State v. Ashkins

A jury instruction requiring all jurors to agree on which occurrence constituted a crime is not required when the evidence shows multiple occurrences of the offense and does not give jurors the ability to factually distinguish one occurrence from another in a manner that could lead to differing conclusions about the commission of the crime.

Defendant appeals his three trial court convictions for rape, sodomy, and unlawful penetration. Defendant married victim’s mother in 2003. In 2009, mother reported to the County Sheriff that Defendant had abused her child. In 2010 the victim told the police that Defendant had sexual intercourse and unlawfully penetrated her over the course of several years. Defendant claims that the trial court erred by allowing the victim’s hearsay statements because the particularity requirements of OEC 803(18a)(b) were not met in the state’s notice of intent to offer the statements, and also because the court did not instruct the jury to agree on which occurrence constituted each offense. The Court held that Defendant’s notice of the hearsay was admissibly particular because it mentioned the substance of the statement and the witness who introduced it. The Court also held that the jury did not have to agree on which occurrence constituted each crime because the evidence supported multiple, distinct occurrences for each conviction and did not offer information that distinguished the occasions from one another in a factually material way. Affirmed.