State v. Wilcox ( 2023 )

687
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted April 24, conviction vacated, remanded for further proceedings,
otherwise affirmed August 30, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
BEAU NICHLAS WILCOX,
Defendant-Appellant.
Clackamas County Circuit Court
20CR25768; A176201
Todd L. Van Rysselberghe, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Conviction vacated; remanded for further proceedings;
otherwise affirmed.
688 State v. Wilcox
POWERS, J.
In this criminal case, defendant appeals from a judg-
ment convicting him of unlawful use of a weapon (UUW),
ORS 166.220, after a jury found him guilty on that charge
and acquitted him on other charges arising out of the same
incident. Raising three assignments of error, defendant first
argues that the trial court plainly erred by failing to sua
sponte instruct the jury that it must agree on which factual
occurrence constituted the UUW charge. Second, defendant
assigns error to the trial court’s imposition of a 60-month
firearm minimum prison sentence, asserting that the court
plainly erred when it imposed the sentence under ORS 161.610
without instructing the jury on the aggravating firearm ele-
ment. Third, defendant contends that the trial court plainly
erred by failing to sua sponte instruct the jury that it must
concur on which factual occurrence supported the imposition
of the firearm-minimum sentence. The state remonstrates
that the trial court did not plainly err by failing to provide a
jury-concurrence instruction but concedes that imposing the
firearm minimum was error. We first conclude that there is
reasonable dispute as to whether the court erred in failing
to give a jury-concurrence instruction for UUW; thus, any
error was not plain. Second, we accept the state’s concession
and agree with the parties’ arguments that it was error for
the court to impose the firearm minimum without properly
instructing the jury. Our resolution of the second assignment
of error obviates the need to reach defendant’s third assign-
ment. Accordingly, defendant’s UUW with a firearm convic-
tion is vacated, and we remand for further proceedings.
Because the parties are familiar with the case, we
do not provide a recitation of the factual and procedural
background for this nonprecedential memorandum opinion.
In his first assignment of error, defendant contends
that, under Article I, section 11, of the Oregon Constitution,
the jurors were required to agree on the factual occurrence
that supported the UUW charge.1 Whether the trial court
1
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the right to public
trial by an impartial jury in the county in which the offense shall have been
committed[.]”
Nonprecedential Memo Op: 327 Or App 687 (2023) 689
is required to give a concurrence instruction to the jury is a
question of law, which we review for legal error, viewing the
evidence in support of the instruction in the light most favor-
able to the party seeking the instruction. State v. Theriault,
300 Or App 243, 250, 452 P3d 1051 (2019). Where, as here,
defendant has not preserved the claim for review on appeal,
we may reach the merits of the claim only if it qualifies as
plain error; that is, the error is one of law, is obvious and not
reasonably in dispute, and is apparent on the record. State
v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006).
Defendant argues that the evidence put forth by the
state in this case would have allowed the jury to find that he
committed UUW at three distinct points: when defendant
possessed the firearm with the intent to use it unlawfully,
when he pointed the firearm and threatened to kill the vic-
tim, or when he hit the victim with the firearm. Defendant
asserts that the state argued at trial that the jury could find
defendant guilty based on any of those distinct occurrences,
and he contends that the court was required to sua sponte
instruct the jurors that they must concur on which of the
three factual occurrences constituted UUW. Failure to pro-
vide such instructions, he argues, was plain error.
The state remonstrates that no jury-concurrence
instruction was required. First, it contends that evidence
that defendant possessed the gun with the intent to use
it unlawfully did not require a concurrence instruction
because the legislature provided for alternative means
of proving the “unlawful use” element of UUW. Second,
regarding evidence that defendant pointed and hit the vic-
tim with the firearm, the state asserts that no concurrence
instruction was required because “the state presented evi-
dence of a brief, continuous course of conduct that amounted
to a single occurrence of UUW.” In such instances, the state
argues, it is not required to distinguish the particular act
that constituted the offense, and the jury was “required to
agree only that defendant’s course of conduct satisfied the
elements of the UUW charge.” Finally, the state asserts
that, even if the court did err, any error was not plain.
