Date: 05-29-2014

Case Style: State of Oregon v. Scott Michael Ashkins

Case Number: A150038

Judge: Ortega

Court: Oregon Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: Michael Casper, Deputy Solicitor General, argued the cause for respondent. With him on
the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General,
and Pamela J. Walsh, Assistant Attorney General.

Defendant's Attorney: Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder
Casebeer French & Thompson, LLP.

Description: 2 Defendant appeals his convictions for first-degree rape (Count 1), ORS
163.375,1 first-degree sodomy (Count 2), ORS 163.405,2 3 and second-degree unlawful
penetration (Count 3), ORS 163.408.3 4 Defendant assigns error to the trial court's
5 admission of hearsay statements made by the victim, contending that the state's notice
6 of its intent to offer those statements did not meet the particularity requirements of
7 OEC 803(18a)(b). We conclude that the state's notice was sufficient under OEC
1 ORS 163.375(1) provides:
"A person who has sexual intercourse with another person commits the
crime of rape in the first degree if:
"(c) The victim is under 16 years of age and is the person's sibling, of
the whole or half blood, the person's child or the person's spouse's
child[.]"
2 ORS 163.405(1) provides:
"A person who engages in deviate sexual intercourse with another
person or causes another to engage in deviate sexual intercourse
commits the crime of sodomy in the first degree if:
"(c) The victim is under 16 years of age and is the actor's brother or
sister, of the whole or half blood, the son or daughter of the actor or the
son or daughter of the actor's spouse[.]"
In turn, ORS 163.305(1) defines "deviate sexual intercourse" as "sexual
conduct between persons consisting of contact between the sex organs of one person
and the mouth or anus of another."
3 ORS 163.408 provides, in part, that "a person commits the crime of unlawful
sexual penetration in the second degree if the person penetrates the vagina, anus or
penis of another with any object other than the penis or mouth of the actor and the
victim is under 14 years of age."
2
1 803(18a)(b) and that, therefore, the trial court did not err in admitting the victim's
2 hearsay statements. Defendant also assigns error to the trial court's decision not to
3 instruct the jury that it must agree, under State v. Boots, 308 Or 371, 780 P2d 725
4 (1989), cert den, 510 US 1013 (1993), on which factual occurrence was the basis for
each of the charges against him.4 5 We conclude that the trial court's rejection of
6 defendant's requested Boots instruction was not error. Accordingly, we affirm.
7 The undisputed facts relevant to our decision are as follows. In 2003,
8 defendant married and began to live with the victim's mother along with the victim,
9 the victim's brother, and his own son. In 2009, the victim's mother reported to the
10 Marion County Sheriff's Office that defendant had been "mentally, sexually, and
11 physically abus[ing]" the victim repeatedly for the preceding four years. In February
12 2010, the victim, then 15 years old, told detective Hingston that defendant had sexual
13 intercourse with her in the bedroom, bathroom, kitchen, and living room of the family
14 home. She also told Hingston that defendant had vaginally penetrated her eight times
15 with a toy rocket and that she had performed oral sex on him approximately three
16 times. Hingston recorded those statements in an investigative report submitted on
17 February 18, 2010.
18 Shortly thereafter, defendant was indicted on one count each of rape in
4 We reject without discussion defendant's two remaining assignments of error,
one, a challenge to the trial court's discretion to exclude evidence under OEC 403,
and, the other, his assertion that the trial court failed to provide a less satisfactory
evidence jury instruction.
3
1 the first degree, sodomy in the first degree, and unlawful sexual penetration in the
second degree.5 2 Those counts in the indictment alleged that, on or between January 1,
3 2007 to March 23, 2010, the occasions of unlawful sexual contact occurred in Marion
4 County when the victim was under the age of 16 for Counts 1 and 2, and under the
5 age of 14 for Count 3. Count 3 specifically identified defendant's finger as the "object
6 other than [his] penis or mouth" that unlawfully penetrated the victim ("to wit: his
7 finger").
