State v. Trenary-Brown

579

Argued and submitted November 12, 2020, reversed and remanded

May 19, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

SABRINA ANN TRENARY-BROWN,

Defendant-Appellant.

Marion County Circuit Court

17CR69783; A170102

489 P3d 1114

Defendant appeals from a judgment of conviction for one count of unlawful

sexual penetration in the first degree, ORS 163.411, and one count of assault in

the fourth degree, ORS 163.160. She contends that the trial court plainly erred

in accepting a nonunanimous verdict on the sexual penetration charge and in

failing to provide a concurrence instruction on the assault charge. With respect

to the assault charge, defendant argues that a concurrence instruction was

required because the state presented evidence of two injuries—each to different

parts of the victim’s body—either of which could have been the basis for the jury’s

verdict. Held: The trial court plainly erred by accepting a nonunanimous verdict

and the Court of Appeals exercised its discretion to reverse the sexual penetra-

tion count. Likewise, because the prosecutor’s argument repeatedly conflated the

victim’s injuries when discussing the assault count, there was a real possibility

of juror confusion such that the trial court plainly erred in failing to provide a

concurrence instruction. Because the failure to give a concurrence instruction

threatens to undermine the jury’s deliberative process, the court exercised its

discretion to correct the error.

Reversed and remanded.

Susan M. Tripp, Judge.

Kali Montague, 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.

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 Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

580 State v. Trenary-Brown

KAMINS, J.

Reversed and remanded.

Cite as 311 Or App 579 (2021) 581

KAMINS, J.

Defendant appeals from a judgment of conviction for

one count of unlawful sexual penetration in the first degree,

ORS 163.411, and one count of assault in the fourth degree,

ORS 163.160. She contends that the trial court plainly erred

in accepting a nonunanimous verdict on the sexual penetra-

tion charge and in failing to provide a concurrence instruc-

tion on the assault charge. The state concedes error relating

to the nonunanimous verdict but argues that the trial court

did not plainly err in failing to give a concurrence instruc-

tion. We agree with defendant and therefore reverse.

The facts are largely undisputed.1 Defendant, who

was staying with her brother and elderly mother, M, entered

M’s room and pulled M’s pajama bottoms down. Defendant

used her finger to penetrate M’s vagina. M screamed for help,

and defendant’s brother ran into the room and attempted to

pull defendant off their mother. During the struggle, defen-

dant lunged and scratched M’s cheek and the inside of her

mouth. Defendant was charged with first degree sexual

penetration relating to the penetration of M’s vagina and

assault in the fourth degree relating to the injury to M’s

face.

As to the sexual penetration count, the jury received

photographs depicting the injury and heard testimony from

M, who recounted that penetration had occurred; from

defendant’s brother, who observed defendant’s hand in M’s

crotch; and from Detective Bravo, who testified that M

recounted the incident to her. As to the fourth-degree assault

charge, defendant’s brother testified that he observed defen-

dant’s hand “grabbing for whatever it could grab ahold of

and end[ing] up inside [M’s] mouth.” As to the element of

injury, in addition to the admission of photographs of the

injury, defendant’s brother testified that M told him that her

mouth hurt and Deputy Kometz, the first responding officer,

reported that M characterized the pain in her mouth as a

three on a scale of one to 10. Detective Bravo testified that

M held ice to her face, had a scratch on her cheek and had

1

Although defendant opted to be tried before a jury, she put on no witnesses

and her attorney made only one objection and asked fewer than 15 questions of

the state’s witnesses during the trial.

582 State v. Trenary-Brown

a piece of skin “kind of hanging down when you bite your

lip.” At the close of the one-day jury trial, the jury returned

a guilty verdict on the sexual penetration charge by a 10-2

verdict, and on the assault charge unanimously.

On appeal, defendant contends, and the state con-

cedes, that the trial court plainly erred in accepting a non-

unanimous jury verdict on the sexual penetration count

in violation of her right to a jury trial under the Sixth

Amendment. See Ramos v. Louisiana, 590 US ___, ___,

140 S Ct 1390, 1397, 206 L Ed 2d 583 (2020). We agree and

exercise our discretion to reverse that conviction for the rea-

sons stated in State v. Ulery, 366 Or 500, 504, 464 P3d 1123

(2020).

Defendant also assigns error to the trial court’s

failure to give a jury concurrence instruction on the assault

charge, an error she concedes is unpreserved. Defendant

contends that the state advanced competing theories of lia-

bility for the injury element of the assault charge, at times

arguing that the injury element stemmed from the injury

to the inside of M’s mouth, at other times from the injury

to the outside of her mouth, and at other times still from

the injury to her vagina. Accordingly, defendant contends

that the jury may not have agreed on the required facts—

specifically the injury—constituting the crime of assault.

