State v. Jackson

                                       708

     Submitted May 30, 2019, affirmed August 4, petition for review denied
                       December 23, 2021 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    PERRY SAMUEL JACKSON,
                       Defendant-Appellant.
                     Coos County Circuit Court
                       16CR71768; A164742
                                   

    In this criminal appeal, defendant primarily contests the trial court’s refusal
to merge a conviction of first-degree trespass with second-degree burglary. On
appeal, defendant argues that because the elements of the trespass count are
subsumed within the elements of the burglary count, the trial court committed
legal error by entering convictions for each count. The state concedes that the
counts should have been merged. Held: The governing statute, ORS 161.067, prevents merger when the same conduct violates multiple provisions of criminal law
and each provision requires proof of an element that the others do not. In this
case, defendant was charged with first-degree trespass, which required proof of
unlawful entry into a “dwelling,” as defined by statute, and second-degree burglary, which required proof of unlawful entry into a “building” with intent to
commit a crime. Notwithstanding the state’s concession, proof of facts sufficient
to show a structure was a building, as required for the burglary count, did not
necessarily prove that the structure was a dwelling, as required for the trespass
count. Because trespass required proof of elements that burglary did not, the
trial court did not err by entering separate convictions.
    Affirmed.


   Richard L. Barron, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Hannah K. Hoffman, Assistant
Attorney General, filed the briefs for respondent.
   Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Landau, Senior Judge.
   LANDAU, S. J.
   Affirmed.
Cite as 

 (2021)                            709

        LANDAU, S. J.
         Defendant appeals a judgment of conviction for
second-degree burglary, second-degree criminal mischief,
first-degree trespass, and second-degree theft. He advances
three assignments of error: first, that the trial court erred
in denying a day-of-trial motion for a continuance; second,
that the trial court erred in failing to merge the convictions
for second-degree burglary and first-degree trespass; and
third, by way of a supplemental assignment, that the trial
court committed plain error when it instructed the jury
that a vote of only 10 jurors was necessary for a conviction.
We reject the first assignment without discussion. We also
reject defendant’s supplemental assignment as unpreserved,
and we conclude that the trial court did not err in failing to
merge the burglary and trespass convictions. We therefore
affirm.
         The relevant facts are not in dispute. Defendant
broke into a then-unoccupied house located on Date Street,
changed the locks, and posted a notice that he was asserting ownership by adverse possession. The owner was able
to obtain entry and change the locks again, but defendant
once again broke into the house. The state charged defendant with numerous offenses relating to those incidents.
Pertinent to this appeal, the indictment alleged that defendant, in committing second-degree burglary, “did unlawfully
and knowingly enter and remain in a building,” namely, the
Date Street house. As to the charge of first-degree trespass,
the indictment alleged that defendant “did unlawfully and
knowingly enter or remain in a dwelling,” the Date Street
house.
         Defendant waived his right to counsel and represented himself, and the case proceeded to trial. The trial
court instructed the jury that 10 or more jurors must agree
on the verdict. Defendant did not request a unanimous verdict instruction. The jury returned verdicts of guilty on the
four counts. Neither party requested the trial court to poll
the jury.
         At sentencing, the question arose whether the convictions for second-degree burglary and first-degree trespass should merge. The trial court noted that the burglary
710                                         State v. Jackson

charge referred to defendant having entered a “building,”
while the trespass charge referred to defendant having
entered a “dwelling.” The state appears to have suggested
that the distinction was of no matter for sentencing purposes and that the two convictions should merge. The trial
court nevertheless entered separate convictions. On appeal,
defendant argues that the trial court erred in delivering a
nonunanimous jury instruction and in failing to merge the
burglary and trespass convictions.
         We begin with defendant’s jury instruction claim of
error. Defendant concedes that he did not ask for a unanimous jury instruction. He further concedes that he did not
ask the trial court to poll the jury. He nevertheless argues
that the trial court committed plain error in instructing the
jury and that the error was “structural” in nature. According
to defendant, because of that structural error, it does not
matter that he failed to ask the court to poll the jury. In
any event, he argues, the error was not harmless. The state
responds that, although the jury instruction was erroneous,
it should not be reviewed as plain error.
        ORAP 5.45(1) provides that a claim of error may
not be considered on appeal “unless the claim of error was
preserved in the lower court … provided that the appellate court may, in its discretion, consider a plain error.”
Determining whether to review asserted plain error
involves two questions: First, is the error “plain”; in other
words, is the error one of law, not reasonably in dispute,
and apparent from the record? State v. Vanornum, 

