[DV_listserv] DV appellate case...

[Domestic Violence issues]

...that could affect how you charge and try DV as well as NON-DV cases.

(From the DOJ Appellate division):

_________
BREAKING NEWS: DECISION YESTERDAY BY
OREGON COURT OF APPEALS
"BOOTS RULE" APPLIES IF BURGLARY CHARGE ALLEGES MORE THAN ONE INTENDED CRIME
State v. Frey, __ Or App __, __ P3d __ (February 8, 2012) (Marion) (AAG Greg Rios).
Based on an incidence of domestic violence in which defendant threatened the boyfriend of his
estranged wife with a rifle and then attempted to kick down the locked door of the boyfriend's
apartment where they had retreated and taken refuge, defendant was charged inter alia with
attempted first-degree burglary. In accordance with State v. Sanders, 280 Or 685 (1977), the
burglary charge specifically alleged, in addition, that defendant attempted to enter the victims'
dwelling "with the intent to commit the crime of Unlawful Use of a Weapon, Menacing, Assault
and Murder therein." After the jury was instructed and sent to deliberate, defense counsel
objected that the court should have given a "Boots instruction" that would have required the jury
to reach a separate verdict of at least 10-2 verdict on each of those "specific intent" allegations in
the burglary charge. The trial court overruled the objection, and defendant was convicted of the
attempted-burglary charge by a general verdict of guilty.
Held: Reversed and remanded (Haselton, J.). [1] Defendant sufficiently presented the
issue to the trial court "by way of a post-instructional exception, as required by ORCP 59 H, and
thus satisfied procedural and prudential preservation requirements." [2] "In Sanders, the
Supreme Court reaffirmed the long-established requirement under Oregon law that the state, to
convict of burglary, must plead and prove the specific crime that the defendant intended to
commit upon entry. That principle controls here. The test for whether a Boots instruction is
required is whether the law or the indictment has made the fact at issue 'essential to the crime
charged.' Under Sanders, the 'fact at issue' here-viz., the specific crime that defendant
intended to commit upon entry-is essential to the crime charged. Accordingly, the jury must
concur on the specific crime that defendant intended to commit when defendant attempted the
unlawful entry."
http://www.publications.ojd.state.or.us/A141355.pdf
Note 1. The court noted that a Boots instruction would not have been necessary if the
prosecutor had elected a single specific-intent allegation for the jury to base its verdict on for the
burglary charge.
Note 2. In State v. Hale, 335 Or 612, 629 (2003), the court held that a Boots error can be
harmless if the jury returns a guilty verdict on a separately charged offense that establishes that
the jury in fact reached a sufficient concurrence on one of the alternatives alleged. Thus, for
example, if a defendant is charged with burglary based on an allegation that he entered with an
intent to commit crimes A and B therein, and the offenses of A and B are separately charged, and
the jury returns a valid guilty verdict on either A or B along with a guilty verdict on the burglary
charge, then a possible Boots error for not giving an instruction requiring a separate verdict of at
least 10-2 on either specific intent A or B should be harmless.
Note 3. It will be a week or two before we decide whether to petition for reconsideration
or review in this case and, if we do, it probably will be many months before this opinion is
withdrawn, reversed, or affirmed. In the meantime, it may be prudent to acquiesce in a Boots
instruction if you have a burglary charge with more than one specific intent alleged. Other
alternatives: elect a single specific intent at the time the case is submitted to the jury or ensure
that the intended crimes alleged in the burglary count are separately charged in other counts and
submitted to the jury.
Note 4. The decision in this case should not provide any basis to set aside a burglary
conviction that already has become final, nor should it provide a basis under ORS 138.083(1) to
"correct" a previously entered burglary conviction.

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