State v. Tardie

319 Or.App. 229

509 P.3d 705

STATE of Oregon, Plaintiff-Respondent,

v.Adam Joseph TARDIE, Defendant-Appellant.

A172055

Court of Appeals of Oregon.

Argued and submitted November 10, 2021.

April 20, 2022

Sara Werboff, 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.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Joyce, Judge, and DeVore, Senior Judge.^*

JOYCE, J.

Defendant appeals from a judgment of conviction for multiple counts of fourth-degree assault, coercion, and strangulation. On appeal, he raises 12 assignments of error. His first two assignments of error challenge the denials of successive motions to suppress. In his third and fourth assignments of error, he challenges the trial court's denial of two motions for judgment of acquittal. In his fifth and sixth assignments of error, he claims that the trial court erred in instructing the jury on the strangulation charges. And finally, in his seventh through twelfth claims of error, he argues that the trial court erred in instructing the jury that it could reach nonunanimous verdicts and in accepting nonunanimous verdicts.

We affirm the denial of the motions for judgment of acquittal without discussion. From there, we address the remaining claims of error out of order, because our disposition on some affect how we address others. We reverse and remand on defendant's fifth and sixth assignments of error because we conclude that the trial court erroneously instructed the jury and that the error was not harmless. We reverse and remand certain convictions related to the nonunanimous jury instruction and nonunanimous jury verdicts but affirm others. Finally, we affirm on defendant's first and second assignments of error because the trial court correctly denied both motions to suppress.

BASIC FACTS

We briefly describe the basic facts underlying defendant's convictions and then, as appropriate, further describe facts as relevant to the corresponding claims of error. Defendant and the victim were in an intimate relationship and lived together in defendant's home. Neighbors called police on December 4, 2016, to report a dispute. Police responded and found the victim outside. She had a bloody fat lip as well as bruising and swelling on her face. She told officers that defendant had assaulted her in the home and that she ran away, but defendant followed her and assaulted her again. The victim told police that defendant had surveillance cameras throughout his home. She also reported another incident that had occurred on December 1, 2016, during which defendant knocked her to the ground and kicked her. Before that assault, defendant unplugged the surveillance camera that would have captured the assault.

Based on the victim's statements and recovered surveillance video footage, the state charged defendant with a number of crimes. A jury convicted him of multiple counts of fourth-degree assault, strangulation, and coercion.

JURY INSTRUCTION ON STRANGULATION

The state charged defendant with multiple counts of strangulation. In his fifth and sixth assignments of error, defendant asserts that the trial court erred in declining to give his requested jury instruction on strangulation (sixth assignment) and in instructing the jury on those counts (fifth assignment). We review a 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 permits the jury to reach a legally erroneous result." Id. (internal quotation marks and citations omitted). We conclude that the court erred in failing to give defendant's requested instruction.

ORS 163.187(1) provides that "a person commits the crime of strangulation if the person knowingly impedes the normal breathing or circulation of the blood of another person[.]" ORS 161.085(8) in turn provides that knowingly, "when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists."

Defendant asked that the court instruct the jury that "knowingly" means that "the person acts with an awareness that his or her conduct impedes the normal breathing or circulation of another person." The state objected and asked that the court add "could" before "impede", i.e. , that knowingly means defendant acted with an awareness that his conduct "could impede" the victim's normal breathing or circulation. The trial court agreed with the state and instructed the jury that it could find defendant guilty if it concluded that he acted with an awareness that his conduct "could impede" the victim's breathing.

On appeal, the parties agree that the "knowingly" mental state applies to and directly modifies "impede." State v. Schodrow , 187 Or. App. 224, 229, 66 P.3d 547 (2003). They also agree that the definition of "knowingly" set forth in ORS 161.085(1) applies. But, as they did below, they disagree over the trial court's inclusion of the term "could." Defendant maintains that the state was required to prove that defendant was acting with an awareness that he was impeding her breathing, not that he "could" have done so. For its part, the state argues that, under ORS 161.085(8), the state needed only to show that the defendant's conduct was of a nature to impede the victim's circulation or breathing and "that is all that the addition of ‘could’ clarified[.]"

Under the plain terms of ORS 161.085(8), the state is incorrect. To act "knowingly" means that the person acts with an awareness that their "conduct is of a nature so described or that a circumstance so described exists." ORS 161.085(8). The statute is written in definitive, not potential terms—the conduct "is" of a nature so described or the circumstance "exists"—the nature or circumstance here being the impeding of breath. "Could" is not itself a definitive term; it suggests that possibility alone would suffice. Framed slightly differently, under the instruction as given, the jury may have found that defendant's conduct was in fact of such a nature as to impede the victim's breathing or it may have found that it was merely possible that it did. Yet ORS 161.085(8) requires that the state prove that defendant knew that he was impeding the victim's breathing; conversely, it is not an accurate statement of law to suggest that the jury could convict defendant if it found that he may—or could—have done so. The trial court therefore erred in not instructing the jury as defendant requested. Because that error was not harmless, we reverse and remand with respect to Counts 7, 12 and 15.¹

NONUNANIMOUS JURY INSTRUCTIONS AND VERDICTS

In assignments of error seven through 12, defendant argues that the trial court erred when it instructed the jury that it could return nonunanimous verdicts and in accepting nonunanimous verdicts on four counts. The state concedes that counts 5, 10, 11, and 14—upon which the jury reached nonunanimous verdicts—must be reversed in light of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree and accept the state's concession as to those counts.

Defendant is not, however, entitled to reversal of any convictions that were based on unanimous guilty verdicts. See State v. Flores Ramos , 367 Or. 292, 334, 478 P.3d 515 (2020) (where a jury poll showed that the verdict was unanimous, any error in instructing the jury that it could reach nonunanimous guilty verdicts was harmless and did not amount to structural error). Because the jury returned unanimous guilty verdicts on Count 6, we affirm the judgment as to Count 6.²

FIRST MOTION TO SUPPRESS EVIDENCE³

In his first assignment of error, defendant contends that the trial court erred when it denied his motion to suppress evidence discovered after officers obtained a warrant for and reviewed the surveillance camera footage because, according to defendant, the warrant had expired or, alternatively, the search was warrantless because the officer had already filed the return of warrant. We review the trial court's denial of defendant's motion to suppress for legal error. State v. Northcutt , 246 Or. App. 239, 245, 268 P.3d 154 (2011). We are bound by the court's findings of historical fact if there is constitutionally sufficient evidence in the record to support them. State v. Love-Faust , 309 Or. App. 734, 736, 483 P.3d 45, adh'd to as modified on recons. , 311 Or. App. 756, 489 P.3d 149 (2021). We thus set out the facts consistently with the trial court's explicit and implicit findings and its decision denying defendant's motion to suppress. Id. For the reasons set forth below, we conclude that the trial court correctly denied the motion to suppress.

Officers obtained and executed three separate warrants in this case. Although it is the second warrant that is relevant to this claimed error, we describe the first warrant to give context to the second. The dates that officers obtained the warrants, the dates that officers executed them, and the dates enumerated in the warrants themselves are critical to resolution of this claim of error and we thus describe them in detail as well. On December 5, 2016, the day after police responded to the assault, police applied for a warrant to seize the surveillance camera system in defendant's home. In the affidavit, Officer Rosales described the incident from the previous day and stated that the victim had described defendant as having a surveillance system inside and outside of the house. Rosales indicated that the victim believed...