State v. Rolfe, 468 P.3d 503

Defendant (Rolfe) had an affair with victim B; B sought and obtained a temporary stalking protective order (SPO) and defendant was served on May 17, 2016.
Two days after service, B found an iPhone containing a message listing defendant's contact number; the state relied on that message as the charged conduct under ORS 163.750.
Defendant testified she composed and sent the message before she was served and that the messaging app left the message on the device until manually withdrawn.
In closing, defense argued acquittal because the message was sent before service; in rebuttal the state for the first time argued an alternative theory—that defendant violated the SPO by failing to withdraw a preexisting message after service.
The trial court did not instruct the jury to unanimously agree on which factual theory (sending after service vs failing to withdraw after service) established the offense; a six-person jury convicted.
On appeal the court held the trial court plainly erred by failing sua sponte to give a concurrence instruction and reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in not giving a concurrence instruction when the prosecution advanced two factually distinct theories (affirmative act after service vs omission after service).	No plain error; only one message existed and the theories were interchangeable/overlapping, so instruction was not required.	Concurrence instruction required to ensure unanimous agreement on which factual occurrence constituted the single charged offense.	Court held the trial court plainly erred: under Boots jury must agree on ‘‘just what the defendant did,’’ so a concurrence instruction was required.
Whether appellate court should exercise discretion to correct the plain error (despite no objection at trial).	Trial court’s omission was not reversible; no request at trial and theories not truly multiple occurrences.	Appellate court should correct plain error because there was a genuine risk jurors weren’t unanimous and no plausible tactical reason to forgo the instruction.	Court exercised discretion to correct the error, reversed the conviction, and remanded for further proceedings.

State v. Boots, 308 Or 371 (concurrence required where jury could convict on factually distinct alternative theories)
State v. Lotches, 331 Or 455 (jury must agree on ‘‘just what defendant did’’ for elements of offense)
State v. Pipkin, 354 Or 513 (concurrence instruction required when evidence permits multiple separate occurrences of same offense)
State v. Ashkins, 357 Or 642 (reaffirming requirement to instruct on unanimity as to material elements and occurrences)
State v. Sippel, 288 Or App 391 (appellate correction of plain concurrence error where prosecution introduced new theory in rebuttal)