, 

 (2013). Second, if the error is plain,
should the appellate court exercise its discretion to review
the error? State v. Gornick, 

, 

(2006).
         In this case, although it was plain error for the
trial court to deliver a nonunanimous jury instruction, we
decline to exercise our discretion to review the error, given
the absence of a jury poll.
        In Ramos v. Louisiana, 

, 

, 

 (2020), the United States Supreme
Court held that the Sixth Amendment to the United States
Constitution requires a jury to be unanimous to convict a
Cite as 

 (2021)                               711

defendant of a serious criminal offense. The Oregon Supreme
Court then held, in State v. Ulery, 

, 

(2020), that Ramos requires reversal of Oregon convictions
based on nonunanimous jury verdicts. The court further
held in Ulery that reversal of nonunanimous convictions is
appropriate even if the error was not preserved in the trial
court. 

; see also State v. Kincheloe, 

,

 (2020), cert den, ___US___, 

, 

 (2021) (receipt of a nonunanimous guilty verdict
is plain error).
         The question then arose whether Ramos requires
convictions to be reversed when the trial court erroneously
instructs the jury that it may convict on less than a unanimous verdict, but the jury nonetheless votes unanimously.
The Oregon Supreme Court took up that question in State
v. Flores Ramos, 

, 

 (2020). In that
case, the state argued that the return of a unanimous verdict renders any instructional error harmless. The defendant argued that the instructional error was “structural”
in nature—that is, the error is a “structural defect affecting the framework within which the trial proceeds, rather
than simply an error in the trial process itself,” Arizona v.
Fulminante, 

, 

, 

 (1991). Because the error was structural, the defendant
argued, no harmless error analysis applies. The Supreme
Court rejected the defendant’s argument that an erroneous
nonunanimous jury instruction is structural and requires
no harmless error analysis. Flores Ramos, 

.
The court went on to conclude that, where a poll of the jury
reveals a unanimous verdict, the fact that the trial court
delivered an erroneous nonunanimous jury instruction
amounts to harmless error. 

.
          There remained the question whether the delivery
of an erroneous nonunanimous jury instruction is reversible
error when the jury was not polled. The Oregon Supreme
Court addressed that question with respect to unpreserved
claims of error in State v. Dilallo, 

, 

(2020). The defendant in that case, who had not preserved
the issue at trial, argued that, because the burden rests with
the state to prove harmless error, the lack of a jury poll is, in
effect, the state’s problem. The court, while not disagreeing
712                                               State v. Jackson

with defendant’s proposition as to the federal constitutional
standards, declined to review the issue as plain error:
       “Defendant may be right that the state would be unable
   to show that the instructional error that occurred in this
   case was harmless beyond a reasonable doubt, if we did
   exercise our discretion to review the error. But that does
   not mean that plain error review is appropriate …. The
   fact that the opposing party may need to take additional
   steps to develop the record in order to address an assignment of error is one of the reasons that a timely objection
   is required. Here, defendant did not put the state or the
   court on notice of his objection to the jury instruction, so
   the absence of a jury poll is fairly attributable to defendant,
   even if the state would otherwise bear the burden of establishing harmlessness on appeal.”

 (citations omitted). The court held that, while the
delivery of the instruction amounts to plain error, it is not
appropriate for appellate courts to review the error when
the issue was not preserved in the trial court and the jury
was not polled. 

