Wilson v. Premo, 381 P.3d 921

Background

Petitioner was tried (2009) on four identical counts of first-degree rape alleging forcible intercourse with his niece C between 2001–2008; C testified to at least four discrete incidents (and elsewhere referenced up to six).
The indictment and verdict form did not link any particular count to a specific incident; the prosecutor never elected incidents to particular counts.
The jury convicted petitioner on two of C-related counts and acquitted him on two; the jury foreperson later confirmed at least 10 jurors agreed on each count.
Trial counsel did not request a jury-concurrence ("Boots") instruction requiring at least 10 jurors to agree on which factual occurrence supported a conviction; counsel believed each count corresponded to a specific time/place.
Post-conviction court denied relief concluding counsel should have requested Boots but petitioner was not prejudiced because incidents were distinguishable and the jury differentiated counts; petitioner appealed.
The appellate court reversed, holding counsel was constitutionally inadequate for failing to request a Boots instruction and that petitioner demonstrated prejudice because the omission created a permissible risk of a "mix-and-match" verdict.

Issues

Issue	Petitioner's Argument	Defendant's Argument	Held
Whether counsel was constitutionally ineffective for not requesting a Boots (jury-concurrence) instruction	Counsel should have requested Boots because the evidence presented multiple incidents that could support convictions on the identical counts	No Boots problem because each count corresponded to a distinct incident as presented at trial; counsel reasonably concluded instruction unnecessary	Held: Counsel should have requested a Boots instruction; omission was unreasonable under prevailing law (Boots and progeny)
Whether failure to request Boots caused prejudice	The omission created a risk that fewer than ten jurors agreed on the same factual occurrence for any given count (impermissible mix-and-match)	No prejudice: jury showed it could differentiate incidents by acquitting two counts; no evidence jurors were confused	Held: Petitioner demonstrated prejudice — reasonable possibility of nonconcurrence sufficient to affect verdict; reversal warranted
Whether prosecution or court had to elect or instruct when multiple occurrences are proven for identical counts	Election or concurrence instruction is required when evidence permits multiple separate occurrences supporting the same charged crime	If presentation effectively tied counts to incidents, no election/instruction required	Held: Where identical counts and multiple occurrences exist without election or explicit linking, either election or a Boots instruction is required
Appropriate remedy	Vacatur and remand for further proceedings (post-conviction relief)	No relief needed	Held: Convictions reversed and case remanded on post-conviction claim

Key Cases Cited

State v. Boots, 308 Or 371 (explains jury-concurrence requirement and need for unanimity on material factual predicates)
State v. Hale, 335 Or 612 (failure to give concurrence instruction was error where multiple underlying felonies/victims could support counts)
State v. Lotches, 331 Or 455 (unanimity required as to material elements when different factual circumstances could satisfy the charge)
State v. Pipkin, 354 Or 513 (summarizes contexts requiring concurrence instruction: statutory alternatives and multiple occurrences evidence)
State v. Houston, 147 Or App 285 (trial court erred by not requiring election or concurrence instruction where evidence supported multiple occasions)
Mellerio v. Nooth, 279 Or App 419 (post-conviction Boots case assessing prejudice in context; counsel’s omission can have tendency to affect outcome)
State v. Ashkins, 357 Or 642 (instructs that instructional-error prejudice assessment must consider entire trial context)