State v. Slaviak, 440 P.3d 114

Defendant was tried for three counts: two counts of first-degree sexual abuse (breast and genital touching) and one count of attempted first-degree sexual abuse; convictions on the two sexual-abuse counts are the issue on appeal.
Victim testified to separate incidents: an assault in the bedroom (pushing onto bed, groping breasts and vagina) and a later encounter in the kitchen (pushed against refrigerator, fondled again). Police testimony reflected a different account emphasizing the bedroom and living-room encounters and did not mention the kitchen incident.
The prosecutor argued facts from both bedroom and kitchen incidents but at times focused the jury on the bedroom incident as sufficient to convict; the state did not formally elect which occurrence supported each charged count.
Defense did not request an election or a jury concurrence instruction; the trial court did not give a concurrence instruction but did instruct that "ten or more jurors must agree" and used separate verdict forms for each count.
On appeal, defendant argued the court plainly erred by failing to give a concurrence instruction because the evidence permitted jurors to convict each count based on different occurrences (bedroom vs. kitchen); the state argued other information and closing argument made the bedroom the operative incident and relied on Rodriguez-Castillo.

Issue	State's Argument	Defendant's Argument	Held
Whether the trial court plainly erred by failing to give a jury concurrence instruction when evidence permitted multiple separate occurrences for the same charged counts	Other instructions, verdict forms, and prosecutor emphasis on the bedroom made the operative incident clear—no plain error; Rodriguez-Castillo supports that reasoning	Because jury could convict Count 1 (genitals) and Count 2 (breasts) based on either the bedroom or kitchen incidents and the state did not elect, a concurrence instruction was required; omission was plain error	Court held omission was plain legal error under State v. Ashkins and reversed the two first-degree sexual-abuse convictions and remanded for resentencing

State v. Ashkins, 357 Or. 642 (concurrence instruction required when indictment charges single occurrence but evidence permits multiple separate occurrences involving same victim and perpetrator)
State v. Pipkin, 354 Or. 513 (jury must agree that state proved each element; identifies situations implicating jury agreement requirement)
State v. Rodriguez-Castillo, 210 Or. App. 479 (trial court previously held not plainly erroneous where other jury materials pointed to a particular incident; distinguished and limited by Ashkins)
Ailes v. Portland Meadows, Inc., 312 Or. 376 (plain-error standard articulated)
State v. Teagues, 281 Or. App. 182 (failure to give concurrence instruction not harmless when jurors could base verdicts on different occurrences)
Mellerio v. Nooth, 279 Or. App. 419 (risk of impermissible mix-and-match verdicts when concurrence instruction omitted)