Opinion
A169997
02-09-2022
STATE of Oregon, Plaintiff-Respondent, v. Earl Douglas WOODS, Jr., aka Earl Douglas Woods, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and DeVore, Senior Judge.
DeVORE, S. J.
After a jury trial, defendant was found guilty of 26 offenses, including multiple counts of rape, sexual abuse, strangulation, and assault, based on incidents involving five different alleged victims, EL, SL, AW, AM, and AB. His sixteen assignments of error—all of which are unpreserved—reduce to three contentions: (1) that the trial court plainly erred in failing to instruct the jury that, in order to convict as to first-degree sexual abuse, as charged in Counts 1 (EL), 13 (SL), and 28 (AB), and first-degree rape, as charged in Counts 3 (EL), 11 (SL), and 27 (AB), the jury had to find that defendant knew that the alleged victims were incapable of consent by reason of mental incapacitation or physical helplessness; (2) that the trial court plainly erred in failing to enter a judgment of acquittal on the charge of fourth-degree assault involving AM (Count 25); and (3) that the trial court plainly erred in giving a nonunanimous jury instruction and accepting nonunanimous guilty verdicts on some counts. For the reasons explained below, we reverse and remand Counts 1, 2, 3, 4, 16, 27, 28, and 29 and remand for resentencing. Otherwise, we affirm.
The trial court merged some of the guilty verdicts into other convictions. Defendant was acquitted of other counts.
A recitation of the facts giving rise to the charges is not necessary, nor would it benefit the bench, bar, or public.
We reject without discussion defendant's argument that the trial court erred in not sua sponte entering a judgment of acquittal on Count 25.
Taking defendant's remaining arguments in reverse order, we accept the state's concession that the trial court's instruction to the jury that "ten or more jurors must agree" to find defendant guilty was error under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) (nonunanimous guilty verdicts for serious offenses violate the Sixth Amendment). Moreover, with respect to the counts on which the jury returned nonunanimous verdicts, the court's error in accepting the verdicts was plain, State v. Ulery , 366 Or. 500, 503-04, 464 P.3d 1123 (2020) (receipt of nonunanimous guilty verdict for a nonpetty offense constitutes plain error in light of Ramos ), and for the reasons stated in that case, we exercise our discretion to correct the error, id . at 504, 464 P.3d 1123 (noting the court's inability to correct the error under then-controlling law and the gravity of the error). We therefore reverse and remand defendant's convictions on Counts 1, 2, 3, 4, 16, 27, 28, and 29 for a new trial. However, we reject defendant's contention that the nonunanimous jury instruction was "structural" error requiring reversal of all of his convictions. State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020) (instructing the jury that it could return a nonunanimous guilty verdict was not a structural error and, where the jury poll reveals that it unanimously found the defendant guilty of the charged offense, the nonunanimous jury instruction can be held harmless beyond a reasonable doubt); see also State v. Kincheloe , 367 Or. 335, 478 P.3d 507 (2020), cert. den. , ––– U.S. ––––, 141 S.Ct. 2837, 210 L.Ed.2d 951 (2021).
Those conclusions leave for our consideration defendant's contention in his first through sixth assignments of error that the trial court plainly erred by failing to instruct the jury that, with respect to first-degree rape and first-degree sexual abuse, a "knowingly" mental state applies to the victim's incapacity for consent because of mental incapacitation or physical helplessness element of those crimes as charged. We have already held that defendant is entitled to a new trial on some of the counts to which this argument pertains due to Ramos -related error, as discussed above. However, defendant's contention remains potentially dispositive with respect to Counts 11 and 13, on which the jury reached unanimous guilty verdicts.
Those counts charged defendant with first-degree rape and first-degree sexual abuse, respectively, under the theory that the alleged victim, SL, was incapable of consent by reason of mentally incapacitation and/or physical helplessness. ORS 163.375(1)(d) (2017), amended by Or. Laws 2021, ch. 82, § 4; ORS 163.427(1)(a)(C) (2017), amended by Or. Laws 2021, ch. 82, § 7. As to the elements of first-degree rape as charged in Count 11, the court instructed the jury:
We refer to the 2017 version of ORS 163.375 throughout this opinion; it provides, as relevant:
"(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if:
"*****
"(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness."
