State v. Bock (A169480) ( 2021 )

329
Argued and submitted August 11, 2020; convictions on Counts 1, 2, 3, 4, 5,
and 7 reversed and remanded, remanded for resentencing, otherwise affirmed
March 31, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
COREY ALAN BOCK,
Defendant-Appellant.
Washington County Circuit Court
17CR41800; A169480
485 P3d 931
Defendant appeals a judgment of conviction for three counts of attempted
aggravated murder with a firearm, ORS 161.405(2)(a), ORS 163.095, and ORS
161.610 (Counts 1, 2, and 3); attempted murder with a firearm, ORS 161.405(2)(a),
ORS 163.115, and ORS 161.610 (Count 4); assault in the second degree, ORS
163.175 (Count 5); burglary in the first degree, ORS 164.225 (Count 6); felon in
possession of a firearm, ORS 166.270 (Count 7); and interfering with a peace
officer, ORS 166.247 (Count 8). Defendant assigns error to the trial court’s denial
of his motion to suppress evidence because the warrant authorizing a search of
his cell phone violated the particularity requirement of Article I, section 9, of
the Oregon Constitution, the trial court’s decision to provide jury instructions
that would allow the jury to assess self-defense from the victim’s perspective,
the trial court’s instruction to the jury that it could return nonunanimous ver-
dicts, and the trial court’s acceptance of nonunanimous verdicts on Counts 2, 3,
and 5. Held: The trial court erred in three respects: first, by admitting the gun
photo when police were not authorized to search for and use it under either the
search warrant or the plain view doctrine; second, by instructing the jury on self-
defense from the victim’s perspective; and third, by instructing on and accepting
nonunanimous verdicts on Counts 2, 3, and 5. Those errors require reversal of
all of defendant’s convictions apart from his convictions for burglary in the first
degree on Count 6 and interference with a peace officer on Count 8, which, the
Court of Appeals concluded, were unaffected by the trial court’s errors.
Convictions on Counts 1, 2, 3, 4, 5, and 7 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Eric Butterfield, Judge.
Lindsey Burrows argued the cause for appellant. Also on
the briefs was O’Connor Weber LLC.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
330 State v. Bock (A169480)
Before Lagesen, Presiding Judge, and Kamins, Judge, and
Kistler, Senior Judge.
KAMINS, J.
Convictions on Counts 1, 2, 3, 4, 5, and 7 reversed and
remanded; remanded for resentencing; otherwise affirmed.
Kistler, S. J., concurring in part and concurring in the
judgment in part.
Cite as 310 Or App 329 (2021) 331
KAMINS, J.
We are once again confronted with a question about
the scope and mechanics of the search of a cell phone. Based
in part on evidence obtained from a warranted search of
his cell phone, defendant was convicted of three counts
of attempted aggravated murder with a firearm, ORS
161.405(2)(a), ORS 163.095, and ORS 161.610 (Counts 1,
2, and 3); attempted murder with a firearm, ORS 161.405
(2)(a), ORS 163.115, and ORS 161.610 (Count 4); assault
in the second degree, ORS 163.175 (Count 5); burglary in
the first degree, ORS 164.225 (Count 6); felon in possession
of a firearm, ORS 166.270 (Count 7); and interfering with
a peace officer, ORS 166.247 (Count 8). Defendant makes
eight assignments of error, only six of which we discuss
in detail.1 In his first and second assignments, defendant
argues that the trial court erred in denying his motions
to suppress evidence because the warrant authorizing a
search of his cell phone violated the particularity require-
ment of Article I, section 9, of the Oregon Constitution. In
his third and fourth assignments, defendant argues that
the trial court erred in providing instructions that would
allow the jury to assess self-defense from the victim’s per-
spective. And finally, in his fifth and sixth assignments,
defendant argues that the trial court erred in instruct-
ing the jury that it could return nonunanimous verdicts
and by accepting nonunanimous verdicts on Counts 2, 3,
and 5.
We conclude that the trial court erred in all three
respects. Accordingly, we reverse and remand all of defen-
dant’s convictions apart from Counts 6 and 8, burglary in
the first degree and interference with a peace officer, which
were unaffected by the errors.
