State v. Rolfe

In Oregon, two situations require a concurrence instruction: (1) “when a statute defines one crime but specifies alternative ways in which that crime can be committed” and (2) “when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime.” State v. Pipkin, 354 Or 513, 516-17, 316 P3d 255 (2013).

Defendant appealed a conviction for the violation of a stalking protective order, assigning error to the trial court’s failure to issue a concurrence instruction as to which of Defendant's acts or omissions resulted in the violation. The State maintained that the trial court did not err, arguing that because only one message was at issue, Defendant’s entitlement to the instruction was not obvious. In Oregon, two situations require a concurrence instruction: (1) “when a statute defines one crime but specifies alternative ways in which that crime can be committed” and (2) “when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime.” State v. Pipkin, 354 Or 513, 516-17, 316 P3d 255 (2013). In State v. Boots, the court noted that the problem of a nonconcurrent jury presents itself when there is doubt in one or more juror as to how the crime occurred and “arises precisely when none of the alternative ways has been proved to the satisfaction of all jurors.” State v. Boots, 308 Or 371, 379, 780 P2d 725 (1989). Using Boots, the Court concluded that because jury concurrence as to Defendant's conduct is required to prove Defendant guilty beyond a reasonable doubt, the trial court plainly erred when it failed to provide a concurrence instruction pertaining to material facts demonstrating that Defendant violated the order after its issuance. Reversed and remanded.