State v. Nelson

                                        1

  Argued and submitted November 20, 2018; convictions on Counts 8, 11, 14,
     and 17 vacated and remanded, otherwise affirmed February 3, 2021


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       A. J. SCOTT NELSON,
                        Defendant-Appellant.
                      Lane County Circuit Court
                         201216841; A162860
                                   

    Taylor, Crabtree, and defendant had plans to rob the Siuslaw Bank in
Mapleton, but their car broke down. To get a working car, they kidnapped a man
they did not know and killed him. Then they dismembered his body and, the
next day, used his car to get to the bank to rob it. For that conduct, a jury found
defendant guilty of murder, aggravated murder, kidnapping, abuse of a corpse,
and multiple counts of first- and second-degree robbery. Defendant appeals. He
assigns error to, among other things, the trial court’s acceptance of nonunanimous guilty verdicts on Counts 8, 11, 14, and 17, and the court’s jury instruction
that Crabtree’s accomplice-witness testimony should be viewed with distrust.
Defendant argues that the accomplice-witness instruction should not be delivered for the purpose of assisting the state in casting doubt on accomplice testimony that is favorable to the defendant. Held: The trial court erred in accepting
the nonunanimous guilty verdicts and in issuing the accomplice-witness instruction. That instruction was in error because it was delivered for the purpose of
assisting the state to discredit accomplice testimony favorable to the defense.
See State v. Simson, 

, 110 & n 11, 

 (1989). However,
that instructional error was harmless because, when viewed in the context of the
whole record, there is little likelihood it affected the jury’s verdict.
     Convictions on Counts 8, 11, 14, and 17 vacated and remanded; otherwise
affirmed.



    Debra K. Vogt, Judge.
   Daniel J. Casey argued the cause for appellant. Also on
the briefs was Bryan Boender.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
2                                      State v. Nelson

    LAGESEN, P. J.
  Convictions on Counts 8, 11, 14, and 17 vacated and
remanded; otherwise affirmed.
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           LAGESEN, P. J.
        David Taylor, Mercedes Crabtree, and defendant
had plans to rob the Siuslaw Bank in Mapleton, but their
car broke down. To get a working car, they kidnapped a man
they did not know and killed him. Then they dismembered
his body and, the next day, used his car to get to the bank to
rob it.
          For that conduct, a jury found defendant guilty of
murder, aggravated murder, kidnapping, abuse of a corpse,
and multiple counts of first- and second-degree robbery.
Although the state sought the death penalty, the jury
rejected it. The jury also rejected the proposition that there
were mitigating circumstances sufficient to make defendant
eligible for release or parole. As a result, defendant was sentenced to life without possibility of parole.
          On appeal, defendant initially raised 10 assignments of error, some of which challenge the trial court’s ruling with respect to the guilt phase, some of which challenge
its rulings with respect to the penalty phase. Following the
Supreme Court’s decision in Ramos v. Louisiana, 

, 

, 

 (2020), defendant, with
this court’s permission, filed a supplemental brief in which
he contends that, (1) as to his nonhomicide convictions, the
court’s instruction to the jury that it could return nonunanimous verdicts is structural error that requires reversal of
all of those convictions; and (2) in all events, the court erred
in accepting the guilty verdicts on Counts 8, 11, 14, and 17,
because each of those verdicts was nonunanimous.1
         We conclude that, under Ramos and State v. Ulery,

, 

 (2020), defendant is entitled to
vacation of his convictions on Counts 8, 11, 14, and 17. We
otherwise decide that defendant’s claims of error do not
warrant relief on appeal, writing only to discuss his first
assignment of error, in which he contends that the trial
court erred when, on the state’s request over defendant’s
objection, the trial court instructed the jury that “Crabtree
   1
     Because Article I, section 11, of the Oregon Constitution required jury unanimity on defendant’s murder convictions, they are not affected by the decision in
Ramos.
4                                             State v. Nelson

is an accomplice witness” and “[t]he testimony of an accomplice witness should be viewed with distrust.” We conclude
that the court erred by delivering that instruction, but that
the error was harmless, and consequently reject defendant’s
challenges to the balance of his convictions.
         The Supreme Court’s decision in Taylor’s direct
appeal describes in greater detail the nature of defendant’s
“horrific crimes.” State v. Taylor, 

