State v. Powe

                                       726

   Submitted May 21; conviction on Count 1 reversed, conviction on Count 2
      reversed and remanded, otherwise affirmed September 22, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    DEONTE AHMAD POWE,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       17CR32507; A172584
                                   

     Defendant was convicted of coercion constituting domestic violence, ORS
163.275 (Count 1), and fourth-degree assault constituting domestic violence, ORS
163.160 (Count 2), after he allegedly pulled his ex-girlfriend H out of a car by
her hair, dragged her a short distance, and punched her in the eye. The jury
returned a unanimous verdict on the coercion count and a nonunanimous verdict
on the assault count. On appeal, defendant challenges both convictions on Sixth
Amendment grounds, relying on Ramos v. Louisiana, 

, 

,

 (2020). He also assigns error to the trial court’s denial of his
motion for judgment of acquittal on the coercion count. Held: The assault conviction must be reversed under Ramos, because it is based on a nonunanimous verdict. As for the coercion count, the trial court erred in denying defendant’s motion
for judgment of acquittal. The evidence was legally insufficient to establish the
elements of the offense of coercion, as there was no evidence that defendant—
who was indicted on a coercion-to-act theory—used fear as a means to compel
or induce the victim to do anything herself. Instead, the only evidence was that
defendant used physical force to move H’s body against her will.
    Conviction on Count 1 reversed; conviction on Count 2 reversed and remanded;
otherwise affirmed.



    Leslie G. Bottomly, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
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 (2021)                       727

  AOYAGI, J.
   Conviction on Count 1 reversed; conviction on Count 2
reversed and remanded; otherwise affirmed.
728                                             State v. Powe

        AOYAGI, J.
         Defendant was convicted of coercion constituting
domestic violence, ORS 163.275 (Count 1), and fourth-degree
assault constituting domestic violence, ORS 163.160 (Count 2).
He was acquitted of interference with making a report,
ORS 165.572 (Count 3). On appeal, defendant contends that
the trial court erred in denying his motion for judgment of
acquittal (MJOA) on the coercion charge. He also challenges
both of his convictions on Sixth Amendment grounds. We
conclude that the trial court erred in denying defendant’s
MJOA and, accordingly, reverse the coercion conviction. As
for the assault conviction, we reverse and remand, because
the conviction was based on a nonunanimous verdict in violation of the Sixth Amendment.
                   SIXTH AMENDMENT
         Defendant asserts that the trial court violated the
Sixth Amendment by instructing the jury that it could find
him guilty by nonunanimous verdict and then by accepting
the jury’s verdicts. The jury was polled, establishing that
defendant was found guilty of assault by nonunanimous verdict (10-2) and guilty of coercion by unanimous verdict (12-0).
Under Ramos v. Louisiana, 

, 

, 

 (2020), the trial court erred in convicting defendant of assault based on a nonunanimous verdict, the state
concedes the error, and we reverse and remand that conviction. We reject defendant’s Sixth Amendment argument as
to the coercion conviction, however, for the reasons stated
in State v. Flores Ramos, 

, 

(2020), and State v. Kincheloe, 

, 

(2020), cert den, ___ US ___, 

, 

(2021).
                    MJOA - COERCION
        Defendant asserts that the trial court erred in
denying his motion for judgment of acquittal on the coercion charge, because the evidence was insufficient as a
matter of law to convict him of that crime. We review the
denial of a motion for judgment of acquittal to determine
whether, viewing the facts and all reasonable inferences
Cite as 

 (2021)                            729

that may be drawn therefrom in the light most favorable
to the state, a rational trier of fact could have found the
essential elements of the crime proved beyond a reasonable doubt. State v. Wakefield, 