8 The state provided notice to defendant of its intent to rely at trial on
9 statements made by the victim to a forensic interviewer and to Hingston. The notice
10 provided, in part, that the state intended to rely at trial on hearsay statements made by
11 the victim
12 "[t]o Detective Hingston from the Marion County Sheriff's Office on
13 February 9, 2010. The statement is set forth in Detective Hingston's
14 report submitted February 18, 2010 and is contained beginning on page
15 3 of the report and ending on page 5. The report was made previously
available in discovery."6 16
5 Defendant was also charged with unlawful use of a firearm, but that charge did
not result in a conviction.
6 The report also stated that the
"notice should be sufficient to give [defendant] proper notice of
specifically which statements of the child victim [the state] intend[s] to
offer as hearsay evidence at trial. If this notice is insufficient, and
[defendant is] not sure of the exact statements [the state] intend[s] to
offer, notify [the state prosecutor] by July 13, 2011 and [the state
prosecutor] will ensure [defendant's] questions are answered and
[defendant is] satisfied [he] know[s] which statements will be offered.
If [the state prosecutor] do[es] not hear by July 13, 2011 that
4
1 At trial, defendant objected to Hingston's testimony about several statements the
2 victim made to him about defendant's sexual conduct with her, arguing that the
3 statements were hearsay and that they were not allowable under the child abuse
4 exception to the hearsay rule, OEC 803(18a)(b), because the notice provided to him
5 by the state did not "set out the particulars," as required by State v. Chase, 240 Or
6 App 541, 248 P3d 432 (2011). The judge allowed Hingston to testify about what the
7 victim had told him about defendant's actions toward her.
8 At trial, the victim testified about defendant's sexual conduct toward her
9 in their home. The victim testified that defendant touched her in a sexual way "more
10 than once" with his penis and fingers, and that those acts occurred "[s]ometimes on
11 the couch[,]" "[s]ometimes on a table[,]" and "[s]ometimes in Mom and [defendant]'s-
12 -Mom's room." In response to questioning, the victim provided some detail about
13 those locations--for example, that her autistic brother would be in his room engrossed
14 in video games and that her mom would be at work when defendant would have sex
15 with her on the kitchen table, during which defendant would pull off her clothes, and
16 that she was too afraid to scream or yell for help. She also answered affirmatively to
17 the state's question, "When [defendant] would put his penis in your vagina, did he
[defendant] believe[s] this notice is insufficient, [the state prosecutor]
will consider it sufficient and will ask the Court to so find."
Because we conclude that the notice satisfied the particularity requirements of OEC
803(18a)(b), we need not address whether this part of the notice was a "courtesy," as
argued by the state, or an improper shift of the burden to provide particularity to
defendant, as argued by defendant.
5
ever use a l 1 ubricant?" The victim testified that when she was 11 or 12 years old,
2 defendant would use his fingers to penetrate her "sometimes on the couch." She also
3 testified that defendant would remain silent "when" he vaginally penetrated her with a
4 red toy rocket. The victim also testified that defendant engaged in sodomy with her,
5 saying that defendant "used to grab my hair and put my face on him, on his [penis]"
6 and that he would have her put her face against his penis "most of the time." The
7 victim did not identify any of those occurrences of sexual abuse by a specific date or
8 time. Defendant, for his part, denied that any of the incidents of sexual contact took
9 place.
10 Hingston testified that the victim had told him that defendant had sexual
11 intercourse with her in the bedroom and bathroom, and on the kitchen table and the
12 couch. According to Hingston, the victim had also told him that defendant had
13 vaginally penetrated her eight times with a toy rocket and that she had performed oral
14 sex on defendant about three times. He also testified that the victim had described
15 defendant using baby oil as a lubricant before having sexual intercourse with her.
16 Regarding the victim's statements, Hingston commented that "it was hard to get
17 details from [the victim] and specifics" and that "it was real difficult for her to kind of
18 capture what I was looking for and explain it." He noted, however, that "victims of
19 continued abuse [when] it happens over a prolonged period of time, that a lot of times,
20 you know, details get mixed up and--and--and everything kind of gets mooshed
21 together."
6
The state s 1 ought to corroborate the victim's and Hingston's testimony
2 about defendant's sexual abuse with evidence that, during the period of time that the
3 charged offenses took place, defendant was "controlling" of the victim and her mother
4 and that defendant acted in a sexually inappropriate manner around the victim.