, 368-70 & n 2,

, cert den, ___ US ___, 

 (2019).
Although Taylor and defendant were tried separately, and
Crabtree pleaded guilty, the Supreme Court’s description
in Taylor of the facts of the crimes committed by the three
of them is borne out by the record in this case, so we do
not recount them again here, except as necessary to give
context.
         Crabtree was a key witness for both the state and
defendant; neither Taylor nor defendant testified, although
their recorded police interviews were admitted into evidence. At the state’s request, and over defendant’s objection,
the court delivered Uniform Criminal Jury Instructions
(UCrJI) 1054 and 1057, which, together, told the jury that
Crabtree was an accomplice witness and, further, that “[t]he
testimony of an accomplice witness should be viewed with
distrust.” Defendant objected below, arguing that the jury
should not be instructed that it could view Crabtree’s testimony with distrust, that the state should not be entitled to
use the instruction with a witness that it had called itself,
and that “that is an instruction that should be requested by
a party who—who is being opposed by the accomplice witness.” In response, the state contended that it was entitled to
the instruction because of its own need to impeach Crabtree:
“As to [UCrJI] 1054, we are asking for this. Ms. Crabtree was
called. We were in a position, of course, to have to impeach
her. We think that and [UCrJI] 1057 are appropriate under
the circumstances.” After the court ruled that it would deliver
the instruction, defendant reiterated his earlier objection,
arguing that the instruction “shouldn’t be given in this case”
to address “a State’s witness that they called.”
         On appeal, defendant assigns as error the delivery
of those instructions. Although defendant does not dispute
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that Crabtree qualified as an accomplice for purposes of the
instruction, he argues that the purpose of the instruction
is to counteract the likelihood that an accomplice witness
will tend to inculpate a defendant to obtain some benefit
for themselves and, for that reason, should not be delivered
over a defendant’s objection when some or all of the testimony is favorable to defendant. In support of that argument,
defendant relies on the Supreme Court’s decisions in State v.
Oatney, 

, 

 (2003), cert den, 

 (2004), and State v. Simson, 

, 110 n 10,

 (1989), and our decision in State v. Rambert, 

, 

 (2007), all of which recognized,
to one degree or another, that the concerns addressed by the
instruction generally are not present when an accomplice
witness testifies favorably to the defense.
         The state, in response, contends that defendant did
not preserve the argument he presses on appeal but, instead,
“took only an absolutist position that such instructions cannot be given over the defendant’s objection when the witness
was called by the state.” The state, also relying on Oatney,
argues further that the trial court correctly overruled defendant’s objection to the instruction because Crabtree’s testimony was both inculpatory and exculpatory. In the state’s
view, Oatney stands for the proposition that a trial court
permissibly instructs the jury that an accomplice witness’s
testimony should be viewed with distrust so long as some
part of the testimony inculpates the defendant, even where,
as here, the defendant does not seek the assistance of the
instruction. The state also contends that Oatney disposes
of defendant’s contention that a trial court errs as a matter of law by instructing the jury that an accomplice’s testimony should be viewed with distrust whenever a defendant
objects to the instruction. That is because, in that case, the
defendant had objected to the instruction, but the Supreme
Court nonetheless rejected the defendant’s claim that it was
error to deliver the instruction.
        As an initial matter, we reject the state’s contention that defendant’s assignment of error is not preserved.
Although defendant did not present his arguments below
with the greatest of clarity, when those arguments are
viewed in the context of the state’s argument as to why
6                                              State v. Nelson

the instruction was warranted, we understand defendant’s
arguments to have raised and preserved the general point
he presses on appeal: whether it is proper to deliver the
instruction for the purpose of allowing the state to impeach
the testimony of a witness it has called that is favorable to
the defense. The state’s position below was that it was entitled to impeach Crabtree based on her status as an accomplice; defendant’s position was that it was not. The issue is
preserved.
         The instruction at issue here—that an accomplice’s
testimony ought to be viewed with distrust—is a member
of a set of jury instructions known as “statutory instructions.” See State v. Payne, 

, 

(2020). That is because it is among eight jury instructions
contained in a statute, ORS 10.095, that directs trial courts
to deliver the instructions within the set “on all proper occasions.” Pertinent to this case, ORS 10.095(4) requires that,
“on all proper occasions,” the jury is “to be instructed” that
“the testimony of an accomplice ought to be viewed with
distrust.”
         Whether an occasion is a “proper” one for the delivery of one of the statutory instructions presents a question
of law, so we review the trial court’s decision for legal error.
State v. Langley, 