To qualify for plain-error review under ORAP 5.45,
an error must be: (1) an error of law; (2) obvious and not
690 State v. Wilcox
reasonably in dispute; and (3) apparent on the record with-
out requiring an appellate court to choose among competing
inferences. See, e.g., State v. Vanornum, 354 Or 614, 629, 317
P3d 889 (2013) (stating requirements of plain-error review). If
all three parts of the plain-error test have been satisfied, we
must then decide whether to exercise our discretion to review
the error and explain our reasons for doing so. Id. at 630; see
also Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823
P2d 956 (1991) (so stating). In this case, we need not decide
whether to exercise our discretion because the alleged error
fails to meet the second prong of the plain-error analysis.
That is, any error is not obvious; as demonstrated by the
parties’ arguments on appeal, the alleged error is reason-
ably in dispute. An error that is reasonably in dispute does
not qualify for plain-error review. See, e.g., State v. Gallegos,
302 Or App 145, 152, 460 P3d 529, rev dismissed, 366 Or 382(2020) (explaining that the competing arguments offered by
the defendant and the state demonstrated that the alleged
error was reasonably in dispute, which “has the effect of
precluding plain-error review”). Because defendant’s argu-
ment does not meet the plain-error standard, we reject it as
unpreserved.
In his second assignment of error, defendant argues
that the court plainly erred by imposing a 60-month firearm
sentence despite failing to instruct the jury relating to the
aggravating firearm element. Where the factfinder finds that
a defendant “use[d] or threatened [to] use” a firearm during
the commission of a felony, the court is authorized to impose
a lengthier sentence under ORS 161.610. Defendant con-
tends that “use or threatened use of a firearm” is an element
that requires the state to prove that defendant discharged
or threatened to discharge the firearm. See State v. Harris,
174 Or App 105, 112, 25 P3d 404 (2001) (holding that, in the
context of ORS 161.610, “use or threatened use” of a fire-
arm refers to discharging or threatening to discharge the
weapon). Based on the evidence presented, the jury could
have found that defendant “use[d]” the firearm in the com-
mission of a felony simply by striking the victim with the
firearm, which, the parties agree, would be inconsistent
with our case law. We agree with the parties’ arguments
and conclude that the trial court plainly erred by imposing
Nonprecedential Memo Op: 327 Or App 687 (2023) 691
the firearm sentence without instructing the jury on what
constitutes “use or threatened use of a firearm” for purposes
of ORS 161.610. Further, given the gravity of the error and
the ends of justice, we exercise our discretion to correct the
error. See, e.g., State v. Bowen, 280 Or App 514, 535-36, 380
P3d 1054 (2016) (exercising discretion to correct plain error
in failing to give a jury concurrence instruction where there
was no plausible strategic reason for failure to request the
instruction); State v. Medina, 234 Or App 684, 691, 228 P3d
723 (2010) (accepting the state’s concession on a claim of
plain error related to imposing multiple firearm minimums
and explaining that given “the gravity of the potential con-
sequences to defendant (60 months of incarceration), and
the minimal cost to the judicial system of a simple resen-
tencing proceeding, we conclude that a remand serves the
ends of justice”).
Finally, defendant contends that the court erred by
failing to instruct the jury that it must concur as to which
factual occurrence supported the imposition of the firearm
minimum sentence. Because we have already concluded that
the court erred by imposing the firearm sentence without
properly instructing the jury, we need not reach that argu-
ment. Accordingly, defendant’s conviction for UUW with a
firearm is vacated, and the case is remanded for further
proceedings in which the state may seek to retry defendant
on the firearm allegation or seek to resentence defendant
without the firearm minimum.
Conviction vacated; remanded for further proceed-
ings; otherwise affirmed.