State v. Ashkins

642 September 11, 2015 No. 32

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

SCOTT MICHAEL ASHKINS,

Petitioner on Review.

(CC 10C42610; CA A150038; SC S062468)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 8, 2015.

Jason E. Thompson, Ferder, Casebeer, French & Thompson,

LLP, Salem, argued the cause and filed the brief for peti-

tioner on review.

Jamie K. Contreras, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

With her on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Case Summary: Defendant, who was charged with one count each of rape,

sodomy, and sexual abuse, sought a jury instruction that the jurors needed to

agree on what factual occurrence constituted each crime. The trial court denied

the motion, and the Court of Appeals affirmed. Held: (1) When a single occur-

rence of a crime is alleged, but evidence is presented that the crime was commit-

ted by the same perpetrator against the same victim during separate occurrences

within the time period alleged, a defendant is entitled to a jury concurrence

instruction. (2) Although the requested instruction should have been given, the

error was harmless because there was little likelihood that it affected the verdict.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

______________

*  Appeal from Marion County Circuit Court, Albin W. Norblad, Judge. 263

Or App 208, 327 P3d 1191 (2014).

Cite as 357 Or 642 (2015) 643

BREWER, J.

Defendant, who was convicted after a jury trial

on one count of sodomy, one count of rape, and one count

of unlawful sexual penetration, argues that the trial court

erred in failing to give his requested jury instruction that

ten jurors must agree on what factual occurrence constituted

each of the offenses. The Court of Appeals held that the trial

court correctly declined to give the requested instruction.

State v. Ashkins, 263 Or App 208, 327 P3d 1191 (2014). On

review, defendant argues that the circumstances of this case

fall within the rule providing that, when 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 per-

petrator during the period of time alleged in the indictment,

the state either must elect which occurrence constituted the

charged crime or, alternatively, the defendant is entitled to

an instruction that ten or more jurors must concur on which

occurrence constituted that crime.1 State v. Pipkin, 354 Or

513, 316 P3d 255 (2013) (stating rule); see also State v. Boots,

308 Or 371, 780 P2d 725 (1989) (describing necessity of jury

concurrence on material elements of a crime). We conclude

that the trial court erred in failing to give defendant’s pro-

posed concurrence instruction in this case. We further con-

clude, however, that the error was harmless, and we there-

fore affirm defendant’s convictions.

I.  FACTS AND PROCEDURAL BACKGROUND

Defendant was charged with first-degree rape,

sodomy, and unlawful sexual penetration against his step-

daughter, CS, beginning when CS was approximately 12

years old. The indictment alleged that the crimes occurred

between January 1, 2007, and March 23, 2010. The pertinent

1

As the source of his argument, defendant primarily relies on Article I, sec-

tion 11, of the Oregon Constitution, which provides, in part: “[I]n the circuit court

ten members of the jury may render a verdict of guilty or not guilty, save and

except a verdict of guilty of first degree murder, which shall be found only by a

unanimous verdict.” Defendant asserts, alternatively, that the Sixth Amendment

to the United States Constitution imposes a similar requirement. Because we

base our decision in this case on Article I, section 11, we do not reach defendant’s

federal constitutional argument.

644 State v. Ashkins

charges, which were read to the jury as part of the court’s

preliminary instructions, were as follows:

“COUNT 01  The defendant, on or between January 1,

2007 to March 23, 2010, in Marion County, Oregon, did

unlawfully and knowingly engage in sexual intercourse

with [CS], a child under the age of sixteen years, the said

[CS] being the said defendant’s spouse’s child.

“COUNT 02  In an act of the same or similar charac-

ter but not part of the same criminal episode as alleged in

Count 1 above, the defendant, on or between January 1,

2007 to March 23, 2010, in Marion County, Oregon, did

unlawfully and knowingly engage in deviate sexual inter-

course with [CS], the said [CS] being the said defendant’s

spouse’s daughter.

“COUNT 03  In an act of the same or similar character

but not part of the same criminal episode as alleged in Count 1

and Count 2 above, the defendant, on or between January 1,

2007 to March 23, 2010, in Marion County, Oregon, did

unlawfully and knowingly penetrate the vagina of [CS], a

person under the age of fourteen years, with an object other

than the defendant’s penis or mouth, to wit: his finger.”2

Defendant began dating the victim’s mother in

2002, and they married in 2003. The victim’s older brother,

who is severely disabled, lived with the family, as did

defendant’s son until he moved out in 2007. The state pre-

sented evidence that, after defendant’s son moved out and

until shortly before defendant and CS’s mother separated

in 2010, defendant committed numerous sexual offenses

against CS.

The state’s evidence consisted primarily of the testi-

mony of CS. CS was 17 years old at the time of trial and was

developmentally delayed. It may be inferred from her testi-

mony that she is not adept with concepts such as dates, ages,

and timelines. CS testified, for example, that defendant had

moved in with her and her mother the year before trial, but

she also testified that she had been living with her grand-

mother in the year before trial, that defendant had moved in

with her and her mother when CS was in middle school, and

2

Defendant was acquitted of a weapons-related charge that is not at issue on

review.

Cite as 357 Or 642 (2015) 645

that defendant had married her mother and moved in with

them in 2002 or 2003. CS’s descriptions of the offenses were

in many respects non-specific. She was unable to recall with

clarity various statements that she previously had made

about sexual abuse by defendant. Evidence was presented

that, at various points, CS had given differing accounts of

precisely what had occurred and how many times, that she

initially had disclosed only two rapes and not any other sex-

ual offenses, and that before defendant and her mother sep-

arated, CS had denied that any abuse had occurred.