5 Defendant placed security cameras throughout the home, including cameras with a
6 view of the victim's bedroom and the bedroom he shared with the victim's mother.
7 Those cameras provided a continuous feed to a monitor in defendant's bedroom. The
8 windows were sealed shut and the front door was deadbolted; the victim testified that
9 she did not feel that she had freedom in her house. Additionally, there was a
10 passcoded key lock on the door to the bedroom that defendant shared with the victim's
11 mother, which would chime upon opening. Defendant kept the victim by his side
12 constantly, often keeping her home from school, and the victim's mother testified that
13 it was difficult to talk to her daughter because of defendant's interference. The
14 victim's mother also testified that defendant had declared more than once that he
15 intended to marry the victim. Defendant had also taken and uploaded photos of the
16 victim that included images of her breast and her pubic hair, as well as a photo of the
17 victim eating a corn dog; the victim testified that defendant had taken the latter photo
18 after urging her to "pretend like it's [defendant's penis] in your mouth."
19 At the close of defendant's trial, he requested that the trial court instruct
20 the jury as follows:
21 "In order to reach a lawful guilty verdict as to any count, 10 jurors must
22 agree on what factual occurrence constituted the crime. Thus, in this
7
1 case, in order to reach a guilty verdict on any count, 10 jurors must
2 agree on which factual occurrence constituted the offense."
3 The trial court declined that request, instead instructing the jury that, in order to
4 establish the crimes charged, 10 of the 12 of them must agree that the state established
5 beyond a reasonable doubt the elements indicated in the charges of the indictment.
6 For Count 3, the instructions did not mention specifically defendant's finger as the
7 object used for the unlawful penetration, as indicated in the indictment. Defendant
8 took exception to those instructions, arguing that the jury was not asked "to
9 necessarily agree on a specific act that constitutes the crime."
10 We begin with defendant's contention that the trial court erred in
11 admitting the hearsay statements and review the trial court's determination that the
12 state met OEC 803(18a)(b)'s notice requirements for legal error. Chase, 240 Or App
13 at 546. Hearsay is an out-of-court statement offered to prove the truth of the matter
14 asserted and is generally inadmissible unless it is excluded from the definition of
15 hearsay or falls under a hearsay exception. OEC 801; OEC 802. OEC 803(18a)(b)
16 provides one of those exceptions for matters involving child abuse:
17 "A statement made by a person concerning an act of abuse as
18 defined in * * * ORS 419B.005 [governing child abuse reporting] * * *
19 is not excluded by [the rule against hearsay] if the declarant * * *
20 testifies at the proceeding and is subject to cross-examination[.] * * *
21 No statement may be admitted under this paragraph unless the
22 proponent of the statement makes known to the adverse party the
23 proponent's intention to offer the statement and the particulars of the
24 statement no later than 15 days before trial, except for good cause
25 shown."
26 (Emphasis added.) The rule's purpose is to apprise an opposing party of the other
8
party's 1 proposed hearsay evidence so that it can have a reasonable opportunity to
2 prepare for trial by developing other evidence, preparing for cross-examination if the
3 declarant will testify at trial, filing a preliminary motion to limit use of the evidence,
4 or modifying intended voir dire. State v. Iverson, 185 Or App 9, 14, 57 P3d 953
5 (2002), rev den, 335 Or 655 (2003). A trial court must exclude the offered hearsay
6 statements if OEC 803(18a)(b)'s notice requirements are not met. Id. at 16.
7 Under OEC 803(18a)(b), the notice must provide details of the evidence
8 that the party seeks to admit and list the particular statement sought to be admitted.
9 State v. Olsen, 220 Or App 85, 89, 185 P3d 467 (2008). Although verbatim
10 statements need not be included in the notice, "simply providing discovery and notice
11 of an intention to offer at trial hearsay statements contained in discovery is not
12 sufficient." Chase, 240 Or App at 546. The notice in Chase, which specified that
13 "the foregoing and subsequent reports contain particulars of statements made by [the
14 victim] that the State intends to offer[,]" did not sufficiently identify the specific
15 hearsay statements that the state would offer at trial. Id. at 544, 546-47. We
16 explained that the definition of a "'particular'"--"'an individual fact, point,
17 circumstance, or detail * * * specific item of information'"--could not be reconciled
18 with the state's intention to potentially offer any of the statements included in the
19 referenced discovery's 53 pages. Id. (quoting Webster's Third New Int'l Dictionary
20 1647 (unabridged ed 2002)). Instead, what is required for the "particulars of the
21 statement" is that the proponent of the hearsay evidence identify in its notice (1) the
9
proposed h 1 earsay statement's substance and (2) the witness or means by which the
2 hearsay statement would be introduced. Id. at 546-47.