, 

 (2000); see
Payne, 

 (discussing the appropriate standard of review applicable to trial court decision whether to
deliver a statutory instruction). “In general, it is proper to
give a statutory instruction under ORS 10.095 when the evidence provides a basis for it.” Rambert, 

.
        The parties have correctly identified the three cases
that inform the analysis of when is a “proper” occasion to
instruct the jury that the testimony of an accomplice should
be viewed with distrust: the Supreme Court’s decisions in
Simson and Oatney, and our decision in Rambert.
         In Simson, the defendant objected to the trial court
instructing the jury that accomplice witness testimony
should be viewed with distrust where the testimony of his
accomplices, who had been called as witnesses by the state,
did not implicate him. 

. On appeal, we reversed.
The Supreme Court affirmed our decision, adopting the
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reasoning of a special concurrence by Presiding Judge
Buttler. Id. at 108. Noting that “the concurrence would hold
that the accomplice instructions are designed to protect
defendants, not the state,” the court elaborated that the purpose of the instructions addressing accomplice testimony,
including the instruction at issue here, is to address the
concern that “criminals may falsely accuse others of their
misdeeds in order to minimize their own culpability. This
concern is not present when the alleged accomplices are not,
in fact, trying to shift blame.” Id. at 108-10. Under those circumstances, the court reasoned, the delivery of the instruction can amount to a judicial assist to the state:
       “Some courts have focused on the inherent unreliability
   of anyone involved in the crime at issue as the basis for
   distrusting accomplice testimony. However, participation
   in the crime is of special concern only insofar as it gives a
   witness a motive to shift blame to someone else. In cases in
   which the opposite occurs, i.e., a party already facing long
   imprisonment gives testimony exculpating a defendant on
   trial, the witness’s unreliability may be developed sufficiently by cross-examination for bias. The state does not
   need instructional help other than the standard instruction on bias.”

Id. at 110 n 11 (emphasis in original).
         In Oatney, the defendant likewise objected to the
trial court’s instructions regarding accomplice witness testimony, including the instruction that an accomplice witness’s
testimony should be viewed with distrust. 

.
Defendant contended that the instructions, as a whole,
effectively directed a verdict for the state and improperly
communicated to the jury that a crime had, in fact, been
committed, depriving him of his right to a jury trial. 

. In support of those contentions, the defendant relied
on Simson. 

. And in rejecting those contentions,
the court observed that the facts of the defendant’s case differed from those in Simson in that, in the defendant’s case,
the testimony at issue implicated the defendant whereas, in
Simson, it did not. 

.
        Finally, in Rambert, we considered whether the trial
court erred in instructing the jury that accomplice witness
8                                             State v. Nelson

testimony should be viewed with distrust where it was the
defendant who had called the accomplice—his girlfriend—
to testify that he had acted in self-defense in committing
assault with a firearm. 

. The trial
court did so at the state’s request and over the defendant’s
objection. 

. After reviewing Simson and Oatney, we
observed that “Simson and Oatney are consistent with the
understanding that the proper occasion for giving a statutory instruction under ORS 10.095(4) is when the thrust
of the accomplice testimony implicates the defendant in
criminal conduct.” 

 (emphasis in original). We then
concluded that “[t]he circumstances of this case are more
like what occurred in Simson” because “defendant did not
seek to cast doubt on [the accomplice’s] testimony; rather, he
offered her testimony to support his defense that he acted in
self-defense.” 

 Under those circumstances, we reasoned,
“the accomplice-witness instruction could have served only
to cast doubt on the veracity of a witness whose testimony
was mostly exculpatory in nature.” 

.

          Although the rule of law emanating from those three
cases is somewhat foggy, as we read Simson and Rambert,
the “proper occasion” for instructing the jury that an accomplice’s testimony should be viewed with distrust is when the
thrust of the testimony implicates the defendant in a way
that allows for an inference of blame-shifting, and when the
instruction is requested for the purpose of addressing that
blame-shifting inference.

