State v. Hooper
| Citation | 310 Or.App. 715,487 P.3d 428 |
| Decision Date | 21 April 2021 |
| Docket Number | A169210 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Shawn Lee HOOPER, Defendant-Appellant. |
| Court | Court of Appeals of Oregon |
Marc D. Brown, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Daniel Norris, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Hadlock, Judge pro tempore.
Defendant appeals from a judgment of conviction for first-degree rape, ORS 163.375 (Count 1).1 Defendant argues that the trial court plainly erred when it failed to instruct the jury that, to convict him, the state had to prove that defendant had a culpable mental state when he engaged in sexual intercourse with the victim, L. For the reasons explained below, we conclude that the trial court plainly erred, and we exercise our discretion to correct that error. We reject defendant's remaining assignment of error as noted below.2 Accordingly, we reverse and remand on Count 1, and we otherwise affirm the acquittals of the additional charges in the judgment.
"Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state." State v. Gaines , 275 Or. App. 736, 738, 365 P.3d 1103 (2015). In accordance with that standard, we state the following facts.
At the time of the events underlying defendant's rape conviction, the victim, L, was 14 years old, and defendant was L's stepfather; defendant was married to L's mother, Hooper.
In late 2015, on the night in question, L and defendant were at defendant's friend's house, where defendant had consumed approximately ten beers. When they returned home, defendant told L to "grab me a beer" from a horse trailer on their property. The trailer had a space for horses and a small sleeping quarters. When L opened the trailer door, defendant "walked up behind [L]" and told her to "go in there." L went into the trailer, and defendant followed her in. Once inside, defendant removed his pants and "kind of helped" L to remove her pants. Defendant "told [L] to get up on the bed," and L complied. Defendant then "[p]ut a condom on," and "he had sex with [L]." Afterward, defendant "took his condom off, and he said that he was gonna [sic ] throw it away at the store" so that "no one knew about it." Defendant also told L, "[D]on't tell anyone, or I'll go to jail."
In early 2016, L disclosed to Hooper that "[defendant] had sex with me," describing to Hooper the events of the night in question. When Hooper confronted defendant about L's disclosure, defendant initially denied having had sex with L. But later, in the fall of 2016, defendant confessed to Hooper that "he was drunk one night, and he basically woke up in the middle of a drunken stupor having sex with [L], realized it was [L] and stopped, and that was it."
As a result of L's disclosure, defendant was charged with first-degree rape, ORS 163.375, and the case was tried to a jury. At trial, defendant denied confessing to Hooper that he had sex with L in a "drunken stupor." Defendant further denied that he had "ever had sexual intercourse with [L]."
After closing arguments, the trial court orally instructed the jury. In relevant part, that jury instruction provided:
The court also provided the jury with an identical instruction in written form.
The first part of that instruction—i.e. , the general definition of the crime of first-degree rape—contained the word "knowingly," whereas the second part of that instruction—i.e. , the elements that the state had to prove and the jury had to find to reach a conviction in this specific case—omitted any reference to a culpable mental state. Although defendant's proposed jury instructions included a culpable mental state in both the general definition of the crime of first-degree rape and in the list of the elements that the state had to prove for conviction in this specific case, defendant did not object to the instruction as given to the jury. After instruction, the jury deliberated and returned a guilty verdict for one count of first-degree rape.
On appeal, defendant contends that "[t]he trial court plainly erred when it failed to instruct the jury that the state must prove a mental state" for the sex act, and "this court should exercise its discretion to review th[at] error." The state responds that "[t]he trial court correctly instructed the jury that the state had to prove that defendant knowingly had sexual intercourse with the victim, and it thus did not commit plain error," and that "[e]ven if plain error occurred, no basis exists for review or reversal."
We may review an unpreserved error when three requirements are satisfied: (1) the error is one of law; (2) the error is apparent, that is, the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record, in that we need not go outside the record or choose between competing inferences to find it. State v. Gray , 261 Or. App. 121, 129, 322 P.3d 1094 (2014). "[T]he question of what must be included in a jury instruction is a question of law, and what was or was not included is determined readily by examining the instructions that were given." Id. (citation and internal quotation marks omitted). Thus, the only plain-error requirement at issue here is "whether the purported instructional error was ‘obvious.’ " Id.
Defendant contends that the error is obvious, and that it is " ‘not in dispute’ that the conduct element of rape in the first degree requires a culpable mental state." In response, the state agrees that it was required "to prove defendant ‘knowingly’ engaged in sexual intercourse with the victim." But, the state contends, there is no obvious error "in light of the instructions as a whole," because the first portion of the instruction "told the jury that defendant committed first-degree rape only ‘if’ he knowingly had sex with the victim," and defendant's position "give[s] undue consideration to [the second] portion of the instruction."
The state's contention is unpersuasive. The first part of the instruction merely stated a generalized definition of first-degree rape. The second part of the instruction, however, is the part that specifically told the jurors what their task was "in this case." That is also the part of the instruction that—in both oral and written form—omitted any reference to the necessity of finding a culpable mental state in order to convict defendant. It seems to us that jurors grappling with the difference between the first and second parts of the instruction would face difficulty; such an instruction, which lacks consistent language, is reasonably capable of confusing or misleading jurors as they carry out their task. That alone constitutes grounds for reversal. See, e.g. , Williams et al. v. Portland Gen. Elec. , 195 Or. 597, 610, 247 P.2d 494 (1952) ( ).
In any event, we agree with defendant; it is obvious error to omit the requisite mental state (i.e. , "knowingly") from the part of the instruction that told the jury what elements the state had to prove in this particular case to convict defendant of first-degree rape. See Gray , 261 Or. App. at 130, 322 P.3d 1094 (); State v. Ramoz , 367 Or. 670, 707, 483 P.3d 615 (2021) (); cf. State v. Belen , 277 Or. App. 47, 52, 369 P.3d 438 (2016) ().
"Having concluded that the trial court plainly erred, we turn to the question of whether we should exercise our discretion to correct the error." Id. at 54, 369 P.3d 438. "In determining whether to correct a plain error, we consider several factors, including ‘the nature of the case; [and] the gravity of the error[.]’ " Id. "We also consider whether the error was harmless—that is, whether there was little likelihood that the error affected the verdict." Id. at 55, 369 P.3d 438.
We begin by addressing harmlessness. "Instructional error is not harmless if it probably created an erroneous impression of the law in the minds of the jury and if that erroneous impression may have affected the outcome of the case." Ramoz , 367...
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...argues that the trial court's omission of the mental state element was plainly erroneous and requires reversal under State v. Hooper, 310 Or.App. 715, 719, 487 P.3d 428 (2021) (concluding that the trial court plainly erred when the court's instruction stated a generalized definition of the ......
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