 But see State v. Scott, 

,

 (2021) (where defendant preserved an objection
to nonunanimous jury instruction, the state was required
to demonstrate that the constitutional violation was harmless beyond a reasonable doubt and could not do so in the
absence of a jury poll).
         In this case, although the trial court delivered
an erroneous nonunanimous jury instruction, we do not
exercise discretion to review it for the reasons set forth in
Dilallo. Defendant’s argument that the error was structural
in nature is foreclosed by the Supreme Court’s decision in
Flores Ramos.
         We turn then to defendant’s contention that the
trial court erred in failing to merge the burglary and trespass convictions. Defendant contends that the second-degree
burglary conviction and the first-degree trespass conviction
should merge into a single conviction for second-degree
burglary. According to defendant, first-degree trespass
is merely a lesser-included offense of second-degree burglary. The state concedes that the court erred in failing to
merge the convictions. Upon careful consideration, however,
we decline to accept the concession. See State v. Gillespie,
Cite as 

 (2021)                               713

, 

 (2019) (when state concedes error, “we are not bound to accept that concession
and must decide whether to accept it” (quoting Cervantes v.
Dept. of Human Services, 

, 

(2019))).
        Whether offenses merge is a question of law, State v.
Loving, 

, 

 (2019), albeit “one
of the most vexing in criminal law,” State v. Gensitskiy, 

, 

 (2019) (quoting State v. Cloutier, 

, 

 (1979)). The issue is governed
by ORS 161.067(1), which provides:
      “When the same conduct or criminal episode violates
   two or more statutory provisions and each provision
   requires proof of an element that the others do not, there
   are as many separately punishable offenses as there are
   separate statutory violations.”

Under that statute, merger is required when the elements
of one offense are subsumed in the elements of the other
offense. State v. Merrill, 

, 

(2020), adh’d to as modified on recons, 

, 

 (2021). Ordinarily, that is determined by comparing the statutory elements of each offense, without regard to
the allegations of fact in the indictment. 

 But when either
of the relevant statutes specify alternate ways of establishing the commission of the offense, we also take into account
the elements alleged in the indictment. State v. Oldham, 

, 

 (2019).
         The Oregon Supreme Court’s decision in State v.
Blake, 

, 

 (2010), demonstrates the
proper analysis under ORS 161.067(1). In that case, the
defendant attempted to make a single purchase with a
forged $100 bill. The state charged him with one count of
forgery in the first degree, ORS 165.013(1)(a), and one count
of criminal possession of a forged instrument in the first
degree, ORS 165.022(1). Blake, 

. A jury found
the defendant guilty of both charges. At sentencing, the
defendant unsuccessfully argued that the two convictions
should merge into a single conviction for forgery. 

 The
Supreme Court reversed.
714                                             State v. Jackson

        The court explained that, under the merger statute,
the controlling question is whether each statute defining the
relevant criminal offenses requires proof of an element that
the other does not:
   “[I]f one offense contains X elements, and another offense
   contains X + 1 elements, the former offense does not contain an element that is not also found in the latter offense.
   In that situation, under ORS 161.067(1), there is only one
   separately punishable offense.”

. Turning to the two offenses at issue, the court first
noted that forgery requires proof of (1) intent to injure or
defraud; (2) uttering; (3) of a forged bill; and (4) knowledge
that the bill is forged. 

. The court then noted
that the offense of criminal possession of a forged instrument requires proof of (1) intent to utter; (2) possession;
(3) of a forged bill; and (4) knowledge that the bill is forged.

         The court began its analysis of those elements by
first focusing on the conduct required by the two offenses.
Forgery requires “uttering,” while possession of a forged
instrument requires “possession.” The court concluded that,
because one cannot utter a forged instrument without first
possessing it, proof of uttering necessarily includes proof of
possession. 

.
          The court applied similar reasoning to the level of
intent required by the two crimes. Forgery requires intent
to injure or defraud, while possession of a forged instrument
requires intent to utter. The court concluded that “proof of
intent to injure or defraud … necessarily proves the intent
to utter.” 

. Merger was required, the court concluded, because “[c]riminal possession of a forged instrument does not require proof of an element—an act or an
intent—that is not also required to prove the crime of forgery.” 