1
In defendant’s seventh assignment of error, he argues that the trial court
erred in denying his demurrer because it is impossible to attempt the crime of
aggravated murder. We recently rejected that argument in State v. Kyger, 305
Or App 548, 554, 471 P3d 764 (2020). In his eighth assignment of error, defen-
dant argues that the trial court erred in failing to merge his guilty verdict on
Count 1 for attempted aggravated murder with his guilty verdict on Count 4 for
attempted murder. In light of our disposition on the other assignments of error,
we need not reach the issue of merger because the jury may reach a different
verdict on remand.
332 State v. Bock (A169480)
I. STANDARD OF REVIEW
Because much of our decision involves review of the
denial of a motion to suppress, we state the facts as found
expressly or implicitly by the trial court. State v. Ehly, 317 Or
66, 75, 854 P2d 421 (1993). We also supplement additional
procedural information as necessary for review of other
issues. Substantively, we review a trial court’s legal conclu-
sions in denying a motion to suppress for errors of law. State
v. Stephens, 184 Or App 556, 560, 56 P3d 950 (2002), rev den,
335 Or 195 (2003). Likewise, we review jury instructions for
errors of law. State v. Poitra, 261 Or App 818, 820, 323 P3d
563 (2014).
II. ANALYSIS
On May 27, 2017, the victim was returning home
with his 12-year-old daughter when he was attacked in
his driveway by two men, defendant and Onofre. Over the
course of the attack, the victim was punched several times
and shot at when he attempted to flee. Ultimately, the vic-
tim and his daughter were able to get inside the victim’s
home safely and fend off the attackers until police arrived.
A. Cell Phone Search Warrant
After arresting defendant and Onofre, police
searched the vehicle that the two men had driven to the vic-
tim’s home and found a cell phone. Believing that the cell
phone might contain evidence relevant to the investigation,
police obtained a warrant to search the device for four cate-
gories of information:
“[(1)] Any evidence identifying the owner/user of the
device.
“[(2)] Any records of communication sent or received by
[defendant] between 05/26/17 and 05/27/17. * * *
“[(3)] Any location information for the device between
05/26/17 and 05/27/17. * * *
“[(4)] Any other evidence related to the investigation of
Attempted Murder (ORS 161.405), Attempted Assault I
(ORS 161.405), Assault II (ORS 163.175), Unlawful Use of a
Weapon (ORS 166.220) and Unlawful Possession Firearm-
Felon (ORS 166.250) occurring on 05/27/17.”
Cite as 310 Or App 329 (2021) 333
The search uncovered a photo that the state sought
to introduce at trial. The photo depicted a firearm resem-
bling one that police found discarded near the crime scene.
Defendant objected to the introduction of the photo, argu-
ing that the warrant violated the particularity requirement
of Article I, section 9, of the Oregon Constitution. The trial
court denied the motion, concluding that the warrant was
sufficiently particular.
On appeal, defendant assigns error to the trial
court’s decision. He argues that the gun photo should have
been suppressed because neither of the two search com-
mands encompassing the gun photo—the command to
search for evidence of the owner or user of the device or the
command to search for any evidence of the crimes under
investigation—satisfies Article I, section 9’s particularity
requirement.2
Article I, section 9, of the Oregon Constitution pro-
vides, in relevant part, that a search warrant must “partic-
ularly describ[e] the place to be searched, and the person
or thing to be seized.” The framers adopted the particular-
ity requirement to prohibit the use of “general warrants”
like those employed by the English colonial government
that give the bearer “an unlimited authority to search and
seize.” State v. Carter, 342 Or 39, 43-44, 147 P3d 1151 (2006).
Particularity is made up of two distinct components: spec-
ificity and overbreadth. State v. Friddle, 281 Or App 130,
137, 381 P3d 979 (2016). A warrant must be specific enough
to allow an officer, with reasonable effort, to identify the
place to be searched and the items to be seized. State v.
Blackburn/Barber, 266 Or 28, 35, 511 P2d 381 (1973). The
warrant also must not authorize a search broader than its
supporting materials provide probable cause to justify. State
v. Reid, 319 Or 65, 71, 872 P2d 416 (1994).
In State v. Mansor, 363 Or 185, 214, 421 P3d 323
(2018), the Oregon Supreme Court recognized that some of
the unique characteristics of electronic devices have impli-
cations for how these principles apply during electronic
2
Defendant does not challenge the particularity of either the second or third
search commands, which authorized a search for communications records and
location data from 05/26/17 to 05/27/17.