As pertinent to the rape charge, CS testified that

defendant had sexual intercourse with her on several occa-

sions. CS identified three different locations where sexual

intercourse had occurred: on a couch in the living room, on

a table, and in her mother’s bedroom. With respect to the

table, CS described the table variously as oval-shaped and

rectangle-shaped, and she testified that intercourse had

occurred while she was on the edge of the table. She stated

that her mother was at work and her brother was in his bed-

room. She also testified that her clothes were off and defen-

dant’s pants were off but his shirt was on. She stated that

she did not call for help because she was afraid. With respect

to the bedroom, CS testified that defendant put her on the

bed, but she could not recall specific details.

Without reference to a particular occurrence or

location, CS testified that defendant sometimes used baby

oil from a small purple bottle as a lubricant.3 She further

testified that defendant sometimes gave her drugs and that

she had passed out, then awakened, to find him having

intercourse with her. On cross-examination, CS acknowl-

edged that she previously had told an interviewer that the

sexual intercourse had occurred only twice, and only in the

living room.

With respect to the sodomy charge, CS testified

without differentiation about incidents in which defendant

grabbed her hair and caused contact between his penis and

3

A police investigator, Hingston, who talked to CS several times in the

course of the criminal investigation, testified that CS previously had reported to

him that defendant had used baby oil as a lubricant when he had sexual inter-

course with her.

646 State v. Ashkins

CS’s mouth. CS used the phrase “sucking” to describe the

contact; however, she later testified that defendant’s penis

had not entered her mouth and that she did not know what

“suck” meant. On cross-examination, CS acknowledged that

she had not reported any sodomy incidents to the initial

interviewer. Detective Hingston testified that CS also had

told him that defendant had touched his “front privates” to

her mouth on three occasions and that it was “gross.”

With respect to the unlawful sexual penetration

charge, CS testified that defendant had penetrated her

vagina with his fingers, that she had been 11 or 12 years

old when it first occurred, and that defendant would pull her

pants down and touch her vagina. She testified that it had

happened on the couch, and that “sometimes” defendant told

her to come with him to her mother’s bedroom and that he

would then put his fingers into her vagina and try to take off

her clothes. CS testified that she did not call for help because

nobody could hear her. She also testified that defendant had

penetrated her vagina with an object that she described as

a “red rocket.” She testified that it hurt, but that she did not

call for help because her mom was at work and nobody could

hear her. CS acknowledged that she had not reported any of

those incidents to the initial interviewer. However, Detective

Hingston testified that CS had told him that defendant had

penetrated her with the toy “red rocket” on eight occasions,

and that defendant had made the toy himself.4

Defendant testified that no sexual contacts occurred

between himself and CS. Defendant’s theory of the case was

that the charges were fabricated by CS’s mother and grand-

mother in the context of the separation and dissolution of his

marriage to CS’s mother.

At the close of the evidence, defendant requested

the following jury instruction:

4

The state presented other evidence that defendant had a sexual relation-

ship with or sexual interest in CS, such as photos that he had taken of her uncov-

ered breast and pubic area and other photos of her on which he had written sex-

ual comments. Evidence also was adduced that defendant had asked CS to dress

in her mother’s lingerie, and commented about wanting to marry her. In addition,

the state introduced evidence, including video evidence, that CS and defendant

shared a bed at times. None of that evidence, however, constituted direct evidence

of the three charged sexual offenses.

Cite as 357 Or 642 (2015) 647

“In order to reach a lawful verdict as to any count, 10 jurors

must agree on what factual occurrence constituted the

crime. Thus, in order to reach a guilty verdict on any count,

10 jurors must agree on which factual occurrence consti-

tuted the offense.”

The trial court declined to give that instruction. The jury

convicted defendant of the three offenses at issue, and this

appeal ensued.

Before the Court of Appeals, defendant contended,

among other arguments, that the trial court erred in declining

to give the quoted instruction. The Court of Appeals concluded

that the need for a jury concurrence instruction was not

“implicated where the evidence suggests that the crime

was committed on multiple occasions but does not provide

the jurors with enough specifics to distinguish one occasion

from another in a way that would allow them to draw con-

flicting conclusions regarding the crime committed. That is

particularly true where factual distinctions between differ-

ent instances are not contested.”

Ashkins, 263 Or App at 222-23. Relying in part on this

court’s decision in State v. Sparks, 336 Or 298, 83 P3d 304,

cert den, 543 US 893 (2004), the Court of Appeals concluded

that “a jury concurrence instruction is not required as to the

precise location or circumstances of defendant’s various acts

of abuse.” Id. at 223.5

On review, defendant asserts that the Court of

Appeals erred in failing to adhere to this court’s analysis

of jury concurrence instruction requirements in Pipkin. We

allowed review to consider whether, and if so, how, the jury

concurrence requirement applies in situations where a sin-

gle occurrence of each charged crime is alleged, but largely

nonspecific and undifferentiated evidence is presented that

the crime was committed by the same perpetrator against

the same victim during separate occurrences within the

time period alleged in the indictment.

5

In reaching its conclusion, the Court of Appeals also relied in part on its

prior decisions in State v. Garcia, 211 Or App 290, 154 P3d 730, rev den, 343 Or

160 (2007), and State v. Pervish, 202 Or App 442, 123 P3d 285 (2005), rev den, 340

Or 308 (2006). We discuss those cases below because the state urges us to adopt

a variation on the rationale of those cases here.

