State v. Phillips

                                          1

Argued and submitted August 5, 2020, reversed and remanded July 8, petition
             for review denied November 24, 2021 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   JESSE JEROME PHILLIPS,
                    aka Jessey Jerome Phillips,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       18CR03448; A169250
                                    

    Defendant appeals a judgment of conviction for fourth-degree assault constituting domestic violence, ORS 163.160 (Count 1), and harassment, ORS 166.065
(Count 2). A nonunanimous jury found him guilty of both offenses. In three of his
assignments of error, defendant argues that the trial court erred by instructing
the jury that it could reach nonunanimous verdicts and challenges its decision
to accept the nonunanimous verdicts on both charges. Defendant also assigns
error to the court’s decision to include an “initial aggressor” limitation in the jury
instructions. Held: The trial court did not err in giving the “initial aggressor”
limitation jury instruction. In light of Ramos v. Louisiana, 

, 

, 

 (2020), due process requires jury unanimity to convict a
criminal defendant, regardless of the nature of the offense.
    Reversed and remanded.



    Melvin Oden-Orr, Judge.
   Stacy M. Du Clos, 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.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    ORTEGA, P. J.
    Reversed and remanded.
2                                            State v. Phillips

        ORTEGA, P. J.
         Defendant appeals a judgment of conviction for
fourth-degree assault constituting domestic violence, ORS
163.160 (Count 1), and harassment, ORS 166.065 (Count 2).
A nonunanimous jury found him guilty of both offenses. In
three of his assignments of error, defendant argues that the
trial court erred by instructing the jury that it could reach
nonunanimous verdicts and challenges its decision to accept
the nonunanimous verdicts on both charges. As we briefly
discuss below, in light of Ramos v. Louisiana, 

,

, 

 (2020), due process requires
jury unanimity to convict a criminal defendant, regardless
of the nature of the offense being tried, and we reverse both
convictions entered based on nonunanimous verdicts and
remand for further proceedings.
         Defendant raises two additional assignments of
error. The first asserts that the trial court erred by excluding a defense witness’s testimony based on a discovery violation. Given our disposition of defendant’s challenges to the
nonunanimous jury instruction and verdicts, we need not
address that assignment. Defendant also assigns error to
the trial court’s decision to include an “initial aggressor”
limitation in the jury instructions. Because that issue may
arise again on remand, we address it here and conclude that
the court did not err in giving that instruction.
         We begin by discussing the jury instruction issue.
We review the trial court’s jury instructions for legal error.
State v. Harper, 

, 

 (2019).
A trial court commits reversible error when it incorrectly
instructs the jury on a material element of a claim or
defense and that instructional error allows the jury to reach
a legally erroneous outcome. 

         The facts relevant to the instruction are not disputed. Defendant and Largaespada were in a romantic relationship and share a daughter, M. At the time of the events
at issue, the couple did not reside together, and Largaespada
had exclusive custody of M, who was then two years old.
On the day of the incident, defendant, Largaespada, M, and
Largaespada’s son were watching television at Largaespada’s
home. Defendant and Largaespada began quarrelling, and
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Largaespada left with her son to diffuse the situation. She
returned home to find defendant and M gone. She tried
calling defendant and, when he did not answer, called his
sister-in-law and then the police. She then spotted defendant driving so she drove alongside him and told him to
return their daughter immediately. Both defendant and
Largaespada returned to the parking lot of Largaespada’s
apartment. When she went to retrieve M from the passenger side seat, defendant grabbed M and put her on his lap.
Largaespada then went around to the driver side to retrieve
M from his lap, but defendant resisted. Largaespada finally
succeeded and, while M was in her arms, defendant spit in
Largaespada’s face. She reacted by grabbing his shirt collar
and attempted to spit on him but could not develop enough
saliva to do so. Defendant hit Largaespada in the face with
a closed fist. Defendant then left and Largaespada reported
the incident to the police, and defendant was charged with
fourth-degree assault constituting domestic violence, ORS
163.160, and harassment, ORS 166.065.1
         At trial, the court granted defendant’s request to
include a self-defense instruction based on the evidence
that, after defendant spit on Largaespada, she grabbed
his shirt, and then he hit her. The court explained that its
“assumption is that if there was a swing, that is the self-defense in response to the grabbing of the shirt.” In response
to that ruling, the state requested Uniform Criminal Jury
Instruction (UCrJI) 1110, the “initial aggressor” instruction.2 Defendant objected, asserting that the record lacked
evidence to support giving that instruction. He argued that
spitting was not an act of aggression for purposes of the initial aggressor instruction. He relied on State v. Doris, 

