State v. Ashkins

Under Article I, section 11, a defendant may ask for a jury concurrence instruction where an indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime; alternative to an instruction, the state may limit the jury’s consideration to a single occurrence. The rule may not apply where evidence is nonspecific and undifferentiated to one of multiple occurrences.

Following a jury trial, Defendant was convicted of one count of sodomy, one count of rape and one count of unlawful sexual penetration for acts committed against his developmentally delayed step-daughter, CS, starting when she was 12 years old. At trial, Defendant requested a jury instruction that ten jurors must agree on the factual occurrence that constituted each of the offenses pursuant to the rule that where a single crime has been charged but the evidence is sufficient for the jury to find that there were multiple, separate occurrences of the charged crime involving the same victim and the same perpetrator during the time period alleged, the state must either identify the occurrence that constituted the crime or the defendant is entitled to a jury instruction requiring at least ten jurors to concur on which occurrence constituted the crime. On appeal to the Court of Appeals, the State acknowledged the rule but argued this case fell within an exception for cases where the evidence of multiple occurrences of a crime is nonspecific and undifferentiated such that jury confusion would not be a concern. On review, the Court held that because Defendant’s indictment charged a single occurrence of each offense but evidence at trial permitted the jury to find one or more occurrences of an offense, the trial court erred. The State was required to either identify the occurrence it would prove or, alternatively, the trial court should have given the concurrence instruction. The Court also held the error was harmless because the jury would likely not have reached a different result if given the instruction. Affirmed.