648 State v. Ashkins

II. ANALYSIS

A.  Standard of Review

We review a trial court’s failure to give a requested

jury instruction for errors of law. State v. Reyes-Camarena,

330 Or 431, 441, 7 P3d 522 (2000). Generally speaking, an

instruction is appropriate if it correctly states the law and

is supported by evidence in the record, when the evidence is

viewed in the light most favorable to the party requesting

the instruction. State v. Oliphant, 347 Or 175, 178, 218 P3d

1281 (2009).6 A trial court, however, is not required to give

a requested instruction if another instruction adequately

addresses the issue. State v. Tucker, 315 Or 321, 332, 845

P2d 904 (1993).

B.  The Parties’ Arguments on Review

As noted above, defendant argues, based on Pipkin,

that when a single occurrence of a crime is charged but evi-

dence of multiple separate occurrences of that crime involv-

ing the same victim and the same perpetrator is adduced,

the state either must elect a particular occurrence or the

defendant is entitled to a jury concurrence instruction. It fol-

lows, defendant reasons, that the trial court erred in failing

to give the concurrence instruction that he requested. For

its part, the state acknowledges the rule on which defendant

relies, but it urges this court to recognize an exception “[i]n

cases where the evidence establishes multiple occurrences

of a crime but the evidence is nonspecific and undifferenti-

ated.” In such circumstances, the state argues, a trial court

should not give a concurrence instruction because “no genu-

ine risk exists that the jurors will reach differing conclusions

as to specific incidents.” Alternatively, the state suggests an

approach that has been followed in several other jurisdictions:

In cases involving such evidence, the state either may elect

6

At oral argument, the state argued that the touchstone of our standard

of review should be whether the lack of a concurrence instruction would cause

“jury confusion.” See, e.g., State v. Hale, 335 Or 612, 627, 75 P3d 448 (2003) (not-

ing that lack of concurrence instruction could cause “jury confusion”). Although

that consideration is relevant to the analysis, it does not embody our standard

of review; as with other failure-to-instruct challenges, the very nature of the

inquiry into whether a jury concurrence instruction is required dictates that all

the evidence must be considered in the light most favorable to the party seeking

the instruction.

Cite as 357 Or 642 (2015) 649

or the jury should be instructed that it either must concur on

a specific occurrence or concur that the defendant committed

all the acts described by the victim. Finally, the state argues

that, if a concurrence instruction should have been given in

this case, the error in failing to do so was harmless.

C.  Jury Concurrence When a Single Violation is Charged

But the Evidence Permits a Finding of Multiple, Separate

Occurrences of the Crime

This court has stated that a defendant’s right to jury

concurrence arises from Article I, section 11. See Pipkin, 354

Or at 518 n 6. In Pipkin, this court divided that right into

two broad categories and explained the scope of each. “One

situation occurs when a statute defines one crime but speci-

fies alternative ways in which that crime can be committed.”

Id. at 516. In that situation, if the legislature intended the

crime to have alternative statutory elements, jury concur-

rence is required, whereas if the legislature merely speci-

fied different factual ways of proving the same element, jury

concurrence is not necessary. Id. “The other situation arises

when the indictment charges a single violation of a crime

but the evidence permits the jury to find multiple, separate

occurrences of that crime.” Id. at 517. With respect to that

second category,

“[o]rdinarily, a defendant faced with that problem can ask

the state to elect the occurrence on which it wishes to pro-

ceed and, in that way, limit the jury’s consideration to a

single occurrence. See, e.g., State v. Lee, 202 Or 592, 276

P2d 946 (1954); State v. Ewing, 174 Or 487, 496, 149 P2d

765 (1944). Alternatively, [State v. Hale, 335 Or 612, 75 P3d

448 (2003) and State v. Lotches, 331 Or 455, 17 P3d 1045

(2000), cert den, 534 US 833 (2001)] hold that a defendant

can ask for an instruction requiring jury concurrence on

one of the several occurrences that the record discloses.”

354 Or at 517.7

7

Some courts have described this type of principle as an “either/or” rule. See,

e.g., State v. Petrich, 101 Wash 2d 566, 683 P2d 173 (1984) (describing rule); State

v. Kitchen, 110 Wash 2d 403, 756 P2d 105 (1988) (applying rule, but concluding

error was harmless); see also State v. Crane, 116 Wash 2d 315, 804 P2d 10 (1991)

(recognizing that the rule does not apply when multiple acts are part of the same

course of conduct). Cf. Pipkin, 354 Or at 517-18 (indicating that Oregon follows the

“either/or” approach, albeit not specifically addressing the issue in the context of

nonspecific and undifferentiated evidence in sexual abuse cases).

650 State v. Ashkins

The parties agree that only the second jury concur-

rence category described in Pipkin is potentially implicated

in this case.8 To determine whether it applies to the charges

on which defendant was convicted, it is helpful to review

several of this court’s earlier decisions.

Our first jury concurrence decision, Boots, did not

actually address whether or when a concurrence instruction

should be given. Rather, in that case, the trial court had

given an erroneous nonconcurrence instruction to the jury.

The defendant had been charged with aggravated murder,

the state had alleged two different aggravating circum-

stances that elevated the crime to aggravated murder, and

the trial court had instructed the jury that it was not nec-

essary for its members to agree on which of the two aggra-

vating circumstances had been proved. 308 Or at 374-75.

In holding that giving the nonconcurrence instruction was

erroneous, this court stated:

“We are not speaking here of factual details, such as

whether a gun was a revolver or a pistol and whether it

was held in the right or the left hand. We deal with facts

that the law (or the indictment) has made essential to the

crime.”

Id. at 379. See generally State v. King, 316 Or 437, 852 P2d

190 (1993) (jury was not required to concur about whether

defendants committed DUII by driving with blood alcohol

content above statutory limit or driving while perceptibly

impaired by alcohol, as those were simply factual details

about how single element of offense could be proven).

