State v. Sippel

When an alternative theory is presented by the prosecution late in the case, the court must instruct the jury that a specific number of jurors must agree on what exact factual events constitute the crime if the prosecution presents more than one theory in its case. State v. Ashkins, 357 Or 642, 659, 357 P3d 490, (2015); State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016).

Defendant appealed conviction of interfering with a peace officer by refusing to obey a lawful order under ORS 162.247 (1)(b). On appeal, Defendant argued that the trial court erred when it allowed the State to proffer a new theory of the case in its rebuttal closing argument. The State admitted the trial court should have sustained the objection or, in the alternative, issued “concurrence instructions” to the jury. When an alternative theory is presented by the prosecution late in the case, the court must instruct the jury that a specific number of jurors must agree on what exact factual events constitute the crime if the prosecution presents more than one theory in its case. State v. Ashkins, 357 Or 642, 659, 357 P3d 490, (2015); State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016). The Court of Appeals held the trial court plainly erred because it failed to provide the jury with concurrent instructions. Conviction for interfering with a peace officer reversed and remanded; otherwise affirmed.