We refer to the 2017 version of ORS 163.427(1)(a)(C) throughout this opinion; it provides, as relevant:
"(1) A person commits the crime of sexual abuse in the first degree when that person:
"(a) Subjects another person to sexual contact and:
"*****
"(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless[.]"
"In this case, to establish the crime of rape in the first degree in Count 11, the State must prove beyond a reasonable doubt the following elements:
"Number one, the act occurred on or about February 25, 2018.
"Number two, [defendant] knowingly had sexual intercourse with SL.
"And number three, SL was incapable of consent by reason of mental incapacitation or physical helplessness."
As to the elements of first-degree sexual abuse as charged in Count 13, the court instructed the jury:
"[T]o establish the crime of sexual abuse in the first degree as alleged in Count 13, the State must prove beyond a reasonable doubt the following elements:
"Number one, the act occurred on or about February 25, 2018.
"Number two, [defendant] knowingly subjected SL to sexual contact by touching her breast or vagina, a sexual or intimate part of SL.
"And 3, SL was incapable of consent by reason of mental incapacitation or physical helplessness."
Defendant did not object to those instructions, nor did he request that the jury be instructed that, as to the third element of both offenses, a "knowingly" culpable mental state attached. That is, he did not urge that the jury was required to find that defendant knew that SL was incapable of consenting to the conduct because of mental incapacitation or physical helplessness. Nonetheless, on appeal, he contends that the omission of that instruction is plain error under State v. Simonov , 358 Or. 531, 368 P.3d 11 (2016), and State v. Haltom , 366 Or. 791, 472 P.3d 246 (2020), and that we should exercise our discretion under ORAP 5.45(1) to correct it.
Haltom was decided after the parties filed their opening briefs and defendant raised it in a memorandum of additional authorities. The state did not respond and the case was submitted without oral argument, so we do not have the benefit of the state's opinion regarding the effect of Haltom .
The state responds that defendant's argument is foreclosed by State v. Phelps , 141 Or. App. 555, 558, 920 P.2d 1098, rev. den. , 324 Or. 306, 925 P.2d 909 (1996) (discussed below), which held contrary to defendant's position, noting also that we have adhered to Phelps after Simonov was decided. See State v. Gerig , 297 Or. App. 884, 885, 444 P.3d 1145 (2019), rev'd in part on other grounds , 368 Or. 513, 493 P.3d 521 (2021) (rejecting, based on Phelps , defendant's plain error argument that the trial court erred by not instructing the jury on first-degree rape and first-degree sexual abuse charges that it was required to find that defendant knew that the victim was incapable of consent due to physical helplessness, mental incapacity, or mental defect); State v. Nyembo , 292 Or. App. 215, 418 P.3d 784, rev. den. , 363 Or. 744, 430 P.3d 566 (2018) (per curiam, citing Phelps ).
Defendant does not address Phelps . He did not file a reply brief or request oral argument after the state raised the case, nor does he argue, in his supplemental memorandum of additional authorities, which addresses Haltom, that we should overrule Phelps in light of that case.
"When a party has failed to preserve an assignment of error, we consider that error only if it is plain. ORAP 5.45(1). For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences." Ulery , 366 Or. at 502-03, 464 P.3d 1123 (internal quotation marks and citation omitted). Here, the only question is whether the error is "obvious and not reasonably in dispute." The parties do not dispute that the other requirements for plain error review are satisfied. We generally determine whether an error occurred by reference to the law in effect at the time of our decision. Id. at 503, 464 P.3d 1123. As explained below, we conclude that the alleged error at issue here is not obvious or beyond reasonable dispute.
