
v. Teagues, 

, 

 (2016) (when
the state charges one count of a crime but the evidence at
trial substantiates multiple separate occurrences of that
crime, “the trial court must either require the state to elect
the occurrence on which it will proceed or instruct the jury
that the requisite number of jurors must agree on one of
the multiple occurrences” (emphases added)). In prior cases
where the defendant assigned error to the trial court’s
denial of both these motions, we have focused our analysis
on the denial of the requested jury concurrence instruction.
See Teagues, 

 (“Because the trial court
declined to require an election, it subsequently erred when
it failed to instruct the jurors that they had to agree on the
occurrence that constituted the assault.”).
          We follow that approach here, and address only defendant’s second assignment of error, the trial court’s denial
of defendant’s requested jury concurrence instruction.2
    2
      Additionally, we note that, under State v. Payne (A163092), requiring
the state to elect the basis for the crime in closing argument is an inadequate
250                                                      State v. Theriault

Whether a trial court is required to give a particular jury
instruction “is a question of law, which we review for legal
error, viewing the evidence in support of the instruction in
the light most favorable to [the party seeking the instruction].” 

.
         “The right to jury concurrence arises from Article I,
section 11, of the Oregon Constitution.” State v. Payne
(A163092), 

, 

 (2019). Under
Article I, section 11, “to return a verdict of guilty, the requisite number of jurors must ‘agree that the state has proved
each legislatively defined element of a crime.’ ” Mellerio v.
Nooth, 

, 

 (2016), rev den,

 (2017) (quoting State v. Pipkin, 

,

 (2013)). There are two situations when special
measures may be necessary to ensure jury concurrence.
“One situation occurs when a statute defines one crime but
specifies alternative ways in which that crime can be committed.” Pipkin, 

. The other situation occurs
when the state charges a defendant with a single violation of
a crime, “but the evidence permits the jury to find multiple,
separate occurrences of that crime.” 

. In the second situation, “the jury must concur as to which occurrence
constitutes the offense.” Teagues, 

. In such
cases, “a trial court has three primary tools at its disposal
to ensure a jury bases its verdict on a discrete factual situation: a jury instruction, a statement of issues, or a verdict
form.” Payne, 

.

        This case presents the second situation. The evidence admitted at trial substantiated multiple acts that could
constitute the crime of fourth-degree assault. Two recent
cases, Teagues and Slaviak, are exemplary. In Teagues,
the defendant was charged with one count of strangulation and one count of fourth-degree assault, but the state

measure to ensure jury concurrence. 

, 

 (2019)
(“Because an Ashkins election exists to ensure jury concurrence, mere argument
by the parties is insufficient to ensure that the jury only relied on certain evidence in reaching its verdict. To ensure the jury limits its consideration in the
manner contemplated by the motion for election, the trial court needs to charge
the jury in some manner.”). We need not address that in our analysis, however,
because we conclude that the trial court erred in denying defendant’s requested
jury concurrence instruction, and we reverse on that basis.
Cite as 

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presented evidence of two separate occurrences of assault.

. The victim’s roommate was the
state’s primary witness. He testified that he was awakened
by sounds of the defendant and the victim arguing, and that
shortly thereafter he heard a loud thud at the front door.
The roommate heard more arguing but went back to sleep.
Later that night, he was awakened again by the victim, who
told the roommate that the defendant had choked her. The
roommate observed that the victim’s acrylic nails were broken, there was redness on the victim’s neck, and she had a
scrape on her knee. 

. According to the state, the
defendant had committed assault either by pushing the victim and causing her to scrape her knee outside the front door
of their house or by choking her inside their house later that
night. Because the state’s theories “were based on evidence
of two different actions, which occurred at different times
and in different locations and resulted in different injuries,”
the two occurrences were “ ‘temporally, spatially, and substantively distinct,’ ” such that “they gave rise to different
factual questions for the jury to resolve in order to determine whether the state had proven the elements of assault.”

 at 191 (quoting Mellerio, 

).
         In Slaviak, we again concluded that a jury concurrence instruction was required. 

. In that
case, the defendant was charged with two counts of firstdegree sexual abuse. One count alleged that the defendant
had unlawfully touched the victim’s genital area, while the
other alleged that the defendant had unlawfully touched the
victim’s breast. At trial, the victim testified that the defendant groped her in her bedroom, and then, after she pushed
him away, the defendant followed the victim to the kitchen,
where he groped her again. 

. During both incidents, the defendant touched the victim’s genital area and
breast. Therefore, the evidence admitted at trial would have
allowed the jury to determine that the defendant had committed each count of sexual abuse in either the kitchen or
the bedroom. Those two instances “were separated temporally and spatially” and presented as distinct occurrences,
such that “different jurors could have voted to convict on
each count based on different factual findings.” 

