State v. Burris

                                      604

    Submitted March 10, 2020; portion of supplemental judgment awarding
     restitution reversed, remanded for resentencing, otherwise affirmed
                               March 10, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   SAMUEL TROY BURRIS,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      17CR74539; A168682
                                  

    Defendant appeals from a judgment of conviction for two counts of first-degree
sexual abuse, ORS 163.427, among other crimes, and a supplemental judgment
ordering defendant to pay $2,500 in court-appointed attorney fees and $7,088 in
restitution payable to CARES, CICA, and Kaiser Permanente. On appeal, defendant asserts that the trial court plainly erred by failing to give an instruction
defining “sexual contact,” plainly erred in ordering him to pay court-appointed
attorney fees, erred in imposing restitution to CARES, and plainly erred in using
a nonunanimous jury instruction. Held: The trial court’s instructional error
was harmless in the context of the facts, the instructions given, and arguments
made; the imposition of attorney fees was not plain error on this record; Court of
Appeals declined to review the challenge to the nonunanimous jury instruction as
plain error where the verdict was unanimous. The trial court, however, erred in
awarding restitution to CARES.
     Portion of supplemental judgment awarding restitution reversed; remanded
for resentencing; otherwise affirmed.



   Janelle F. Wipper, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   DeVORE, P. J.
   Portion of supplemental judgment awarding restitution
reversed; remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                                               605

           DeVORE, P. J.,
         Defendant appeals a judgment of conviction for
two counts of first-degree sexual abuse, ORS 163.427, two
counts of public indecency, ORS 163.465 (2017),1 and four
counts of endangering the welfare of a minor, ORS 163.575
(2017).2 The trial court subsequently entered a supplemental judgment ordering defendant to pay $2,500 in court-appointed attorney fees and $7,088 in restitution payable to
Child Abuse Response and Evaluation Services Northwest
(CARES), the Criminal Injuries Compensation Account
(CICA), and the child-victims’ insurance company, which
defendant also appeals.
         On appeal, defendant raises five assignments of error.
First, as to his convictions for first-degree sexual abuse, he
asserts that the trial court erred by failing to give the jury an
instruction defining “sexual contact.” Second, he asserts that
the trial court erred in ordering him to pay court-appointed
attorney fees. Third, he assigns error to the trial court’s order
requiring defendant to pay restitution to CARES for expenses
it incurred in evaluating the victims. Finally, in his fourth
and fifth assignments of error, defendant assigns error to the
use of a nonunanimous jury instruction.
        We write primarily to address defendant’s first
assignment of error. As to that first assignment, while we
agree with defendant that the trial court erred in failing to
instruct the jury as to the definition of “sexual contact,” we
ultimately conclude that error was harmless given the evidence and arguments presented at trial. As to defendant’s
second assignment, we reject defendant’s challenge to the
imposition of attorney fees with the limited discussion in
the footnote below.3 Third, consistent with our decision in

    1
      The version of the statute that was in effect at the time of the incident in
this case is ORS 163.465 (2017), amended by Or Laws 2017, ch 318, § 10; Or Laws
2019, ch 65, § 1. All references in this opinion are to the 2017 version.
    2
      The version of the statute that was in effect at the time of the incident in
this case is ORS 163.575 (2017), amended by Or Laws 2017, ch 701, § 18. All references in this opinion are to the 2017 version.
    3
      Given the trial court’s express statement that it was “making a record” as
to attorney fees when it asked about defendant’s employment history, and the
testimony of defendant’s employer and evidence of defendant’s daily driving logs
in the record, any error is not plain. See State v. Coverstone, 

,
606                                                           State v. Burris

State v. White, 

, 

, rev den, 

 (2019) (J. White), decided after the trial court entered
the supplemental judgment, we agree with defendant that
the portion of the restitution award payable to CARES was
legally erroneous. And, finally, for the reasons given in State
v. Chorney-Phillips, 

, 

 (2020), we
decline to exercise our discretion to review as plain error
defendant’s challenges to the court’s nonunanimous jury
instruction. Accordingly, we reverse the portion of the supplemental judgment ordering restitution to CARES, remand
for resentencing, and otherwise affirm both judgments.
         The relevant background facts were undisputed
at trial. The charges in this case arose from two separate
incidents at Portland area Dollar Tree stores. In September
2017, a caller contacted the Washington County Sheriff’s
Office and reported that she had been shopping at a Dollar
Tree store the previous day when a man approached her two
daughters, P and A, and exposed his penis. P and A, who
were seven and four years old at the time of trial, had been
browsing toys in a separate aisle from their mother when a
man approached them. P told her mother that the man was
standing about a foot away from the girls and was holding a
shopping basket. As he stood there and smiled at the girls,
the man moved the basket, exposed his unzippered pants
and penis, and masturbated. During this incident, P felt as
if the man was going to touch her, but he did not actually
touch either girl.
         P and A sensed that the man was doing something
bad and ran to find their mother. As P pointed out the man
to her mother, the man paid and quickly left the store. The
mother and P told the investigators that the man was white
with brown hair, had a beard, and was tall and overweight.
         The second incident occurred in October 2017 at
a different Dollar Tree store. In that incident, the mother
called 9-1-1 from the store and reported that a man had
approached her daughters, C and J, who were seven and six
at the time of the incident, and touched both of their buttocks. Like the victims in the September incident, C and J

