State v. Camphouse

313 Or.App. 109

491 P.3d 94

STATE of Oregon, Plaintiff-Respondent,

v.Victoria Lois CAMPHOUSE, Defendant-Appellant.

A170081

Court of Appeals of Oregon.

Argued and submitted November 12, 2020.

July 8, 2021

Morgen E. Daniels, 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.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

KAMINS, J.

Defendant appeals from a judgment of conviction for two counts of criminal mistreatment in the first degree, ORS 163.205. She argues that the trial court committed plain error by not providing the jury a concurrence instruction when the record contained evidence of multiple incidents that the jury could have relied on in determining that defendant violated the statute on each count.¹ We agree that the trial court erred in failing to provide the jury a concurrence instruction as to one of the counts. Because that error was harmless, however, we affirm defendant's convictions.

I. FACTUAL BACKGROUND

The facts are largely undisputed. Defendant served as the Medicaid-approved caretaker for her elderly, disabled mother, D, with whom she shared a house on a large piece of rural property. Defendant rented the house from O, an elderly woman who lived in a separate residence on the same property. In 2013, defendant became O's caretaker as well, in exchange for reduced rent on the house.

Sometime in 2014, defendant put up a gate at the end of the driveway to prevent the goats that lived on the property from escaping, which she secured with several locks. Over the next few years, various paramedics, sheriff's deputies, and Adult Protective Services (APS) workers were called to the property to check in on O and D. Each time, the responders encountered issues with the front gate being locked and would either have to get defendant's attention to come down and let them in, cut the locks, or climb over the gate. When responders did manage to get to O's and D's homes, they consistently reported that the doors and windows were locked, nailed shut, or barricaded with furniture. Inside, the homes were unsanitary, cluttered, and full of tripping and fire hazards.

When responders made contact with O and D, they observed that both were experiencing significant cognitive impairment. O did not know the answers to simple questions like where the phone was, where the bathroom was, or whether she had a family. Similarly, D was unable to remember defendant's phone number in case there was an emergency and seemed surprised to learn that defendant had locked her inside the house. Both women also experienced significant difficulties with physical activities like walking and getting in and out of bed.

On multiple occasions, Pulkownik, an APS worker, expressed her concerns about O's and D's safety to defendant. Pulkownik explained that, given O's and D's physical conditions and the various impediments to accessing the homes, it was unlikely that emergency personnel would be able to get to O and D in time if something were to happen. However, defendant never took any action to address the problems. Eventually, APS made the decision to remove O and D from the property and place them in a residential memory-care facility. The state charged defendant with two counts of first-degree criminal mistreatment—one for defendant's treatment of O and another for defendant's treatment of D.

At trial, the state presented testimony from multiple witnesses about the various responders’ visits to the property over a range of dates from 2014 to 2017. However, neither party requested an instruction requiring jurors to agree on which of the dates evidenced a criminal violation, and defendant did not object to the failure to give such an instruction. Defendant was convicted on all charges.

On appeal, defendant assigns error to the trial court's failure to provide a jury concurrence instruction. Although she concedes that the assignment of error is unpreserved, she argues that it was nevertheless plain error for the trial court not to provide such an instruction sua sponte when there was evidence of multiple incidents which the jury could have determined violated the statute on each count.

II. STANDARD OF REVIEW

Whether a trial court is required to give a particular 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 instruction]." State v. Theriault , 300 Or. App. 243, 250, 452 P.3d 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," meaning obvious and not reasonably in dispute, and (3) that appear on the face of the record. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991). If those criteria are met, we must decide whether to exercise our discretion to correct the error. Id. at 382, 823 P.2d 956.

III. ANALYSIS

Under Article I, section 11, of the Oregon Constitution, 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 P.3d 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 P.3d 503 (2020) (internal quotation marks omitted). Two scenarios implicate that right: the first is when a statute defining the crime provides multiple ways that the crime can be committed, 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. Trenary-Brown , 311 Or. App. 579, 583, ––– P.3d –––– (2021) (internal quotation marks omitted). When a case presents one of these two scenarios, defendant is entitled to either an instruction requiring jurors to agree on the basis for their verdict or an election by the state as to how it is assigning liability. State v. Ashkins , 357 Or. 642, 659, 357 P.3d 490 (2015).

Defendant contends that this case presents the second scenario: that the state's witnesses described several incidents that the jury could have determined constituted the charged violations and thus that she was entitled to a concurrence instruction. To evaluate that argument, we begin by examining the charging instrument and the elements of the crime. See Arellano-Sanchez , 309 Or. App. at 83-84, 481 P.3d 349. Defendant was charged with violating ORS 163.205 (1)(b)(C), which prohibits a person who has assumed a duty to provide care for an elderly person from knowingly or intentionally "[l]eav[ing] the * * * elderly person unattended at a place for such a period of time as may be likely to endanger the health or welfare of that person." The crime has four elements: (1) a culpable mental state; (2) that the victim is an "elderly person"; (3) that defendant has assumed a duty to provide care for the victim; and (4) that defendant left the victim unattended at a place for such a period of time as may be likely to endanger the victim's health or welfare.

Here, defendant argues, the jury was likely confused because there was evidence in the record that defendant left both O and D unattended multiple times under conditions likely to endanger their welfare. We address each victim in turn.

A. Mistreatment of O

Defendant argues that the record contains evidence of multiple instances when she could have committed the violation on the count concerning O by leaving her unattended under conditions that the jury could have determined endangered her welfare. The state concedes this point and we agree.

The jury heard testimony about events involving O on several different dates. On February 2, 2017, Pulkownik and Linn County Sheriff's Deputies McBride and Keys went to the property to perform a welfare check on O. When they arrived at the front gate, Pulkownik and the deputies were unable to unlock the gate themselves or contact defendant by phone, so they climbed over the fence. They went to O's house and found the door locked and the windows obstructed so that they could not see in. After knocking without response, they tried defendant and D's house, where defendant answered the door and then let Pulkownik and the deputies into O's house. Pulkownik observed that, physically, O had limited mobility and needed someone else to help her with her daily needs. When asked what she would do in an emergency, O told Pulkownik that she would get in contact with defendant. However, Pulkownik determined that it was unlikely that O would be able to do so because she was cognitively impaired—she did not know where the phone was, where the bathroom was, or whether she had a family.

Later, on an unspecified day that same February, a group of firefighters/paramedics responded to a signal from O's medical alert bracelet. When the group could not get past the gate, they climbed over and went to O's house where all the doors were locked. Although the fire chief was able to reach defendant at her house, she was unable to open the locks on O's door. The group forced entry only to encounter a second locked door, which defendant had to crawl in through a dog door to open. In total, it took 25 minutes to be able to get inside and assess O's condition.

Finally, on April 3, McBride, Pulkownik, and others went to the property to assess O's and D's conditions. When they arrived at the property, defend...