State v. Payton

                                      674

     Submitted on remand from the Oregon Supreme Court April 15, 2020,
                           affirmed May 26, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  CHRISTOPHER LEE PAYTON,
                       Defendant-Appellant.
                   Jackson County Circuit Court
                       15CR28579; A163219
                                  

    This case is on remand from the Oregon Supreme Court, which vacated the
Court of Appeals’ decision in State v. Payton, 

, 

 (2019)
(Payton I), and remanded for reconsideration in light of State v. Henderson, 

, 

 (2019). In Payton I, the Court of Appeals concluded that the
trial court erred in denying defendant’s motion for a judgment of acquittal on the
charge of first-degree burglary, ORS 164.225, and also concluded that there was
sufficient evidence that defendant remained unlawfully in his niece’s house, but
insufficient evidence that he formed intent to commit assault at the requisite
time to sustain a conviction for first-degree burglary. 

. Held: In
light of the Supreme Court’s holding in Henderson, that a defendant need only
develop the requisite intent to commit an additional crime at some point during
the course of a criminal trespass, the Court of Appeals concluded that the trial
court did not err in denying defendant’s motion for judgment of acquittal. The
court rejected defendant’s arguments, raised for the first time on remand, that
the trial court committed structural error by instructing the jury that it could
return a nonuanimous verdict.
    Affirmed.



  On remand from the Oregon Supreme Court, State v. Payton,

, 

 (2020).
    Lorenzo A. Mejia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erica Herb, Deputy Public Defender, Office of
Public Defense Services, filed the opening and reply briefs
for appellant. On the supplemental briefs were Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, and
David Sherbo-Huggins, Deputy Public Defender.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan filed the briefs for
respondent.
Cite as 

 (2021)                       675

  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
  ORTEGA, P. J.
  Affirmed.
676                                                       State v. Payton

           ORTEGA, P. J.
         This case is before us on remand from the Oregon
Supreme Court, which vacated our prior decision, State v.
Payton, 

, 

 (2019), and remanded
for reconsideration in light of State v. Henderson, 

,

 (2019). In our prior opinion, we concluded that
the trial court erred in denying defendant’s motion for a
judgment of acquittal on the charge of first-degree burglary,
ORS 164.225; we concluded that there was sufficient evidence
that defendant remained unlawfully in his niece’s house,
but insufficient evidence that he formed intent to commit
assault at the requisite time to sustain a conviction for first-degree burglary. Payton, 

. Now, reviewing
this case again for errors of law, State v. Bivins, 

, 

 (2004), and in light of the Supreme
Court’s holding in Henderson, that a defendant need only
develop the requisite intent to commit an additional crime
at some point during the course of a criminal trespass, we
conclude that the trial court did not err in denying defendant’s motion for judgment of acquittal.1 We further reject
defendant’s arguments, raised for the first time on remand,
that the trial court committed structural error by instructing the jury that it could return a nonunanimous verdict.
Accordingly, we affirm.
        We take the facts and pertinent procedural history
from our earlier opinion in this case:
      “Defendant and his family were staying with his niece
   for a week. One evening, after defendant began yelling
   and threatening to kill his niece, she asked him to leave.
   Defendant refused and said that he would leave the next
   day. Someone called for a taxi and left defendant’s packed
   bags by the front door, but the taxi left without defendant. Defendant’s father-in-law, who lived across the
   street, became aware of the incident and decided to go to
   the niece’s house—without notifying anyone—to find out

     1
       We decline to revisit our original conclusion that the evidence was sufficient to permit a finding that defendant unlawfully remained in his niece’s
house at the time he assaulted the victim; although defendant reargues that
point, Henderson does not call that conclusion into question. We further reject
without discussion defendant’s arguments challenging retroactive application of
Henderson to his case.
Cite as 

 (2021)                              677

   ‘what was going on.’ When he arrived, defendant emerged
   from a bedroom and punched his father-in-law in the face,
   and a fight ensued. The police arrived, and defendant was
   arrested.”

Payton, 

. Based on those events, the
state charged defendant with one count of first-degree burglary, two counts of fourth-degree assault, and one count
of strangulation. 

