109
Argued and submitted November 12, 2020; affirmed July 8; on appellant’s
petition for reconsideration filed October 26, reconsideration allowed by opinion
December 8, 2021
See 316 Or App 278, ___ P3d ___ (2021)
STATE OF OREGON,
Plaintiff-Respondent,
v.
VICTORIA LOIS CAMPHOUSE,
Defendant-Appellant.
Linn County Circuit Court
17CR26451; A170081
491 P3d 94
Defendant was convicted of two counts of criminal mistreatment in the first
degree, ORS 163.205—one for each of two victims, O and D. She appeals, arguing
that the trial court committed plain error by not providing the jury a concurrence
instruction when the record contained evidence of multiple incidents that the
jury could have determined constituted the violation on each count. The state
admits that the trial court likely committed plain error but argues that the Court
of Appeals should not exercise its discretion to correct the error because it is
unlikely to have affected the verdict. Held: The trial court erred in failing to give
a concurrence instruction on the count involving O because there was evidence of
multiple incidents which the jury could have determined constituted the charged
offense. However, the error was harmless because the parties treated the abuse
as one continuing course of conduct and, if there was any confusion, there was
evidence of one incident that all twelve jurors necessarily would have agreed
on. The trial court did not err in failing to give a concurrence instruction on the
count involving D because there was evidence of only a single incident that jurors
could have determined violated the statute.
Affirmed.
DeAnn L. Novotny, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Doug M. Petrina, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and E. Nani Apo, Assistant Attorney General.
110 State v. Camphouse
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
Cite as 313 Or App 109 (2021) 111
KAMINS, J.
Defendant appeals from a judgment of conviction
for two counts of criminal mistreatment in the first degree,
ORS 163.205. She argues that the trial court committed
plain error by not providing the jury a concurrence instruction when the record contained evidence of multiple incidents that the jury could have relied on in determining that
defendant violated the statute on each count.1 We agree that
the trial court erred in failing to provide the jury a concurrence instruction as to one of the counts. Because that error
was harmless, however, we affirm defendant’s convictions.
I. FACTUAL BACKGROUND
The facts are largely undisputed. Defendant served
as the Medicaid-approved caretaker for her elderly, disabled
mother, D, with whom she shared a house on a large piece
of rural property. Defendant rented the house from O, an
elderly woman who lived in a separate residence on the
same property. In 2013, defendant became O’s caretaker as
well, in exchange for reduced rent on the house.
Sometime in 2014, defendant put up a gate at the
end of the driveway to prevent the goats that lived on the
property from escaping, which she secured with several
locks. Over the next few years, various paramedics, sheriff’s
deputies, and Adult Protective Services (APS) workers were
called to the property to check in on O and D. Each time,
the responders encountered issues with the front gate being
locked and would either have to get defendant’s attention
to come down and let them in, cut the locks, or climb over
the gate. When responders did manage to get to O’s and D’s
homes, they consistently reported that the doors and windows were locked, nailed shut, or barricaded with furniture.
Inside, the homes were unsanitary, cluttered, and full of
tripping and fire hazards.
When responders made contact with O and D, they
observed that both were experiencing significant cognitive
1
Defendant also argues that the trial court committed plain error by failing
to instruct the jury that unanimous agreement of the jurors is required to return
a guilty verdict. We reject that argument for the reasons expressed in State v.
Dilallo, 367 Or 340, 349,
478 P3d 509 (2020).
112 State v. Camphouse
impairment. O did not know the answers to simple questions like where the phone was, where the bathroom was,
or whether she had a family. Similarly, D was unable to
remember defendant’s phone number in case there was an
emergency and seemed surprised to learn that defendant
had locked her inside the house. Both women also experienced significant difficulties with physical activities like
walking and getting in and out of bed.