334 State v. Bock (A169480)
searches. Unlike in the physical world where different stor-
age spaces are used for particular purposes, inside com-
puters “there is ‘no way to know ahead of time where * * *
a particular file or piece of information may be located.’ ”
Id. (quoting Orin S. Kerr, Digital Evidence and the New
Criminal Procedure, 105 Colum L Rev 279, 303 (2005)) (omis-
sion in original). Accordingly, rather than identifying where
a particular item will be located on a computer or what form
it will take, Article I, section 9, requires an electronic search
warrant to “describe, with as much specificity as reason-
ably possible under the circumstances, * * * the information
related to the alleged criminal conduct which there is prob-
able cause to believe will be found on the computer.” Id. at
216 (emphasis in original). Additionally, when it is possible
to limit the material searched to a particular time period,
that period should also be set out in the warrant. Id. at 218.
Beginning with the command to search for evidence
of the owner or user of the cell phone, defendant argues that
the warrant is insufficiently specific because it does not
include a temporal limitation on the material that is subject
to seizure. The state rejoins that no temporal limitation is
necessary because evidence of a device’s ownership is not
naturally constrained to any particular period of time. The
command was, in the state’s view, as specific as possible
given the number of different forms of evidence of an elec-
tronic device’s ownership.
Regardless of whether the command to search for
evidence of the owner or user of the device included a tem-
poral limitation on the material subject to seizure, we con-
clude that the search command violates the particularity
requirement. Any interpretation of the search command
broad enough to permit the use of any material discovered
on the cell phone relevant to establish the device owner or
user’s identity is impermissibly nonspecific. A warrant with-
out clear limitations on the material subject to search and
seizure requires the executing officer to employ discretion in
deciding what to search or seize. See State v. Ingram, 313 Or
139, 145, 831 P2d 674 (1992) (warrant authorizing a search
of “all vehicles [determined to be] associated with the occu-
pants” of the defendant’s home required officers to employ
discretion in deciding which vehicles to search). That, in
Cite as 310 Or App 329 (2021) 335
turn, risks “invad[ing] privacy interests not intended by the
magistrate to be invaded and * * * conduct[ing] searches not
supported by probable cause.” Id.In practice, a warrant that authorizes seizure of
any item on a cell phone that might later serve as circum-
stantial evidence of the device owner or user is tantamount
to a general warrant. As the state acknowledges, “[t]he ways
in which a device might be connected to a specific user are
too varied to anticipate” and could include “email accounts
stored on the device belong[ing] to a particular person, * * *
a certain person’s social media or financial accounts, * * *
photographs of a particular person and his family, or * * *
any other pattern or usage uniquely attributable to a partic-
ular person.” Indeed, there is little information on the device
that the state could not use to identify the defendant given
the right circumstances and background information. Under
such circumstances, the officer performing the search has
the discretion to rummage freely throughout the device and
seize nearly everything—the exact practice that the partic-
ularity requirement was adopted to prohibit. Accordingly,
we conclude that the command to search for evidence of the
owner or user of the cell phone is invalid.
Next, we turn to the fourth command authorizing
a search for all evidence of the various offenses that police
were investigating.3 Defendant argues that this command
is also insufficiently particular because, under Mansor, a
warrant must do more than simply name the offenses under
investigation to satisfy the particularity requirement. The
state responds that, at a minimum, the portion of the com-
mand directing a search for all evidence of felon in posses-
sion of a firearm—which would encompass the gun photo—
was inherently specific enough about the evidence subject
to seizure. See State v. Savath, 298 Or App 495, 502-03, 447
P3d 1, rev den, 365 Or 722 (2019) (suggesting that a warrant
to search for evidence of possession of child pornography
was sufficiently specific because a reasonable officer would
have known to search for “contraband images and commu-
nications soliciting or exchanging such images”).
3
Because defendant did not argue that the warrant fails to establish proba-
ble cause that evidence of gun ownership would be found on the phone, we do not
reach the analysis raised in the concurrence.
336 State v. Bock (A169480)
We conclude that this command is also invalid.
Both we and the Supreme Court have explained that a war-
rant authorizing a search for all “evidence of a particular
crime” is not sufficiently specific to pass constitutional mus-
ter. Id. at 502; Mansor, 363 Or at 213. In Savath, although
we acknowledged the validity of the command in State v.