3 We clarified those two particularity requirements in State v. Riley, 258
4 Or App 246, 256, 308 P3d 1080 (2013), where we concluded that a notice that
5 referenced specific page numbers of discovery was sufficiently particular because "the
6 substance of the statements was readily identifiable." The state had identified in an
7 affidavit attached to the notice "(1) the date on which the statements were made, (2)
8 the place at which the statements were made, and (3) the specific discovery pages on
9 which the statements themselves could be found." Id. In addition, the referenced
10 pages of discovery included the identity of the particular witnesses to the statements,
11 who we deemed could be available to testify at the trial about the statements'
12 substance. Id. at 256 n 4 ("Chase does not stand for the proposition that a party is
13 obliged to identify in its notice a single means of introducing a statement at trial.
14 Rather, a party must identify the recipient(s) of the statement or other means by which
15 it may be introduced at trial." (Emphasis in original.)).
16 Defendant relies primarily on Chase for his argument that the state
17 failed to meet the requirements of OEC 803(18a)(b) because the notice's reference to
18 Hingston's report did not provide "any 'particulars of any statement' or 'the substance
19 of the victim's hearsay statements or how they would be offered' at trial." The state
20 responds that the notice met the particularity requirement because it was not required
21 to provide verbatim recital of the hearsay statements and that the notice included the
10
1 date on which the statement was made, reference to a particular report, including the
2 page numbers directing defendant to where in the report the statements could be
3 found, and, by naming the detective in the report, an identification of the witness who
4 would testify to the hearsay statements--all information, it contends, that was more
specific than the notices we found lacking in Chase and Olsen.7 5
6 We agree with the state that the notice satisfied the particularity
7 requirements of OEC 803(18a)(b). The notice provided the following particulars
8 about the hearsay statements sought to be offered by the state and: (1) they were
9 made by the victim, to Hingston, on February 9, 2010; (2) they were included in
10 Hingston's report submitted on February 18, 2010, in pages three to five; and (3) the
11 report was made available to defendant in discovery. That degree of detail contrasts
12 significantly with the notice in Chase, which referenced "foregoing and subsequent
13 reports" included in 53 pages of discovery without details about the statements sought
14 to be offered or who would offer them. Here, the notice provided the date of the
15 statements, and included to whom and by whom they were made, with specific
16 enough detail regarding the statements' location in the report to allow defendant to
17 discern their substance. Furthermore, the notice identified Hingston as the recipient
18 of the statements, indicating that Hingston could be available to testify at trial, as he
19 did for the grand jury. Accordingly, we reject defendant's contention that the trial
7 In Olsen, the notice indicated only that the state intended "'to offer child
hearsay evidence pursuant to OEC 803(18a) and (24) at the trial.'" 220 Or App at 89.
11
1 court erred in admitting the evidence at issue.
2 We turn next to defendant's argument that the trial court erred when it
3 rejected his requested jury instruction that "10 jurors must agree on which factual
4 occurrence constituted" each offense. On appeal, defendant argues that, "[w]ithout
5 instructing the jury that it had to agree on 'what factual occurence constituted the
6 crime,' the court allowed individual jurors to pick-and-choose alleged incidents,
7 without ever [e]nsuring that 10 jurors agreed that defendant's actions on a particular
8 occurrence constituted each offense."
9 We review the trial court's failure to give a requested instruction for
10 legal error. State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). "Legal error
11 occurs when the court refuses to give an instruction that correctly states the law * * *
12 and is supported by evidence in the record viewed in the light most favorable to
13 establishment of the facts necessary to require the instruction." State v. Branch, 208
14 Or App 286, 288, 144 P3d 1010 (2006) (citations omitted). As discussed below,
15 defendant's proposed instruction does not follow from Boots and its progeny, and the
16 trial court did not err in rejecting it.