We begin with Phelps , which is directly on point. In Phelps , we rejected the defendant's argument that a culpable mental state of knowingly applied with respect to every element of first-degree rape in ORS 163.375(1)(d), and, therefore, that the state was required to prove that defendant knew that the victim was incapable of consenting to sexual intercourse. 141 Or. App. at 558-59, 920 P.2d 1098. We relied on a statute that provided an affirmative defense to the charge. That statute, ORS 163.325(3) (1995), applicable in Phelps and in this case, provided:
"In any prosecution under ORS 163.355 to 163.445 in which the victim's lack of consent is based solely upon the incapacity of the victim to consent because the victim is mentally defective, mentally incapacitated or physically helpless, it is an affirmative defense for the defendant to prove that at the time of the alleged offense the defendant did not know of the facts or conditions responsible for the victim's incapacity to consent."
ORS 163.325(3). We concluded, after reading the text and context of the two statutes together, that it was clear
The statute has since been amended. See Or. Laws 2021, ch. 82, § 3; Or. Laws 2021, ch. 410, § 1. All references to ORS 163.325(3) in this opinion are to the earlier version.
"that the legislature did not intend to require the state to prove that defendant acted with a culpable mental state with regard to whether the victim lacked the mental capacity to consent. ORS 163.325(3), which places the issue of a defendant's knowledge regarding the victim's mental capacity squarely on a defendant, would be rendered meaningless under defendant's construction."
Id . at 558, 920 P.2d 1098. We observed, "By its expression in ORS 163.325(3), the legislature has indicated its intention that knowledge of the incapacity to consent of a person within the definition of ORS 163.375(1)(d) is not a material element of the offense ***." Id . at 559, 920 P.2d 1098. We also rejected defendant's constitutional argument that ORS 163.325(3) violates due process because it improperly shifts the burden of proof to the defendant. Id. at 559-61, 920 P.2d 1098.
Under Phelps , the trial court in this case did not err by failing to instruct the jury that, with respect to Counts 11 and 13, the state was required to prove that defendant knew that SL was incapable of consent by reason of mental incapacitation or physical helplessness. Nevertheless, the questions today are whether subsequent Supreme Court case law has displaced Phelps , such that it is no longer good law, and, ultimately, whether the court's failure to give such an instruction is plainly wrong.
The defense of ORS 163.325(3) also applies to first-degree sexual abuse under ORS 163.427(1)(a)(C), as charged in Count 13.
It must "plainly be the case" that subsequent Supreme Court decisions undercut the validity of prior Court of Appeals decisions before we will overrule our precedents. State ex rel Maney v. Hsu , 308 Or. App. 822, 827, 482 P.3d 136, rev. den. , 368 Or. 273, 488 P.3d 771 (2021). In deciding whether one of our cases remains good law in light of a subsequent Supreme Court decision, we examine whether the Supreme Court's decision overrules our prior holding and, if it does not, whether the court's analysis "demonstrate[s] that our [prior decision] is ‘plainly wrong,’ such that we should overrule it ourselves." State v. McKnight , 293 Or. App. 274, 278, 426 P.3d 669, rev. den. , 363 Or. 817, 432 P.3d 1093 (2018). The "plainly wrong" standard is a " ‘rigorous’ " one, " ‘grounded in presumptive fidelity to stare decisis .’ " State v. Hubbell , 314 Or. App. 844, 856, 500 P.3d 728 (2021) (quoting State v. Civil , 283 Or. App. 395, 406, 388 P.3d 1185 (2017) ). And, "[w]e start from the assumption that our prior cases were decided correctly, and the party urging us to abandon precedent must affirmatively persuade us to the contrary that a decision is plainly wrong." McKnight , 293 Or. App. at 278-79, 426 P.3d 669 (internal quotation marks omitted). In this case, defendant, as noted, does not address Phelps , much less contend that Phelps was "plainly wrong" in light of Simonov and Haltom , a factor that weighs in our conclusion.
