383 P.3d 320
Or. Ct. App.2016Background
- Defendant was charged with one count of fourth-degree assault (plus strangulation and menacing) arising from events involving his girlfriend, Walden.
- The state presented two distinct theories for the single assault count: (1) defendant caused Walden to scrape and bleed her knee (outside the house) and (2) defendant choked Walden later (inside the house), each constituting physical injury.
- Eyewitness Lynum testified about both the scraped knee and Walden’s statements that defendant had choked her; photographs of injuries were admitted. Walden did not testify.
- Defendant moved for an election (Boots motion) to require the state to choose which occurrence it relied on; the trial court denied the motion and also declined to give a jury concurrence instruction requiring jurors to agree on the same occurrence.
- The jury convicted defendant of fourth-degree assault. On appeal, defendant argued the trial court erred by not requiring election or giving a concurrence instruction; the court reversed the assault conviction and remanded.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had to require the state to elect a single occurrence or give a concurrence instruction when the state presented evidence of multiple occurrences for one count | The jury may convict based on either occurrence; no election or special instruction required because the state proved physical injury by alternative means | Because the state relied on two temporally/spatially distinct acts (knee injury and choking), the court had to require election or a concurrence instruction to ensure juror unanimity | Where evidence permits conviction on multiple distinct occurrences of the same charged offense, the court must require election or give a concurrence instruction; trial court erred by failing to do so |
| Whether the knee scrape and the choking were sufficiently part of one course of conduct (like White) so unanimity on a single act wasn’t required | The two injuries did not constitute separate occurrences; the state could rely on alternative evidence of a single offense | The acts were distinct in time, place, and injury, so they were separate occurrences requiring juror concurrence on which occurrence constituted the offense | The occurrences were temporally, spatially, and substantively distinct; White is inapplicable |
| Whether the concurrence error was harmless | The state argued sufficiency of evidence for conviction regardless of instruction | Defendant argued jurors could have mixed verdicts (some accepting one occurrence, others the other), producing a non-unanimous basis | Error was not harmless because jurors could have based verdicts on different occurrences, creating a risk of a "mix-and-match" verdict |
| Whether the trial court’s denial of other motions (hearsay admission, JNOV) warrants reversal | State defended rulings; argued evidence supported conviction | Defendant raised hearsay and JNOV claims but court rejected them without detailed discussion | Court affirmed other assignments; only the fourth-degree assault conviction reversed and remanded |
Key Cases Cited
- State v. Boots, 780 P.2d 725 (recognizing unanimity/concurrence principle when multiple occurrences are presented for one count)
- State v. Pipkin, 316 P.3d 255 (Article I, §11 requires juror agreement that the state proved each element; discussion of unanimity rule)
- State v. Ashkins, 357 P.3d 490 (trial court must give concurrence instruction if evidence permits jury to find multiple separate occurrences and state does not elect)
- Mellerio v. Nooth, 379 P.3d 560 (evidence supporting temporally/spatially distinct occurrences requires concurrence instruction or election)
- Wilson v. Premo, 381 P.3d 921 (failure to require election or concurrence instruction can prejudice defendant where jury could mix-and-match occurrences)