State v. Pauley, CR0300333.

• Decision Date: 04 April 2007
• Docket Number: A125151.,CR0300333.
• Citation: 211 Or. App. 674,156 P.3d 128
• Parties: STATE of Oregon, Plaintiff-Respondent, v. William Howard PAULEY, Defendant-Appellant.
• Court: Oregon Court of Appeals

156 P.3d 128

211 Or. App. 674

STATE of Oregon, Plaintiff-Respondent, v. William Howard PAULEY, Defendant-Appellant.

CR0300333.

A125151.

Court of Appeals of Oregon.

Submitted on Record and Briefs September 29, 2006.

Decided April 4, 2007.

Peter Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Stephanie Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Elizabeth A. Gordon, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and ARMSTRONG and WOLLHEIM, Judges.

WOLLHEIM, J.

Defendant appeals a judgment of conviction for attempted sexual abuse in the first degree. ORS 163.427. He argues that, under State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), cert. den., 510 U.S. 1013, 114 S.Ct. 606, 126 L.Ed.2d 571 (1993), the trial court erred in failing to instruct the jury that 10 or more jurors must concur on the factual instance of attempted sexual contact underlying that charge. Defendant concedes that he failed to preserve that claim of error, but asks us to review it as plain error. We affirm.

In August 2002, the 15-year-old victim accepted a car ride from defendant, whom she had met on a few previous occasions. The victim accompanied defendant on a few errands and then asked defendant to take her to a friend's house. Instead, defendant pulled into a wooded area and parked the car. He ordered the victim out of the car and down a slight embankment. A struggle ensued and defendant tried to put his hand down the victim's pants, touched her breasts, and tried to force her to perform oral sex on him. While defendant went to investigate the sound of an approaching vehicle, the victim fled and hid for several hours until defendant eventually left the area. Later, the victim ran to the nearest house and called the police.

The indictment charged defendant with kidnapping in the second degree (Count 1), ORS 163.225, attempted rape in the first degree (Count 2), ORS 163.375, attempted sexual abuse in the first degree (Count 3) ORS 163.427, and delivery of a controlled substance to a minor (Count 4), former ORS 475.995 (2003), renumbered as ORS 475.906 (2005). Specifically, Count 3 of the indictment alleged that defendant committed attempted sexual abuse in the first degree:

"[D]efendant on or about the 8th day of August, 2002, in the County of Clackamas, State of Oregon, by means of forcible compulsion, did unlawfully and intentionally attempt to subject [the victim], to sexual contact by attempting to touch her vagina, a sexual or intimate part of [the victim.]"

(Emphasis added.)

Although the indictment specifically described the incident of attempted sexual contact underlying Count 3, the record does not indicate that the trial court read the indictment to the jury. However, in his opening statement, the prosecutor explained to the jury that defendant "intentionally attempted through forcible compulsion to try to touch the vagina of the victim * * *." (Emphasis added.) After the state rested its case, defendant moved for a judgment of acquittal. In responding to that motion, the prosecutor explained to the court, outside the presence of the jury, that Count 3 related to the attempted touching of the victim's vagina. Again, in his closing argument, the prosecutor explained that defendant "attempted to touch the vagina of the victim * * *." (Emphasis added.)

The court instructed the jury, in part, as follows:

"This being a criminal case, ten jurors or more must agree on each of your verdicts. When you have arrived at a verdict, the presiding juror will check the appropriate line. When you've reached a verdict on all three counts, the presiding juror will sign the appropriate verdict form. You'll have with you in the jury room a verdict form which has the caption of the case on it[.]

"[A]s to Count 3, again you'll have a line for either not guilty or guilty of the crime of Attempted Sexual Abuse in the First Degree as alleged in Count 3 of the indictment. Again, when the appropriate number of jurors have reached your verdict, the presiding juror should check the appropriate line."

(Emphasis in original.)

As to the material elements of Count 3, the court instructed the jury:

"[T]o establish the crime of Attempted Sexual Abuse in the First Degree, the State must prove beyond a reasonable doubt the following four elements: (1) that the act occurred in Clackamas County, Oregon; (2) that the act occurred on or about August the 8th, 2002; (3) that William Howard Pauley intentionally attempted to subject [the victim] to sexual contact; and (4) that [the victim] was subjected to forcible compulsion by the actor."

