State v. Pipkin

• Decision Date: 12 December 2013
• Docket Number: (CC 200904318,CA A142469,SC S059769).
• Citation: 316 P.3d 255,354 Or. 513
• Parties: STATE of Oregon, Respondent on Review, v. Bruce Lynn PIPKIN, Petitioner on Review.
• Court: Oregon Supreme Court

354 Or. 513

316 P.3d 255

STATE of Oregon, Respondent on Review,

v.Bruce Lynn PIPKIN, Petitioner on Review.

(CC 200904318; CA A142469; SC S059769).

Supreme Court of Oregon,

En Banc.

Argued and Submitted June 13, 2012.

Resubmitted Jan. 7, 2013.

Decided Dec. 12, 2013.

On review from the Court of Appeals.^*

Susan Fair Drake, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender.

Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

KISTLER, J.

Defendant was charged with first-degree burglary, which occurs when a person “enters or remains unlawfully” in a dwelling “with an intent to commit a crime therein.” SeeORS 164.225; ORS 164.215. At trial, defendant argued that the state should be required to elect whether it intended to proceed on the theory that he entered the victim's home unlawfully or on the theory that he remained in her home unlawfully. Alternatively, relying on 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), defendant requested an instruction that at least 10 jurors had to agree on one (or both) of those theories. The trial court denied both requests, and the Court of Appeals upheld the trial court's rulings. State v. Pipkin, 245 Or.App. 73, 80, 261 P.3d 60 (2011). We allowed defendant's petition for review and now affirm the Court of Appeals decision and the trial court's judgment.

The indictment in this case alleged that, on or about a specific date, defendant “did unlawfully and knowingly enter or remain” in the victim's home with an intent to commit a crime therein. At trial, the evidence permitted the jury to find that defendant had entered the victim's home unlawfully. It also permitted the jury to find that defendant had entered the victim's home lawfully but had remained there unlawfully after the victim told him to leave. Finally, there was evidence that defendant intended to commit the crime of menacing or harassment when he entered the victim's home and also when he remained there.

At the close of the case, defendant asked the trial court to require the state to elect the theory on which it wanted to proceed—whether he had entered the victim's home unlawfully or whether he had remained there unlawfully. Alternatively, defendant asked the court to instruct the jury that at least 10 of its members had to agree on one (or both) of those theories. The trial court denied both motions. It ruled:

“All right. With regard to the phrase ‘enter or remain unlawfully,’ I'm going to deny the motion to require an election by the state. I'm also going to deny the request for a Boots instruction with regard to that. I note that the statute, ORS 164.205(3), defines the phrase ‘enter or remain unlawfully’ as a single phrase that has its own definition. So it makes no distinction. It is actually one thing. So I don't think there's an election to be made under the law there.”

Consistently with that ruling, the trial court did not give defendant's requested instruction. Rather, it instructed the jury that, to establish that defendant had committed the crime of first-degree burglary, the state had to prove that defendant “entered or remained unlawfully in the premises described in the charge.” The jury found defendant guilty of first-degree burglary, and the trial court entered judgment accordingly.

On appeal, the Court of Appeals affirmed the trial court's judgment. It reasoned that, as a matter of legislative intent, entering and remaining unlawfully are two ways of proving a single element of first-degree burglary—unlawful presence in a dwelling—and that Article I, section 11, does not require jury concurrence on alternative means of proving a single element. Pipkin, 245 Or.App. at 79–80, 261 P.3d 60. We allowed defendant's petition for review to consider the level of factual specificity on which either state statutes or the state constitution requires jury agreement.¹ We have addressed that issue in Boots and three other cases: State v. King, 316 Or. 437, 852 P.2d 190 (1993); State v. Lotches, 331 Or. 455, 17 P.3d 1045 (2000), cert. den.,534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001); and State v. Hale, 335 Or. 612, 75 P.3d 448 (2003), cert. den.,541 U.S. 942, 124 S.Ct. 1667, 158 L.Ed.2d 366 (2004).² Those four cases address two conceptually distinct situations, and it is helpful to distinguish them.