Rose to search through “[a]ny and all contents of electronic
files” in the defendant’s email account for child pornogra-
phy, we rejected a general rule that all commands to search
for evidence of possession offenses are sufficiently specific.
Savath, 298 Or App at 502-03 (citing State v. Rose, 264 Or
App 95, 330 P3d 680, rev den, 356 Or 400 (2014)). Rather,
we explained that the Rose command satisfied the partic-
ularity requirement specifically because the electronic files
were themselves contraband. Id. (citing Wayne R. LaFave,
2 Search and Seizure § 4.6(a), 771-72 (5th ed 2012) (“A less
precise description is required of property that is, because
of its particular character, contraband.”)). By contrast, we
concluded that the command at issue in Savath—to search
defendant’s cell phone for “all evidence” of various posses-
sion of controlled substances offenses—was invalid because
those offenses “did not involve contraband that could be
located on [the defendant’s] cell phone.” Id. at 503.
Here, the contraband that defendant was accused
of possessing was a firearm. Like the controlled substances
in Savath, a firearm itself cannot be located on defendant’s
cell phone. Accordingly, we conclude that, like the rest of the
command to search for any evidence of the offenses under
investigation, the section directing a search for evidence of
felon in possession is insufficiently particular and therefore
invalid.4
As an alternative to falling under the search com-
mand in the warrant, the state argues that use of the gun
photo was authorized by the plain view doctrine. Under the
plain view doctrine, an officer may seize an item from a place
4
Without advancing significant argument, defendant also challenges the
admission of a second photo taken with the cell phone showing defendant and
Onofre together. At trial, the state’s forensic examiner testified only that this
photo was responsive to the fourth search command, which we have just con-
cluded was invalid. Accordingly, the trial court erred in admitting this photo as
well.
Cite as 310 Or App 329 (2021) 337
that the officer is permitted to be if the officer has probable
cause to believe that the item is evidence of a crime. State
v. Currin, 258 Or App 715, 718-19, 311 P3d 903 (2013). The
state argues that it discovered the gun photo in plain view
while it was searching the phone’s photos for location data
pursuant to the third search command, which defendant
does not challenge. Because the state knew that defendant
had a prior felony conviction, forensic examiners had proba-
ble cause to believe the gun photo was evidence that defen-
dant was a felon in possession of a firearm.
Notably, there is unresolved tension following
Mansor about the extent to which the plain view doctrine
applies to electronic searches. Mansor recognized that
searches of digital devices often pose unique challenges
for investigators. 363 Or at 197. For example, unlike when
identifying items in physical searches, it is often impossi-
ble for investigators to tell whether digital files are relevant
to a particular search command without opening them and
examining them. Id. at 198. As a result, forensic examiners
must be permitted to examine material beyond the scope of
the warrant in order to discover all responsive data. Id. at
199-200.
At the same time, however, Mansor also recog-
nized the danger that such broad electronic searches pose
to privacy interests. Id. at 220. The very nature of a digital
device such as a cell phone renders it a “repository with a
historically unprecedented capacity to collect and store a
diverse and vast array of personal information.” Id. at 208.
Accordingly, to ensure that Article I, section 9, continued
to fulfill its purpose of protecting individuals’ privacy and
avoided “sanctioning the undue rummaging that the par-
ticularity requirement was enacted to preclude,” an addi-
tional limitation on the use of data falling outside the scope
of an electronic search warrant was necessary. Id. at 220(internal quotation marks omitted). Specifically, the state
is prohibited from introducing into evidence any “informa-
tion obtained in a computer search if the warrant did not
authorize the search for that information, unless some other
warrant exception applies.” Id. at 220-21. In imposing such
a limitation, the Mansor court recognized that its decision
“likely would have implications for a plain view argument,
338 State v. Bock (A169480)
if raised in a computer search case.” Id. at 211. However,
because the state’s argument did not rely on the plain view
doctrine, the court declined to address the issue. Id.This case requires us to answer the question that
Mansor did not: Can the plain view doctrine be reconciled
with Article I, section 9’s limitations on electronic searches?
At the outset, the state acknowledges that, under Mansor,
the plain view doctrine must at least be “more limited” in
the context of digital searches, and with good reason. The
digital medium undermines the rationale supporting the
plain view doctrine in the first place.
