Oregon Supreme Court - Sept. 11, 2015

Latest revision as of 22:01, September 14, 2015

Jury Concurrence - Concurrence is Required Where Evidence of Multiple Occurrences of a Single Crime Involving the Same Parties is Nonspecific and Undifferentiated

The jury must agree on which specific incident they're finding the defendant guilty, even if (as in child sex crimes) the evidence of multiple incidents with the same victim are nonspecific and undifferentiated. The "rationale underlying the concurrence right is not satisfied merely because the state’s witnesses may have difficulties in recalling, recounting, or distinguishing among separate occurrences of a particular crime." Here, defendant was charged with a single count each of sodomy, rape and sexual penetration, but the state presented evidence of multiple incidents involving those crimes. Thus, the state was required to elect which incident it would prove or defendant was entitled to an instruction on concurrence. Since the state did not elect, the court should have given the following requested instruction:

“10 jurors must agree on which factual occurrence constituted the offense,”

However, while the trial court erred, the error was harmless because there is little likelihood the instruction would have made a difference in the result:

Nothing about defendant’s theory of defense concerned particular occurrences of the sexual acts described by CS [the victim]. There was no alibi defense, nor any defense that CS had misidentified the perpetrator. That is, nothing in the defense theory called into question CS’s description of any particular occurrence. Rather, defense counsel focused on inconsistencies in CS’s statements and the absence of physical evidence to support the charges. In sum, there was evidence that defendant committed multiple acts of rape, sodomy, and unlawful sexual penetration against CS, but there was nothing to indicate that, in evaluating the evidence to determine if those offenses had been committed, the jury would have reached one conclusion as to some of the occurrences but a different conclusion as to others."

State v Ashkins, 357 Or 642 (2015).