        We acknowledge that Oatney can be read to suggest
that the instruction is proper any time that an accomplice
gives inculpatory testimony. That reading, however, would
put the decision at odds with Simson’s clear statement that
the concerns addressed by the instruction are not present
when the testimony of accomplice witnesses does not shift
blame. Simson, 

. Also, Oatney does not squarely
address the issue presented in Simson, Rambert, and the
present case: the propriety of delivering the ORS 10.095(4)
instruction for the purpose of assisting the state in casting
doubt on accomplice testimony that is favorable to the defendant. Oatney, as noted, addressed whether delivering the set
of accomplice instructions functionally directed a verdict for
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the state on the issue of whether a crime had been committed. On the point at issue in this case, and not truly at
issue in Oatney, we understand Simson, and its approval of
Presiding Judge Buttler’s special concurrence, to hold that
it is not proper to deliver the instruction for the purpose of
assisting the state to discredit accomplice testimony favorable to the defense. Simson, 

, 110 & n 11.
         Here, the state’s articulated purpose for requesting the instruction, and the evidentiary basis that the state
pointed to, was its need to impeach Crabtree’s testimony
that it viewed as favorable to defendant. Under Simson and
Rambert, that was not a “proper” basis for giving the statutory instruction, and the trial court erred by delivering the
instruction at the state’s request for the purpose of assisting
it in impeaching testimony beneficial to defendant.
         That error, nevertheless, was harmless. Instructional error is harmless if there is little likelihood that it
affected the jury’s verdict. Payne, 

. In assessing whether instructional error is harmless, we “consider[ ]
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.” State v. Ashkins, 

, 

 (2015).
          Here, although the state requested the instruction
for the purpose of impeaching Crabtree, it never argued to
the jury that it should discredit any of her testimony because
of her accomplice status (perhaps because she was the state’s
primary witness). Instead, to the extent needed to, the state
attempted to discredit Crabtree’s testimony based on her
“intimate” and long-term friendship with him. Additionally,
unlike the case in Simson and Rambert, Crabtree’s testimony was highly inculpatory. To be sure, she painted Taylor
as a leader and defendant as a follower but did not in any
real sense exculpate defendant. (In fact, if defendant had
requested the instruction for the purpose of undercutting
Crabtree’s inculpatory testimony, it may well have been
error not to deliver it. Although Crabtree’s description of
events tended to align with defendant’s recorded admissions, it would not be a stretch to infer that she was shifting blame.) Finally, the jury was presented with no clear
10                                            State v. Nelson

theory as to why some, but not all, of Crabtree’s testimony
should be distrusted based on her status as an accomplice.
As noted, the only coherent theory presented to the jury
as to why her testimony favorable to defendant should be
viewed with skepticism was that she loved him. Under those
circumstances, it is likely that the jury based its assessment
of Crabtree’s credibility on the nature of her relationship to
defendant, and unlikely that it did so based on her accomplice status. Accordingly, although the trial court erred in
delivering the instruction, the error is not a reversible one.
         We turn to defendant’s arguments regarding jury
unanimity. Defendant contends that, in light of Ramos, the
trial court plainly erred in accepting nonunanimous verdicts on Counts 8, 11, 14, and 17. The state agrees that the
court plainly erred, but contends that the error is harmless
because each of those guilty verdicts merged with a different guilty verdict for entry of a single conviction based
on at least one unanimous verdict. Nevertheless, as the
state acknowledges, that harmlessness argument conflicts
somewhat with State v. Link, 

, 

(2009), which held that a defendant is entitled to have a final
judgment accurately reflect only the valid adjudications of
guilt. We agree with that acknowledgement and otherwise
exercise our discretion to correct this error that represents
a violation of defendant’s federal constitutional rights. As
the state proposes, a proper remedy, given the merger issue,
is to “remand this case to the trial court to vacate the
guilty verdicts that were not unanimous and then to enter
an amended judgment that reflects … no valid verdict on
those counts.”
         Defendant also argues that merely instructing the
jury that it could return nonunanimous verdicts amounts
to structural error that requires the reversal of convictions,
including those based on unanimous verdicts. That argument is foreclosed by State v. Flores Ramos, 

,

 (2020), and State v. Kincheloe, 

, 338-
39, 

 (2020).
        As noted, we have considered all of defendant’s
other assignments of error and reject them without further
written discussion.
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       Convictions on Counts 8, 11, 14, and 17 vacated and
remanded; otherwise affirmed.