17 We begin with a discussion of Boots to provide a context for our
18 discussion of the offered instruction. In Boots, the defendant was charged with
19 aggravated murder, which is a murder accompanied by one of 17 different factual
20 circumstances. 308 Or at 373. The indictment in that case charged two "theories" for
21 the aggravated murder charge--first, that the defendant committed the murder during a
12
first-1 degree robbery, and, second, that the defendant murdered the victim in order to
2 conceal the identity of the perpetrators of the robbery. Id. at 374. The trial court
3 instructed the jury that it did not have to agree unanimously on which of the two
4 theories supported the aggravated murder charge. Id. at 374-75. Article I, section 11,
5 of the Oregon Constitution requires that a unanimous jury must render a guilty verdict
6 for the crime of first-degree murder and that ten members of the jury must concur in
7 rendering a guilty verdict for all other crimes. The question presented to the Supreme
8 Court was whether, in light of Oregon's constitutional requirement of a unanimous
9 verdict for first-degree murder, the jury could agree that an aggravating circumstance
10 occurred without agreeing on which of the two factual theories offered by the state
11 actually occurred. Id. at 374.
12 In concluding that the trial court's instruction was erroneous, the court
13 reasoned that the two aggravating circumstances--robbery and concealing the
14 perpetrator's identity--were not interchangeable; the circumstances of each element
15 could be proved by different factual scenarios. Id. at 375. Moreover, the court noted
16 that it is obvious that, if the charge of killing in furtherance of a robbery, or the charge
17 of killing to conceal the identity of the perpetrators of a robbery, stood alone, the jury
18 would have to agree unanimously on the factual circumstances that constituted each
19 of those crimes. Id. at 377. The need for unanimity "should be no less obvious," the
20 court stated, "when the state charges a defendant [under both of the aggravating
21 circumstance subsections of ORS 163.095]." Id. The court, in line with its analysis
13
1 that the different aggravating circumstances in each subsection of the statute
2 implicated different factual theories, distinguished between facts that are mere
3 "factual details" and facts that legally are "essential to a crime"; the former do not
4 require juror unanimity or concurrence, and the latter do. Id. at 379.
5 In addition to its statutory analysis of the aggravated murder statute, the
6 court looked to United States v. Gipson, 553 F2d 453 (5th Cir 1977), to support its
7 holding. Id. at 380. In that case--also relied upon by defendant in this case--the
8 defendant was charged "as a person who 'receives, conceals, stores, barters, sells or
9 disposes of' a stolen vehicle in interstate commerce[,]" and the trial court instructed
10 the jury that it did not have to agree on which one of those acts the defendant had
11 committed. Id. The Fifth Circuit remanded the case for a new trial, holding that the
12 "[jury] unanimity rule thus requires jurors to be in substantial agreement as to just
13 what a defendant did as a step preliminary to determining whether the defendant is
14 guilty of the crime charged." Gipson, 553 F2d at 457-58.
15 Recently, the Oregon Supreme Court, in State v. Pipkin, 354 Or 513,
520, 316 P3d 255 (2013),8 16 discussed the importance of Gipson as a basis for the
17 requirement of a jury concurrence instruction as set forth in Boots. First, the court
8 Pipkin concerned the propriety of a jury concurrence instruction in the context
of a charge of first-degree burglary, which occurs when a person "enters or remains
unlawfully" in a dwelling "with an intent to commit a crime therein." ORS 164.225;
ORS 164.215. The defendant's requested jury instruction provided that at least 10
jurors had to agree on whether the defendant either entered the dwelling unlawfully or
remained unlawfully in the dwelling, or did both. 354 Or at 515-16.
