State v. Slaviak

Under State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015), a defendant is entitled to a concurrence instruction when an indictment charges "a single occurrence of each offense, but the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator," unless the state "elect[ed] which occurrence it would prove." 357 Or at 659.

Defendant appealed a judgment of conviction for two counts of first-degree sexual abuse. Defendant assigned error to the trial court’s failure to give a concurrence instruction to the jury. On appeal, Defendant argued the jury should have been provided a concurrence instruction because the State failed to elect which incident it would rely on; the jury could have found him guilty of sexual abuse for count 1 from "touching the victim’s genitals either in the bedroom or kitchen" and for count 2 from "touching the victim’s breasts either in the bedroom or in the kitchen." In response, the State argued a concurrence instruction was not required because "other information" provided to the jury eliminated the need for the instruction. Additionally, the State argued even if there was an error, it was harmless. Under State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015), a defendant is entitled to a concurrence instruction when an indictment charges "a single occurrence of each offense, but the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator," unless the state "elect[ed] which occurrence it would prove." 357 Or at 659. The Court concluded that the trial court plainly erred, that error was not harmless, and a concurrence instruction was required under Ashkins because different jurors could have convicted each count based on different factual findings.

Convictions for first-degree sexual abuse reversed and remanded; remanded for resentencing; otherwise affirmed.