(Emphasis added.)

Defendant did not object to the jury instructions, nor did he request a concurrence instruction on the facts constituting sexual contact. The court gave the jury a verdict form that required the jury to find defendant either guilty or not guilty of attempted sexual abuse in the first degree, "as alleged in Count 3 of the Indictment." (Emphasis added.) The jury found defendant guilty of attempted sexual abuse in the first degree and kidnapping in the second degree.¹

On appeal, defendant argues that the court erred in failing to instruct the jury that 10 or more jurors must agree that he attempted to touch the victim's vagina to convict him of attempted sexual abuse in the first degree. He asserts that the court's failure to provide such an instruction made it possible for the jury to convict him without the requisite agreement of 10 jurors, because the evidence adduced at trial described three instances of attempted sexual contact; specifically, that he tried to touch the victim's vagina, he touched her breasts, and he tried to force her to perform oral sex on him. See Or. Const., Art. I, § 11;² ORS 136.450(1).³ For example, he argues that "three jurors may have thought [that he] attempted to touch [the victim's] vagina, three jurors may have thought [that he] attempted to make [the victim] touch his penis, and four jurors may have thought that [he] attempted to touch [the victim's] breasts." Defendant concedes that he failed to preserve his claim of error, but urges us to review it as plain error.

The state contends that the trial court did not err. According to the state, the jury shared the "same general vision of the facts essential to the crime charged" because the state properly elected the conduct underlying the charge and referred to that conduct in its opening statement and closing argument, in its statement to the court in response to defendant's motion for judgment of acquittal, and, indirectly, in the verdict form.⁴ Further, the state contends that defendant's claim does not constitute plain error and that we, therefore, should decline to review it.

As noted, Article I, section 11, of the Oregon Constitution provides that, "[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *[.][I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty[.]" See also ORS 136.450(1) (requiring the concurrence of at least 10 of 12 jurors in criminal matters). The jury concurrence requirement also requires that the requisite number of jurors agree on the factual occurrences that constitute a crime. Boots, 308 Or. at 378-79, 780 P.2d 725. A court's failure to give a jury instruction requiring "agreement on all material elements of a charge in order to convict" is error. State v. Lotches, 331 Or. 455, 472, 17 P.3d 1045 (2000), cert. den., 534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001) (emphasis added).

In Boots, the defendant was charged with aggravated murder based on two different theories: (1) that the defendant committed the homicide in the course of committing robbery in the first degree and (2) that the defendant committed the homicide to conceal the identity of the perpetrators of the robbery. 308 Or. at 374, 780 P.2d 725. The trial court affirmatively instructed the jury that it was not necessary for them to agree on the theory of aggravated murder. The Supreme Court concluded that the trial court erred in instructing the jury that concurrence was not required, stating, "`[t]he [jury] unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.'" Id. at 380, 780 P.2d 725 (quoting United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977)). The Boots court distinguished between facts that require jury concurrence and those that do not:

"We are not speaking here of factual details, such as whether a gun was a revolver or a pistol and whether it was held in the right or the left hand. We deal with facts that the law (or the indictment) has made essential to a crime."

Id. at 379, 780 P.2d 725 (emphasis added).

The test, then, for whether a Boots instruction is required is whether the law or the indictment has made the fact at issue "essential to the crime charged." If so, the jury must be instructed concerning the necessity of concurrence on those essential elements of the charge in order to convict the defendant. See Lotches, 331 Or. at 472, 17 P.3d 1045.

We briefly discuss the cases that have considered the trial court's failure to provide a Boots instruction in the context of unpreserved claims of error.

In Lotches, the court held that the failure to give a Boots instruction on the felonies underlying aggravated murder charges was plain error. The defendant in Lotches was charged with three counts of aggravated murder based on three different underlying felonies. 331 Or. at 461, 17 P.3d 1045. The evidence presented at the defendant's trial could have supported more than one charge of each underlying felony, because there was more than one victim involved in each of...