716, 

 (2014) (holding that it is plain error when a trial court imposes
attorney fees and the record is completely silent as to defendant’s ability to pay).
Cite as 

 (2021)                                                 607

had been browsing in an aisle separate from their mother
when the man approached them. The sisters later told the
investigators that the man approached them from behind,
rubbed their buttocks, and laughed. He then stood in front
of the girls with his penis exposed and masturbated. Later,
when explaining why they were frightened and went to tell
their mom, C explained that the man had touched her “private area” and J explained that “he touched [her] there and
[she] didn’t want to be touched there.”
         When the girls found their mother in the store
and explained what had happened, they pointed out the
man and said, “Mommy, that’s that guy. That’s the guy.”
The girls’ mother then took a picture of the man before he
left the store. As in the September incident, the man was
white, over six feet tall, had a “big look to him,” and had a
big beard. The man in the photograph was later identified
as defendant. The older sister in the September incident, P,
also identified defendant from a lay-down photo array.
         A grand jury charged defendant by indictment with
two counts of first-degree sexual abuse, ORS 163.427, resulting from the touching of C’s and J’s buttocks (Counts 1 and 2);
two counts of public indecency, ORS 163.465, one each for
exposing his penis during the September and October incidents (Counts 3 and 6); and four counts of endangering the
welfare of a minor, ORS 163.575, for masturbating in front
of each of the four child victims (Counts 4, 5, 7, and 8).
         Defendant was subsequently tried by a jury. At
trial, defendant agreed that those “crimes did occur,” but
argued that someone other than defendant had committed
the crimes in both incidents. Defendant argued that, in relation to the photograph of him at the Dollar Tree during the
October incident, he had been in the “wrong place and at the
wrong time.”
        When instructing the jury, the trial court first
defined various terms that appeared in the relevant statutes.4 The court defined “sexual and intimate parts as a
matter of law”:

    4
      The court read the instructions to the jury; for ease of reading, we quote the
written instructions in this opinion.
608                                                 State v. Burris

   “You are instructed that male and female genitals are sexual parts as a matter of law. You are instructed that female
   breasts are intimate parts as a matter of law.”
The court then explained the “intimacy test,” as relevant to
the touching of C’s and J’s buttocks:
       “A body part is intimate if the person touched regarded
   it as intimate and either the defendant knew that the person touched regarded it as intimate, or any reasonable person would know the part is intimate.
      “In order to find that a body part is intimate, you must find
   beyond a reasonable doubt that [C] (Count 1), [J] (Count 2)[,]
   regarded the part touched as intimate, and either:
      “(1) The defendant knew that [C] (Count 1), [J] (Count 2)[,]
   regarded the part as intimate; or
      “(2) Any reasonable person would know that the part
   touched is intimate.”
The trial court then identified, in relevant part, the elements
of each of the substantive crimes with which defendant was
charged. For first-degree sexual abuse, the court instructed:
       “Oregon law provides that a person commits the crime
   of sexual abuse in the first degree if the person did unlawfully and knowingly subject[ ] another person to sexual contact and the other person is less than 14 years of age.
      “In this case, to establish the crime of sexual abuse in
   the first degree, the state must prove beyond a reasonable
   doubt the following elements:
      “(1)   The act occurred on or about October 11, 2017;
      “(2) [Defendant] unlawfully and knowingly subjected
   [C] (Count 1), [J] (Count 2), to sexual contact; to wit her buttocks; and
       “(3) [C] (Count 1), [J] (Count 2)[,] was less than 14 years
   of age.”
(Emphasis added.)
         The court also included the then-standard nonunanimous jury instruction and a typical reminder that the
jurors should “[b]ase [his or her] verdict on the evidence and
these instructions” and that “[t]he lawyers’ statements and
Cite as 