, 

 (2018). We state the facts in accordance with that
standard.
          Defendant and H had previously dated and were
“still talking.” One evening, they met at a bar, and, at the
end of the night, defendant agreed to give H a ride home.
They argued during the car ride. Upon arriving outside H’s
home, defendant told H to get out of the car. As H gathered her belongings, defendant “got mad” and told her that
it was taking too long. H responded that she would not get
out of the car until she had her shoes on (which she had
removed during the ride) and her belongings. Defendant got
out of the car, walked to the passenger side, and opened the
door. He grabbed H by the hair, dragging her out of the car
and down the sidewalk for a distance of about a car length.
Defendant threw H’s belongings onto the ground and gave
H her dog, who had been in the hatchback area with defendant’s dog. Believing defendant had driven away, H called
9-1-1. Within 30 seconds into the call, defendant reappeared,
took the phone from H’s hand, and smashed it to the ground.
Defendant punched H hard in the eye, causing an orbital
fracture, and then drove away.
        H passed out for a few seconds. When she came to,
defendant was gone, and she called out for help as she lay
on the sidewalk. A passing bicyclist stopped to help her. H
was in pain and needed assistance to get up. An ambulance
transported H to the hospital. She had scratches, bruises,
and abrasions, and she required surgery for her orbital
fracture.
         Defendant was indicted on charges of coercion,
fourth-degree assault, and interference. As to coercion, the
indictment charged that defendant “did unlawfully and
knowingly compel and induce [H] to engage in conduct from
which [H] had a legal right to abstain, by means of instilling
in [H] fear that if [H] refrained from the conduct compelled
and induced, defendant would unlawfully cause physical
injury to [H].”
730                                                 State v. Powe

           At trial, upon defendant’s request, the trial court
required the state to make an election on the coercion count,
i.e., to specify the conduct that defendant had allegedly compelled H to engage in by instilling fear that he would physically injure her if she refrained from it. The state elected
H’s being pulled out of the car and dragged down the street.
Specifically, the state told the court that defendant had compelled and induced H
   “through the act of pulling her out of a car and dragging
   her down the street. She had a legal right to abstain from
   either of those acts, and she was in one act pulled out of the
   car and dragged down the street, and he instilled a fear
   that if she didn’t do that, that he would be violent towards
   her. He instilled that fear by actually being violent towards
   her.”
        Soon thereafter, defendant moved for a judgment of
acquittal, arguing that the evidence was insufficient as a
matter of law to establish coercion. The state opposed the
motion, reiterating its position that defendant had coerced
H to be dragged down the sidewalk by dragging her down
the sidewalk:
   “She says, ‘Wait a minute, I’m trying to get my belongings.
   I’m trying to get my shoes, I’m trying to get my purse.’
   She was not ready to leave that car, and she made that
   clear to Mr. Powe. He then acted, by pulling her out of that
   car. I asked her, ‘Did you want to go down that sidewalk?’
   She said, ‘No.’ She was engaged in moving down that sidewalk as a result of his behavior, as a result of his act. She
   went approximately a car length down the sidewalk being
   dragged by her hair. This is something that she was compelled to do, she had no other choice but to do this, because
   of his act.”
The trial court denied the MJOA, stating without elaboration that the evidence was sufficient to go to the jury. The
jury subsequently found defendant guilty of coercion.
           ORS 163.275(1) defines the crime of coercion as
follows:
      “A person commits the crime of coercion when the person compels or induces another person to engage in conduct
   from which the other person has a legal right to abstain,
Cite as 

 (2021)                                      731

   or to abstain from engaging in conduct in which the other
   person has a legal right to engage, by means of instilling
   in the other person a fear that, if the other person refrains
   from the conduct compelled or induced or engages in conduct contrary to the compulsion or inducement, the actor or
   another will:
      “(a) Unlawfully cause physical injury to some person;
      “(b)   Unlawfully cause physical injury to some animal;
      “(c)   Unlawfully cause damage to property;
      “(d) Engage in conduct constituting a crime;
      “(e) Falsely accuse some person of a crime or cause
   criminal charges to be instituted against the person;
       “(f) Cause or continue a strike, boycott or other collective action injurious to some person’s business, except
   that such a threat is not deemed coercive when the act or
   omission compelled is for the benefit of the group in whose
   interest the actor purports to act;
       “(g) Testify falsely or provide false information or
   withhold testimony or information with respect to another’s legal claim or defense; or
       “(h) Unlawfully use or abuse the person’s position as a
   public servant by performing some act within or related to
   official duties, or by failing or refusing to perform an official
   duty, in such manner as to affect some person adversely.”
         Thus, coercion requires a person to use fear of a
particular consequence as a means to “influence or persuade
a victim to alter his or her course of conduct—to do something that the victim otherwise would not have done or to
not do something which the victim otherwise would have
done.” State v. Pedersen, 

, 

,
rev den, 

 (2011) (emphases added). As the Supreme
Court said about a prior version of the coercion statute, “[t]he
target of the law is the effective use of fear to induce compliance with a demand.” State v. Robertson, 

,

 (1982).
        In State v. Phillips, 

, 

, rev den, 

 (2006), we affirmed the denial of
motions for judgment of acquittal on two coercion charges
732                                              State v. Powe

where there was evidence that two child victims complied
with the defendant’s demands to stay at his apartment
because he had instilled in them a fear that he would physically injure them if they did not comply. Similarly, in State
v. McNair, 

