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The Concurrence Requirement: the COA thinks this is a big deal and you should too

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by: Ryan • March 22, 2013 • no comments

There were two Court of Appeal opinions on Wednesday that addressed a particular type of jury instruction: the concurrence instruction. Slightly simplified, this instruction tells the jury that there are at least two different ways to convict the defendant (sometimes two or more factual theories, sometimes legal theories), and that at least ten jurors have to agree on which of the grounds the conviction is based. If you've got a situation where there might be two separate grounds for conviction, you could move the court to ask the prosecution to elect, which means they could only submit one theory to the jury, but that's a harder argument to make, because you'd need to prove some prejudice if the state were to fail to do so.

Back to concurrence. In the PCR case, Hale v Belleque, the COA reversed burglary convictions because the trial attorney failed to ask for a concurrence instruction. In a different opinion, State v. Munoz, the court affirmed the defendant's murder conviction because the trial court's failure to ask for a jury instruction was harmless error. The latter opinion relied on a Court of Appeals case that has been under advisement with the Oregon Supreme Court since June, 2012, called St v. Phillips. Thus, the opinion from Wednesday may be reversed if Phillips is reversed.

I'm more interested in the fact that the COA reversed the burglary convictions for the defense counsel's failure to ask for a concurrence instruction. In the burglary counts, it was alleged that the defendant went into the homes "with intent to commit the crime of theft or criminal mischief." The instruction would have told the jurors that ten or more needed to agree on either theft or criminal mischief (or both).

Although not all counties charge burglary that way -- with two or more alternative intents in the same count, as opposed to separate counts of burglary -- I think the issue comes up quite frequently in other contexts. What about a boilerplate ID Theft charge which alleges a variety of means of committing ID Theft? If you can't get the court and judge to pare those down, then the jury might need a concurrence instruction. If you don't ask for it, and the failure is prejudicial, then it now appears you're inviting a PCR claim.

Could the same be true if you fail to ask for a concurrence instruction that tells jurors in a burglary trial that 10 or more must agree if the defendant entered with the necessary intent or that he remained with the necessary intent? That issue too is under advisement with the Oregon Supreme Court.

In sum, I'd ask for the instruction every chance you get. Consider it a CYA instruction if nothing else. And if you don't get it, well, then you have given the appellate attorney another issue to work with.