State v. Phillips

313 Or.App. 1

493 P.3d 548

STATE of Oregon, Plaintiff-Respondent,

v.Jesse Jerome PHILLIPS, aka Jessey Jerome Phillips, Defendant-Appellant.

A169250

Court of Appeals of Oregon.

Argued and submitted August 5, 2020.

July 8, 2021

Stacy M. Du Clos, 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.

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 Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

Defendant appeals a judgment of conviction for fourth-degree assault constituting domestic violence, ORS 163.160 (Count 1), and harassment, ORS 166.065 (Count 2). A nonunanimous jury found him guilty of both offenses. In three of his assignments of error, defendant argues that the trial court erred by instructing the jury that it could reach nonunanimous verdicts and challenges its decision to accept the nonunanimous verdicts on both charges. As we briefly discuss below, in light of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d. 583 (2020), due process requires jury unanimity to convict a criminal defendant, regardless of the nature of the offense being tried, and we reverse both convictions entered based on nonunanimous verdicts and remand for further proceedings.

Defendant raises two additional assignments of error. The first asserts that the trial court erred by excluding a defense witness's testimony based on a discovery violation. Given our disposition of defendant's challenges to the nonunanimous jury instruction and verdicts, we need not address that assignment. Defendant also assigns error to the trial court's decision to include an "initial aggressor" limitation in the jury instructions. Because that issue may arise again on remand, we address it here and conclude that the court did not err in giving that instruction.

We begin by discussing the jury instruction issue. We review the trial court's jury instructions for legal error. State v. Harper , 296 Or. App. 125, 126, 436 P.3d 44 (2019). A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error allows the jury to reach a legally erroneous outcome. Id .

The facts relevant to the instruction are not disputed. Defendant and Largaespada were in a romantic relationship and share a daughter, M. At the time of the events at issue, the couple did not reside together, and Largaespada had exclusive custody of M, who was then two years old. On the day of the incident, defendant, Largaespada, M, and Largaespada's son were watching television at Largaespada's home. Defendant and Largaespada began quarrelling, and Largaespada left with her son to diffuse the situation. She returned home to find defendant and M gone. She tried calling defendant and, when he did not answer, called his sister-in-law and then the police. She then spotted defendant driving so she drove alongside him and told him to return their daughter immediately. Both defendant and Largaespada returned to the parking lot of Largaespada's apartment. When she went to retrieve M from the passenger side seat, defendant grabbed M and put her on his lap. Largaespada then went around to the driver side to retrieve M from his lap, but defendant resisted. Largaespada finally succeeded and, while M was in her arms, defendant spit in Largaespada's face. She reacted by grabbing his shirt collar and attempted to spit on him but could not develop enough saliva to do so. Defendant hit Largaespada in the face with a closed fist. Defendant then left and Largaespada reported the incident to the police, and defendant was charged with fourth-degree assault constituting domestic violence, ORS 163.160, and harassment, ORS 166.065.¹

At trial, the court granted defendant's request to include a self-defense instruction based on the evidence that, after defendant spit on Largaespada, she grabbed his shirt, and then he hit her. The court explained that its "assumption is that if there was a swing, that is the self-defense in response to the grabbing of the shirt." In response to that ruling, the state requested Uniform Criminal Jury Instruction (UCrJI) 1110, the "initial aggressor" instruction.² Defendant objected, asserting that the record lacked evidence to support giving that instruction. He argued that spitting was not an act of aggression for purposes of the initial aggressor instruction. He relied on State v. Doris , 51 Or. 136, 94 P. 44 (1908), for the proposition that merely offensive words are not sufficient to deprive someone of the right to self-defense, and then likened spitting to offensive words. The state responded that harassment is aimed at "offensive physical contact" and that spitting in the face constitutes offensive physical contact and was the initial act of aggression. The court agreed with the state and granted its request for the instruction.

In challenging the initial aggressor instruction on appeal, defendant argues that spitting does not qualify as an act of aggression for purposes of the instruction because it is not a threat or use of physical force. He argues that an aggressor must employ "violence" by threatening or striking another person and that, because spitting is not an act of aggression, there was no evidence to support the giving of the instruction. The state maintains that a rational factfinder could find that propelling saliva into someone's face constitutes "striking" another person or a "physical act" against them. We agree with the state.

A person may use physical force in self-defense against "what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose." ORS 161.209. Once raised, the state has the burden to disprove self-defense beyond a reasonable doubt. ORS 161.055(1). One way of doing so is to prove that one or more of the limitations in ORS 161.215 are present. State v. Freeman , 109 Or. App. 472, 476, 820 P.2d 37 (1991). ORS 161.215 states, in relevant part:

"Notwithstanding ORS 161.209 (Use of physical force in defense of a person), a person is not justified in using physical force upon another person if:

"* * * * *

"(2) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force[.]"

UCrJI 1110, the initial aggressor instruction, parrots ORS 161.215(2).

The trial court must give a party's requested jury instruction if there is evidence to support it and it correctly states the law. Sufficient evidence to support giving an instruction exists when, viewing the record, "it would be rational for a factfinder" to find in support of the party's theory. State v. Wolf , 288 Or. App. 613, 616-17, 406 P.3d 1105 (2017). One form of instructional error is when a court gives an instruction that correctly states the law but "there is no evidence in the record to support giving the instruction." Montara Owners Assn. v. LaNoue Development, LLC , 357 Or. 333, 348, 353 P.3d 563 (2015). Defendant alleges that type of error here, arguing that spitting at Largaespada could not have made him an "initial aggressor" under ORS 161.215(2). Thus, we must determine whether defendant's act of spitting in Largaespada's face can support a jury finding that he was an "initial aggressor" for purposes of ORS 161.215(2), such that the trial court correctly gave the initial aggressor jury instruction. That is a question of statutory construction.

To evaluate whether defendant could have been an initial aggressor under ORS 161.215(2), we give primary weight to the text and context of the statute and consider any helpful legislative history. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). The phrase "initial aggressor" is not defined in ORS 161.215 or elsewhere in the statutes, so we consider the "plain, natural, and ordinary" meaning of the phrase and consult dictionary definitions of those terms that may illuminate what the legislature intended. State v. McNally , 361 Or. 314, 321, 392 P.3d 721 (2017). However, when a term is a legal "term of art," we look to its "established legal meaning as revealed by, for starters at least, legal dictionaries." Comcast Corp. v. Dept. of Rev. , 356 Or. 282, 296, 337 P.3d 768 (2014). "We potentially also consider the overall statutory scheme in which a legal term appears, as well as the meaning that the term has for regulators who oversee the field." Id. The term "aggressor" has long been a legal term of art used with the criminal defense of self-defense. See State v. Gray , 43 Or. 446, 74 P. 927 (1904) (discussing who was the first "aggressor" for purposes of self-defense); see also Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 24, 24 (July 1970) (providing that the section is "basically a codification of Oregon case law doctrines" and discussing, among other cases, Gray ). As such, we consider its legal meaning in construing ORS 161.215(2).

Defendant argues that Oregon's self-defense statutory scheme is adapted from Michigan and New York statutes on the same subject and notes that New York has interpreted the initial aggressor limitation to require the use or threatened use of physical force. Commentary § 24; see N.Y. Penal Law § 35.00 (McKinney) ; People v. Walker , 26 N.Y.3d 170, 175, 21 N.Y.S.3d 191, 195, 42 N.E.3d 688, 692 (N.Y. App. Div. 2015) ; People v. Baez , 118 A.D.2d 507, 508, 500 N.Y.S.2d 3,...