State v. Payne, 447 P.3d 515

Background

Defendant was charged with menacing (ORS 163.190) based on threats and threatening conduct over the course of a car trip; the indictment tracked statutory language and did not specify which discrete act constituted the offense.
At pretrial and again at the close of evidence, defendant moved to require the state to elect a single factual occurrence underlying the menacing charge; the state declined to elect pretrial and said it would if necessary after presentation of evidence.
The state presented evidence of multiple threatening acts (threatening to crash the car, driving recklessly, threatening with a knife/gun, statements about killing/disposing of the body); no election was made to the jury and defendant did not request a concurrence (jury unanimity) instruction.
The trial court denied the motion to require an election; defendant was convicted and appealed, arguing the court erred in denying the election and in failing to give a concurrence instruction (the latter argued as plain error).
The appellate court analyzed different types of "motions to elect": (1) pretrial, notice-oriented elections (to make the charge more definite) and (2) end-of-trial, concurrence-oriented elections (to secure jury unanimity), and explained the remedies a court must employ when the latter is needed.
The court held that State v. White controls for menacing: menacing can be proven by a series of acts and does not require the jury to agree on a single discrete act; therefore denial of the motion and omission of a concurrence instruction did not constitute reversible error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by refusing to require the state to elect a single factual occurrence for menacing	State: menacing may be proven by aggregate conduct; no election required	Def: multiple separate occurrences were proved and the state must elect one or the jury must be instructed to concur	Denied — no election required because menacing can be a course of conduct (controlling White)
Whether failure to give a concurrence (jury unanimity) instruction was plain error	State: no plain error because offense may be proved by cumulative acts	Def: plain error because no concurrence instruction requested and jury could have convicted based on different acts	Denied — no plain error given White; menacing does not demand agreement on a single act
Whether defendant preserved election issue for appeal	State: preservation conceded; issue was raised at trial	Def: argues preserved by motions to elect	Court: independent duty to review preservation; here preservation satisfied though defendant did not propose a specific jury-charge mechanism	Preservation satisfied but claim fails on merits
What remedies/tools must a trial court use when an Ashkins/Pipkin concurrence election is meritorious	State: party can tailor closing argument; trial court has discretion	Def: sought state election only	Court: court must ensure jury limitation by giving a concurrence instruction, a neutral written statement of issues, or a general verdict form with interrogatories (or combination); mere argument is insufficient	Trial court must use one of those means when a concurrence election is required

Key Cases Cited

State v. Pipkin, 354 Or. 513 (discusses when jury concurrence is required and alternatives)
State v. Ashkins, 357 Or. 642 (requires state to elect or jury concurrence instruction when evidence permits multiple separate occurrences)
State v. White, 115 Or. App. 104 (menacing may be proved by several acts; jury need not agree on a single act)
State v. Hale, 335 Or. 612 (pretrial election / notice issues; alternatives to demurrer)
State v. Antoine, 269 Or. App. 66 (indictment notice and timing of state's election)
State v. Boots, 308 Or. 371 (jury unanimity instruction context)