To understand the rationale behind the plain view
doctrine, “we [must] keep in mind the two distinct consti-
tutional protections served by the warrant requirement”:
eliminating searches not based on probable cause and pro-
hibiting “exploratory rummaging” authorized by general
warrants. Coolidge v. New Hampshire, 403 US 443, 467, 91
S Ct 2022, 29 L Ed 2d 564 (1971), overruled in part on other
grounds by Horton v. California, 496 US 128, 110 S Ct 2301,
110 L Ed 2d 112 (1990). The first protection is not threat-
ened because allowing seizure of items in plain view does
not authorize a search at all, let alone one not supported
by probable cause. Id. And “the seizure of an object in plain
view is consistent with the second objective, since it does
not convert the search into a general or exploratory one.” Id.Seizing an item in plain view does not interfere with a per-
son’s privacy interest by enlarging the scope of an already
authorized search, much less convert it into the sort of “gen-
eral, exploratory rummaging in a person’s belongings” that
the warrant requirement was meant to prohibit. Id.Meanwhile, allowing warrantless seizures of items
in plain view results in a “major gain in effective law
enforcement.” Id. When a lawful search is already in prog-
ress, it is often “a needless inconvenience, and sometimes
dangerous—to the evidence or to the police themselves—to
require [police] to ignore [evidence in plain view] until they
have obtained a warrant particularly describing it.” Id. at
467-68; see also Minnesota v. Dickerson, 508 US 366, 375,
113 S Ct 2130, 124 L Ed 2d 334 (1993) (“The warrantless sei-
zure of contraband [in plain view] is deemed justified by the
Cite as 310 Or App 329 (2021) 339
realization that resort to a neutral magistrate under such
circumstances would often be impracticable and would do
little to promote the objectives of the Fourth Amendment.”);
Arizona v. Hicks, 480 US 321, 327, 107 S Ct 1149, 94 L Ed 2d
347 (1987) (“[T]he practical justification for [the plain view
doctrine] is the desirability of sparing police, whose viewing
of the object in the course of a lawful search is as legitimate
as it would have been in a public place, the inconvenience
and the risk * * * of going to obtain a warrant.”).
Although the rationale in Coolidge and subsequent
cases holds up in the context of physical searches, it falters
when uprooted and applied wholesale to digital searches,
which, as Mansor recognized, require greater scrutiny to
protect privacy interests. The digital medium undercuts
the plain view doctrine’s pivotal assumption about a defen-
dant’s interests—namely, that seizing an item in plain view
involves only a “minor” intrusion. Coolidge, 403 US at 467.
Electronic devices contain “unprecedented” amounts of per-
sonal information, and, unlike physical searches, searches
of electronic devices require examination of at least some
information that is beyond the scope of the warrant. Mansor,
363 Or at 208, 220. As a result, in an electronic search,
much if not all of this unprecedented amount of personal
information may come within the plain view of an investi-
gator. Under such circumstances, allowing the state to use
any incriminating evidence implicates the precise protec-
tion the plain view doctrine normally does not implicate; it
effectively converts the plain view doctrine into a vehicle for
the execution of a general warrant. This is exactly the type
of “undue rummaging that the particularity requirement
was enacted to preclude.” Id. at 220. Allowing investigators
to use evidence that comes within “plain view” during an
electronic search would amount to an end of the particu-
larity requirement so critical to cabin searches of electronic
devices.
The state acknowledges this problem, but neverthe-
less argues that plain view still has a limited role to play in
broad electronic searches. According to the state, Mansor
provides that only materials discovered “far beyond” the
scope of the warrant must be restricted to prevent the state
340 State v. Bock (A169480)
from benefitting fortuitously from the necessary breadth of
an electronics search. Accordingly, so long as the material at
issue is not discovered “far beyond” the scope of the warrant
and can thus be analogized to a nondigital search, such as
searching a photo album, the plain view doctrine permits
state agents to use it. Because here it was already expected
that state investigators would have to search through all of
the cell phone’s photos for location data—a type of informa-
tion regularly embedded in photos—to determine whether
the photos contained data from within the searchable time
period, the state argues that the plain view doctrine permit-
ted use of the gun photo when investigators discovered it,
just as if the police were flipping through a photo album.
