State v. Burnett

The Court must affirm the conviction notwithstanding the omission of a concurrence instruction if there is “little likelihood that the error affected the verdict.” State v. Ashkins, 357 Or 642, 660 (2015).

Defendant appealed a conviction for DUII. The facts of the case established two instances where Defendant drove his vehicle. Defendant assigned error to the submission of the case to the jury without a concurrence instruction. On appeal, Defendant argued that the jury must agree on which factual instance resulted in the conviction. In response, the State argued that a concurrence instruction was not required because Defendant’s driving was one continuous act. The Court must affirm the conviction notwithstanding the lack of a concurrence instruction if there is “little likelihood that the error affected the verdict.” State v. Ashkins, 357 Or 642, 660 (2015). The court held that on appeal, Defendant must demonstrate that the lack of a concurrence instruction likely affected the outcome. The outcome was unaffected, the Court found, because it was unlikely that the jury would conclude that Defendant was intoxicated during only one of the two instances of driving separated by only thirty minutes of time. Affirmed.