State v. Hooper

                                       715

Argued and submitted September 30, 2020; conviction on Count 1 reversed and
               remanded, otherwise affirmed April 21, 2021


                         STATE OF OREGON,
                          Plaintiff-Respondent,
                                    v.
                        SHAWN LEE HOOPER,
                          Defendant-Appellant.
                       Linn County Circuit Court
                          16CR13141; A169210
                                   

     Defendant appeals from a judgment of conviction for first-degree rape, ORS
163.375 (Count 1). On appeal, defendant argues that the trial court plainly erred
when it failed to instruct the jury that, to convict him, the state had to prove that
defendant had a culpable mental state when he engaged in sexual intercourse
with the victim. In response, the state argues that, in light of the instructions as
a whole, there is no error. Held: It is obvious error to omit the requisite mental
state (i.e., “knowingly”) from the part of the instruction that told the jury what
elements the state had to prove in this particular case to convict defendant of
first-degree rape. Because that instructional error is both harmful and grave, the
Court of Appeals exercised its discretion to correct it.
    Conviction on Count 1 reversed and remanded; otherwise affirmed.



    Thomas McHill, Judge.
   Marc D. Brown, 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.
   Daniel Norris, 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 Hadlock, Judge pro tempore.
    TOOKEY, J.
   Conviction on Count 1 reversed and remanded; otherwise
affirmed.
716                                                          State v. Hooper

           TOOKEY, J.
         Defendant appeals from a judgment of conviction for
first-degree rape, ORS 163.375 (Count 1).1 Defendant argues
that the trial court plainly erred when it failed to instruct
the jury that, to convict him, the state had to prove that
defendant had a culpable mental state when he engaged
in sexual intercourse with the victim, L. For the reasons
explained below, we conclude that the trial court plainly
erred, and we exercise our discretion to correct that error. We
reject defendant’s remaining assignment of error as noted
below.2 Accordingly, we reverse and remand on Count 1,
and we otherwise affirm the acquittals of the additional
charges in the judgment.
         “Because the jury found defendant guilty, we view
the evidence presented at trial in the light most favorable
to the state.” State v. Gaines, 

, 

 (2015). In accordance with that standard, we state the
following facts.
        At the time of the events underlying defendant’s
rape conviction, the victim, L, was 14 years old, and defendant was L’s stepfather; defendant was married to L’s
mother, Hooper.
         In late 2015, on the night in question, L and defendant were at defendant’s friend’s house, where defendant
had consumed approximately ten beers. When they returned
home, defendant told L to “grab me a beer” from a horse
trailer on their property. The trailer had a space for horses

    1
      Defendant was indicted for five counts of first-degree rape, ORS 163.375.
Count 1 pertained to late 2015, as described below. Counts 2 through 5 pertained
to early 2016. The jury convicted defendant on Count 1 but acquitted defendant
as to Counts 2 through 5.
    2
      Defendant also contends that the trial court erred by giving the jury a
nonunanimous jury instruction. Following the United States Supreme Court’s
ruling in Ramos v. Louisiana, 

, 

, 

 (2020),
the Oregon Supreme Court explained that nonunanimous jury instruction was
not a structural error that categorically required reversal. State v. Flores Ramos,

, 

 (2020). Because this issue was not preserved and
no jury poll was conducted, we decline to exercise our discretion to review the
nonunanimous jury instruction for plain error. State v. Dilallo, 

,

 (2020) (explaining that plain-error review for nonunanimous jury
instructions without an accompanying jury poll is “contrary to the basic goal of
‘procedural fairness’ … that motivates the preservation requirement”).
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 (2021)                                   717

and a small sleeping quarters. When L opened the trailer
door, defendant “walked up behind [L]” and told her to “go
in there.” L went into the trailer, and defendant followed her
in. Once inside, defendant removed his pants and “kind of
helped” L to remove her pants. Defendant “told [L] to get up
on the bed,” and L complied. Defendant then “[p]ut a condom
on,” and “he had sex with [L].” Afterward, defendant “took
his condom off, and he said that he was gonna [sic] throw it
away at the store” so that “no one knew about it.” Defendant
also told L, “[D]on’t tell anyone, or I’ll go to jail.”
         In early 2016, L disclosed to Hooper that “[defendant] had sex with me,” describing to Hooper the events of
the night in question. When Hooper confronted defendant
about L’s disclosure, defendant initially denied having had
sex with L. But later, in the fall of 2016, defendant confessed
to Hooper that “he was drunk one night, and he basically
woke up in the middle of a drunken stupor having sex with
[L], realized it was [L] and stopped, and that was it.”
         As a result of L’s disclosure, defendant was charged
with first-degree rape, ORS 163.375, and the case was tried
to a jury. At trial, defendant denied confessing to Hooper
that he had sex with L in a “drunken stupor.” Defendant further denied that he had “ever had sexual intercourse with
[L].”
        After closing arguments, the trial court orally
instructed the jury. In relevant part, that jury instruction
provided:
      “Oregon law provides that a person commits the crime
   of Rape in the First Degree if the person knowingly has
   sexual intercourse with another person and the other person is [under] 16 years of age and is the defendant’s spouse’s
   child. …
      “In this case, to establish the crime of Rape in the First
   Degree, the State must prove beyond a reasonable doubt
   the following elements:
      “(1) the act occurred on or between September 1, 2015,
   and December 31, 2015;
      “(2) the defendant, [defendant’s name], had sexual
   intercourse with [L]; and
718                                           State v. Hooper

      “(3) [L] was under 16 years of age and was [defendant]’s spouse’s child.”