On multiple occasions, Pulkownik, an APS worker,
expressed her concerns about O’s and D’s safety to defendant. Pulkownik explained that, given O’s and D’s physical
conditions and the various impediments to accessing the
homes, it was unlikely that emergency personnel would be
able to get to O and D in time if something were to happen. However, defendant never took any action to address
the problems. Eventually, APS made the decision to remove
O and D from the property and place them in a residential
memory-care facility. The state charged defendant with two
counts of first-degree criminal mistreatment—one for defendant’s treatment of O and another for defendant’s treatment
of D.
At trial, the state presented testimony from multiple witnesses about the various responders’ visits to the
property over a range of dates from 2014 to 2017. However,
neither party requested an instruction requiring jurors to
agree on which of the dates evidenced a criminal violation,
and defendant did not object to the failure to give such an
instruction. Defendant was convicted on all charges.
On appeal, defendant assigns error to the trial
court’s failure to provide a jury concurrence instruction.
Although she concedes that the assignment of error is
unpreserved, she argues that it was nevertheless plain error
for the trial court not to provide such an instruction sua
sponte when there was evidence of multiple incidents which
the jury could have determined violated the statute on each
count.
II. STANDARD OF REVIEW
Whether a trial court is required to give a particular jury instruction “is a question of law, which we review for
Cite as 313 Or App 109 (2021) 113
legal error, viewing the evidence in support of the instruction
in the light most favorable to [the party seeking the instruction].” State v. Theriault,
300 Or App 243, 250,
452 P3d 1051
(2019) (internal quotation marks omitted). Because the error
here is unpreserved, we review only for plain error—that is,
we may only correct (1) errors of law (2) that are “apparent,”
meaning obvious and not reasonably in dispute, and (3) that
appear on the face of the record. Ailes v. Portland Meadows,
Inc.,
312 Or 376, 381-82,
823 P2d 956 (1991). If those criteria
are met, we must decide whether to exercise our discretion
to correct the error.
Id. at 382.
III. ANALYSIS
Under Article I, section 11, of the Oregon Constitution,
jurors can return a verdict of guilty only if they agree on
“the facts that the law (or the indictment) has made essential to a crime.” State v. Arellano-Sanchez, 309 Or App 72,
81,
481 P3d 349 (2021) (internal quotation marks omitted).
Essentially, the jurors must agree not just that defendant
is guilty, but on “just what defendant did.” State v. Rolfe,
304 Or App 461, 466,
468 P3d 503 (2020) (internal quotation marks omitted). Two scenarios implicate that right: the
first is when a statute defining the crime provides multiple
ways that the crime can be committed, and the second is
when a defendant is charged with “a single occurrence of
each offense, but the evidence permit[s] the jury to find any
one or more among multiple, separate occurrences of that
offense involving the same victim and the same perpetrator.” State v. Trenary-Brown,
311 Or App 579, 583,
489 P3d
1114 (2021) (internal quotation marks omitted). When a case
presents one of these two scenarios, defendant is entitled to
either an instruction requiring jurors to agree on the basis
for their verdict or an election by the state as to how it is
assigning liability. State v. Ashkins,
357 Or 642, 659,
357
P3d 490 (2015).
Defendant contends that this case presents the
second scenario: that the state’s witnesses described several incidents that the jury could have determined constituted the charged violations and thus that she was entitled
to a concurrence instruction. To evaluate that argument,
we begin by examining the charging instrument and the
114 State v. Camphouse
elements of the crime. See Arellano-Sanchez, 309 Or App at
83-84. Defendant was charged with violating ORS 163.205
(1)(b)(C), which prohibits a person who has assumed a duty
to provide care for an elderly person from knowingly or
intentionally “[l]eav[ing] the … elderly person unattended
at a place for such a period of time as may be likely to endanger the health or welfare of that person.” The crime has four
elements: (1) a culpable mental state; (2) that the victim is
an “elderly person”; (3) that defendant has assumed a duty
to provide care for the victim; and (4) that defendant left
the victim unattended at a place for such a period of time
as may be likely to endanger the victim’s health or welfare.