. After the state presented its
case-in-chief, defendant moved for a judgment of acquittal
on the first-degree burglary charge, arguing that, to be
convicted of first-degree burglary, defendant had to have
“knowingly … entered, or remained in [the house] with the
intent to commit the crime of assault therein.” 

 (emphasis
in original). The court denied defendant’s motion, and he
was subsequently found guilty of first-degree burglary and
fourth-degree assault. After the verdict was announced, the
court asked if either party wished to poll the jury, and both
parties declined.
         On appeal and again on remand, defendant argues
that the state failed to prove that he formed the intent to
commit assault at a time when he had no license or privilege
to be in his niece’s house. The state maintains that there
was sufficient evidence that defendant formed the intent
to assault the victim while he was unlawfully remaining
in the house. We originally concluded, applying State v.
J. N. S., 

, 

 (2013), that
the proper focus was defendant’s intent at the initiation of
the trespass and, because the record lacked evidence that
defendant intended to commit assault at the point that he
unlawfully remained on the premises, he was entitled to an
acquittal. Payton, 

. That analysis changes
under Henderson.
        The issue on review in that case was whether a person commits the crime of first-degree burglary when they
enter a dwelling unlawfully but without the intent to commit an additional crime and then develop that intent while
unlawfully present in the dwelling. Henderson, 

.
The defendant and the victim were formerly in a relationship and, although the victim previously had allowed the
defendant to visit their children at her house, he had never
678                                          State v. Payton

lived there, and the victim ultimately communicated to the
defendant that he was no longer welcome. 

 On the day
of the incident, the defendant went to the victim’s house
asking if he could shower and talk. 

 After being refused
entry, the defendant waited for the victim to depart for work
and then broke into the house and destroyed a number of
her possessions. 

         The defendant was charged with first-degree burglary, along with other crimes. 

 During trial, after the
state rested its case, the defendant moved for a judgment
of acquittal on the burglary charge arguing that “the evidence could not support a finding that defendant intended
to commit an additional crime in the victim’s house at the
time of this unlawful entry.” 

 The trial court denied the
motion and the defendant was subsequently found guilty of
burglary and criminal mischief. 

         On appeal, the defendant argued that the trial
court erred in denying the motion for judgment of acquittal
on the burglary charge. We reversed the burglary conviction
and held that the state was required to prove that the defendant had the intent to commit an additional crime when he
entered the victim’s house and that the evidence was insufficient to support a finding of such intent. State v. Henderson,

, 

 (2018), rev’d, 

,

 (2019). We remanded for entry of a judgment
of conviction for the lesser-included offense of first-degree
trespass.

         In reversing our decision, the Supreme Court concluded that the “proper inquiry is not whether [the] defendant had the requisite intent at the outset of the trespass,
but rather whether defendant developed intent to commit an
additional crime at any point during the course of the trespass.” Henderson, 

. It reasoned that, because
the defendant committed criminal trespass by unlawfully
entering and remaining in the victim’s home, “and because
defendant developed the intent to commit an additional
crime—and did commit an additional crime—while unlawfully present in the house,” the trial court correctly denied
the defendant’s motion. 

Cite as 

 (2021)                            679

         In light of the court’s analysis in Henderson, the
result in this case is clear. As in that case, defendant in
this case committed criminal trespass by remaining in his
niece’s house after refusing to leave and, because he developed intent to commit and did commit another crime while
unlawfully remaining at his niece’s house, the trial court
correctly denied defendant’s motion.
         Defendant additionally asserts that the trial court
committed structural error by instructing the jury that
it could return a nonunanimous verdict. After the United
States Supreme Court’s ruling in Ramos v. Louisiana, 

, 

, 

 (2020), the Oregon
Supreme Court concluded that giving a nonunanimous
jury instruction is not a structural error that categorically
requires reversal. State v. Flores Ramos, 

,

 (2020). As defendant did not preserve the issue
in this case and no jury poll was conducted, we decline to
exercise our discretion to review the nonunanimous jury
instructions 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”).
        Affirmed.