We reject the state’s argument. Attempting to
retrace the forensic investigator’s steps to determine whether
a nondigital analogue would have captured the same evi-
dence is not only judicially unworkable, it also fails to pro-
tect the interests served by the plain view exception. See
Orin S. Kerr, Searches and Seizures in a Digital World, 119
Harv L Rev 531, 579-80 (2005) (recognizing the difficulty
for courts to apply an approach that evaluates the specific
forensic steps to determine whether the evidence came into
plain view). Although it might have been “expected” that
state agents would examine each photo on defendant’s cell
phone in searching for location data, that fact does not make
the search for those photos somehow less invasive. The state
still had to conduct a broad search of defendant’s cell phone
to find those photos to search them for location data in the
first place. The breadth of the search is what renders the
plain view doctrine inapplicable; the alternative would sanc-
tion the sort of general warrant that the plain view doctrine
was never meant to authorize. Mansor, 363 Or at 220; see
also Orin S. Kerr, Executing Warrants for Digital Evidence:
The Case for Use Restrictions on Nonresponsive Data, 48
Tex Tech L Rev 1, 18 (2015) (explaining that, although elec-
tronic searches necessarily must be broad, a restriction on
nonresponsive data is necessary to prevent such searches
from becoming general warrants). Accordingly, the plain
view doctrine did not authorize use of the gun photo, and
the trial court erred in denying defendant’s motion to
suppress.
Cite as 310 Or App 329 (2021) 341
Having concluded that the gun photo should have
been suppressed, we must next determine whether the trial
court’s error in admitting the photo was harmless. A trial
court’s error is harmless if there is “little likelihood” that it
affected the jury’s verdict. State v. Lachat, 298 Or App 579,
589, 448 P3d 670 (2019), rev den, 366 Or 257 (2020). Whether
an error is harmless is informed by a number of consider-
ations, including the nature and context of the error. Id.Here, the state neither argues nor can we conclude
that there is little likelihood that the gun photo affected
the jury’s verdict. Whether defendant possessed the firearm
found at the scene was a central issue at trial. Defendant’s
primary theory of the case was that the victim had mis-
identified defendant as the gunman instead of Onofre.
Similarly, the state’s theories of attempted aggravated mur-
der, attempted murder, assault, and felon in possession of a
firearm all depended on proving that defendant possessed
the gun on the day of the attack. Against that backdrop,
it is likely that the jury’s verdict depended at least in part
on the fact that a photo of a gun resembling the one at the
scene had been found on defendant’s cell phone. Accordingly,
we must reverse defendant’s attempted aggravated murder,
attempted murder, assault, and felon in possession of a fire-
arm convictions on Counts 1, 2, 3, 4, 5, and 7.
Defendant’s two remaining convictions—burglary
in the first degree and interfering with a peace officer—did
not involve the firearm found at the scene. Defendant’s bur-
glary conviction was based on allegations that, during the
attack, defendant used a shovel to push the victim’s door
open enough to just barely cross the threshold into the home
with the intent of committing an assault therein. Similarly,
defendant’s conviction for interference with a peace officer
was based on allegations that, when police were attempting
to arrest defendant, he disobeyed orders to surrender and
instead fled from officers. Consequently, we conclude that
the erroneous admission of the gun photo was harmless
with respect to those convictions.
B. Jury Instructions
Although we have determined that several of defen-
dant’s convictions must be reversed and remanded as a
342 State v. Bock (A169480)
result of admission of the gun photo, we must still address
his other arguments for reversing the remaining convictions
as well as the other issues that are likely to arise again
during a retrial. Accordingly, we turn to defendant’s third
and fourth assignments of error, which concern the instruc-
tions that the jury received on self-defense from the victim’s
perspective.
Toward the end of the incident, defendant and the
victim exchanged gunfire as defendant and Onofre were
attempting to return to their vehicle. At trial, defendant
requested jury instructions on self-defense. He argued
that the evidence supported his theory that he reasonably
believed the victim had unlawfully used deadly force against
him and that returning fire was necessary to protect him-
self. In response, the state requested instructions on self-
defense to allow the jury to find that the victim had not used
force unlawfully. The trial court agreed and instructed the
jury on assault in the third degree and defense of premises,
both of which would allow the jury to determine that the
victim’s use of force was lawful.