Here, defendant argues, the jury was likely confused because there was evidence in the record that defendant left both O and D unattended multiple times under
conditions likely to endanger their welfare. We address each
victim in turn.
A. Mistreatment of O
Defendant argues that the record contains evidence
of multiple instances when she could have committed the
violation on the count concerning O by leaving her unattended under conditions that the jury could have determined
endangered her welfare. The state concedes this point and
we agree.
The jury heard testimony about events involving O
on several different dates. On February 2, 2017, Pulkownik
and Linn County Sheriff’s Deputies McBride and Keys went
to the property to perform a welfare check on O. When
they arrived at the front gate, Pulkownik and the deputies
were unable to unlock the gate themselves or contact defendant by phone, so they climbed over the fence. They went
to O’s house and found the door locked and the windows
obstructed so that they could not see in. After knocking
without response, they tried defendant and D’s house, where
defendant answered the door and then let Pulkownik and
the deputies into O’s house. Pulkownik observed that, physically, O had limited mobility and needed someone else to
help her with her daily needs. When asked what she would
do in an emergency, O told Pulkownik that she would get
Cite as 313 Or App 109 (2021) 115
in contact with defendant. However, Pulkownik determined
that it was unlikely that O would be able to do so because
she was cognitively impaired—she did not know where the
phone was, where the bathroom was, or whether she had a
family.
Later, on an unspecified day that same February, a
group of firefighters/paramedics responded to a signal from
O’s medical alert bracelet. When the group could not get past
the gate, they climbed over and went to O’s house where all
the doors were locked. Although the fire chief was able to
reach defendant at her house, she was unable to open the
locks on O’s door. The group forced entry only to encounter a
second locked door, which defendant had to crawl in through
a dog door to open. In total, it took 25 minutes to be able to
get inside and assess O’s condition.
Finally, on April 3, McBride, Pulkownik, and others
went to the property to assess O’s and D’s conditions. When
they arrived at the property, defendant was not there. After
encountering the usual difficulties with the gate, Pulkownik,
McBride, and the others climbed over and went to O’s house,
where they found the doors locked and the windows blocked
with bars and various pieces of large furniture. After unsuccessfully trying to remove a window to get inside, McBride
called out to O and asked her to let them in. Although O
heard them, it took her “quite a bit of time just to be able to
get up on her feet” and her movements appeared to be slow,
labored, and painful. O was not able to open a door.
On all three occasions, the state’s witnesses described
essentially the same scenario: defendant left O—an elderly
woman with significant physical and cognitive impairments
who had no ability to seek help in the event of an emergency—
unattended and locked inside a home with several obstacles
to entry. Given that information, the jury could have determined that leaving O unattended on any of the three dates
was likely to endanger her welfare and thus violated ORS
163.205.
Under these circumstances, where the evidence
permitted a finding that defendant committed the charged
offense on any one or more of several instances, defendant
was entitled to an instruction that jurors had to agree on
116 State v. Camphouse
which instance was the basis for their verdict. See State
v. Slaviak, 296 Or App 805, 810-11,
440 P3d 114 (2019)
(“[W]hen an indictment charges a single occurrence of each
offense, but the evidence permit[s] the jury to find any one or
more among multiple, separate occurrences of that offense
involving the same victim and the same perpetrator, … it
is beyond dispute that a jury concurrence instruction …
is required.” (Internal quotation marks omitted.)). However,
that conclusion does not end our inquiry.
Because defendant did not preserve her argument,
the next step in our analysis would ordinarily be determining whether the trial court committed plain error by failing
to provide a concurrence instruction sua sponte. However, in
this case, we need not reach that issue. Assuming, without
deciding, that the trial court’s failure to give the concurrence instruction was plain error, we conclude that the error
was harmless—that is, “there is little likelihood that, if it
had been given the concurrence instruction[,] … the jury
would have reached a different result.” Ashkins, 357 Or at
664.