14
noted that t 1 he Boots holding requiring jury unanimity for each of the aggravating
2 circumstances of ORS 163.095 was derived as a matter of legislative intent. Id. at
3 520. Second, the court pointed out that the Boots court considered Gipson "only to
4 the extent that the court interpreted the aggravated murder statute to avoid
5 'constitutional doubts.'" Id. The Pipkin court identified those "constitutional doubts"
6 as relating to the Sixth Amendment to the United States Constitution, not to Article I,
7 section 11, of the Oregon Constitution, and stated that the difference mattered
8 "because a majority of the United States Supreme Court later disagreed with the
9 rationale in Gipson." Id. (citing Schad v. Arizona, 501 US 624, 634-37, 111 S Ct
10 2491, 115 L Ed 2d 555 (1991) (plurality)). The court added that, in its view, "Gipson
11 provides a poor basis from which to derive an independent analysis of the Oregon
12 Constitution." Id. at 525.
13 In looking back on its case law since Boots, the Supreme Court in
14 Pipkin identified two categories of cases in which a jury concurrence requirement has
15 been addressed. The first, which is represented by Boots itself, is the situation where
a criminal statute specifies alternative means of committing a crime.9 16 354 Or at 516.
9 Another example of that situation is State v. King, 316 Or 437, 852 P2d 190
(1993). There, the court held that a jury concurrence instruction was not required
where the defendant was charged with driving under the influence of intoxicants,
which under the then-extant version of ORS 813.010(1) was committed when, as
pertinent to that case, a person drove a vehicle while the person "(a) [had] .08 percent
or more by weight of alcohol in the blood;" or "(b) [was] under the influence of
intoxicating liquor or a controlled substance[.]" The court concluded that paragraphs
(a) and (b) were not essential elements of separate offenses, as was in the case in
Boots, but were alternative methods of proving a single offense. Id. at 446.
15
1 The second category of cases involves situations where "the record discloses multiple
2 separate occurrences of the charged crime." Pipkin, 354 Or at 525 (citing State v.
3 Lotches, 331 Or 455, 17 P3d 1045 (2000), cert den, 534 US 833 (2001), and State v.
4 Hale, 335 Or 612, 75 P3d 448 (2003), cert den, 541 US 942 (2004)); see also State v.
5 Sparks, 336 Or 298, 83 P3d 304 (2004). Because this case falls into that second
6 category of cases, we review how the jury concurrence requirement has been
7 addressed in those cases in order to evaluate the appropriateness of defendant's
8 proposed jury instruction.
9 In Lotches, the defendant was charged with, among other crimes,
10 multiple counts of aggravated murder involving different victims. On plain error
11 review, the court addressed whether Boots applied when the instructions did not
12 specify which of multiple factual occurrences adduced at trial supported the
13 underlying felonies for the aggravated murder charges. 331 Or at 467-69. The jury
14 concurrence problem arose because, for each count, the evidence permitted the jury to
15 find multiple occurrences of each predicate crime, such as attempts to steal both a car
16 and a pick-up truck from different victims. Id. at 470-71. More than one occurrence
17 could have supported the underlying aggravated murder felony offense of attempted
18 first-degree robbery, yet the trial court did not instruct the jury that they had to agree
19 on which specific occurrence constituted attempted robbery. Id. at 467-71.
20 The court relied on Boots and Gipson as support for its holding that a
21 jury concurrence instruction was required. Id. at 467-69. The court stated that,
16
1 "because the aggravated murder instructions that were given did not either limit the
2 jury's consideration to a specified underlying felony or require jury unanimity
3 concerning a choice among alternative felonies, each instruction carried the same
4 danger that this court had condemned in Boots." Id. at 469. Additionally, Lotches
5 called attention to the Boots court's approval of Gipson as a basis for requiring a jury
6 concurrence instruction, also quoting that decision: "'The unanimity rule thus
7 requires jurors to be in substantial agreement as to just what a defendant did as a
8 step preliminary to determining whether the defendant is guilty of the crime
9 charged.'" Id. at 468 (quoting Gipson, 553 F2d at 455-56) (emphasis in Lotches).
10 In Hale, also a plain error case, the defendant was charged with
11 aggravated murder with the underlying circumstances of third-degree sexual abuse
12 and murder. There were, however, multiple possible perpetrators and victims for the
13 underlying crimes. 335 Or at 627. The court, applying the reasoning of Lotches, held
14 that,
15 "because the instructions that the jury was given with respect to each of
16 the aggravated murder counts based on the crimes of third-degree sexual
17 abuse and murder did not either limit the jury's consideration to a
18 specific instance of third-degree sexual abuse or murder, committed by
19 a particular perpetrator against a particular victim, or require jury
20 unanimity concerning a choice among alternative scenarios, each
21 instruction carried an impermissible danger of jury confusion as to the
22 crime underlying each count."