On appeal, defendant argues that it was error for
the trial court to give the state’s instructions. He contends
that the victim’s belief regarding the necessity of the use of
force is irrelevant in evaluating a defendant’s self-defense
claim. Instead, a self-defense claim is evaluated only from
the perspective of the defendant. We agree.
Under ORS 161.209, a person is justified in using
force to defend against “what the person reasonably believes
to be the use or imminent use of unlawful physical force”
by another. Critically, “a person’s right to use force in self-
defense depends on the person’s own reasonable belief in
the necessity for such action.” State v. Oliphant, 347 Or 175,
191, 218 P3d 1281 (2009) (emphasis in original). It does not
depend on whether the force used against him was actually
unlawful. Id.While the state does not dispute that the victim’s
perspective is irrelevant in evaluating a self-defense claim
based solely on ORS 161.209, it argues that ORS 161.215
changes the analysis. In relevant part, ORS 161.215(2)
provides that a defendant who is the initial aggressor in
Cite as 310 Or App 329 (2021) 343
a confrontation cannot claim self-defense unless, after the
defendant withdraws from the confrontation, the other
party “nevertheless continues or threatens to continue the
use of unlawful physical force.” Unlike ORS 161.209, the
state argues, ORS 161.215(2) includes no language about
whether a defendant “reasonably believes” that “the force”
being used against him is unlawful. Instead, it asks only
whether the victim’s use or threatened use of force is actu-
ally unlawful. As a result, the state contends that a case
involving ORS 161.215 requires an instruction on self-
defense from the victim’s perspective in order for the jury
to consider whether the victim’s use of force was actually
unlawful.
We reject the state’s argument because, like ORS
161.209, ORS 161.215(2) does not require consideration of
the lawfulness of the victim’s use of force. When interpret-
ing a statute, we examine the text of the statute in context,
as well as any helpful legislative history, in order to ascer-
tain the intent of the legislature. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009). ORS 161.215(2) contains
an important textual clue indicating that the legislature
intended it to be interpreted consistently with ORS 161.209.
In ORS 161.215(2), the phrase “use of unlawful physical
force” is preceded by the definite article “the.” When used as
a definite article, the word “the” functions “to indicate that
a following noun or noun equivalent refers to someone or
something previously mentioned or clearly understood from
the context or the situation.” State v. Alexander, 255 Or App
594, 599, 298 P3d 55 (2013) (citing Webster’s Third New Int’l
Dictionary 2368 (unabridged ed 2002)). In context, because
ORS 161.215(2) imposes restrictions on the availability of
self-defense under ORS 161.209, it follows that “the use of
unlawful physical force” that the statute is referring to is
the same use of force that a defendant “reasonably believes”
to be unlawful from ORS 161.209.
Accordingly, whether or not the victim was actu-
ally justified in using force is equally irrelevant in eval-
uating a self-defense claim under ORS 161.215(2) as it is
under ORS 161.209. The trial court therefore erred when it
instructed the jury on self-defense from the victim’s perspec-
tive. Notably, because self-defense is not a defense to either
344 State v. Bock (A169480)
burglary in the first degree or interfering with a peace offi-
cer, we conclude that the trial court’s error was harmless
with respect to those convictions.
C. Jury Unanimity
Finally, we address defendant’s fifth and sixth
assignments of error regarding jury unanimity. Defendant
argues that the trial court’s instructions to the jury that
it could return a guilty verdict by a vote of 10-2 violated
the Sixth Amendment to the United States Constitution.
Likewise, he argues that the court erred by accepting guilty
verdicts by a vote of 11-1 on Counts 2 and 3 (attempted
aggravated murder) and on Count 5 (assault in the second
degree).
We agree that the trial court erred in both respects
under the United States Supreme Court’s decision in Ramos
v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583(2020), and that defendant’s convictions resulting from
nonunanimous verdicts are also reversible on this basis.
However, the instructional errors were harmless with
respect to defendant’s remaining convictions on Count 6,
burglary in the first degree, and Count 8, interfering with
a peace officer, both of which were unanimous. See State v.
Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020) (holding
that a trial court’s error in instructing the jury that it can
return nonunanimous verdicts is harmless with respect to
verdicts that are nonetheless unanimous). Accordingly, we
affirm defendant’s convictions on Counts 6 and 8.