Lotches was the first case following Boots in which

this court addressed the second category described in

Pipkin. In Lotches, the defendant was convicted on three

counts of the aggravated murder of a single victim, each pre-

mised on a different aggravating circumstance. Unlike in

Boots, the jury in Lotches did separately consider each of the

three aggravating circumstances; the issue in Lotches was

whether the jury should have been instructed that it must

concur “as to the identity of the victim of the underlying

8

Pipkin itself involved the first category of situations in which a concurrence

right exists. 354 Or at 518. The particular circumstances of that case are not

relevant to our analysis here.

Cite as 357 Or 642 (2015) 651

felony” with respect to each aggravating circumstance. The

three theories alleged were aggravated murder in the course

of and in furtherance of attempted first-degree robbery,

attempted second-degree kidnapping, and attempted mur-

der. 331 Or at 462-63. The state had adduced evidence that,

in the course of events leading up to the murder, the defen-

dant had robbed or attempted to rob two individuals, had

attempted to kidnap two individuals, and attempted to kill

two others (none of whom were the aggravated murder vic-

tim). Id. at 470-71. This court noted that the state appeared

to concede “the notion that, if there is a possibility of jury

confusion, the identity of the victim or the circumstances

of the underlying felony is information that is material and

for which jury unanimity is required.” Id. at 470 (empha-

sis omitted). The court went on to hold that the trial court

had plainly erred in failing to require jury concurrence as to

the identity of the victims of the underlying felonies. Id. at

471-72.

Soon after deciding Lotches, this court addressed a

similar plain error challenge in Hale, another aggravated

murder case. In that case, the defendant and his accom-

plice Susbauer committed a series of crimes, culminating in

the murder of three children. 335 Or at 615-16. The aggra-

vated murder charges alleged as aggravating circumstances

various underlying felonies of sexual abuse and murder.

Susbauer entered into a plea agreement and testified that

the defendant was the principal and that Susbauer had been

an unwilling accomplice. The defendant’s theory of the case,

on the other hand, was that Susbauer had personally com-

mitted the underlying crimes. The problem—similar to the

problem in Lotches—was that there was evidence of multiple

victims with respect to those underlying crimes, and there

was conflicting evidence as to which of the two perpetrators

had committed them. Hale, 335 Or at 625-27. The trial court

gave no jury concurrence instruction and did not require the

state to elect a particular instance involving a particular

victim and a particular perpetrator with respect to each

offense. The defendant was convicted of thirteen counts of

aggravated murder. On review, this court concluded:

“We agree with defendant that, because the instruc-

tions that the jury was given with respect to each of the

652 State v. Ashkins

aggravated murders counts based on the crimes of third-

degree sexual abuse and murder did not either limit the

jury’s consideration to a specific instance of third-degree

sexual abuse or murder, committed by a particular perpe-

trator against a particular victim, or require jury unanim-

ity concerning a choice among alternative scenarios, each

instruction carried an impermissible danger of jury confu-

sion as to the crime underlying each count.”

Id. at 627.

In a subsequent aggravated murder case, however,

this court rejected the defendant’s plain error argument

with respect to jury concurrence. In State v. Sparks, 336

Or 298, 83 P3d 304 (2004), the defendant was convicted on

15 counts of aggravated murder of a single victim, based

on various theories of aggravation, including the commis-

sion of five different underlying offenses. 336 Or at 312. The

murder and each of the underlying offenses were committed

against the same victim within a period of several hours.

Id. at 300-01. The jury considered each count, and thus

each aggravating circumstance, separately, and the defen-

dant raised no objection to how the jury was instructed. On

appeal, the defendant noted that the evidence could have

supported a determination that the underlying offenses

occurred either in the defendant’s bedroom or at the loca-

tion where he later moved the victim’s body. Id. Relying

on Lotches, the defendant argued that “the evidence pre-

sented at trial could have supported more than one of each

instance of each of the five underlying crimes.” Id. Although

this court acknowledged its statement in Hale about lim-

iting “the jury’s consideration to a specific instance” of an

underlying offense, the court further noted that that state-

ment was followed by the qualifying phrase, “committed by

a particular perpetrator against a particular victim.” Id. at

316. The court concluded:

“In Lotches, there were multiple possible victims for each of

the underlying crimes. Similarly, in Hale, there were mul-

tiple possible victims and two possible perpetrators of each

of the underlying crimes. In both of those cases, the jury

was presented with multiple factual theories for each of the

underlying crimes. It is not reasonably in dispute that a

jury’s failure to agree unanimously on either the victim or

Cite as 357 Or 642 (2015) 653

the perpetrator of the crime would violate the jury unanim-

ity rule, because both those facts are material elements of

the underlying crimes.

“In this case, however, it is not ‘obvious’ that a jury’s

failure to agree unanimously on the precise location where

defendant may have perpetrated the underlying crimes

against the single victim would violate the jury unanimity

rule. Nothing about the crimes charged in this case demon-

strates that the precise location of the underlying crimes

constitutes a material element of those crimes on which the

jury must agree unanimously. In fact, the location of those

crimes more logically constitutes a ‘factual detail’ that does

not require jury unanimity. Boots, 308 Or at 379.”

Sparks, 336 Or at 316-17 (emphasis in original).

Sparks marked this court’s last examination of

a situation implicating the second category of situations

in which a concurrence right exists. However, none of this

court’s previous decisions, including Sparks, involved the

precise situation at issue here, to which we now turn.

