State v. Trenary-Brown , 311 Or. App. 579 ( 2021 )

579
Argued and submitted November 12, 2020, reversed and remanded
May 19, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
SABRINA ANN TRENARY-BROWN,
Defendant-Appellant.
Marion County Circuit Court
17CR69783; A170102
489 P3d 1114
Defendant appeals from a judgment of conviction for one count of unlawful
sexual penetration in the first degree, ORS 163.411, and one count of assault in
the fourth degree, ORS 163.160. She contends that the trial court plainly erred
in accepting a nonunanimous verdict on the sexual penetration charge and in
failing to provide a concurrence instruction on the assault charge. With respect
to the assault charge, defendant argues that a concurrence instruction was
required because the state presented evidence of two injuries—each to different
parts of the victim’s body—either of which could have been the basis for the jury’s
verdict. Held: The trial court plainly erred by accepting a nonunanimous verdict
and the Court of Appeals exercised its discretion to reverse the sexual penetra-
tion count. Likewise, because the prosecutor’s argument repeatedly conflated the
victim’s injuries when discussing the assault count, there was a real possibility
of juror confusion such that the trial court plainly erred in failing to provide a
concurrence instruction. Because the failure to give a concurrence instruction
threatens to undermine the jury’s deliberative process, the court exercised its
discretion to correct the error.
Reversed and remanded.
Susan M. Tripp, 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.
Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
580 State v. Trenary-Brown
KAMINS, J.
Reversed and remanded.
Cite as 311 Or App 579 (2021) 581
KAMINS, J.
Defendant appeals from a judgment of conviction for
one count of unlawful sexual penetration in the first degree,
ORS 163.411, and one count of assault in the fourth degree,
ORS 163.160. She contends that the trial court plainly erred
in accepting a nonunanimous verdict on the sexual penetra-
tion charge and in failing to provide a concurrence instruc-
tion on the assault charge. The state concedes error relating
to the nonunanimous verdict but argues that the trial court
did not plainly err in failing to give a concurrence instruc-
tion. We agree with defendant and therefore reverse.
The facts are largely undisputed.1 Defendant, who
was staying with her brother and elderly mother, M, entered
M’s room and pulled M’s pajama bottoms down. Defendant
used her finger to penetrate M’s vagina. M screamed for help,
and defendant’s brother ran into the room and attempted to
pull defendant off their mother. During the struggle, defen-
dant lunged and scratched M’s cheek and the inside of her
mouth. Defendant was charged with first degree sexual
penetration relating to the penetration of M’s vagina and
assault in the fourth degree relating to the injury to M’s
face.
As to the sexual penetration count, the jury received
photographs depicting the injury and heard testimony from
M, who recounted that penetration had occurred; from
defendant’s brother, who observed defendant’s hand in M’s
crotch; and from Detective Bravo, who testified that M
recounted the incident to her. As to the fourth-degree assault
charge, defendant’s brother testified that he observed defen-
dant’s hand “grabbing for whatever it could grab ahold of
and end[ing] up inside [M’s] mouth.” As to the element of
injury, in addition to the admission of photographs of the
injury, defendant’s brother testified that M told him that her
mouth hurt and Deputy Kometz, the first responding officer,
reported that M characterized the pain in her mouth as a
three on a scale of one to 10. Detective Bravo testified that
M held ice to her face, had a scratch on her cheek and had
1
Although defendant opted to be tried before a jury, she put on no witnesses
and her attorney made only one objection and asked fewer than 15 questions of
the state’s witnesses during the trial.
582 State v. Trenary-Brown
a piece of skin “kind of hanging down when you bite your
lip.” At the close of the one-day jury trial, the jury returned
a guilty verdict on the sexual penetration charge by a 10-2
verdict, and on the assault charge unanimously.
On appeal, defendant contends, and the state con-
cedes, that the trial court plainly erred in accepting a non-
unanimous jury verdict on the sexual penetration count
in violation of her right to a jury trial under the Sixth
Amendment. See Ramos v. Louisiana, 590 US ___, ___,
140 S Ct 1390, 1397, 206 L Ed 2d 583 (2020). We agree and
exercise our discretion to reverse that conviction for the rea-
sons stated in State v. Ulery, 366 Or 500, 504, 464 P3d 1123
(2020).
Defendant also assigns error to the trial court’s
failure to give a jury concurrence instruction on the assault
charge, an error she concedes is unpreserved. Defendant
contends that the state advanced competing theories of lia-
bility for the injury element of the assault charge, at times
arguing that the injury element stemmed from the injury
to the inside of M’s mouth, at other times from the injury
to the outside of her mouth, and at other times still from
the injury to her vagina. Accordingly, defendant contends
that the jury may not have agreed on the required facts—
specifically the injury—constituting the crime of assault.