       ORS 166.065 states a “person commits the crime of harassment if the person intentionally” harasses or annoys another by subjecting the other person to
“offensive physical contact[.]”
     2
       UCrJI 1110 provides:
         “Ordinarily, a person is not justified in using physical force on another
     person if he or she was the initial aggressor. However, the defendant’s use
     of physical force may be justified even though he or she was the aggressor if
     you find that he or she withdrew from the encounter and effectively communicated to the other person an intent to withdraw from the encounter, but
     the other person nevertheless continued or threatened to continue the use of
     unlawful physical force on the defendant.”
4                                                 State v. Phillips

136, 

 (1908), for the proposition that merely offensive
words are not sufficient to deprive someone of the right to
self-defense, and then likened spitting to offensive words.
The state responded that harassment is aimed at “offensive physical contact” and that spitting in the face constitutes offensive physical contact and was the initial act of
aggression. The court agreed with the state and granted its
request for the instruction.
          In challenging the initial aggressor instruction on
appeal, defendant argues that spitting does not qualify as
an act of aggression for purposes of the instruction because
it is not a threat or use of physical force. He argues that an
aggressor must employ “violence” by threatening or striking
another person and that, because spitting is not an act of
aggression, there was no evidence to support the giving of
the instruction. The state maintains that a rational factfinder could find that propelling saliva into someone’s face
constitutes “striking” another person or a “physical act”
against them. We agree with the state.
         A person may use physical force in self-defense
against “what the person reasonably believes to be the use or
imminent use of unlawful physical force, and the person may
use a degree of force which the person reasonably believes
to be necessary for the purpose.” ORS 161.209. Once raised,
the state has the burden to disprove self-defense beyond a
reasonable doubt. ORS 161.055(1). One way of doing so is to
prove that one or more of the limitations in ORS 161.215 are
present. State v. Freeman, 

, 

(1991). ORS 161.215 states, in relevant part:
        “Notwithstanding ORS 161.209 (Use of physical force in
    defense of a person), a person is not justified in using physical force upon another person if:
       “…
        “(2) The person is the initial aggressor, except that
    the use of physical force upon another person under such
    circumstances is justifiable if the person withdraws from
    the encounter and effectively communicates to the other
    person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical
    force[.]”
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UCrJI 1110, the initial aggressor instruction, parrots ORS
161.215(2).
         The trial court must give a party’s requested jury
instruction if there is evidence to support it and it correctly
states the law. Sufficient evidence to support giving an
instruction exists when, viewing the record, “it would be
rational for a factfinder” to find in support of the party’s
theory. State v. Wolf, 

, 616-17, 

(2017). One form of instructional error is when a court gives
an instruction that correctly states the law but “there is no
evidence in the record to support giving the instruction.”
Montara Owners Assn. v. LaNoue Development, LLC, 

, 

 (2015). Defendant alleges that type of
error here, arguing that spitting at Largaespada could not
have made him an “initial aggressor” under ORS 161.215(2).
Thus, we must determine whether defendant’s act of spitting
in Largaespada’s face can support a jury finding that he was
an “initial aggressor” for purposes of ORS 161.215(2), such
that the trial court correctly gave the initial aggressor jury
instruction. That is a question of statutory construction.
         To evaluate whether defendant could have been an
initial aggressor under ORS 161.215(2), we give primary
weight to the text and context of the statute and consider
any helpful legislative history. State v. Gaines, 

, 

 (2009). The phrase “initial aggressor”
is not defined in ORS 161.215 or elsewhere in the statutes,
so we consider the “plain, natural, and ordinary” meaning of
the phrase and consult dictionary definitions of those terms
that may illuminate what the legislature intended. State
v. McNally, 

, 

 (2017). However,
when a term is a legal “term of art,” we look to its “established legal meaning as revealed by, for starters at least,
legal dictionaries.” Comcast Corp. v. Dept. of Rev., 

, 

 (2014). “We potentially also consider
the overall statutory scheme in which a legal term appears,
as well as the meaning that the term has for regulators who
oversee the field.” 