.
252                                         State v. Theriault

         Here, defendant was charged with one count of
fourth-degree assault in violation of ORS 163.160(1)(a),
which provides, in part, that “[a] person commits the crime
of assault in the fourth degree if the person … [i]ntentionally, knowingly or recklessly causes physical injury to
another.” That offense has three elements: “(1) a culpable
mental state, (2) causation, and (3) physical injury.” Teagues,

. The state may establish the “physical
injury” element by proving either “impairment of physical
condition or substantial pain.” ORS 161.015(7).
         At trial, E testified to various acts by defendant that
caused her some form of injury. Several of those acts were
“temporally, spatially, and substantively distinct.” Teagues,

. That is, they occurred at different times,
in different spaces, and were the cause of different injuries.
We do not decide here whether all three of those factors
must exist for a series of acts to constitute multiple, separate
occurrences of a crime, but all three exist in the present case.
         According to E, defendant punched her, strangled
her, grabbed her by the wrists and arms, and pushed her
into furniture. Those episodes of strangulation, the punches,
and the pushing were separated by several temporal breaks.
At least two of those breaks involved defendant or E leaving
the apartment, and, during another, E and defendant were
interrupted by a third party. And, as we understand E’s testimony, it appears that there were several stretches of time,
over one to two hours, when defendant and E were arguing, but not engaged in any physical encounter. As our cases
demonstrate, to be “temporally distinct,” multiple criminal
occurrences need not be separated by lengthy periods of
time nor by a complete cessation of the interaction between
the defendant and the victim. For example, in Slaviak, the
incidents in the kitchen and bedroom were separated only
by the time required to walk between those rooms, and the
defendant pursued the victim throughout. 

. Similarly, in Teagues, the victim and the defendant
argued with one another between the incidents of assault.

.
         The occurrences of assault here were also “substantively distinct.” Defendant’s acts were the cause of a variety
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of different injuries, including bruising and swelling to E’s
face and mouth, pain and excoriations to her neck, a bruised
elbow, and bruising on her wrists and arms. As in Teagues,
these injuries are not properly characterized as “a single
injury or a cluster of injuries,” but are distinct with respect
to form and causation. Id. at 193.

         Finally, defendant caused one injury here—the cut
on E’s nose—outside of the apartment and caused the other
injuries inside, in various parts of the living room. Again,
we note that both Teagues and Slaviak indicate that no significant spatial difference is required to conclude that separate criminal occurrences are “spatially distinct.” Thus,
although several of the underlying acts occurred in substantially the same location, that factor exists here as well.

         Accordingly, the occurrences were sufficiently distinct to generate “different factual questions for the jury to
resolve in order to determine whether the state had proven
the elements of assault.” Id. at 191. That is, to determine
whether defendant was guilty of assault for punching E,
the jury would have to determine whether defendant had in
fact punched her, whether that action caused the cut on her
lip, the bruising, the swelling to her face, or some combination of those injuries, and whether that constituted physical
impairment or substantial pain. Those same factual questions would arise should the jury consider separate incidents of choking, pushing, and grabbing of E’s wrists and
arms. Because “different jurors could have voted to convict
on each count based on different factual findings,” a jury
concurrence instruction was required. Slaviak, 

.

         In support of its argument that defendant was
engaged in a single course of conduct, the state relies on
State v. White, 

, 

 (1992), and
State v. Greeley, 

, 

 (2008). Both
are distinguishable from the present case. In White, the
defendant was charged with menacing after brandishing a
flashlight and then a gun at his neighbor. 

.
The defendant argued that jury concurrence was required
because either the defendant’s act involving the gun or his
254                                        State v. Theriault

act involving the flashlight could have constituted menacing.
We held that jury concurrence was not required, explaining
that, because intent to place another person in fear is the
“gravamen” of menacing, the state is not required to prove
a single act to support a conviction for menacing. Rather, a
defendant’s entire course of conduct may be evidence of that
defendant’s intent to instill fear in the victim. 

. In Greeley, the defendant was convicted of reckless driving. We explained that the defendant “could have
committed several acts that, alternatively, constituted evidence of a single element—recklessness—in an episode of
driving that lasted no more than four minutes.” 

. In each of those cases, the state relied on evidence
of the defendants’ separate acts as means of establishing a
single element of the crime.

        Here, evidence of the acts underlying the assault
charge could not properly constitute alternative means
of establishing a single element of the crime. As we have
explained, the factual occurrence underlying the assault
charge implicates factual questions relating to each element: defendant’s mental state, the corresponding injury,
and defendant’s causation of that injury.

