State v. Burnett

                                       550

             Submitted July 16, 2020, affirmed September 15, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     DAVID PAUL BURNETT,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       18CR49111; A169643
                                   

    Defendant appeals a judgment of conviction for driving under the influence of
intoxicants, ORS 813.010(5). He argues that the trial court erred by not sua sponte
excluding evidence of a breath test, providing a nonunanimous jury instruction,
and submitting the case to the jury without a concurrence instruction or the
state’s election of a factual basis for the conviction. Held: Defendant’s plain-error
argument about the breath test was foreclosed by the Court of Appeals’ decision
in State v. Smith, 

, 

 (2020); the nonunanimous
jury instruction was foreclosed by State v. Flores Ramos, 

, 

(2020); and even assuming a concurrence or election instruction was required,
the error was harmless.
    Affirmed.



    Todd L. Van Rysselberghe, Judge.
    Ernest G. Lannet, Chief Defender, and Stacy M. Du Clos,
Deputy Public Defender, Office of Public Defense Services,
filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
    JAMES, J.
    Affirmed.
Cite as 

 (2021)                                             551

           JAMES, J.
        Defendant appeals from a judgment of conviction
of one count of Driving Under the Influence of Intoxicants
(DUII), raising four assignments of error.1 We affirm.
         In defendant’s third assignment of error he argues
that the trial court plainly erred by not sua sponte excluding
evidence of his breath test refusal under State v. Banks, 

, 

 (2019). Defendant’s plain-error argument is foreclosed by our decision in State v. Smith, wherein
we reasoned:
       “Here, defendant’s alleged error—that the trial court
   erred in admitting evidence of his refusal to take a breath
   test—is not plain because it is neither obvious nor apparent. Importantly, Banks does not establish that evidence
   of a refusal to take a breath test is per se inadmissible.
   Rather, Banks concludes that the admissibility of a driver’s
   refusal to take a breath test depends on the nature of the
   officer’s request.”

, 

, rev den, 

 (2020).
         Defendant’s fourth assignment of error challenges
the trial court’s giving of a nonunanimous jury instruction.
However, given that the jury verdict was unanimous, defendant’s arguments are foreclosed by State v. Flores Ramos,

, 

 (2020).
         Defendant’s first and second assignments of error
present a combined challenge to the submission of this case
to the jury without either (a) the state electing a factual basis
for the conviction, or (b) the trial court instructing the jury
that it must concur as to the factual basis. Here, the evidence at trial was that defendant drove for 30 minutes from
his family home to his uncle’s house where he confronted
several relatives. The relatives told defendant that they had
called the police. Defendant left the area on foot. While defendant was away from the car—approximately 30 minutes—
police officers deflated defendant’s tires. Defendant returned

    1
      In a separate count, defendant waived a jury trial and the court found him
guilty of criminal driving while suspended or revoked. Defendant does not challenge that conviction on appeal.
552                                         State v. Burnett

to the car and drove a short distance before police apprehended him.
         The state responds that the need for a concurrence
instruction here is unnecessary, arguing that under these
facts, defendant’s driving is properly seen as a continuous
event that was momentarily, though significantly, broken up
by the 30-minute stop.
         Ultimately, however, we need not resolve whether
election or a factual concurrence instruction was required
under these facts because we conclude, as did the Oregon
Supreme Court in Ashkins, that, upon this record, even
assuming a concurrence instruction was required, here
there is “little likelihood that the error affected the verdict.” State v. Ashkins, 

, 

 (2015)
(affirming despite error in not giving concurrence instruction, because error was harmless); State v. Camphouse, 

, 

 (2021) (concluding that failure
to give concurrence instruction was harmless given the specific record). There was no dispute in this case that defendant drove his vehicle from Estacada to Happy Valley and
then drove his vehicle again, this time down the hill, a short
distance before being stopped. Thus, this is not a case in
which any rational juror could have concluded that he drove
a motor vehicle only during one incident, but that he was not
the driver during the other.
         The brief period of time involved—30 minutes—
makes it highly unlikely that the jury would conclude that
defendant was intoxicated during only one trip but that he
was not intoxicated during the other. In his closing argument
to the jury, defense counsel did not dispute that defendant
had driven both times, and the only defense he advanced
was that defendant was not intoxicated during either incident of driving. At no time during his argument did defense
counsel distinguish between the incidents on the basis of
the level of defendant’s possible intoxication while driving
during that incident.
        Affirmed.