 (2021)                             609

arguments are not evidence.” Beyond raising minor grammatical issues, defendant did not object to those instructions.
         The trial court did not include a definition of “sexual contact” as an element of the first-degree sexual abuse
charges. The state, however, in its closing, read a full definition of “sexual contact” to the jury, defining the term as:
“any touching of the sexual or intimate parts for the purpose
of arousing your own sexual desire or someone else’s.” In the
context of “sexual contact,” the state also described an intimate part as one that “the person that was touched thought
… was an intimate part and that the defendant knew that
or a reasonable person would know it was intimate.”
        The jury unanimously found defendant guilty of all
eight counts.
          On appeal, among other arguments listed above, in
his first assignment of error, defendant asserts for the first
time that the trial court erred by failing to give an instruction stating the statutory definition of “sexual contact.” In
response, the state agrees that the court erred in failing to
instruct the jury on the definition of “sexual contact,” but
argues that the error was harmless in light of the particular
nature of this record. For the reasons that follow, we agree
with the state.
         In charging the jury, the trial court must state to
them all matters of law necessary for the jury’s information
in giving their verdict. ORCP 59B; ORS 136.330(1); State
v. Brown, 

, 

 (1990). “We review
jury instructions as a whole and will reverse only if we can
fairly say that the instructions probably created an erroneous impression of the law in the minds of the jurors that
affected the outcome of the case.” State v. Tucker, 

, 

 (2011) (internal quotation marks
omitted).
         With that standard in mind, preliminarily, we agree
with defendant and the state that the trial court’s failure to
instruct the jury as to the definition of “sexual contact” was
plain error. See ORAP 5.45(1); Ailes v. Portland Meadows,
Inc., 

, 

 (1991) (court can exercise
discretion to review an unpreserved error of law apparent
610                                           State v. Burris

on the record). However, we do not exercise our discretion to
correct the error because the error was harmless. See, e.g.,
State v. Kerne, 

, 

 (2017),
rev den, 

 (2018) (trial court plainly erred by failing to instruct the jury as to the requisite culpable mental
state with respect to the element of forcible compulsion but
declining to exercise discretion to correct because the error
was harmless); State v. Ross, 

, 

, rev den, 

 (2015) (same).

         In determining whether that error harmed defendant, our main inquiry is “whether the jury’s guilty verdict
on one or more of the charges could have been based on the
theory of criminal responsibility contained in the erroneous
instruction.” State v. Lopez-Minjarez, 

, 

 (2011). To do so, we evaluate the erroneous instruction in light of the jury instructions as a whole. State v.
Beagley, 

, 

 (2013). When
evaluating the erroneous instruction, we look not only to the
other instructions given, but to the contentions of the parties at trial as well. State v. Payne, 

, 

 (2020); see also State v. Bistrika, 

, 

, rev den, 

 (2014), cert den, 

 (2015) (same). Where the trial court fails to elaborate on the meaning of an element of the charged crime, we
have held that the arguments of the state at trial combined
with the instructions as a whole, particularly the resulting
“instructional vacuum,” can operate together to permit the
jury to reach a legally erroneous conclusion. Bistrika, 

.

         Here, the charge of first-degree sexual abuse, as set
out in the trial court’s instructions, required the state to
prove three things: (1) the specific date on which the abuse
occurred; (2) that the victims were less than 14 years old;
and (3) that defendant subjected the victims to “sexual contact.” ORS 163.427(1). “Sexual contact” is defined by Oregon
law to mean “any touching of the sexual or other intimate
parts of a person or causing such person to touch the sexual
or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.” ORS
163.305(6).
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 (2021)                                                 611

         First, examining the given instructions as a whole,
the trial court defined “sexual or intimate part” and the
“intimacy test” in its instructions as a precursor to explaining the elements of all relevant crimes. Based on that test,
the jury would likely have understood that it needed to
determine whether the victims and the defendant or an
objectively reasonable person would have considered the victims’ “buttocks” to be an intimate part.5
        Second, however, the court did not instruct the jury
that “sexual contact” also means that the contact with the
intimate part was “for the purpose of arousing or gratifying
the sexual desire of either party.”
         Our remaining inquiry thereby reduces to whether
the instructions as a whole, combined with the arguments
presented by the parties at trial, could have permitted the
jury to reach the legally erroneous conclusion that defendant
subjected the victims to “sexual contact” without doing so
for the “purpose of arousing or gratifying the sexual desire
of either party.”6
        Considering the evidence at trial, which defendant
did not dispute, the state presented a photograph of defendant leaving the Dollar Tree shortly after a man had
touched C and J on the buttocks. Prior to the mother taking the photograph of defendant, the victims had pointed
to defendant and identified him to their mother as the man
who had touched them. Directly after the man touched the
victims, both testified that he stood in front of them and
masturbated, which is evidence that the jury could find is
highly persuasive on the point that the touching was for

    5
       For similar reasons, we reject defendant’s argument that the failure to
directly connect the “intimacy test” to the crime of sexual abuse violated his
rights under the Sixth Amendment to the United States Constitution. Neder v.
United States, 