One situation occurs when a statute defines one crime but specifies alternative ways in which that crime can be committed. Boots and King addressed that situation. In King, for example, a statute made it a crime to drive either under the influence of intoxicants or while having a blood alcohol content of .08 or higher, and the question was whether 10 members of the jury had to agree on one of those alternative ways of committing that crime.³ As this court explained in King, the answer to that question turns initially on what the legislature intended. 316 Or. at 441–42, 852 P.2d 190. If the legislature intended that each of those alternatives is a separate statutory element, then jury concurrence is required on each element. Id. at 446, 852 P.2d 190. If, however, the legislature intended that the alternative ways of committing the crime are different factual ways of proving the same element, the remaining question is whether the constitution prohibits that legislative choice. See id. at 447, 852 P.2d 190.

The other situation arises when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime. An indictment, for example, might charge one act of statutory rape, but the evidence may disclose multiple, separate occurrences of statutory rape. See State v. Reyes, 209 Or. 595, 622, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182 (1957) (describing that situation). Hale and Lotches arose in that context.⁴ Ordinarily, a defendant faced with that problem can ask the state to elect the occurrence on which it wishes to proceed and, in that way, limit the jury's consideration to a single occurrence. See, e.g., State v. Lee, 202 Or. 592, 276 P.2d 946 (1954); State v. Ewing, 174 Or. 487, 496, 149 P.2d 765 (1944). Alternatively, Hale and Lotches hold that a defendant can ask for an instruction requiring jury concurrence on one of the several occurrences that the record discloses.

This case presents the first situation. ORS 164.225 specifies that a defendant can commit the crime of first-degree burglary by entering or remaining in a dwelling unlawfully with the intent to commit a crime therein.⁵ In determining whether 10 jurors must agree on one of those statutory alternatives, we look initially to Boots and King, the two decisions from this court that addressed a similar issue. Because the parties read Boots and King differently, we begin by discussing what those cases held. We then apply their holdings to the issue that defendant raises on review.

Boots was the first decision from this court to consider jury concurrence. See308 Or. at 376, 780 P.2d 725 (so stating). To convict the defendant in Boots of aggravated murder, the jury had to find that he had committed murder accompanied by at least one of 17 aggravating circumstances. The indictment in Boots alleged two aggravating circumstances—that the defendant had committed murder (1) personally and intentionally in the course of and in furtherance of a robbery and (2) to conceal the identities of the perpetrators of a robbery. Id. at 374, 780 P.2d 725. Proof of either aggravating circumstance was sufficient to elevate the crime of murder to aggravated murder. The trial court instructed the jury in Boots that all the jurors need not agree on the same aggravating circumstance. It was sufficient, the instruction provided, if the jurors found that one or the other aggravating circumstance was present.

This court reversed. It began from the proposition that, in an aggravated murder case, all the jurors have to agree, at a minimum, on each legislatively defined element of the crime. Id. at 377, 780 P.2d 725.⁶ That proposition accordingly led to the question whether the legislature intended that each of the 17 aggravating factors is a separate element of the crime of aggravated murder, on which all the jurors must agree, or whether the legislature intended to require proof of a single element—a generic “aggravating circumstance”—that could be proved in 17 ways. The state took the latter position in Boots and, relying on cases from other states, argued that there was no constitutional infirmity in the legislature's specifying different factual ways of proving a single statutory element.

As we read Boots, the court concluded that, as a matter of legislative intent, each of the 17 aggravating circumstances was a separate element. Specifically, the court focused on the disparate and unrelated nature of those aggravating circumstances. 308 Or. at 373, 780 P.2d 725. It then reasoned that the cases on which the state relied were distinguishable either because “the [underlying] statutes [in those cases] differ[ed]” or because those cases “involve[d] issues different from the present case and are not in point.” Id. at 377–79 and nn. 5, 6, 780 P.2d 725.⁷ Finally, the court quoted a passage from United States v. Gipson, 553 F.2d 453 (5th Cir.1977), in which the Fifth Circuit had held that alternative statutory means of committing a particular federal crime were too disparate to satisfy the Sixth Amendment jury unanimity requirement. Id. at 380–81, 780 P.2d 725. This court explained that “[t]he Gipson opinion comes closer to the present case than do cases like [a Michigan case on which the state relied that considered] statutes defining who besides...