D.  Application of Concurrence Right Where Evidence of Mul-

tiple Occurrences of a Single Charged Crime Involving

the Same Parties is Nonspecific and Undifferentiated

In the wake of Sparks, the Court of Appeals

addressed jury concurrence issues that were somewhat sim-

ilar to the one presented here, albeit in the context of unpre-

served challenges. In Pervish, the defendant was charged

with multiple instances of promoting and compelling pros-

titution. The facts were complicated, involving multiple vic-

tims and multiple acts of prostitution alleged as to several

of the victims. The defendant argued that the trial court

had plainly erred in failing to give a concurrence instruction

requiring 10 jurors to agree on “specific factual incident[s]

involving” each prostitute victim. 202 Or App at 442. The

Court of Appeals concluded that no error was apparent. It

observed: “The very generality of the evidence pertaining

to [one of the challenged counts] ameliorated any risk that

members of the jury could have picked different factual inci-

dents in convicting defendant of that charge.” Pervish, 202

Or App at 459.

654 State v. Ashkins

Later, in Garcia, 211 Or App at 293, the Court of

Appeals addressed a similar problem involving a child sexual

abuse victim who was unable to “relate detailed accounts of

specific occasions of abuse.” Id. at 293-94. Relying on Sparks,

the court stated that a concurrence instruction is required

only if the evidence demonstrates the possibility of juror dis-

agreement as to “material elements,” and concluded that “it

is not ‘obvious’ that the location in which a sexual offense

took place constitutes such a material element.” Garcia, 211

Or App at 295. The court further stated:

“In addition, a Boots instruction is required only when

there is a real possibility of juror confusion with respect to

the evidence as it relates to each charge. When the state’s

evidence is so general that it simply is not possible that

the jurors might have disagreed about specific instances

underlying the various charges—because they were not

given evidence of specific instances on which they might

disagree—it is not error for the court to fail to give a Boots

instruction.”

Id. at 296.

In a nutshell, both Pervish and Garcia suggested

that, in the context of nonspecific and undifferentiated evi-

dence of multiple occurrences of a single charged offense,

a jury concurrence instruction may have been unnecessary

because there would have been no basis for the jurors to

choose any particular occurrence as the one proven.9

9

By contrast, in State v. Houston, 147 Or App 285, 287, 935 P2d 1242 (1997),

the state charged the defendant with delivery of a controlled substance, but “pro-

duced evidence that the crime could have occurred at any of six different times.”

(Emphasis added.) In that circumstance, the Court of Appeals concluded that the

case was unlike King, “in which the state merely offered alternative evidence of

a single factual occurrence,” but rather that the defendant was entitled to a jury

concurrence instruction under the rationale of Boots, because the jury had been

“allowed to base its verdict on alternative factual occurrences, each of which itself

would be a separate crime.” Id. at 292. The court distinguished Houston in State

v. Greeley, 220 Or App 19, 24-25, 184 P3d 1191 (2008), which involved proof of

several reckless acts while driving over the course of about four minutes. The

defendant in Greeley had requested an instruction requiring the jury to agree on

a specific reckless act, but the Court of Appeals held that “the state was entitled

to rely on the entire course of defendant’s driving to establish the element of

recklessness.” Id. at 26. Houston and Greeley are consistent with our statement

in Pipkin that a jury concurrence instruction is required when “the evidence per-

mits the jury to find multiple, separate occurrences of that crime.” 354 Or at 517

(emphasis added).

Cite as 357 Or 642 (2015) 655

As noted, relying in part on Pervish and Garcia,

the state urges that where the evidence establishes multi-

ple occurrences of a single charged crime but the evidence

is nonspecific and undifferentiated, a trial court should not

give a special concurrence instruction because no genuine

risk exists that the jurors will reach differing conclusions

as to specific incidents. The rationale for such an exception

to the concurrence requirement was aptly stated in People

v. Jones, 51 Cal 3d 294, 305, 270 Cal Rptr 611, 792 P2d 643

(1990):

“[A child], assertedly molested over a substantial period by

a parent or other adult residing in [the] home, may have

no practical way of recollecting, reconstructing, distin-

guishing or identifying by ‘specific incidents or dates’ all

or even any such incidents. (Indeed, even a mature victim

might understandably be hard pressed to separate partic-

ular incidents of repetitive molestations by time, place or

circumstance.)”

(Citation omitted.)10

In Jones, the defendant was charged with sexual

offenses against multiple victims, including children in the

defendant’s home; the indictment alleged that the abuse

occurred over a two-year period. 51 Cal 3d at 301-02. One of

the children was able to identify locations where the defen-

dant had committed the charged offense, but was not able to

specify dates or “additional details to further identify these

acts.” Id. at 302. The court concluded that, if adequate jury

instructions were given, the defendant’s right to jury con-

currence was not violated where the evidence of the crimes

was “generic”:

“As for the necessity of a unanimous jury on specific

charges, we acknowledge that the requirement of [una-

nimity under the California constitution]. But we reject the

contention that jury unanimity is necessarily unattain-

able where testimony regarding repeated identical offenses

is presented in child molestation cases. In such cases,

10

See also R.L.G. v. State, 712 So 2d 348, 356 (Ala 1997) (evidence of “abuse

of a young child by an abuser residing with the child [such that the] abuser could

perpetuate the abuse so frequently and in so many locations that the young child

loses any frame of reference in which to compartmentalize the abuse” has been

termed “generic evidence”).

656 State v. Ashkins

although the jury may not be able to readily distinguish

between the various acts, it is certainly capable of unan-

imously agreeing that they took place in the number and

manner described.

“As previously stated, even generic testimony describes

a repeated series of specific, though indistinguishable,

acts of molestation. The unanimity instruction assists in

focusing the jury’s attention on each such act related by

the victim and charged by the People. We see no constitu-

tional impediment to allowing a jury, so instructed, to find

a defendant guilty of more than one indistinguishable act,

providing the three minimum prerequisites heretofore dis-

cussed are satisfied.