 The term “aggressor” has long been
a legal term of art used with the criminal defense of self-defense. See State v. Gray, 

, 

 (1904) (discussing who was the first “aggressor” for purposes of self-defense); see also Commentary to Criminal Law Revision
6                                            State v. Phillips

Commission Proposed Oregon Criminal Code, Final Draft
and Report § 24, 24 (July 1970) (providing that the section
is “basically a codification of Oregon case law doctrines” and
discussing, among other cases, Gray). As such, we consider
its legal meaning in construing ORS 161.215(2).
         Defendant argues that Oregon’s self-defense statutory scheme is adapted from Michigan and New York statutes on the same subject and notes that New York has interpreted the initial aggressor limitation to require the use or
threatened use of physical force. Commentary § 24; see NY
Penal Law § 35.00 (McKinney); People v. Walker, 

, 

 (NY App Div 2015); People v.
Baez, 

, 

 (NY App Div 1986);
People v. Giammarino, 

, 

 (NY App Div 1984) (an aggressor must use or threaten
the use of physical force rather than initiate a verbal argument); People v. Pagnotta, 

, 

 (NY App Div 1911) (same). Defendant concedes that spitting in a person’s face constitutes “offensive
physical contact” sufficient to prove the crime of harassment, but suggests that spitting is more akin to verbal provocation and therefore insufficient to support treating him as
an initial aggressor.
         We disagree. When interpreting Oregon statutes,
the question is what the Oregon legislature that enacted
that statute intended. As noted above, the initial aggressor
section, although modeled on the wording in the Michigan
and New York statutes, was a codification of Oregon case law.
As such, we look to our case law and not that of other states
to determine the intent of the legislature in enacting that
statute. Commentary § 24 at 24 (providing that the section
is “basically a codification of Oregon case law doctrines”).
         We agree that “provocation by mere words, if unaccompanied by any overt act of hostility” will not cause a
person to become an initial aggressor for ORS 161.215(2).
Penn v. Henderson, 

, 

 (1944). But
spitting in someone’s face is not “mere words” “unaccompanied by any overt act of hostility.” Spitting in someone’s
face can be an act of hostility towards a person that also
involves physical contact, which we have likened to striking
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or slapping. See State v. Keller, 

, 

 (1979) (“[W]e conclude that spitting on another can
be an interference with the physical integrity of the victim
that is comparable to striking, slapping, etc. It follows that
the trial court erred in concluding, as a matter of law, that
spitting on another cannot be offensive physical contact
within the meaning of ORS 166.065(1)(a).”). And it has long
been recognized that slapping can cause someone to be an
initial aggressor for purposes of self-defense. See Silfast v.
Matheny, 

, 

 (1943); see also Commentary
§ 24 at 25 (citing Silfast for that proposition and stating that
the initial aggressor section is consistent with that holding). The context found in other parts of the criminal code
support this conclusion; spitting on another constitutes the
crime of misdemeanor harassment (as defendant concedes),
and if directed at a public safety officer it constitutes aggravated harassment. See ORS 166.070(1)(c) (“A person commits
the crime of aggravated harassment if the person, knowing
that the other person is a … [p]ublic safety officer, intentionally propels saliva at the public safety officer, and the
saliva comes into physical contact with the public safety officer ….”). As such, we conclude that propelling saliva into
someone’s face constitutes a physical act that could support
a finding that one is an initial aggressor. Accordingly, we
conclude that there was sufficient evidence in the record to
support the giving of the initial aggressor instruction.
         Defendant also contends that the trial court erred
when it instructed the jury that it could reach a nonunanimous verdict and when it accepted nonunanimous verdicts
for Counts 1 and 2. The state partially concedes defendant’s
contentions and asserts that only Count 1, the felony fourth-degree assault conviction, should be reversed. In the state’s
view, defendant’s conviction for Count 2, harassment, should
not be reversed because it is a Class B misdemeanor and the
Sixth Amendment right to a jury trial does not apply to such
offenses.
         We accept the state’s concession and reverse Count 1,
in light of Ramos. We also conclude that Count 2 must be
reversed for the reasons set forth in State v. Heine, 

, 

 (2021) (concluding that “due process
requires jury unanimity to convict a criminal defendant
8                                          State v. Phillips

when the defendant is tried by a jury, regardless of the
nature of the offense for which the defendant is on trial”).
        Reversed and remanded.