We turn to Haltom , which elaborated and clarified the court's earlier decision in Simonov. In Haltom , the defendant was convicted of second-degree sexual abuse as defined in ORS 163.425(1)(a), which makes it a crime to " ‘subject another person to sexual intercourse’ " or certain other sexual acts when the victim " ‘does not consent thereto.’ " 366 Or. at 793, 472 P.3d 246 (emphases added; brackets omitted). Below and on appeal, the defendant argued that the lack of consent element of that offense was—similar to the "without consent" element of the unauthorized use of a vehicle offense, ORS 164.135(1)(a) (2015), at issue in Simonov —a "conduct" element for purposes of determining the minimum mental state that applies when the statute fails to specify one, and, therefore, as in Simonov , "knowingly" is the minimum mental state that attaches to that element of second-degree sexual abuse. Id . at 794-96, 472 P.3d 246. The Supreme Court concluded that the "does not consent" element of ORS 163.425(1)(a) "is an integral part of the conduct that the statute proscribes," and therefore requires proof of a minimum mental state of "knowingly." Id. at 824, 472 P.3d 246.
The legislature amended ORS 164.135(1)(a) after Simonov was decided. Or. Laws 2019, ch. 530, § 1.
In this case, defendant contends that the same is true with respect to the incapacity to consent element and that those cases therefore compel the conclusion that a knowingly culpable mental state also applies to the victim's incapacity to consent element of first-degree rape and first-degree sexual abuse as charged here. We are not persuaded.
The Supreme Court has stated, based on ORS 161.095(2), that, for crimes defined in the Criminal Code, which includes ORS 163.375 and ORS 163.427, "a culpable mental state is required for each element of the offense except for those relating to the statute of limitations, jurisdiction, venue, and the like." Haltom , 366 Or. at 797-98, 472 P.3d 246 (footnote omitted); Simonov , 358 Or. at 537-38, 368 P.3d 11 ("every ‘material element’ of the offense ordinarily requires proof of a culpable mental state"; "[a]n element is ‘material’ unless it relates ‘solely to the statute of limitations, jurisdiction, venue’ or similar matters" (citing State v. Blanton , 284 Or. 591, 595, 588 P.2d 28 (1978) )). Admittedly, that statement undercuts our conclusion in Phelps that, due to the enactment of ORS 163.325(3), "knowledge of the incapacity to consent of a person within the definition of ORS 163.375(1)(d) is not a material element of the offense," 141 Or. App. at 559, 920 P.2d 1098 (emphasis added), and the state is not required to prove that defendant acted with a culpable mental state with regard to whether the victim lacked the mental capacity to consent, id. at 558, 920 P.2d 1098 (emphasis added).
ORS 161.095(2) provides:
"Except as provided in ORS 161.105 [governing violations and crimes outside the Criminal Code] a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."
See also ORS 161.115(2) (providing that, if a statute does not prescribe a culpable mental state, "culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence").
However, the court has yet to directly confront the interplay between what the state must prove as to the offenses of ORS 163.375(1)(d) and ORS 163.427(1)(a)(C), which involve a victim's incapacity to consent, and the affirmative defense provided in ORS 163.325(3), which expressly requires the defendant to prove that they "did not know of the facts or conditions responsible for the victim's incapacity to consent." But see Haltom , 366 Or. at 818, 472 P.3d 246 (recognizing a portion of the commentary to ORS 163.325(3), suggesting, as discussed below, that the legislature understood that the state would not be required to prove culpable knowledge in those circumstances). See also State v. Olive , 259 Or. App. 104, 113 n. 2, 312 P.3d 588 (2013) (explaining that, "under ORS 161.095(2), unless the legislature expressly provides otherwise , a culpable mental state is required for all facts that the state must prove beyond a reasonable doubt to convict a defendant except those that relate solely to the statute of limitations, jurisdiction, venue, or other procedural prerequisites to conviction" (emphasis added)). Thus, we are not persuaded that Haltom effectively overruled Phelps ; and we are particularly unpersuaded where defendant has not developed an argument to overrule Phelps. See Hubbell , 314 Or. App. at 855, 500 P.3d 728 ("[T]he party seeking to change a precedent must assume responsibility for affirmatively persuading the court that it should abandon that precedent." (Internal quotation marks, brackets, and citations omitted.)).