The state responds that the closing arguments indicated
that the parties understood that the injuries to M’s face
were the basis of the assault charge, so the court did not
commit error, plain or otherwise.
Whether a trial court is required to give a particu-
lar jury instruction “is a question of law, which we review for
legal error, viewing the evidence in support of the instruction
in the light most favorable to [the party seeking the instruc-
tion].” State v. Theriault, 300 Or App 243, 250, 452 P3d 1051
(2019) (internal quotation marks omitted). Because the error
here is unpreserved, we review only for plain error—that is,
we may only correct (1) errors of law (2) that are apparent or
obvious and (3) that appear on the face of the record. Ailes
v. Portland Meadows, Inc., 312 Or 376, 381, 823 P2d 956(1991). If those criteria are met, we must decide whether to
exercise our discretion to correct the error. Id. at 382.
Cite as 311 Or App 579 (2021) 583
Under Article I, section 11, of the Oregon Constitu-
tion, jurors can return a verdict of guilty only if they agree
on “the facts that the law (or the indictment) has made
essential to a crime.” State v. Arellano-Sanchez, 309 Or
App 72, 81, 481 P3d 349 (2021) (internal quotation marks
omitted). Essentially, the jurors must agree not just that
defendant is guilty, but on “just what defendant did.” State
v. Rolfe, 304 Or App 461, 466, 468 P3d 503 (2020) (internal
quotation marks omitted). There are two scenarios that can
implicate that right: the first is when a statute defining the
crime provides multiple ways that the crime can be commit-
ted, and the second is when a defendant is charged with “a
single occurrence of each offense, but the evidence permit[s]
the jury to find any one or more among multiple, separate
occurrences of that offense involving the same victim and
the same perpetrator.” State v. Slaviak, 296 Or App 805,
810-11, 440 P3d 114 (2019) (internal quotation marks omit-
ted). This case implicates the latter scenario: defendant was
charged with a single count of assault but contends that the
jury might have been confused as to which conduct consti-
tuted the crime of assault, with some jurors voting to convict
based on the injury to the vagina and some voting to convict
based on the injuries to the face.2
In order to evaluate whether the jury agreed on the
essential elements of the offense, we turn to the charging
instrument and elements of the crime. See Arellano-
Sanchez, 309 Or App at 83-84. To commit fourth degree
assault, defendant must “[i]ntentionally, knowingly or reck-
lessly cause[ ] physical injury to another.” ORS 163.160(1)(a).
The crime has “three elements: (1) a culpable mental state,
(2) causation, and (3) physical injury.” Theriault, 300 Or App
at 252 (internal quotation marks omitted). The element of
“physical injury”—the key issue in this case—may be proved
by demonstrating either “impairment of physical condition
or substantial pain.” ORS 161.015(7). The crime of sexual
2
Defendant also contends that the jury might have been confused as to
whether the state was relying on the injury to the outside or inside of the victim’s
mouth. However, “[c]oncurrence instructions are necessitated when single inci-
dents give rise to separate and distinct injuries, but not when a single incident
results in a cluster of injuries.” Arellano-Sanchez, 309 Or App at 85 (internal
quotation marks omitted). Accordingly, no concurrence instruction was needed
for the cluster of injuries to M’s mouth caused when defendant lunged at her.
584 State v. Trenary-Brown
penetration, by contrast, does not require the state to prove
injury. See ORS 163.411.
The state presented evidence and argument as
to pain arising from the injury in M’s mouth and from
the injury to her vagina. The prosecutor inquired from M
about her experience of pain in her mouth, which she did
not remember, and the pain in her vagina, which she did
remember. Deputy Kometz testified that M rated the pain
in her mouth as a three on a scale of one to 10, but she was
reluctant to discuss the injury to her vagina. M provided
more detail to a female detective, Detective Bravo, who tes-
tified that M said her mouth “hurt a little bit,” and the pain
in her vagina ranked as a three on a pain scale of one to
10. The jury received photos of both injuries and heard sev-
eral witnesses testify that both M’s face and vagina were
bleeding.
During closing argument, the prosecutor added to
the risk of confusion. He initially discussed the elements
of assault in the fourth degree, explaining that the injury
element required “impairment of a physical condition” or
“substantial pain.” He then noted “what you see in photos
and what you hear through the testimony of [the two offi-
cers] is that it hurt, her pain scale was on a level of a three.”
However, the jury received photos of both injuries and heard
testimony from one officer that M described the pain from
her mouth as a level three and the other officer that M
described the pain from her vagina as a level three.
The prosecutor then engaged in a more detailed dis-
cussion about the pain and impairment M experienced in
her mouth and argued that jurors could rely on their com-
mon sense to conclude that level of pain could impair the use
of her mouth. Next, without signaling that he was switching
back to the sexual penetration charge, the prosecutor dis-
cussed the pain M experienced in her vagina:
“Keep in [mind] as well that [M] when she was talking to
Detective Bravo talked about pain in her vagina as well at
a level three, about two to three hours afterwards as well,
there’s no doubt that there was physical injury here.”