, 

, rev den, 

 (2018), the evidence was sufficient for a coercion charge
to go to the jury where the defendant ordered the victim
to sit on a couch, and she did so, under circumstances that
permitted a nonspeculative finding that she sat on the couch
against her will due to the defendant’s implicit threat of
physical violence if she failed to comply.
         By contrast, in Pedersen, 

, the evidence was legally insufficient to prove coercion, where there
was no evidence that the victim (a police officer) intended to
write a ticket to the defendant but “was induced [not to do
so] by a fear that, if he did write a ticket, defendant would
physically injure him.” And, in State v. Hendricks, the defendant could not be convicted of coercion for assaulting the
victim, E, as she tried to walk into her living room, because
the evidence was “legally insufficient to establish that E
abstained from doing anything, much less that she did so
as a result of fear induced by an express or implied threat
of physical injury.” 

, 

 (2015),
rev den, 

 (2016). “To be sure, as a purely physical matter, defendant’s assaultive conduct obstructed and
delayed E’s movement, but nothing in the record, including
E’s testimony, suggests that, in any event, she acted as a
result of ‘fear-induced compliance.’ ” 

 (emphasis in original; quoting Pedersen, 

).
          In this case, defendant was indicted on a coercion- to-act theory. He was accused of coercing H “to engage in
conduct from which [H] had a legal right to abstain,” specifically by “instilling in [H] fear that if [H] refrained from
the conduct compelled and induced, defendant would unlawfully cause physical injury to [H].” See Hendricks, 

 (recognizing coercion-to-act and coercion-to-abstain as “two circumstantially distinct alternative variants of coercion” under ORS 163.275(1)). The state therefore
had to prove “three distinct elements”: (1) that defendant
compelled H to do something; (2) that H had a right not to
do; (3) by making H afraid that if she did not do it, one of the
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 (2021)                                             733

statutorily enumerated consequences would result. Phillips,

. At trial, the state elected the conduct on
which it sought conviction as defendant having compelled
or induced H to be dragged out of the car and down the sidewalk. To prove that theory, the state put on evidence that
H had wanted to stay in the car long enough to gather her
things, but that defendant wanted her out immediately and
dragged her out of the car and down the sidewalk when she
refused to get out immediately.1
         That theory of coercion is legally untenable. There
is no evidence that defendant used fear as a means to compel
or induce H to do anything. H did not drag herself down the
sidewalk—defendant dragged her. That was his conduct, not
hers. Defendant used physical force to move H’s body against
her will, which may be assault, but there is no evidence that
H moved her own body out of fear that defendant would
otherwise assault her, which would be coercion. As defendant puts it, H “did not remove herself from the car or move
down the street of her own accord, motivated by fear from
defendant’s words or actions,” but, rather, “was dragged by
the hair by defendant the entirety of the distance that she
was moved.”
         For the first time on appeal, the state suggests that
a jury could find that defendant coerced H to “comply” with
being pulled out of the car and dragged. That argument
seems to suggest that defendant coerced H to abstain from
conduct—fighting back—which is problematic, as that is not
how this case was indicted or tried. See Hendricks, 

 (a jury may consider only the variant of coercion
on which it is instructed—either coercion-to-act or coercion- to-abstain—and our review of the sufficiency of the evidence
is similarly “circumscribed”); see also Hill v. Mayers, 

, 

 (1990), rev den, 

 (1991)
(“[W]hen a case has been heard on a particular theory in
the trial court, on appeal the parties are restricted to the
theory on which the case was tried.”). In any event, the state
has identified no evidence that H “complied” with being
pulled out of the car and dragged, and our own review of

    1
      We assume without deciding that H had a legal right to stay in defendant’s
car long enough to gather her belongings.
734                                            State v. Powe

the record reveals none. Indeed, there is no evidence at all
as to how H behaved in the short time that defendant was
dragging her—such as whether she fought back (or not) or
yelled (or not)—let alone evidence that H altered her behavior in any way due to fear instilled by defendant about the
consequences if she reacted as she wanted.
         Accordingly, we agree with defendant that the trial
court erred in denying his motion for judgment of acquittal.
Although the state put on evidence to prove its elected theory of coercion, the theory itself was legally untenable, such
that no rational juror could find the essential elements of
coercion to have been proved.
        Conviction on Count 1 reversed; conviction on Count 2
reversed and remanded; otherwise affirmed.