State v. De Mauro ( 2023 )

495
Argued and submitted September 27, 2022, affirmed March 8, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEVEN JOSEPH DE MAURO,
Defendant-Appellant.
Lincoln County Circuit Court
19CR77808; A174784
526 P3d 794
Defendant was convicted of second-degree murder for killing his friend T.
For several years, T had been staying on and off at the apartment shared by
defendant and defendant’s girlfriend. One night, when everyone was intoxicated,
defendant became upset with T and told him that it was time for him to leave.
T ignored defendant and went onto the deck. Defendant retrieved a gun and
fired two or three shots, the last of which killed T. At trial, defendant raised
the defenses of self-defense and defense of premises. As relevant to defense of
premises, the court instructed the jury on criminal trespass, including the role
of cotenancy. Separately, the court instructed the jury that it must unanimously
agree on a not-guilty verdict. On appeal, defendant challenges, first, the cote-
nancy portion of the criminal trespass instruction and, second, the unanimity
instruction. Held: Even if the cotenancy portion of the criminal trespass instruc-
tion misstated the law, the error was harmless under the circumstances. The
jury found that defendant was not justified in using deadly force to defend him-
self against T, such that there is little likelihood that the same jury would have
found that defendant was justified in using deadly force to defend the premises.
As for the unanimity instruction, the instruction was erroneous, but the error
was harmless because the jury returned a unanimous guilty verdict.
Affirmed.
Sheryl Bachart, Judge.
Kali Montague, 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.
Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
496 State v. De Mauro
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.*
AOYAGI, P. J.
Affirmed.
______________
* Jacquot, J., vice James, J. pro tempore.
Cite as 324 Or App 495 (2023) 497
AOYAGI, P. J.
Defendant was convicted of second-degree murder,
ORS 163.115, after shooting and killing his friend T. At trial,
defendant raised the defenses of self-defense and defense
of premises, so the trial court instructed the jury on those
defenses. On appeal, defendant raises two assignments of
error. First, he challenges the court’s jury instruction on
criminal trespass, specifically the portion regarding coten-
ancy. Second, he challenges the jury instruction on unanim-
ity. For the following reasons, we affirm.
With respect to the unanimity instruction, the trial
court instructed the jury that unanimity was required to
acquit. That instruction was legally erroneous, as the state
concedes. State v. Ross, 367 Or 560, 561, 481 P3d 1286 (2021).
However, the error was harmless because the jury returned
unanimous verdicts. State v. Martineau, 317 Or App 590,
594-95, 505 P3d 1094, rev den, 370 Or 197 (2022) (holding
same, with respect to same jury instruction). We therefore
reject defendant’s second assignment of error.
Turning to the first assignment of error, defendant
lived in an apartment with his girlfriend Paterson. T was a
friend who stayed there from time to time. He had a key to
the apartment and a room that he stayed in, and he used
the address for his DMV records. Defendant described the
situation to police as being that T “pretend[ed]” to live in the
apartment but was not on the lease. On November 27, 2019,
T was staying at the apartment. All three of them went out
drinking, and, when they returned, Paterson went to get
ready for bed. Defendant decided that he wanted T out of
the apartment.
Defendant gave somewhat differing accounts to the
police and at trial, and there were also differences between
his accounts and Paterson’s account. However, in short,
defendant wanted T to leave because he was tired of being
around T, who was a “mooch” and a “pain in the ass person.”
Defendant told T that it was time for him to leave and that
he wanted him to leave. T did not respond, instead walk-
ing onto the apartment’s deck. Defendant retrieved a .22
revolver from his bedroom. He again told T to leave. T was
standing on the deck with his back to defendant and did
498 State v. De Mauro
not respond. Defendant admitted at trial that he could have
locked the balcony door and called for help. Instead, he fired
a “warning shot,” which he thought clipped T in the shoulder
but later learned did not actually hit him. (At trial, defen-
dant testified that he fired two warning shots, a minute or
less apart, and that it was the second one that he thought
accidentally “hit” or “tapped” T’s shoulder.) At that point, T
“came at” defendant, and defendant shot him “point blank”
in the chest. T died of a single gunshot wound fired from one
to two inches away. Toxicology reports showed that, when
he died, T had a blood alcohol level of 0.221 as well as meth-
amphetamine and amphetamine in his system; three to four
hours after the shooting, defendant’s blood-alcohol level was
0.19.
Defendant was charged with second-degree murder
with a firearm. At trial, defendant did not contest that he
caused T’s death, but he argued that he acted lawfully in
self-defense and in defense of premises. During his testi-
mony, defendant described the end of the encounter as T
coming “quickly” toward him, slowing down and getting
into a “wrestling stance,” and then continuing toward him
with arms up, at which point defendant shot him. Defendant
was pointing the gun at T because, in defendant’s words, he
“could see it coming.” He hoped that T would just leave, but
T came at him instead. Defendant testified that he was still
recuperating from carotid artery surgery when the incident
occurred and that, when T came at him, he was afraid that
T might grab his neck, or break his back against the deck,
or choke him to death, or take his gun. Defendant and T
had never had a physical altercation, but T had talked about
being in bar fights in the past. Defendant testified that he
did not mention being afraid to the police officers because
he is a boat captain and is not one to talk about being afraid
and that he did not tell Paterson that he had been afraid
because she was too emotional about the incident.
ORS 161.225 governs the use of physical force in
defending one’s home. As relevant here, “[a] person in law-
ful possession or control of premises is justified in using
physical force upon another person when and to the extent
that the person reasonably believes it necessary to prevent
or terminate what the person reasonably believes to be the
Cite as 324 Or App 495 (2023) 499
commission or attempted commission of a criminal trespass
by the other person in or upon the premises.” ORS 161.225(1).