That question was not at issue in Simonov or Haltom . As noted above, the affirmative defense set out in ORS 163.325(3) applies only in prosecutions where "the victim's lack of consent is based solely upon the incapacity of the victim to consent because the victim is mentally defective, mentally incapacitated or physically helpless." (Emphasis added.) In Simonov , the issue was whether, in a prosecution for unauthorized use of a vehicle, ORS 164.135 (2015), the jury was required to find that the defendant knew that the use of the vehicle was "without consent of the owner." In Haltom , as discussed, the court addressed whether a minimum mental state of "knowingly" applies to the "does not consent" element of second-degree sexual abuse in ORS 163.435(1)(a).
Moreover, the court made clear in Haltom that, when a criminal statute fails to specify the applicable mental state or states, the determination of what mental state applies depends, first, on the category—conduct, circumstance, or result—the material element falls within. 366 Or. at 798-99, 472 P.3d 246. That is based on what the legislature that enacted the statute intended or understood. 366 Or. at 802, 472 P.3d 246 ; see id. at 802, 803, 472 P.3d 246 (explaining that the initial inquiry is "whether the legislature that enacted the statute intended or understood the element at issue as a circumstance"—for which the mental state of criminal negligence is sufficient—"or as part of the conduct that the statute proscribes"—which requires a minimum culpable state of "knowingly"). As with any inquiry into a statute's meaning, resolution of that question requires a careful examination of the statutory text and context as well as any helpful legislative history. Id. at 803, 472 P.3d 246.
Defendant's argument in this case that, because the court in Haltom determined that a knowingly mental state applied to the element of the victim's nonconsent in ORS 163.425(1)(a) (second-degree sexual abuse), the same necessarily applies with respect to the victim's incapacity to consent because of mental incapacitation or physical helplessness element in ORS 163.375(1)(d) (first-degree rape) and ORS 163.427(1)(a)(C) (first degree-sexual abuse), ignores that analysis. As such, defendant's argument does not account for the potentially significant differences in text and structure of the statutes. Compare ORS 163.425 (1)(a) ("and the victim does not consent thereto") with ORS 163.375(1)(d) ("[t]he victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness") and ORS 163.427(1)(a)(C) ("[t]he victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless" (emphases added)). See also Haltom , 366 Or. at 806, 472 P.3d 246 (explaining that "[t]he use of a particular grammatical construction may lend support to one side of an interpretive controversy," although it is not dispositive); id at 804, 472 P.3d 246 (finding it "significant *** that the central conduct element in ORS 163.425(1)(a) is worded in terms of ‘subject[ing] another person to sexual intercourse’ " (brackets in Haltom )).
The "[s]ubjects another person to" wording appears in ORS 163.427(1)(a)(C) but not in ORS 163.375(1)(d).
Nor does defendant's argument account for any pertinent legislative history of ORS 163.375(1)(d) or ORS 163.427(1)(a)(C), because those statutes were not at issue in Haltom . Notably, the court in Haltom did discuss the affirmative defense statute, ORS 163.325, as relevant context for interpreting what the legislature intended with respect to the "does not consent" element of second-degree sexual abuse under ORS 163.425(1)(a). 366 Or. at 814-18, 472 P.3d 246. And that discussion indicates that there is legislative history that could affect the analysis here.
In Haltom , the state and the defendant had each argued that the legislature's provision of an affirmative defense to sex crimes based on the defendant's lack of knowledge with respect to the victim's mental or physical incapacity to consent in ORS 163.325(3), without doing the same with respect to the victim's actual nonconsent in ORS 163.425(1)(a), provided support for their respective positions on the question whether knowingly or criminal negligence was the appropriate culpable mental state for the "does not consent" element of the latter statute. 366 Or. at 814-16, 472 P.3d 246.