, 

, 

 (1999) (explaining
that an omitted element of a jury instruction is properly found harmless where a
reviewing court concludes beyond a reasonable doubt that the jury verdict would
have been the same absent the error).
    6
       Although the court included the similar definition of “sexual conduct,”
which includes the phrase, “in an act of apparent sexual stimulation or gratification,” that definition was relevant to the four counts of endangering the welfare of
a minor relating to the masturbation, rather than the two counts of sexual abuse
relating to the rubbing of C’s and J’s buttocks.
612                                                           State v. Burris

the purpose of “arousing or gratifying” a person’s “sexual
desire.”
        At trial, defendant conceded that the charged
crimes had occurred. In closing arguments, defense counsel
argued that
    “the [s]tate is right in several ways. One of the ways the
    [s]tate is right is these crimes did occur.
        “There’s no doubt that somebody came up to these children at the Dollar Tree, exposed themselves and, in the
    case of the Farmington Dollar Tree, touched these young
    girls.”
(Emphasis added.) Defendant did not dispute that someone
touched the victims’ buttocks. Nor did defendant dispute
that the same person had his penis exposed and was masturbating when, or immediately after, the touching occurred.
Defendant’s entire argument at trial boiled down to the
state having charged “the wrong person” and that defendant was “the wrong man.” Based on that argument, then,
defendant did not present a legal theory where the definition
of “sexual contact” would have provided legal authority to
support defendant’s theory of innocence. See Payne, 

 (examining whether the defendant’s legal theory
at trial affected the practical value of a missing instruction).
         The state’s arguments also did not unduly guide
the jury toward a verdict based on a legally erroneous theory. Here, unlike in Bistrika, where the state exploited the
instructional vacuum of a missing element with arguments
that permitted the jury to reach a legally erroneous verdict, the state did not suggest in its arguments that the jury
could find defendant guilty of sexual abuse without finding
“sexual contact.” Instead, the state read the entire definition
of “sexual contact” to the jury, under the impression that the
court had already done so.7

    7
       While the state’s subsequent reading of the definitions does not cure the
trial court’s error, as in Bistrika, it is relevant under a consideration of how the
parties’ arguments could have led the jury to reach a legally erroneous result.
See Payne, 

 (explaining that a counsel’s arguments are no substitute for proper instructions); State v. Morales, 

, 

(2020) (holding that the state’s argument, coupled with the erroneous instruction, allowed the jury to find the defendant guilty on a legally erroneous theory).
Cite as 

 (2021)                            613

         Having considered the instructions as a whole and
the parties’ arguments, we conclude that the jury could not
have reached its verdict based on a legally erroneous theory.
Under the facts of this specific case, where defendant conceded that the events as presented by the state had occurred,
including the touching of the victims’ buttocks immediately
before masturbating, the only question left for the jury to
answer was whether that contact was for the “purpose of
arousing or gratifying the sexual desire of either party.” In
that consideration, the evidence and parties’ arguments at
trial prevent the possibility that the jury could have failed
to make the legally required finding that defendant had
touched the victims’ buttocks for the purpose of arousing or
gratifying his sexual desire. Accordingly, the trial court’s
error in not defining “sexual contact” was harmless.
         In his third assignment of error, defendant challenges the $1,171.13 portion of the restitution award payable
to CARES. The state concedes that, under J. White, the trial
court erred in awarding restitution to CARES and that we
should reverse and remand for resentencing. We agree and
accept the state’s concession; accordingly, we reverse the
restitution award payable to CARES and remand for resentencing. See J. White, 

 (concluding that
CARES was neither a victim nor suffered economic damages for purposes of crime victim restitution).
         The state further acknowledges that, despite the
fact that defendant did not object to nor assign error to the
restitution payable to CICA and the child victims’ insurer,
under State v. Moreno-Hernandez, 

, 

 (2019), and State v. White, 

, 

 (2019) (T. White), the trial court also erred in awarding
restitution to those entities based on the victims’ medical
expenses. See State v. Allida, 

, 

 (2019) (holding that trial court erred by ordering restitution to CICA and insurer for costs of CARES evaluation
for minor victim); T. White, 299 Or App at 168 (explaining
under similar circumstances that a child’s insurance company is not a qualifying victim because unemancipated
minor did not suffer economic damages under ORS 137.103).
However, because we remand for resentencing, the trial
court can address that issue then. See Moreno-Hernandez,
614                                         State v. Burris

 (remanding for resentencing where there
may be other permissible options available to the court);
T. White, 299 Or App at 169 (same).
         In sum, we conclude that the trial court’s instructional error was harmless, and we reject defendant’s challenge to the imposition of attorney fees and the nonunanimous jury instruction. We conclude, however, that the
trial court erred in awarding restitution to CARES, and
we reverse that portion of the supplemental judgment
and remand for resentencing. Otherwise, we affirm both
judgments.
         Portion of supplemental judgment awarding restitution reversed; remanded for resentencing; otherwise
affirmed.