“* * * * *

“* * * [I]f an information charged two counts of lewd

conduct during a particular time period, the child victim

testified that such conduct took place three times during

that same period, and the jury believed that testimony

in toto, its difficulty in differentiating between the vari-

ous acts should not preclude a conviction of the two counts

charged, so long as there is no possibility of jury disagree-

ment regarding the defendant’s commission of any of these

acts.”

Id. at 321 (citations omitted).

The court in Jones held that, in situations where

jurors might disagree about the act committed, a standard

concurrence instruction should be given. It further held,

though, that “when there is no reasonable likelihood of juror

disagreement as to particular acts, and the only question is

whether or not the defendant in fact committed all of them,

the jury should be given a modified unanimity instruction.”

Id. The court described such an instruction as allowing a

conviction if the jury agreed on “specific acts” or that “the

defendant committed all the acts described by the victim.”

Id. at 321-22; see also Thomas v. People, 803 P2d 144 (Colo

1990) (adopting approach in Jones).

We appreciate the practical appeal of such an

approach. A child’s difficulty in distinguishing among mul-

tiple similar past events generally is within a jury’s ability

to evaluate, and such an instruction might encourage the

jury to turn directly to fundamental questions concerning

Cite as 357 Or 642 (2015) 657

credibility. Moreover, as a conceptual matter, such an

instruction does not misinform the jury about the concur-

rence requirement. A jury that determines that a defendant

committed “all of the acts” necessarily would find that the

defendant committed each of the specific acts.11

Such an instruction is not, however, free from

its own problems. The instruction endorsed in Jones was

phrased in terms of what the jury may do if it agrees that

“the defendant committed all of the acts described by the

victim.” Jones, 51 Cal 3d at 322 (emphasis added); see also

Thomas, 803 P2d at 154. Such an instruction could cause

jury confusion where the complaining witness has made

conflicting statements about what occurrences involved

what acts, how many occurrences there were, or whether

in fact any crimes occurred at all. See, e.g., R.L.G. v. State,

712 So 2d 348, 352 (Ala 1997) (child victim made numer-

ous specific disclosures before trial, but at trial testified she

did not remember making disclosures and that defendant

had never hurt her); State v. Becker, 211 Or App 1, 6, 153

P2d 158, rev den, 343 Or 223 (2007) (conviction was based

on child’s out-of-court disclosures of sexual abuse, although

child recanted at trial and indicated she had fabricated the

disclosures). Such a scenario is sufficiently common in child

sexual abuse cases that a body of law has developed concern-

ing the admissibility of testimony about it. See, e.g., State v.

Middleton, 294 Or 427, 437, 657 P2d 1215 (1983) (discussing

admissibility of expert evidence on typical child victim reac-

tions to familial sexual abuse, including inconsistent state-

ments and recantation). Indeed, evidence was presented at

trial in this case that children often do not initially disclose

the full extent of sexual abuse and that they can become

confused about details when abuse occurs over long periods

of time. In short, depending on the nature of the evidence,

11

Other jurisdictions have dealt with the “undifferentiated evidence”

dilemma in child sexual abuse cases by treating a single alleged crime as a con-

tinuing or aggregated offense, or by enacting “continuing child sexual abuse” stat-

utes. See generally R.L.G., 712 So 2d at 358-60 (describing case law and statutes);

Note, Jury Unanimity and the Problem with Specificity: Trying to Understand

What Jurors Must Agree About by Examining the Problem of Prosecuting Child

Molesters, 91 Texas Tech L Rev 1203 (2013) (describing continuing child sexual

abuse statutes and their potential constitutional infirmities). The state does not

assert that the criminal statutes at issue here could be interpreted in such a

manner.

658 State v. Ashkins

asking jurors to determine what constitutes “all” of the acts

described by a complaining child witness could pose as dif-

ficult a challenge as asking them to determine what consti-

tutes a “factual occurrence” under a concurrence instruction

in the second category of cases described in Pipkin.

That said, this case does not require us to determine

whether an instruction such as the one approved in Jones should

have been given, because no such instruction was requested.12

The question, rather, is whether the instruction requested by

defendant was, in fact, a correct statement of the law.

With respect to that question, the fact that evidence

of multiple occurrences of a single charged crime is non-

specific and undifferentiated does not obviate the risk that

jurors will fail to agree by the requisite degree of concur-

rence on the act that constitutes the charged offense. See,

e.g., State v. Ewing, 174 Or 487, 496, 149 P2d 765 (1944)

(reversing defendant’s conviction because trial court failed

to require an election where it was “entirely possible that

some of the jurors may have found the defendant guilty of

one of the prohibited acts, while others relied upon some

other and different alleged act”). Stated differently, 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.

Nor does this court’s decision in Sparks suggest a

different conclusion. Although this court in Sparks distin-

guished Hale and Lotches on the ground that they involved

aggravating circumstances where the jury could mix and

match multiple victims or perpetrators, the court in Sparks

12

In this case, the evidence of sodomy might be described as classically

“generic” in that the victim identified no locations or specific instances for those

occurrences. On the other hand, although some of the victim’s statements with

respect to the rape and unlawful sexual penetration charges were generic, oth-

ers provided at least some detail. Given our conclusion set out below, 357 Or at

659-60, that defendant’s requested instruction was legally correct and should

have been given, we express no opinion on whether (or as to which charges) the

trial court properly could have given an instruction such as the one endorsed in

Jones, if such an instruction had been requested. See generally State v. Moore, 324

Or 396, 427, 927 P2d 1073 (1996) (“We review a trial court’s choice among legally

correct requested jury instructions that provide the necessary information for

abuse of discretion.”).

