State v. Slaviak

296 Or.App. 805

440 P.3d 114

STATE of Oregon, Plaintiff-Respondent,

v.Christopher Allen Marc SLAVIAK, Defendant-Appellant.

A162308

Court of Appeals of Oregon.

Argued and submitted July 30, 2018.

April 3, 2019

Emily P. Seltzer, 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.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

HADLOCK, P. J.

Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405. Defendant does not challenge the conviction for attempted sexual abuse and our opinion in this case does not disturb that conviction. Defendant does, however, challenge the two sexual-abuse convictions. He contends that the trial court plainly erred by not giving a jury concurrence instruction related to those two counts. For the reasons set out below, we agree that a concurrence instruction was plainly required in the circumstances present here. We also conclude that this is an appropriate case in which to exercise our discretion to address that error. Accordingly, we reverse and remand defendant’s convictions for first-degree sexual abuse, remand for resentencing, and otherwise affirm.¹

Under State v. Ashkins , 357 Or. 642, 659, 357 P.3d 490 (2015), a jury concurrence instruction is required when an indictment charges a single 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" if the state has not elected which occurrence constitutes the crime. In determining whether a concurrence instruction was required, we must consider all pertinent evidence admitted at trial. We summarize that evidence here, along with the pertinent procedural facts.

Defendant was charged with two counts of first-degree sexual abuse as follows, the first involving the victim’s genital area and the second involving her breast:

"COUNT 1 The defendant, on or about May 24, 2015, in Clackamas County, Oregon, did unlawfully and knowingly, by means of forcible compulsion, subject [the victim] to sexual contact by touching her genital area, a sexual and intimate part of [the victim].

"COUNT 2 The defendant, on or about May 24, 2015, in Clackamas County, Oregon, did unlawfully and knowingly, by means of forcible compulsion, subject [the victim], to sexual contact by touching her breast[,] an intimate part of [the victim]."

The case was tried to a jury. The victim testified that, on the evening in question, her boyfriend (Bustillos), a mutual friend (McLean), and defendant, whom the victim had not previously met, joined the victim at the apartment she shared with Bustillos. After spending a few hours together, the group walked to a pub, spent some time there, and then started walking back to the apartment. Bustillos and McLean stopped at a store, but defendant and the victim went on to the apartment. The victim testified that defendant started grabbing his crotch, then followed her when she went into the bathroom to get away from him. In the bathroom, defendant rubbed himself against the victim and grabbed her neck, "pulling [her] down and trying to get [her] to suck his penis." The victim fought, pushing defendant away and telling him "no," before she managed to leave the room. Those events formed the basis for the attempted sexual abuse charge, which is not at issue on appeal.

The victim also testified about the subsequent events that served as the basis for the two charged counts of sexual abuse—one count for touching her breast and one for touching her genital area. The victim testified that, after leaving the bathroom, she went to her bedroom to retrieve pepper spray, but defendant followed her, pushed her onto the bed, and began "groping [her] breasts and grabbing [her] vagina forcefully." The victim repeatedly told defendant to stop, but he did not. After five or 10 minutes, the victim was able to push defendant off of her and leave the room. She got as far as the kitchen before defendant "pushed [her] against the edge of the refrigerator full-force with his arm on [her] chest," and began "fondling [her] again and * * * grabbing [her] crotch and [her] breasts." At some point, the victim could hear Bustillos and McLean coming toward the apartment. Defendant stopped what he was doing and sat on the couch "like nothing ever happened." The victim told Bustillos and McLean that defendant had tried to force himself on her. Defendant fought with Bustillos, then left.

Police officer Wiesman was dispatched to the apartment and spoke with the victim for about an hour. During that conversation, the victim said that defendant had followed her into the bedroom, grabbed her breast, and tried to pull her pants down. The victim did not say anything about defendant grabbing her genital area while they were in the bedroom. Nor did she tell Wiesman about having been in the kitchen with defendant. Rather, she told Wiesman that she had stayed in the bedroom until she thought she heard Bustillos’ and McLean’s voices outside, then went into the living room, where defendant grabbed her crotch while she looked out the window.

Bustillos and McLean also testified. Bustillos said that the victim told him that defendant exposed his penis in the bathroom and started "groping up against her," that "it led out to the kitchen," and that—in the bedroom—defendant and the victim were "on the bed and he was trying to pull down her sweats, but she said that luckily they were tight, too tight, and she was pushing him off." McLean testified that the victim had said that defendant "tried to force himself on her and exposed himself to her."

During closing argument, the state discussed both the bedroom encounter and the kitchen encounter, describing each as involving forcible touching of both the victim’s breasts and her genital area. The state later explained the bases for the two counts of first-degree sexual abuse, "one for fondling her breast and one for grabbing her vaginal area. * * * Again Count 1, sexual abuse in the first degree. That’s for grabbing the breasts. Count 2, sexual abuse in the first degree, the vaginal area." In his closing argument, defendant focused on the discrepancies between the victim’s account to police and her testimony about what happened in the bedroom and the kitchen. In its rebuttal, the state attempted to shift the jury’s focus to the bedroom: "The bedroom incident, he * * * starts fondling her breasts and her vaginal areas, he’s guilty of sexual abuse in the first degree, period, end of story right there." The state then suggested that the jury could convict defendant of both counts of sexual abuse based on the bedroom incident even if it was not persuaded about what happened in the kitchen:

"We know that happens again in the kitchen. Okay? That doesn’t add, necessarily, to the charges, but it adds to what we know—it adds to her story, and that’s part of her story. When he pushes her down, face down on the bed, flips her over, climbs on top of her and starts fondling or grabbing her breasts, tugging on her pants and up in her vaginal area, he’s guilty right there. So we don’t need to get into the bathroom. If you had issues in your mind about what happened—excuse me, the kitchen. If you have issues about the kitchen, you can stop right there."

Defendant did not ask the court to require the state to elect the occurrence (bedroom or kitchen) on which it would proceed or to instruct the jury that it had to concur on the occurrence that constituted the basis for each count of sexual abuse. Nor did the court do either of those things; its instructions to the jury did not include a concurrence instruction. The court did instruct the jury that, "to establish the crime of sexual abuse in the first degree, the State must prove beyond a reasonable doubt * * * that the act occurred on or about May 24th, 2015," and that "ten or more jurors must agree on your verdict." The verdict form asked the jury to indicate whether defendant was guilty or not guilty "of the charge of Sexual Abuse in the First Degree as alleged in Count 1 of the Indictment"; it included analogous directions with respect to Counts 2 and 3. The jury returned guilty verdicts on each count.

On appeal, defendant argues that the trial court plainly erred by failing to instruct the jury that, to render guilty verdicts on Counts 1 and 2, at least 10 jurors had to concur on which occurrence constituted the sexual abuse for the purpose of each count. Defendant asserts that jurors could find from the evidence that defendant sexually abused the victim by touching her genitals either in the bedroom or in the kitchen (for Count 1) and sexually abused the victim by touching her breasts either in the bedroom or in the kitchen (for Count 2). Defendant argues that the trial court was therefore required to give a concurrence instruction because the state did not elect the incident on which it would rely. Further, defendant argues that the error was not harmless and he urges us to exercise our discretion to correct the error.

The state acknowledges that, when the evidence would permit the jury to find multiple, separate occurrences of a crime charged as a particular count in the indictment, election or a concurrence instruction ordinarily is required. Nonetheless, the state argues that no such instruction was required in this case because other information given to the jury obviated the need for a concurrence instruction. At least, the state contends, that is a plausible argument under State v. Rodriguez-Castillo , 210 Or....