State v. Trenary-Brown

The “failure to give a concurrence instruction is not harmless when, given the evidence and the parties’ theories, jurors could have based their verdicts on different occurrences.” State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016).

Defendant appealed a judgment of conviction for one count of assault in the fourth degree and one count of unlawful sexual penetration in the first degree. Defendant assigned error to the trial court’s failure to provide a concurrence instruction on the assault charge and the trial court’s acceptance of a nonunanimous verdict on the sexual penetration charge. The state conceded error for the nonunanimous verdict but argued that no concurrence instruction was required because the confusion was cleared up by the defense’s closing argument. The “failure to give a concurrence instruction is not harmless when, given the evidence and the parties’ theories, jurors could have based their verdicts on different occurrences.” State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016). Due to the various injuries incurred and the testimonies given at trial, the Court explained that there was a good possibility that the jurors did not agree on what Defendant did and returned a guilty verdict on the assault charges without agreeing on the facts that supported a required element of the crime. Reversed and remanded.