As we have already observed, the crime of unlawful sexual
penetration has no element of injury. There was no reason
Cite as 311 Or App 579 (2021) 585
for the prosecutor to talk about the pain M experienced in
her vagina during his discussion of the assault charge, let
alone in the same breath as claiming that there was no rea-
sonable doubt as to the element of “physical injury,” the key
element at issue. And immediately thereafter, the prosecu-
tor described defendant’s mental state:
“[Defendant] was fixated on one thing, and that was her
mother, and that was causing her harm one way or another,
whether it’s a scratch to the face, a finger in the mouth, or
the biggest offense here that she did with regards to her
genital area.”
The prosecutor’s argument conflated the two separate
crimes at several points and never labored to distinguish
the charges.3 Moreover, the pain arising from both injuries
was characterized similarly throughout the trial, making
a clear separation as to the bases of each of the charges all
the more important. Because, there was “a real possibility
of juror confusion with respect to the evidence” as it relates
to the element of physical injury, a concurrence instruction
was required. Arellano-Sanchez, 309 Or App at 80.
The state argues that the defendant’s closing argu-
ment reflected that the parties understood the basis of the
charge because it focused on the injuries to M’s face when
discussing the assault charge, and therefore any error was
not sufficiently “obvious” to be plain. The key question, how-
ever, is not whether defense counsel understood the basis of
the charge, but whether the jury understood it sufficiently
such that their verdict reflected an agreement over just what
defendant did. To the extent that the state is contending
that no concurrence instruction was required because the
confusion was alleviated by defense counsel’s closing, “argu-
ments by the parties are typically insufficient to properly
charge the jury.” State v. Burris, 301 Or App 430, 433, 456
P3d 684 (2019). And even if defense counsel’s two-paragraph
closing argument could substitute for a jury instruction,
this argument did not. When discussing the assault charge,
defense counsel mentioned the use of ice and a cut to the
3
Even in opening statement, the prosecutor described the elements of the
crimes in succession without clarifying that the assault charge related to the
facial injury.
586 State v. Trenary-Brown
face (injuries appropriate to the assault charge), referred to
the pain level of a three (which applied to both injuries), and
pointed to the fact that no medical treatment was required
(which also applied to both injuries). No one ever explained
to this jury that the assault charge was based on the injury
to the face as opposed to the injury to the vagina.
Having determined that the trial court commit-
ted error in failing to instruct the jury as to the elements
upon which it must agree, we must evaluate whether that
error was harmless—that is, whether “there is little likeli-
hood that the error affected the verdict.” State v. Ashkins,
357 Or 642, 660, 357 P3d 490 (2015) (internal quotation
marks omitted). In answering that question, we evaluate
“the instructions as a whole and in the context of the evi-
dence and record at trial, including the parties’ theories of
the case with respect to the various charges and defenses
at issue.” Id. The “failure to give a concurrence instruction
is not harmless when, given the evidence and the parties’
theories, jurors could have based their verdicts on different
occurrences.” State v. Teagues, 281 Or App 182, 194, 383 P3d
320 (2016).
The evidence here suggests that the jury very
well may have based its verdict on different occurrences.
Defendant’s brother witnessed the injury to the mouth and
not to the vagina. Accordingly, there was reason for some
members of the jury to conclude that the offense involv-
ing the victim’s vagina did not occur at all or did not con-
stitute the crime of unlawful sexual penetration, which
is reflected by the nonunanimous verdict on that count.
Conversely, M testified that she remembered bleeding and
pain in her vagina but did not remember the injury to her
face at all. Additionally, an officer testified that she said
her mouth hurt only “a little bit.” Accordingly, there was
also evidence to support a conclusion that the injury relat-
ing to M’s vagina amounted to substantial pain or impair-
ment and the injury to her face did not. As a result, there
is a real possibility that jurors may not have agreed on just
what the defendant did and returned a guilty verdict on the
assault charge based on different injuries. The error was not
harmless.
Cite as 311 Or App 579 (2021) 587
Having found plain error, we must determine
whether to exercise our discretion to correct it. Because the
failure to instruct a jury that it must agree on the factual
and legal basis for its verdict “threatens to undermine the
deliberative process and affect not just what the jury consid-
ers, but how it considers it,” we generally exercise our dis-
cretion to correct. Burris, 301 Or App at 434-35 (emphasis in
original) (collecting cases). We see no reason to deviate from
that practice here. Given the “manifest potential” that the
jury may have found defendant guilty without agreeing on
facts that support a required element of the crime, we exer-
cise our discretion to correct the error. See State v. Sippel,
288 Or App 391, 394, 406 P3d 207 (2017).
Reversed and remanded.