According to defendant, “the jurors easily could have
based their verdicts on different occurrences, resulting in
impermissible ‘mix-and-match’ verdicts,” considering that
the prosecutor specifically told the jury that defendant left
O unattended under dangerous conditions “multiple times,”
including in both February and April. However, for the reasons explained below, we agree with the state that there is
no reasonable likelihood given the parties’ arguments that
the lack of a concurrence instruction would have changed
the verdict. See id. at 660 (evaluating harmlessness of failure to give concurrence instruction in light of “the parties’
theories of the case with respect to the various charges and
defenses at issue”).
The state’s theory of the case invited jurors to
treat defendant’s conduct as a continuing and progressive
course of mistreatment, and defendant’s theory was that no
mistreatment occurred at all. During closing arguments,
the prosecutor argued that the various conditions on the
property—including the locks (both on the front gate and on
the doors), furniture barricades, and various tripping and
Cite as 313 Or App 109 (2021) 117
fire hazards—posed a danger to O’s health or welfare without differentiating between which conditions were present
on one day as opposed to another. Likewise, in responding to
the state, defendant did not distinguish individual dates or
times and make specific arguments as to why the conditions
on those dates fell short of violating the statute. Rather, she
made a similar sort of undifferentiated argument that the
conditions of the property at no point posed a significant
threat to O’s safety. Cf. Theriault,
300 Or App at 256 (recognizing that a “sweeping denial” is more likely to be harmless
than a defense theory particularized to challenging specific
incidents).
The evidence presented was consistent with the
state’s theory of the case—the conditions did worsen over
time between February and April. All of the dangerous conditions in February, including the locks (both on the front
gate and on the doors) and the window obstructions, were
also present in April. By April, however, witnesses testified that there was a large amount of clutter on the floors
and that defendant was entirely absent from the property.
Defendant’s argument did not distinguish between the
dates, but rather contended that the ongoing conditions
did not violate the statute at all, a theory the jury rejected.
Because no evidence or testimony described any dangerous
condition in February that was not also present in April,
there is no reason to believe that any juror would vote to
convict defendant based on her conduct in February but not
April. In other words, the only lack of concurrence that plausibly would have occurred is whether defendant committed
the crime at both times, not one or the other. Accordingly, we
conclude that the failure to provide the jury a concurrence
instruction was harmless with respect to the count involving O. See Ashkins, 357 Or at 664.
B. Mistreatment of D
With respect to the count involving D, defendant
also argues that there was evidence of two incidents when
she left D unattended under potentially dangerous circumstances such that the jury might have been confused about
the basis for its verdict: once in 2013 and once in 2017. In
2013, defendant argues that the jury could determine that
118 State v. Camphouse
she violated the statute based on the testimony of her neighbor, Musch, that he saw her leave the property alone, sometimes for hours at a time.
However, the need for a concurrence instruction
is governed by the charging instrument. See Arellano-Sanchez, 309 Or App at 83 (looking to indictment to determine whether concurrence instruction was required). Here,
the indictment charged defendant with criminally mistreating D “on or between October 1, 2016 and April 4, 2017.”
As a result, the jury was instructed that, to return a guilty
verdict on that count, it had to find that “[t]he act occurred
on or between October 1, 2016 and April 4, 2017.” Because
Musch’s testimony did not concern events falling within that
time period, there is no reason that any jurors would have
based their verdict on his testimony. Accordingly, the trial
court did not commit error, plain or otherwise, in failing to
give a concurrence instruction on the count concerning D
and we affirm defendant’s conviction.
IV. CONCLUSION
In sum, we conclude that the trial court erred in
failing to provide a concurrence instruction on the charge
involving O, because there were multiple incidents in the
record that the jury could have determined violated ORS
163.205. However, because that error was harmless, and
because the trial court did not err as to the charge involving
D, we affirm defendant’s convictions.
Affirmed.