The state responds that the closing arguments indicated

that the parties understood that the injuries to M’s face

were the basis of the assault charge, so the court did not

commit error, plain or otherwise.

Whether a trial court is required to give a particu-

lar 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 instruc-

tion].” State v. Theriault, 300 Or App 243, 250, 452 P3d 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 or

obvious and (3) that appear on the face of the record. Ailes

v. Portland Meadows, Inc., 312 Or 376, 381, 823 P2d 956

(1991). If those criteria are met, we must decide whether to

exercise our discretion to correct the error. Id. at 382.

Cite as 311 Or App 579 (2021) 583

Under Article I, section 11, of the Oregon Constitu-

tion, 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 P3d 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 P3d 503 (2020) (internal

quotation marks omitted). There are two scenarios that can

implicate that right: the first is when a statute defining the

crime provides multiple ways that the crime can be commit-

ted, 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. Slaviak, 296 Or App 805,

810-11, 440 P3d 114 (2019) (internal quotation marks omit-

ted). This case implicates the latter scenario: defendant was

charged with a single count of assault but contends that the

jury might have been confused as to which conduct consti-

tuted the crime of assault, with some jurors voting to convict

based on the injury to the vagina and some voting to convict

based on the injuries to the face.2

In order to evaluate whether the jury agreed on the

essential elements of the offense, we turn to the charging

instrument and elements of the crime. See Arellano-

Sanchez, 309 Or App at 83-84. To commit fourth degree

assault, defendant must “[i]ntentionally, knowingly or reck-

lessly cause[ ] physical injury to another.” ORS 163.160(1)(a).

The crime has “three elements: (1) a culpable mental state,

(2) causation, and (3) physical injury.” Theriault, 300 Or App

at 252 (internal quotation marks omitted). The element of

“physical injury”—the key issue in this case—may be proved

by demonstrating either “impairment of physical condition

or substantial pain.” ORS 161.015(7). The crime of sexual

2

Defendant also contends that the jury might have been confused as to

whether the state was relying on the injury to the outside or inside of the victim’s

mouth. However, “[c]oncurrence instructions are necessitated when single inci-

dents give rise to separate and distinct injuries, but not when a single incident

results in a cluster of injuries.” Arellano-Sanchez, 309 Or App at 85 (internal

quotation marks omitted). Accordingly, no concurrence instruction was needed

for the cluster of injuries to M’s mouth caused when defendant lunged at her.

584 State v. Trenary-Brown

penetration, by contrast, does not require the state to prove

injury. See ORS 163.411.

The state presented evidence and argument as

to pain arising from the injury in M’s mouth and from

the injury to her vagina. The prosecutor inquired from M

about her experience of pain in her mouth, which she did

not remember, and the pain in her vagina, which she did

remember. Deputy Kometz testified that M rated the pain

in her mouth as a three on a scale of one to 10, but she was

reluctant to discuss the injury to her vagina. M provided

more detail to a female detective, Detective Bravo, who tes-

tified that M said her mouth “hurt a little bit,” and the pain

in her vagina ranked as a three on a pain scale of one to

10. The jury received photos of both injuries and heard sev-

eral witnesses testify that both M’s face and vagina were

bleeding.

During closing argument, the prosecutor added to

the risk of confusion. He initially discussed the elements

of assault in the fourth degree, explaining that the injury

element required “impairment of a physical condition” or

“substantial pain.” He then noted “what you see in photos

and what you hear through the testimony of [the two offi-

cers] is that it hurt, her pain scale was on a level of a three.”

However, the jury received photos of both injuries and heard

testimony from one officer that M described the pain from

her mouth as a level three and the other officer that M

described the pain from her vagina as a level three.

The prosecutor then engaged in a more detailed dis-

cussion about the pain and impairment M experienced in

her mouth and argued that jurors could rely on their com-

mon sense to conclude that level of pain could impair the use

of her mouth. Next, without signaling that he was switching

back to the sexual penetration charge, the prosecutor dis-

cussed the pain M experienced in her vagina:

“Keep in [mind] as well that [M] when she was talking to

Detective Bravo talked about pain in her vagina as well at

a level three, about two to three hours afterwards as well,

there’s no doubt that there was physical injury here.”