Cite as 357 Or 642 (2015) 659

ultimately concluded that the concurrence requirement had

not obviously been violated because there was no indication

that the precise location of the underlying crimes consti-

tuted a material element of those crimes on which the jury

must agree unanimously. Sparks, 336 Or at 317. Although,

like Sparks, this case involves a single perpetrator and a

single victim, the issue here is not whether the fact on which

jurors might fail to agree constituted a material element of

an offense; the issue, rather, is whether jurors must agree on

the same occurrence in reaching a verdict on a single count

of a charged crime. Unlike Sparks, the situation in this

case fits precisely within the second category described in

Pipkin.13 The indictment here charged a single occurrence of

each offense, but the evidence permitted the jury to find any

one or more among multiple, separate occurrences of that

offense involving the same victim and the same perpetrator.

Accordingly, the state in this case was required

to elect which occurrence it would prove or, alternatively,

defendant was entitled to a concurrence instruction. Pipkin,

354 Or at 517. The state made no election, and thus, defen-

dant was entitled to a concurrence instruction that correctly

stated the law. The instruction requested by defendant, that

“10 jurors must agree on which factual occurrence consti-

tuted the offense,” was a correct statement of the law as it

applies to the circumstances of this case. Boots, 308 Or at

378-79.14 It follows that the trial erred in declining to give

that instruction.

13

In Sparks, a plain error case, this court did not directly address the defen-

dant’s argument that the evidence supported a finding of multiple instances of

the crimes underlying each count of aggravated murder. Instead, because the

“defendant [did] not explain why the location of the underlying crimes consti-

tute[d] a fact that the law makes essential to those crimes,” the court concluded

that it was not “obvious” that a jury’s failure to agree unanimously on the location

at which the underlying crimes were committed would violate the concurrence

requirement. 336 Or at 317.

14

We emphasize that our holding is a narrow one, based on the factual cir-

cumstances of this case, where defendant was charged with a single count of each

offense, and the evidence disclosed separate occurrences of each offense involving

the same victim and the same perpetrator within the time period alleged in the

indictment. The analysis may vary under different circumstances—for example,

where multiple counts of the same offense are charged or the evidence discloses

multiple criminal acts during the same occurrence. In addition, as noted, we do

not foreclose the possibility that the type of modified instruction proposed by the

state might be appropriate in some circumstances.

660 State v. Ashkins

E.  Harmless Error

The question remains whether the trial court’s fail-

ure to give the requested instruction constituted reversible

error. Defendant asserts that reversal is required because

CS testified at trial to multiple occurrences of each of the

charged offenses, and jurors could have disagreed as to

which occurrence constituted the single charged count of

each offense. The state counters that the error was harm-

less because the evidence provided no rational basis for

jurors to differentiate among multiple occurrences of the

same offense.

“Under Oregon law, a verdict against a criminal

defendant may be affirmed notwithstanding trial error if

the error did not affect a ‘substantial right’ of the defendant.”

OEC 103(1). This court has interpreted this to mean that

the verdict may be affirmed if there is “little likelihood that

the error affected the verdict.” State v. Hansen, 304 Or 169,

180-81, 743 P2d 157 (1987); see also State v. Isom, 306 Or

587, 595-96, 761 P2d 524 (1988).15 In making that determi-

nation, the court considers the instructions as a whole and

in the context of the evidence and record at trial, including

the parties’ theories of the case with respect to the various

charges and defenses at issue. State v. Lopez–Minjarez, 350

Or 576, 578, 260 P3d 439 (2011) (to assess whether error in

instructing jury substantially affected appellant’s rights on

various charges involved, “it is important to describe both

sides’ respective evidence and theories of the case”); see also

State v. Phillips, 354 Or 598, 613, 317 P3d 236 (2013) (erro-

neous failure to give jury concurrence instruction did not

substantially affect defendant’s rights because, “on the facts

in this case, the factual findings necessary to find defendant

liable on one theory either subsumed or were the same as

the factual findings on the other theory”); Hale, 335 Or at

15

As noted above, defendant also has asserted that the Sixth Amendment to

the United States Constitution includes a jury concurrence requirement. Because

we have resolved defendant’s claim of error under Oregon law, it is not necessary

to consider defendant’s federal constitutional argument. We note, however, that

the applicable standard under the federal constitution is that the error must be

harmless beyond a reasonable doubt. State v. Cook, 340 Or 530, 544, 135 P3d 260

(2006). Defendant does not assert that the difference in the two constitutional

standards is meaningful to the harmless error analysis in this case. Accordingly,

we do not further consider the issue.

Cite as 357 Or 642 (2015) 661

628-29 (court discerned from verdicts on other counts that

jury necessarily had requisite concurrence on some counts

for which omitted concurrence instructions should have

been given).

This case is not wholly analogous to our prior jury

concurrence cases addressing harmless error because, as

noted, we have not before addressed the precise situation

presented here. Our previous decisions involving motions to

require an election, however, do provide some guidance. In

particular, State v. Lee, 202 Or 592, 276 P2d 946 (1954), con-

cerned the erroneous failure to require an election in a case

involving a single count of rape of a child, where the evi-

dence indicated two separate occurrences that transpired

several months apart. 202 Or at 597. In that case, the trial

court instructed the jury that it must find that the crime

occurred “on or about” the latter date, the testimony focused

on the latter date, and the defendant adduced alibi evidence

as to the latter date. Id. at 598-99, 601. This court concluded

that the trial court erred in denying the defendant’s motion

to require an election. The court further concluded, however,

that the error was harmless because, as a practical matter,

the parties and the court understood that the state intended

to prove the latter date. Id. at 607-08. Such a practical focus

on the context of the entire record is a useful tool in instruc-

tional error cases. Lopez-Minjarez, 350 Or at 578.