         Lastly, we conclude that the trial court’s error was
not harmless. In criminal cases, a verdict may be affirmed,
despite error, if there is “little likelihood that the error
affected the verdict.” Ashkins, 

. In determining
whether a trial court’s erroneous denial of requested jury
instructions is harmless, “the court considers the instructions as a whole and in the context of the evidence and
record at trial, including the parties’ theories of the case
with respect to the various charges and defenses at issue.”

 A court’s erroneous failure to give a jury concurrence
instruction is not harmless when “jurors could have based
their verdicts on different occurrences.” Teagues, 

.

         The state asserts that the trial court’s error was
harmless because the state focused on a single underlying
occurrence—the punches—during its closing argument
to the jury, thereby electing one theory of the assault. We
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disagree for two reasons. First, we have recently expressed
doubt that a state’s voluntary election during closing argument is, on its own, an effective safeguard against jury
nonconcurrence. See Payne, 

 (“Because
an Ashkins election exists to ensure jury concurrence,
mere argument by the parties is insufficient to ensure
that the jury only relied on certain evidence in reaching its verdict.”). Second, even assuming that the state’s
closing argument could be a reason to consider the error
here harmless, because the state repeatedly referred to
E’s pain, bruising, and excoriations to her neck as “injuries” during the trial, we are not persuaded that the state’s
argument was sufficiently clear to constitute an election.
Although the state did narrow its focus in closing argument during a discussion of the “physical injury” element, it
recounted several of E’s other injuries at other points in its
argument.

         Considering the issue in the context of the evidence and record as a whole, jurors in this case “could have
based their verdicts on different occurrences.” Teagues, 

. In Ashkins, the defendant was entitled to a
concurrence instruction, but the trial court’s error in denying the instruction was harmless. 

. In that
case, the state’s evidence regarding the underlying factual
occurrences was almost exclusively undifferentiated and
unspecific victim testimony, whereas the defense was a
denial that any of the alleged crimes had occurred. Based on
the evidence and the parties’ theories, the Supreme Court
concluded that the evidence did not suggest the jury might
reach different conclusions as to different occurrences. That
is, because the evidence was not specific, and the defense did
not focus on refuting specific instances of the crime, the jury
necessarily found the victim credible as to all the alleged
occurrences. 

.

         In contrast, in Mellerio, we concluded that the erroneous denial of a jury instruction was not harmless because,
unlike in Ashkins, there were “circumstantial and evidentiary distinctions” between each of the factual occurrences at
issue. 

. There, the defendant was charged
with, among other things, two counts of coercion pertaining
256                                         State v. Theriault

to two different victims. At trial, the evidence substantiated
two instances of coercion for each count. According to the
only testifying victim, the defendant compelled the victims
to abstain from asking for help from the residents of a house
and, later, disclosing the defendant’s conduct to the police.

. As to the first instance, the residents of the house
testified that the victims did not appear concerned and that
they had opportunity to ask for help outside of the defendant’s
presence. As to the second, there was evidence that the nontestifying victim did contact the police. We concluded that
that evidence created instance-specific questions of credibility regarding the victim’s testimony. As a result, there was
more than a “mere possibility” that “individual jurors were
persuaded by [the victim’s] testimony as to one of the alleged
incidents but not the other, or vice-versa, yielding an impermissible ‘mix-and-match’ verdict.” 

.
         The present case is more analogous to Mellerio
than Ashkins in several respects. The defense here was
particularized, as opposed to a sweeping denial of the allegations like that in Ashkins. Defendant focused on creating
doubt with respect to specific incidents alleged by E, pointing out discrepancies between her testimony, the medical
report, and the police officer’s testimony. But defendant
also highlighted evidence that corroborated E’s account of
certain injuries, like the medical report’s inclusion of the
excoriations to the neck, hematomas on the forehead, bruising on the elbow, and the fall into the baby furniture that
caused pain in E’s neck. And, as in Mellerio, some jurors
could have been persuaded by E’s testimony as to one incident, but not others, yielding a “mix-and-match” verdict.
Both the medical report and Hunzeker’s testimony could,
at least potentially, support inferences that contradicted
portions of E’s testimony. Moreover, the jury acquitted
defendant of the strangulation charge. While some jurors
might have voted to acquit defendant of strangulation
because they questioned E’s testimony with respect to the
choking, others may have been persuaded by E, but decided
an instance of choking better supported a conviction for
assault. Accordingly, we conclude that the trial court’s erroneous denial of the jury concurrence instruction was not
harmless.
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        Judgment of conviction for assault in the fourth
degree constituting domestic violence reversed and remanded;
otherwise affirmed.