State v. Ashkins, 327 P.3d 1191

Defendant lived with victim (his stepdaughter) from 2003; in 2009 the victim’s mother reported repeated mental, sexual, and physical abuse over several years.
Victim (15 at interview) told Detective Hingston (Feb 9, 2010) and a forensic interviewer about repeated rapes, sodomy, and fingertip/rocket penetrations occurring at various locations in the home; statements were recorded in Hingston’s report (filed Feb 18, 2010).
Defendant was indicted for first-degree rape, first-degree sodomy, and second-degree unlawful penetration (indictment alleged offenses between Jan 1, 2007 and Mar 23, 2010; Count 3 identified defendant’s finger as the object).
State gave notice it would offer the victim’s out-of-court statements by referencing Hingston’s report and specific page numbers; defendant objected that the notice failed OEC 803(18a)(b)’s particularity requirements.
At trial Hingston testified to the victim’s statements; victim also testified generally about multiple incidents without specific dates; defendant requested a jury unanimity (Boots) instruction that was denied.
Court of Appeals reviewed whether the notice satisfied OEC 803(18a)(b) and whether a Boots-type jury concurrence instruction was required given multiple non-specific occurrences of the charged crimes.

Issue	State's Argument	Defendant's Argument	Held
Admissibility of victim’s out-of-court statements under OEC 803(18a)(b): whether the State’s notice provided the required "particulars of the statement"	Notice identified date, recipient (Detective Hingston), report and page numbers where statements appear, and made report available in discovery — sufficient to apprise defense	Notice was insufficiently particular (relied on Chase): referencing a report was not enough to identify the substance or how statements would be offered	Notice was sufficiently particular; trial court did not err in admitting victim’s hearsay statements under OEC 803(18a)(b)
Jury concurrence (Boots) instruction: whether jury must agree which specific occurrence formed the basis for each conviction when multiple generalized incidents were presented	No Boots instruction required where testimony was generalized and did not present distinguishable, material alternative occurrences that could cause juror disagreement/confusion	Requested instruction required: jurors must agree on which factual occurrence constituted the crime (to prevent jurors from convicting based on different incidents)	No error in refusing the requested instruction. Because evidence was generalized and did not present materially different occurrences (e.g., different victims/perpetrators), a concurrence instruction was not required

State v. Boots, 308 Or. 371 (1989) (requires jury concurrence when alternative statutory means implicate different factual theories essential to the crime)
State v. Chase, 240 Or. App. 541 (2011) (notice under OEC 803(18a)(b) must identify substance of statement and means/witness by which it will be introduced)
State v. Riley, 258 Or. App. 246 (2013) (referencing specific discovery pages, date, and witness can satisfy OEC 803(18a)(b) particularity)
State v. Pipkin, 354 Or. 513 (2013) (clarifies Boots scope; distinguishes statutory alternative-means cases from multiple-occurrence cases)
State v. Lotches, 331 Or. 455 (2000) (Boots-type instruction required where multiple distinct factual occurrences could underlie an element and cause juror disagreement)
State v. Hale, 335 Or. 612 (2003) (failure to require jury unanimity was plain error when multiple victims/perpetrators created different factual scenarios)
State v. Sparks, 336 Or. 298 (2004) (no concurrence instruction required where differences were nonessential factual details, e.g., location)