As we have already observed, the crime of unlawful sexual

penetration has no element of injury. There was no reason

Cite as 311 Or App 579 (2021) 585

for the prosecutor to talk about the pain M experienced in

her vagina during his discussion of the assault charge, let

alone in the same breath as claiming that there was no rea-

sonable doubt as to the element of “physical injury,” the key

element at issue. And immediately thereafter, the prosecu-

tor described defendant’s mental state:

“[Defendant] was fixated on one thing, and that was her

mother, and that was causing her harm one way or another,

whether it’s a scratch to the face, a finger in the mouth, or

the biggest offense here that she did with regards to her

genital area.”

The prosecutor’s argument conflated the two separate

crimes at several points and never labored to distinguish

the charges.3 Moreover, the pain arising from both injuries

was characterized similarly throughout the trial, making

a clear separation as to the bases of each of the charges all

the more important. Because, there was “a real possibility

of juror confusion with respect to the evidence” as it relates

to the element of physical injury, a concurrence instruction

was required. Arellano-Sanchez, 309 Or App at 80.

The state argues that the defendant’s closing argu-

ment reflected that the parties understood the basis of the

charge because it focused on the injuries to M’s face when

discussing the assault charge, and therefore any error was

not sufficiently “obvious” to be plain. The key question, how-

ever, is not whether defense counsel understood the basis of

the charge, but whether the jury understood it sufficiently

such that their verdict reflected an agreement over just what

defendant did. To the extent that the state is contending

that no concurrence instruction was required because the

confusion was alleviated by defense counsel’s closing, “argu-

ments by the parties are typically insufficient to properly

charge the jury.” State v. Burris, 301 Or App 430, 433, 456

P3d 684 (2019). And even if defense counsel’s two-paragraph

closing argument could substitute for a jury instruction,

this argument did not. When discussing the assault charge,

defense counsel mentioned the use of ice and a cut to the

3

Even in opening statement, the prosecutor described the elements of the

crimes in succession without clarifying that the assault charge related to the

facial injury.

586 State v. Trenary-Brown

face (injuries appropriate to the assault charge), referred to

the pain level of a three (which applied to both injuries), and

pointed to the fact that no medical treatment was required

(which also applied to both injuries). No one ever explained

to this jury that the assault charge was based on the injury

to the face as opposed to the injury to the vagina.

Having determined that the trial court commit-

ted error in failing to instruct the jury as to the elements

upon which it must agree, we must evaluate whether that

error was harmless—that is, whether “there is little likeli-

hood that the error affected the verdict.” State v. Ashkins,

357 Or 642, 660, 357 P3d 490 (2015) (internal quotation

marks omitted). In answering that question, we evaluate

“the instructions as a whole and in the context of the evi-

dence and record at trial, including the parties’ theories of

the case with respect to the various charges and defenses

at issue.” Id. The “failure to give a concurrence instruction

is not harmless when, given the evidence and the parties’

theories, jurors could have based their verdicts on different

occurrences.” State v. Teagues, 281 Or App 182, 194, 383 P3d

320 (2016).

The evidence here suggests that the jury very

well may have based its verdict on different occurrences.

Defendant’s brother witnessed the injury to the mouth and

not to the vagina. Accordingly, there was reason for some

members of the jury to conclude that the offense involv-

ing the victim’s vagina did not occur at all or did not con-

stitute the crime of unlawful sexual penetration, which

is reflected by the nonunanimous verdict on that count.

Conversely, M testified that she remembered bleeding and

pain in her vagina but did not remember the injury to her

face at all. Additionally, an officer testified that she said

her mouth hurt only “a little bit.” Accordingly, there was

also evidence to support a conclusion that the injury relat-

ing to M’s vagina amounted to substantial pain or impair-

ment and the injury to her face did not. As a result, there

is a real possibility that jurors may not have agreed on just

what the defendant did and returned a guilty verdict on the

assault charge based on different injuries. The error was not

harmless.

Cite as 311 Or App 579 (2021) 587

Having found plain error, we must determine

whether to exercise our discretion to correct it. Because the

failure to instruct a jury that it must agree on the factual

and legal basis for its verdict “threatens to undermine the

deliberative process and affect not just what the jury consid-

ers, but how it considers it,” we generally exercise our dis-

cretion to correct. Burris, 301 Or App at 434-35 (emphasis in

original) (collecting cases). We see no reason to deviate from

that practice here. Given the “manifest potential” that the

jury may have found defendant guilty without agreeing on

facts that support a required element of the crime, we exer-

cise our discretion to correct the error. See State v. Sippel,

288 Or App 391, 394, 406 P3d 207 (2017).

Reversed and remanded.