The court also provided the jury with an identical instruction in written form.
         The first part of that instruction—i.e., the general definition of the crime of first-degree rape—contained
the word “knowingly,” whereas the second part of that
instruction—i.e., the elements that the state had to prove
and the jury had to find to reach a conviction in this specific case—omitted any reference to a culpable mental state.
Although defendant’s proposed jury instructions included a
culpable mental state in both the general definition of the
crime of first-degree rape and in the list of the elements that
the state had to prove for conviction in this specific case,
defendant did not object to the instruction as given to the
jury. After instruction, the jury deliberated and returned a
guilty verdict for one count of first-degree rape.
         On appeal, defendant contends that “[t]he trial
court plainly erred when it failed to instruct the jury that
the state must prove a mental state” for the sex act, and
“this court should exercise its discretion to review th[at]
error.” The state responds that “[t]he trial court correctly
instructed the jury that the state had to prove that defendant knowingly had sexual intercourse with the victim, and
it thus did not commit plain error,” and that “[e]ven if plain
error occurred, no basis exists for review or reversal.”
          We may review an unpreserved error when three
requirements are satisfied: (1) the error is one of law;
(2) the error is apparent, that is, the legal point is obvious,
not reasonably in dispute; and (3) the error appears on the
face of the record, in that we need not go outside the record
or choose between competing inferences to find it. State v.
Gray, 

, 

 (2014). “[T]he question of what must be included in a jury instruction is a question of law, and what was or was not included is determined
readily by examining the instructions that were given.” 

(citation and internal quotation marks omitted). Thus, the
only plain-error requirement at issue here is “whether the
purported instructional error was ‘obvious.’ ” 

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 (2021)                             719

         Defendant contends that the error is obvious, and
that it is “ ‘not in dispute’ that the conduct element of rape
in the first degree requires a culpable mental state.” In
response, the state agrees that it was required “to prove
defendant ‘knowingly’ engaged in sexual intercourse with
the victim.” But, the state contends, there is no obvious error
“in light of the instructions as a whole,” because the first
portion of the instruction “told the jury that defendant committed first-degree rape only ‘if’ he knowingly had sex with
the victim,” and defendant’s position “give[s] undue consideration to [the second] portion of the instruction.”
          The state’s contention is unpersuasive. The first
part of the instruction merely stated a generalized definition of first-degree rape. The second part of the instruction,
however, is the part that specifically told the jurors what
their task was “in this case.” That is also the part of the
instruction that—in both oral and written form—omitted
any reference to the necessity of finding a culpable mental state in order to convict defendant. It seems to us that
jurors grappling with the difference between the first and
second parts of the instruction would face difficulty; such an
instruction, which lacks consistent language, is reasonably
capable of confusing or misleading jurors as they carry out
their task. That alone constitutes grounds for reversal. See,
e.g., Williams et al. v. Portland Gen. Elec., 

,

 (1952) (“The objective of the mold, framework,
and language of the instructions should be to enlighten and
to acquaint the jury with the applicable law. Everything
which is reasonably capable of confusing or misleading the
jury should be avoided. Instructions which mislead or confuse are ground for reversal or a new trial.”).
         In any event, we agree with defendant; it is obvious
error to omit the requisite mental state (i.e., “knowingly”)
from the part of the instruction that told the jury what elements the state had to prove in this particular case to convict defendant of first-degree rape. See Gray, 

 (concluding that it is obvious error where jury instruction omitted culpable mental state for act element of first-degree rape, because “the trial court is required to instruct
the jury that, to convict, it must determine that the state
has proved beyond a reasonable doubt that defendant acted
720                                            State v. Hooper

with a culpable mental state”); State v. Ramoz, 

, 

 (2021) (concluding that the trial court committed error “when it instructed [the jury] that the state
must prove certain elements of a crime but not that it must
prove other essential elements—the mens rea of the crimes”);
cf. State v. Belen, 

, 

 (2016)
(“[T]he trial court’s failure to instruct the jury on all of the
elements it needed to find in order to find defendant guilty
[of first-degree rape]—including that he knowingly subjected the victim to forcible compulsion—constitutes plain
error.”).
           “Having concluded that the trial court plainly erred,
we turn to the question of whether we should exercise our
discretion to correct the error.” 