Of potential significance here, the defendant pointed out that the Criminal Law Commission's commentary pertaining to the affirmative defense of mistake as to the victim's incapacity to consent under ORS 163.325(3) included the following: " ‘The defendant is given the opportunity to exculpate himself but the state is not given the difficult burden of proving culpable knowledge. ’ " Id . at 816, 472 P.3d 246 (quoting Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 106, 108 (July 1970) (emphasis in Haltom )). In accepting the defendant's argument, the Supreme Court acknowledged that commentary, stating that it "appears to support defendant's position that there is no inherent contradiction between providing an affirmative lack-of-knowledge defense when the victim's nonconsent is legally implied because of age or incapacity and requiring the state to prove the defendant's knowledge of the victim's nonconsent when actual, rather than legally implied, nonconsent is at issue." Id. at 818, 472 P.3d 246. Although the court was addressing a different point, that at least suggests that a different conclusion may result with respect to the legislature's intention when the issue is legally implied, rather than actual nonconsent.
Ignoring all of that, defendant instead relies on a footnote in Simonov , in which the court referenced the first-degree rape statute as an example of when the legislature has expressly provided mental states for all or certain of the elements of an offense in the Criminal Code, including the lack of a victim's consent. 358 Or. at 538 n. 3, 368 P.3d 11. The court noted that the requisite mental state for first-degree rape "depends on the state's theory of lack of consent," and opined that, "if lack of consent is based on the victim's incapacity, then an honest mistake, even if unreasonable, will excuse the defendant's conduct, meaning that the applicable mental state is knowingly," citing ORS 163.325(3). Id. Defendant's reliance on that statement is flawed for two reasons.
First, as the state points out, the court did not purport to alter the burdens of proof contemplated by the two statutes and the footnote can be understood to say only that a lack of knowledge, if proved by the defendant as an affirmative defense , could "excuse " conduct that would otherwise constitute first-degree rape. Indeed, that is how we understood the footnote in our opinion in Gerig . See id. , 297 Or. App. at 886 n. 1, 444 P.3d 1145.
Second, in any event, the footnote in Simonov is dictum . Neither the proper construction of ORS 163.375(1)(d) or ORS 163.427(1)(a)(C), nor how those statutes intersect with the affirmative defense set out in ORS 163.325(3), were at issue before the court. "Dictum is not binding on the court, and we do not apply dictum that provides no useful guidance." Elk Creek Management Co. v. Gilbert , 247 Or. App. 572, 579, 270 P.3d 362 (2012), rev. on other grounds , 353 Or. 565, 303 P.3d 929 (2013) ; Godfrey v. Fred Meyer Stores , 202 Or. App. 673, 680, 124 P.3d 621 (2005), rev. den. , 340 Or. 672, 136 P.3d 742 (2006) ("Ordinarily, dictum —even Oregon Supreme Court dictum —about the construction of a statute has no particular precedential force."). In sum, nothing in Simonov or Haltom displaces our conclusion in Phelps that requiring proof that a defendant knew of the victim's incapacity would be inconsistent with the affirmative defense in ORS 163.325(3) and its legislative history; as a consequence, those cases are not a basis for concluding that Phelps is plainly wrong insofar as it rejected knowingly as a mental state, even if they give rise to the possibility that the legislature intended for a lower culpable mental state, such as criminal negligence, to apply, an issue that is not presented in this case.
We are not persuaded either that those cases effectively overruled Phelps or that we should overrule it ourselves as "plainly wrong," especially, as noted, in the absence of any argument from defendant to that effect. It follows that the trial court's error, if any, in failing to instruct the jury on Counts 11 and 13 that it was required to find that defendant knew that the victim was incapable of consent by reason of mental incapacity or physical helplessness is not plain. We therefore affirm those convictions.
Counts 1, 2, 3, 4, 16, 27, 28, and 29 reversed and remanded; remanded for resentencing; otherwise affirmed.