        With that analysis in mind, we turn to this case
and the question whether proof of second-degree burglary
necessarily involves proof of first-degree trespass. The criminal code sets out two types of burglary. Under ORS 164.215,
a person commits the offense of second-degree burglary “if
the person enters or remains unlawfully in a building with
Cite as 

 (2021)                              715

intent to commit a crime therein.” Under ORS 164.225, a
person commits the offense of first-degree burglary if the
person commits second-degree burglary and, among other
things, “the building is a dwelling.”
         The elements of first-degree criminal trespass are
set out in ORS 164.255:
       “(1) A person commits the crime of criminal trespass
   in the first degree if the person:

      “(a) Enters or remains unlawfully in a dwelling;

      “(b) Having been denied future entry to a building
   pursuant to a merchant’s notice of trespass, reenters the
   building during hours when the building is open to the
   public with the intent to commit theft therein;

      “(c) Enters or remains unlawfully upon railroad yards,
   tracks, bridges or rights of way; or
      “(d) Enters or remains unlawfully in or upon premises
   that have been determined to be not fit for use under ORS
   453.855 (Purpose) to 453.912 (Governmental immunity
   from liability).”

In this case, the indictment charged defendant with the
first of the four ways of committing the offense, entering or
remaining unlawfully in a dwelling, so that is the relevant
element for the purposes of our decision here.
          Applying the Supreme Court’s analysis in Blake, the
question is whether each of the statutes that define the relevant criminal offenses requires proof of an element that the
other does not. In this case, the answer is yes. As we have
noted, second-degree burglary requires proof of (1) unlawfully entering or remaining; (2) in a building; (3) with intent
to commit a crime therein. The lesser offense of first-degree
trespass requires proof of (1) unlawfully entering or remaining; (2) in a dwelling. Thus, the offense of second-degree burglary requires proof of something that first-degree trespass
does not: Intent to commit a crime once in the building. And
the offense of first-degree trespass requires proof of something that second-degree burglary does not: Unlawfully
entering or remaining in a dwelling.
716                                           State v. Jackson

         Defendant argues that first-degree trespass does
not actually require proof of an additional element, because
a “dwelling” is defined by statute as a kind of “building.”
As a result, he argues, if the state proves that he entered a
“dwelling,” it necessarily proved that he entered a “building.”
Defendant is correct that, for the purposes of the statutes at
issue here, a “dwelling” is a kind of building. ORS 164.205(2)
defines a “dwelling” as a “building which regularly or intermittently is occupied by a person lodging therein at night,
whether or not a person is actually present.”
         Defendant’s argument ignores the fact that, for the
state to prove that he entered a “dwelling” for the purposes
of establishing first-degree criminal trespass, it had to prove
something that it did not have to prove to establish second-degree burglary. That is, to establish first-degree criminal
trespass, the state had to prove not just that defendant
entered any sort of “building” but that he had entered a particular kind of building, viz., one that “regularly or intermittently is occupied by a person lodging therein at night.” ORS
164.205(2). Thus, proof that defendant unlawfully entered
a “building” does not necessarily establish that he entered
a “dwelling,” and under Blake that is what is required for
merger. Second-degree burglary, on the other hand, does not
require proof that a person entered a dwelling, but can be
proven based on entry into any “building.”
         That distinction between entering a “building” and
entering a “dwelling” is borne out by the statutory difference between first-degree burglary and second-degree burglary. Although first-degree burglary, under ORS 164.225,
requires proof that the defendant entered a “dwelling,” the
conviction here was under ORS 164.215, which requires
proof that the defendant entered a “building.” If the state
had charged defendant with first-degree burglary, it would
make sense to say that the offense of first-degree trespass
merges with that offense, because in both cases the state
would be required to prove unlawful entry in a “dwelling.”
But here, the state charged defendant not with first-degree
burglary, but second-degree burglary, which requires proof
of unlawful entry into a “building.” That, in effect, required
the state to prove a different element to establish first-degree
Cite as 

 (2021)                             717

trespass than what it needed to prove to establish second-degree burglary. We therefore conclude that the trial court
did not err in failing to merge the first-degree trespass conviction into a single conviction for second-degree burglary.
        Affirmed.