A person is justified in using deadly physical force in defense
of premises only (1) in defense of a person as provided in
ORS 161.219,1 or (2) “[w]hen the person reasonably believes
it necessary to prevent the commission of arson or a felony
by force and violence by the trespasser.” ORS 161.225(2).
As relevant to the use of force generally, the court
instructed the jury that “criminal trespass” occurs when a
person “remains unlawfully in a dwelling.” Because T was
a guest of both defendant and Paterson, the state asked
the court to also address cotenancy as relevant to criminal
trespass. Over defendant’s objection, the court added the
instruction: “A cotenant cannot exclude someone if another
cotenant has allowed that person to be there. A cotenant
with actual authority can permit a third party’s entry or
stay over the objection of a cotenant with equal authority.”
As for the use of deadly force, the court instructed the jury:
“Even though a person may use a reasonable degree of
physical force in defense of premises, there are certain lim-
itations on this legal privilege. The defendant is not justi-
fied in using deadly force on another person unless (a) he
reasonably believes that the other person is committing or
attempting to commit a felony involving the use or threat-
ened imminent use of physical force against a person;
(b) the other person is committing or attempting to commit
a burglary in a dwelling; (c) the other person is using or
about to use deadly physical force against a person; or (d) it
is necessary to prevent an arson or another felony by force
and violence by the trespasser.”
Defendant contends that the court erred in giving
the cotenancy instruction, because it misstated the law and
was otherwise unwarranted. “A trial court commits revers-
ible error when it incorrectly instructs the jury on a material
element of a claim or defense and that instructional error
allows the jury to reach a legally erroneous outcome.” State
1
ORS 161.219 limits a person’s use of deadly physical force in defense of
a person to circumstances in which the person “reasonably believes” that the
other person is committing or attempting to commit a felony involving the use
or threatened imminent use of physical force against a person, committing or
attempting to commit a burglary in a dwelling, or using or about to use unlawful
deadly physical force against a person.
500 State v. De Mauro
v. Phillips, 313 Or App 1, 2, 493 P3d 548, rev den, 358 Or 788(2021). The state disagrees that the cotenancy instruction
misstated the law. We need not resolve that issue because
we conclude that even if it did, the error was harmless. That
is, there is little likelihood that it affected the verdict. State
v. Davis, 336 Or 19, 32, 77, P3d 1111 (2003).
We look at the jury instructions as a whole in assess-
ing harmlessness. State v. Lopez-Minjarez, 350 Or 576, 584,
260 P3d 439 (2011). Here, defendant posits that, absent the
erroneous cotenancy instruction, the jury might have found
that defendant reasonably believed that T was criminally
trespassing when he failed to leave. Even if that is true,
however, there is little likelihood that it would have affected
the verdict. For the defense-of-premises defense to apply, the
jury would have had to find not only that defendant rea-
sonably believed that T was criminally trespassing in the
apartment—when T failed to leave after defendant told him
to leave—but also that defendant reasonably believed that it
was necessary to shoot T in the chest to terminate the crim-
inal trespass and to prevent T from committing a felony by
force and violence. That is very unlikely given that the jury
rejected defendant’s self-defense defense.
On self-defense, the jury was instructed that “[a]
person is justified in using physical force on another person
to defend himself from what he reasonably believes to be the
use or imminent use of unlawful physical force,” but that
“a person may only use the degree of force which he reason-
ably believes to be necessary,” and that the use of deadly
physical force is not justified unless the defendant rea-
sonably believed that the other person was committing or
attempting to commit a felony involving the use or threat-
ened imminent use of physical force against a person, com-
mitting or attempting to commit a burglary in a dwelling, or
using or about to use unlawful deadly physical force against
defendant or another person.
Given the similarity of the two defenses and the crit-
ical points at which they overlap, there is little likelihood—
indeed, it is nearly inconceivable—that the same jury con-
sidering the same set of circumstances would find that
defendant was not justified in using deadly force to defend
Cite as 324 Or App 495 (2023) 501
himself when T moved toward him, but that he was justified
in using deadly force to defend his premises when T moved
toward him.2 We therefore conclude that, even if the coten-
ancy instruction misstated the law, that error was harmless
and does not provide a basis for reversal.
Finally, in addition to arguing that it misstated
the law, defendant makes three other arguments on appeal
regarding the cotenancy instruction, each of which he
describes as “an independent basis for reversal”: that the
instruction addressed an irrelevant issue (whether T was
actually criminally trespassing); that it was not supported
by evidence (because there was no evidence that Paterson
told T to stay after defendant told him to leave); and that it
improperly commented on the evidence (essentially telling
the jury that it was unreasonable for defendant to believe
that T was criminally trespassing). We do not address the
latter two arguments, because we agree with the state that
they were not preserved in the trial court. As for the first
argument, we reject defendant’s contention that the coten-
ancy instruction addressed an irrelevant issue. It was appro-
priate to instruct the jury on what criminal trespass is, as
relevant to the reasonableness of defendant’s belief that T
was trespassing. State v. Delucia, 40 Or App 711, 714, 596
P2d 1985 (1979). We see no reason that the court could not
address the effect of cotenancy as part of explaining what
criminal trespass is. Also, the court specifically instructed
the jury that, as to defense of premises, the issue was defen-
dant’s reasonable belief.
Affirmed.
2
Defendant argues that the cotenancy instruction “likely impacted the jury’s
deliberation on defendant’s self-defense claim.” We disagree. The court instructed
the jury to consider the criminal trespass and cotenancy instructions only as
to the defense-of-premises defense. “Jurors are assumed to have followed their
instructions, absent an overwhelming probability that they would be unable to
do so.” State v. Hunt, 297 Or App 597, 605, 442 P3d 232 (2019).