In a related vein, several of the contextual consid-

erations that supported the giving of a modified concur-

rence instruction in Jones have a bearing on our harmless

error analysis here. In particular, the court in Jones noted

that “only infrequently can an alibi or identity defense be

raised in resident child molester cases. Usually, the trial

centers on a basic credibility issue—the victim testifies to

a long series of molestations and the defendant denies that

any wrongful touching occurred.” 51 Cal 3d at 319. And in

Thomas, the court concluded on facts similar to those here

that the error in failing to give a concurrence instruction

was harmless:

“The evidence at trial included nothing that would lead a

juror to conclude that the acts of those types described by

the victims occurred on some occasions testified to by the

662 State v. Ashkins

victim but not on others. * * * The defense evidence was

general and designed to show that none of the incidents

occurred, rather than providing an individualized defense

aimed at discrete alleged instances.”

Thomas, 803 P2d at 154-55. See also R.L.G., 712 So 2d at

367-68 (similarly concluding on undifferentiated evidence

from child victims that there was no possibility of juror

disagreement as to specific acts and thus no reversible

error).

In this case, the direct evidence on each charge

came almost exclusively from the complaining witness, CS,

who testified to numerous sexual encounters with defendant

that occurred over the course of several years in their home.

Her testimony was primarily nonspecific and undifferenti-

ated; although she identified some occurrences at particu-

lar locations, most of the occurrences were described only

generally, and without reference to a time frame. Additional

circumstantial evidence that supported the convictions that

was not based on CS’s testimony consisted of evidence about

how defendant controlled her, statements that defendant

made about her, and sexually suggestive photos that defen-

dant took of her.

The evidence that supported defendant’s theory of

the case consisted of (1) his denial that any of the sexual acts

occurred, (2) evidence that CS initially had denied any abuse

and had later provided some inconsistent details about the

abuse, and (3) evidence that CS’s mother and grandmother

harbored animosity toward defendant. Nothing about defen-

dant’s theory of defense concerned particular occurrences of

the sexual acts described by CS. There was no alibi defense,

nor any defense that CS had misidentified the perpetra-

tor. That is, nothing in the defense theory called into ques-

tion CS’s description of any particular occurrence. Rather,

defense counsel focused on inconsistencies in CS’s state-

ments and the absence of physical evidence to support the

charges. In sum, there was evidence that defendant commit-

ted multiple acts of rape, sodomy, and unlawful sexual pen-

etration 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

Cite as 357 Or 642 (2015) 663

as to some of the occurrences but a different conclusion as to

others.

Defendant remonstrates that the state’s evidence

relating to the unlawful sexual penetration charge showed

that he penetrated CS not only with his finger but also with

the “red rocket.” To the extent that defendant is arguing

the state was required to elect an occurrence on that basis

or that he was entitled to a jury concurrence instruction

with respect to the specific object with which he carried

out the unlawful sexual penetration, neither case law nor

the text of the statute supports that contention. See ORS

163.341 (describing crime as penetration “of the vagina,

anus or penis of another with any object other than the penis

or mouth”) (emphasis added). To the extent that defendant

means to argue that evidence that different objects were

used for unlawful sexual penetration gave the jury a basis

from which it could distinguish one separate occurrence

from another, the record does not support that proposition.

CS’s testimony regarding the unlawful sexual penetration

charge was generic enough such that no occurrences were

identified where penetration occurred with one object but

not the other.16 Moreover, the indictment alleged, and the

jury was instructed, that the charged act concerned unlaw-

ful sexual penetration with a finger. Thus, to the extent that

16

Additionally, we reject defendant’s criticism of the Court of Appeals’ account

of the trial court record relating to the unlawful sexual penetration count. That

court noted (albeit not in a harmless error context) that the unlawful sexual pen-

etration count “specifically identified defendant’s finger as the ‘object other than

[his] mouth’ that penetrated the victim (‘to wit: his finger’).” Ashkins, 263 Or App

at 210. Defendant argues that, although the trial court initially instructed the

jury as quoted, its instructions before the jury retired did not include the refer-

ence to “finger” and thus the jury was likely to have been confused. Although it is

true that the final instruction on the elements of unlawful sexual penetration did

not refer to defendant’s “finger,” defendant himself requested that instruction,

UCrJi 1610, and the court gave the instruction in the exact wording proposed by

defendant. Defendant also suggests that the Court of Appeals erred in stating

that the prosecutor’s closing statement “made clear that the object of the pene-

tration for Count 3 was defendant’s finger,” noting that the “red rocket” also was

mentioned. Ashkins, 263 Or App at 223 n 11. The prosecutor’s brief mention of the

“red rocket” during closing argument did not refer to a specific charge, but was

made to show that CS provided consistent details in her accounts. By contrast,

when the prosecutor discussed the unlawful sexual penetration charge during

closing argument, he specifically stated that it concerned “digital penetration of

[CS] with his finger when she was under the age of 14 years old.” In short, defen-

dant’s criticism of the Court of Appeals’ description of the record is not well taken.

664 State v. Ashkins

defendant suggests that the error with respect to the unlaw-

ful sexual penetration count differs from the other counts,

we reject that argument.17

In short, we conclude that there is little likelihood

that, if it had been given the concurrence instruction that

defendant requested, the jury would have reached a differ-

ent result. Accordingly, we further conclude that, although

the trial court erred in denying defendant’s request for a

jury concurrence instruction, the error was harmless.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

17

We note that there also was evidence of two different ways in which sodomy

was committed, but defendant makes no similar argument with respect to the

sodomy count.