V. CONCLUSION
In sum, we conclude that the trial court erred in
three respects: first, by admitting the gun photo when
police were not authorized to search for and use it under
either the search warrant or the plain view doctrine; sec-
ond, by instructing the jury on self-defense from the victim’s
perspective; and third, by instructing on and accepting
nonunanimous verdicts on Counts 2, 3, and 5. Those errors
require reversal of all of defendant’s convictions apart from
his convictions for burglary in the first degree on Count 6
and interference with a peace officer on Count 8, which we
conclude were unaffected by the trial court’s errors.
Cite as 310 Or App 329 (2021) 345
Convictions on Counts 1, 2, 3, 4, 5, and 7 reversed and
remanded; remanded for resentencing; otherwise affirmed.
KISTLER, S. J., concurring in part and concur-
ring in the judgment in part.
I join the majority’s opinion holding that, as the state
reads this warrant, the command to search a cell phone for
evidence of the owner’s identity is not sufficiently particular.
I also join the majority’s opinion regarding the plain view
exception. I concur, however, in its judgment regarding the
command to search for evidence of the crime of felon in pos-
session of a firearm. In my view, the command to search for
evidence of that crime was sufficiently particular; however,
the supporting affidavit did not establish probable cause
that a picture of a gun would be found on the cell phone.
In State v. Mansor, 363 Or 185, 421 P3d 323 (2018),
the court held that, if a search warrant establishes probable
cause that particular information regarding a crime will be
found on a computer, the unique nature of computers permits
officers to seize the computer and conduct a broad search of
the computer for that information. See id. at 207, 218 & n 15.
Mansor gave effect to the protection against unreasonable
searches and seizures found in Article I, section 9, by pro-
hibiting the state from using information uncovered during
a broad search of a computer unless the information came
within the scope of what the warrant properly authorized or
an exception to the warrant requirement. Id. at 220-21.
In this case, I agree with the majority regarding the
command to search for the identity of the phone’s owner and
its analysis of the plain view exception. I part company with
the majority in only one respect. The majority holds that
a warrant that authorizes a search of a computer for evi-
dence of the crime of felon in possession of a firearm is not
sufficiently particular. Ordinarily, a warrant that merely
authorized a search for evidence of a named crime does
not satisfy the particularity requirement. See id. at 222.
However, some crimes, by their nature, sufficiently limit the
scope of the search to satisfy that requirement; possession of
child pornography is one example. See State v. McNutt, 303
Or App 142, 155, 463 P3d 563, rev den, 367 Or 115 (2020)
346 State v. Bock (A169480)
(reaffirming that observation in State v. Savath, 298 Or App
495, 502, 447 P3d 1, rev den, 365 Or 722 (2019)). Felon in
possession of a firearm is another.
To be sure, as the majority notes, it is unlikely that
officers will find a gun in a cell phone. But a person’s cell
phone easily can contain evidence of gun possession, such
as a picture of the gun or other indicia of gun ownership,
and a command to search for evidence of the crime of felon
in possession is or should be sufficiently focused to meet the
particularity requirement. The difficulty for the state, in my
view, is that the warrant does not establish probable cause
that a picture of a gun or other indicia of gun ownership will
be found on this cell phone. On that issue, the officer’s affi-
davit in support of the warrant stated that, in his training
and experience, “[s]uspects often use the camera and video
functions of their phone to capture images related to their
criminal activity, such as * * * weapons used in the commis-
sion of their crime.” Under our decisions, such generalized
statements are insufficient, without more, to establish prob-
able cause that evidence of gun possession will be found on
this cell phone. See State v. Hernandez, 308 Or App 783, 791,
481 P3d 959 (2021). For that reason, I concur in part and
concur in the judgment in part.1
1
As the majority notes, defendant did not argue that the warrant failed to
establish probable cause that evidence of gun possession would be found on the
cell phone. Ordinarily, defendant’s failure to raise that issue, coupled with my
view that the fourth search command was sufficiently particular, would lead me
to dissent in part. The majority, however, concludes that evidence derived from
the fourth search command should be suppressed because that command was
not sufficiently particular, and there may be some value in pointing out what I
perceive to be an additional defect in the warrant so that that problem can be
avoided in the future. Cf. State v. Fonte, 363 Or 327, 352-53, 422 P3d 202 (2018)
(opinion concurring in the judgment) (discussing, for that reason, an additional
problem with the state’s theory of the crime that the defendant had not raised).