23 Id. The court concluded that the trial court's failure to require jury unanimity when
24 there were different possible victims and perpetrators of the underlying counts was
25 plain error. Id. As it had in Boots and Lotches, the court in Hale again referred to
17
1 Gipson for support, stating that the unanimous jury rule "requires that the jury agree
2 as to just what the defendant did to bring himself within the purview of the particular
3 [offense] under which he was charged." Id. (emphasis added). However, given that
4 the court in Pipkin has now clarified that Gipson is no longer a valid basis for the
5 category of jury concurrence instruction cases represented by Boots and King, it is
6 doubtful that Gipson still can serve as a basis for the second category of cases
7 represented by Lotches, Hale, and this case. What survives is the Supreme Court's
8 concern, based on Article I, section 11, regarding the need for jury concurrence as to
9 essential facts and regarding an impermissible danger of jury confusion.
10 Finally, in Sparks, the court concluded that the trial court's failure to
11 provide a Boots instruction was not plain error because the facts did not implicate the
same concerns identified in Lotches.10 12 336 Or at 316-17. There, the defendant, who
13 had been convicted of aggravated murder, argued that the evidence that the
14 underlying crimes could have taken place in the defendant's bedroom or at the
15 location where the victim's body was found (a railway embankment) likely confused
16 the jury because it could have found him guilty based on either of those factual
17 circumstances. Id. at 313. The court distinguished the facts of the case from Lotches
18 and Hale:
10 "The elements of plain error are: the error must be one of law; (2) the legal
point must be obvious, that is, not reasonably in dispute; and (3) to reach the error,
'[w]e need not go outside the record or choose between competing inferences to find
it[.]'" Sparks, 336 Or at 315 (quoting Brown, 310 Or at 355).
18
1 "In Lotches, there were multiple possible victims for each of the
2 underlying crimes. Similarly, in Hale, there were multiple possible
3 victims and two possible perpetrators of each of the underlying crimes.
4 In both of those cases, the jury was presented with multiple factual
5 theories for each of the underlying crimes. It is not reasonably in
6 dispute that a jury's failure to agree unanimously on either the victim or
7 the perpetrator of the crime would violate the jury unanimity rule,
8 because both those facts are material elements of the underlying
9 crimes."
10 Id. at 316 (emphases in original). The defendant did not provide an explanation of
11 why the location was "essential to the crime" and not a "factual detail," and the court,
12 therefore, held that it was not "obvious" that "the precise location of the underlying
13 crimes constitutes a material element of those crimes on which the jury must agree
14 unanimously. Id. at 317. In fact, the location of those crimes more logically
15 constitutes a 'factual detail' that does not require jury unanimity. Boots, 308 Or at
16 379." Id.
17 Two of our cases also bear on the analysis of whether a jury
18 concurrence instruction is necessary in circumstances such as these. State v. Garcia,
19 211 Or App 290, 295, 154 P3d 730, rev den, 343 Or 160 (2007), involved a defendant
20 who was charged with multiple sex offenses involving a child victim. In that case, as
21 here, the victim testified in very general terms about the approximate number of times
22 the abuse took place in various rooms of the house over the course of several years.
23 Id. at 293-94. We held that the failure to give a jury concurrence instruction was not
24 plain error under those circumstances, because we were unable to discern any
25 plausible reason why a jury might have credited the victim's generalized testimony
19
1 with regard to one incident versus another. Id. at 297. Likewise, in State v. Pervish,
2 202 Or App 442, 123 P3d 285 (2005), rev den, 340 Or 308 (2006), which involved a
3 defendant charged with multiple counts of promoting prostitution, we rejected the
4 argument that the need for a concurrence instruction was apparent on the face of the
5 record, explaining that "[t]he very generality of the evidence pertaining to [the charge
6 of promoting prostitution] ameliorated any risk that members of the jury could have
7 picked different factual incidents in convicting defendant of that charge." Id. at 463.
