State v. Camphouse

"Where the evidence permit[s] a finding that defendant committed the charged offense on any one or more of several instances, defendant [is] entitled to an instruction that jurors ha[ve] to agree on which instance [is] the basis for their verdict." State v. Slaviak, 296 Or App 805, 810-11, 440 P3d 114 (2019). However, failure to provide such an instruction is harmless if "there is little likelihood that, if it had been given the concurrence instruction[,] ... the jury would have reached a different result." State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015)

Defendant appealed a conviction of two counts criminal mistreatment in the first degree. Defendant assigned error to the trial court's failure to provide the jury with a concurrence instruction when the record contained evidence of multiple incidents that the jury could have relied upon in making their determination. On appeal, Defendant argued that she was entitled to an instruction informing the jury that they must agree on a specific instance to protect against a "mix-and-match" verdict. In response, the State argued that their case treated Defendant's conduct as a "continuing and progressive course of mistreatment," and that the jury made their decision based on this ongoing mistreatment. "Where the evidence permit[s] a finding that defendant committed the charged offense on any one or more of several instances, defendant [is] entitled to an instruction that jurors ha[ve] to agree on which instance [is] the basis for their verdict." State v. Slaviak, 296 Or App 805, 810-11, 440 P3d 114 (2019). However, failure to provide such an instruction is harmless if "there is little likelihood that, if it had been given the concurrence instruction[,] ... the jury would have reached a different result." State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015). The Court held that the evidence presented was consistent with the State's theory of the case. Further, the Court reasoned that despite Defendant's entitlement to the concurrence instruction, there was little likelihood that the jury's verdict would have been different if it had been given. Affirmed.