. “In determining
whether to correct a plain error, we consider several factors,
including ‘the nature of the case; [and] the gravity of the
error[.]’ ” 

 (quoting Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991)). “We also consider whether
the error was harmless—that is, whether there was little
likelihood that the error affected the verdict.” Id. at 55.
         We begin by addressing harmlessness. “Instructional error is not harmless if it probably created an erroneous impression of the law in the minds of the jury and if
that erroneous impression may have affected the outcome
of the case.” Ramoz, 

 (citation and internal
quotation marks omitted). “In making that determination,
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.” 

 (citation and internal quotation
marks omitted).
        The state argues that “if the trial court erred, the
error was harmless,” because “the jury’s verdict necessarily
discredited defendant’s assertion that he never had sexual
intercourse with [L] and credited [L’s] testimony that defendant had sexual intercourse with her.” Defendant argues
that the error was not harmless, for “[t]hough defendant’s
defense was that he never had sexual intercourse with [L],
the record contained evidence from which a jury could conclude that defendant did not know he was engaging in sexual
Cite as 

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intercourse with [L].” More specifically, defendant argues
that “Hooper explained that defendant told her while crying
that, ‘he was drunk one night, and he basically woke up in
the middle of a drunken stupor having sex with [L],’ ” and
consequently, “[t]he jury could have concluded that defendant had sexual intercourse with [L] but did not knowingly
do so.”
         We cannot say that there was “little likelihood” that
omitting the mental state requirement affected the verdict,
and we agree with defendant that the instructional error
was not harmless for the reasons he posits. See Gray, 

 (holding that failure to instruct jury as to culpable mental state for first-degree rape was plain error and
not harmless because, on the record, it was possible that
the jury could have found that the defendant engaged in the
charged conduct but that he did not do so knowingly).
         The Supreme Court’s decision in Ramoz supports
our conclusion that the instructional error in this case was
not harmless. In Ramoz, the trial court erred in precisely the
same way as the trial court in this case: The jury instructions for the defendant’s first-degree rape charge “defined
the crime as one in which the defendant must act ‘knowingly,’ but omitted that requirement in the itemized list of
elements that the state must prove.” 367 Or at 678-79. The
state argued that the trial court had instructed the jury that
a person commits rape in the first degree if, among other elements, that person acted knowingly, and consequently, that
“the instructions as a whole were not prejudicial.” Id. at 705.
The Supreme Court rejected that argument, explaining:
   “The state is correct that we must look to the instructions as a whole …. But here, the two different parts of
   the instructions could be viewed as conflicting. When it
   described the relevant crimes, the court told the jury that
   defendant had to have acted knowingly, but when it told the
   jury the elements that the state must prove, it omitted that
   requirement. … Where an instruction is equally capable
   of a correct or an incorrect statement of the law, then there
   is a likelihood that the error affected the verdict.”
Id. at 707 (citation and internal quotation marks omitted).
The court then went on to note that the defendant’s mental
722                                                           State v. Hooper

state was at issue, because the jury could have found that
the defendant was voluntarily intoxicated during the events
in question, and it concluded that the instructional error
was therefore not harmless. Id. at 707-08.
        In this case—just as in Ramoz—where defendant’s
mental state was at issue, and the jury instruction omitted the mental state requirement in the list of necessary
elements, there is a likelihood that the instructional error
affected the verdict and, therefore, was not harmless.
         The gravity of the error further militates in favor of
exercising our discretion to correct the error: The instructional error was not harmless, and defendant’s first-degree
rape conviction is a serious felony. See Gray, 

 (concluding that gravity of error compelled exercise of
discretion to correct plain instructional error, because the
trial court’s failure to instruct jury as to culpable mental
state was not harmless, and the defendant’s challenged convictions included “serious felonies” of first-degree rape); see
also State v. Capote, 

, 

 (2014)
(exercising discretion to correct plain instructional error for
reasons stated in Gray). Thus, because the instructional
error was both harmful and grave, we exercise our discretion to correct it.3
        For the above reasons, we conclude that the trial
court plainly erred by failing to instruct the jury that, in
order to convict defendant in this case, it had to find that
defendant knowingly engaged in sexual intercourse with L.

    3
      The state also contends that we should not exercise our discretion to correct
the instructional error, because it is “plausible that defendant noticed the error,
and … chose not to object for a sound strategic reason.” The state suggests there
are two such reasons: (1) “[D]efendant chose not to object since any error did not
harm his ‘it did not happen’ defense”; and (2) “[B]y not objecting, he left open the
argument he now makes on appeal.”
    Though the “possibility that the defendant made a strategic choice not to
object [is] relevant to our decision to exercise our discretion,” Gaines, 

, we do not perceive anything in the record suggesting that defendant’s
failure to object to the error was a strategic choice. Thus, we reject that contention without further discussion. See State v. Higgins, 

, 

, rev den, 

 (2014) (rejecting state’s argument that the defendant may have had strategic reason not to object, where “[t]he state’s speculation
aside, there is nothing in the record indicating that defendant made any kind of
strategic choice not to object”).
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We further conclude that it is appropriate to exercise our
discretion to correct that error. Accordingly, we reverse and
remand.
        Conviction on Count 1 reversed and remanded;
otherwise affirmed.