8 We return to the issue presented in this case: whether it was error for
9 the trial court to decline to instruct the jury that it had to agree on which factual
10 occurrence constituted each of the crimes charged, where, for each, "the evidence
11 permit[ted] the jury to find multiple, separate occurrences of that crime." See Pipkin,
12 354 Or at 517. Lotches, Hale, and Sparks teach that, when the record supports the
13 possibility of more than one occurrence of the crime charged, the court must give a
14 jury concurrence instruction if (1) the occurrences differ as to some factual element--
15 such as the identities of the victim or the perpetrator--that is material or, as described
16 in Boots, "essential to the crime," and (2) the instruction is necessary to avoid causing
17 an "impermissible danger of jury confusion." Hale, 335 Or at 627; see Lotches, 331
18 Or at 467-71. Neither concern is implicated where the evidence suggests that the
19 crime was committed on multiple occasions but does not provide the jurors with
20 enough specifics to distinguish one occasion from another in a way that would allow
21 them to draw conflicting conclusions regarding the crime committed. That is
20
1 particularly true where factual distinctions between different instances are not
2 contested.
3 Here, defendant has not explained why the evidence of multiple
4 instances of sexual abuse by defendant involves factual differences that are "essential
5 to the crime" or cause an "impermissible danger of jury confusion." As to Count 1,
6 first-degree rape, the victim testified that she was raped "[s]ometimes on the couch.
7 Sometimes on a table. Sometimes in [her mother's] room." Defendant fails to make
8 any argument that the location of the rape for which he was convicted is an essential
9 fact, nor was the evidence sufficiently distinct to allow the jurors to distinguish
10 various instances from each other. For Count 2, the victim described incidents of
11 sodomy in general terms, and Hingston testified that the victim told him that the
12 defendant had the victim engage in oral sex "approximately three times" or "used to
13 grab [her] hair and put [her] face on him, on his [penis]." Defendant does not point to
14 any differences among those incidents that are essential to the crime or could cause
15 juror confusion. Finally, for Count 3, second-degree unlawful penetration, the victim
16 and Hingston testified that the finger penetration with which defendant was charged
occurred "sometimes."11 17 Again, there are no distinguishing details among the
11 Defendant does not assert that the trial court's failure to identify in the
instructions that defendant's finger was the object used for the unlawful penetration
was erroneous where both the indictment and the prosecutor's arguments identified
defendant's finger as the penetration object. Under State v. Pauley, 211 Or App 674,
686, 156 P3d 128 (2007), we held that, even though the trial court's instructions did
not identify the victim's vagina as the area of sexual contact for the crime of attempted
first-degree sexual abuse, the trial court, whose duty it is to instruct the jury on the
21
1 penetration incidents that require an instruction to avoid an impermissible danger of
2 juror confusion. As to all counts, defendant denied that any of the described incidents
3 occurred at all. As in Sparks and Garcia, a jury concurrence instruction is not
4 required as to the precise location or circumstances of defendant's various acts of
5 abuse.
6 To summarize, when the evidence supports multiple, separate
7 occurrences for a single offense but does not provide the jurors with enough specifics
8 to distinguish one occasion from another in a way that would allow them to draw
9 conflicting conclusions regarding the crime committed, a jury instruction requiring
10 concurrence as to which factual occurrence constituted the crime charged is not
11 required. The factual details suggesting separate incidents of the crimes in this case
12 were not of the type--such as the identity of the victim or the perpetrator--that have
13 been held to be material facts requiring jury concurrence, and those details did not
14 create an impermissible risk that the jury would be confused in distinguishing one
15 occasion from another or would draw conflicting conclusions regarding the crime
16 committed. Therefore, the trial court did not err by refusing to give defendant's
17 instruction because the instruction did not correctly state the law as applied to the
law, properly provided the jury with the necessary elements of the offense. Likewise
here, the indictment and the prosecutor's statements made clear that the object of
penetration for Count 3 was defendant's finger. Because the trial court correctly
provided in its jury instruction the elements to prove unlawful penetration, the
prosecutor's statements were sufficient to make the jury aware that the penetration
object was defendant's finger and not the toy rocket.
22
1 evidence in this case.

Outcome: 2 Affirmed.

Plaintiff's Experts:

Defendant's Experts:

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