State v. Pipkin

When determining whether a jury concurrence is required, a court must first determine the legislature's intent in enacting the criminal statute. If the legislature intended two ways of proving a single element, jury concurrence is not required, so long as Article I, section 11 of the constitution is not violated.

Defendant filed a motion at the trial court level to either require the State to elect a single theory of the crime of first degree robbery, whether he entered unlawfully or remained unlawfully, or to require the jury by a concurrence of 10 to agree on one theory. The trial court denied this motion, and Court of Appeals affirmed, finding entering and remaining unlawfully are two ways to prove a single element of first degree robbery-- unlawful presence in a dwelling, and Article I, section 11 of the Constitution does not require jury concurrence on alternative means of proving a single element. A court initially should determine the legislature's intent in enacting the underlying criminal statute. If the legislature intended each alterative means of committing the crime as a separate element, than jury concurrence follows as a result of that legislative determination. Alternatively, if the legislature intended to provide two ways of proving a single element, then the underlying statute does not require jury concurrence, and the question remains whether the legislature's choice violates either the state or federal constitution. Looking at the legislative history of ORS 164.205(3), entering and remaining unlawfully are two alternative and sometimes complementary ways of proving a defendant's unlawful presence in a dwelling and were not intended to be separate elements of the offense requiring jury concurrence. Looking at the second part of the test, the legislative history of Article I, section 11 of the Constitution appears to have cut against jury concurrence and unanimity beyond the legislatively defined elements of a crime. The decision of Court of Appeals and the judgment of the circuit court are affirmed.