642 September 11, 2015 No. 32

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

SCOTT MICHAEL ASHKINS,

Petitioner on Review.

(CC 10C42610; CA A150038; SC S062468)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 8, 2015.

Jason E. Thompson, Ferder, Casebeer, French & Thompson, 

LLP, Salem, argued the cause and filed the brief for petitioner on review.

Jamie K. Contreras, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on review. 

With her on the brief were Ellen F. Rosenblum, Attorney 

General, and Anna M. Joyce, Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

Case Summary: Defendant, who was charged with one count each of rape, 

sodomy, and sexual abuse, sought a jury instruction that the jurors needed to 

agree on what factual occurrence constituted each crime. The trial court denied 

the motion, and the Court of Appeals affirmed. Held: (1) When a single occurrence of a crime is alleged, but evidence is presented that the crime was committed by the same perpetrator against the same victim during separate occurrences 

within the time period alleged, a defendant is entitled to a jury concurrence 

instruction. (2) Although the requested instruction should have been given, the 

error was harmless because there was little likelihood that it affected the verdict.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.

______________

* Appeal from Marion County Circuit Court, Albin W. Norblad, Judge. 263 

Or App 208, 327 P3d 1191 (2014).
Cite as 357 Or 642 (2015) 643

BREWER, J.

Defendant, who was convicted after a jury trial 

on one count of sodomy, one count of rape, and one count 

of unlawful sexual penetration, argues that the trial court 

erred in failing to give his requested jury instruction that 

ten jurors must agree on what factual occurrence constituted 

each of the offenses. The Court of Appeals held that the trial 

court correctly declined to give the requested instruction. 

State v. Ashkins, 263 Or App 208, 327 P3d 1191 (2014). On 

review, defendant argues that the circumstances of this case 

fall within the rule providing that, when a single crime has 

been charged but the evidence is sufficient for the jury to 

find that there were multiple, separate occurrences of the 

charged crime involving the same victim and the same perpetrator during the period of time alleged in the indictment, 

the state either must elect which occurrence constituted the 

charged crime or, alternatively, the defendant is entitled to 

an instruction that ten or more jurors must concur on which 

occurrence constituted that crime.1 State v. Pipkin, 354 Or 

513, 316 P3d 255 (2013) (stating rule); see also State v. Boots, 

308 Or 371, 780 P2d 725 (1989) (describing necessity of jury 

concurrence on material elements of a crime). We conclude 

that the trial court erred in failing to give defendant’s proposed concurrence instruction in this case. We further conclude, however, that the error was harmless, and we therefore affirm defendant’s convictions.

I. FACTS AND PROCEDURAL BACKGROUND

Defendant was charged with first-degree rape, 

sodomy, and unlawful sexual penetration against his stepdaughter, CS, beginning when CS was approximately 12 

years old. The indictment alleged that the crimes occurred 

between January 1, 2007, and March 23, 2010. The pertinent 

1 As the source of his argument, defendant primarily relies on Article I, section 11, of the Oregon Constitution, which provides, in part: “[I]n the circuit court 

ten members of the jury may render a verdict of guilty or not guilty, save and 

except a verdict of guilty of first degree murder, which shall be found only by a 

unanimous verdict.” Defendant asserts, alternatively, that the Sixth Amendment 

to the United States Constitution imposes a similar requirement. Because we 

base our decision in this case on Article I, section 11, we do not reach defendant’s 

federal constitutional argument.
644 State v. Ashkins

charges, which were read to the jury as part of the court’s 

preliminary instructions, were as follows:

“COUNT 01 The defendant, on or between January 1,

2007 to March 23, 2010, in Marion County, Oregon, did 

unlawfully and knowingly engage in sexual intercourse 

with [CS], a child under the age of sixteen years, the said 

[CS] being the said defendant’s spouse’s child.

“COUNT 02 In an act of the same or similar character but not part of the same criminal episode as alleged in 

Count 1 above, the defendant, on or between January 1,

2007 to March 23, 2010, in Marion County, Oregon, did 

unlawfully and knowingly engage in deviate sexual intercourse with [CS], the said [CS] being the said defendant’s 

spouse’s daughter.

“COUNT 03 In an act of the same or similar character 

but not part of the same criminal episode as alleged in Count 1

and Count 2 above, the defendant, on or between January 1,

2007 to March 23, 2010, in Marion County, Oregon, did 

unlawfully and knowingly penetrate the vagina of [CS], a 

person under the age of fourteen years, with an object other 

than the defendant’s penis or mouth, to wit: his finger.”2

Defendant began dating the victim’s mother in 

2002, and they married in 2003. The victim’s older brother, 

who is severely disabled, lived with the family, as did 

defendant’s son until he moved out in 2007. The state presented evidence that, after defendant’s son moved out and 

until shortly before defendant and CS’s mother separated 

in 2010, defendant committed numerous sexual offenses 

against CS.

The state’s evidence consisted primarily of the testimony of CS. CS was 17 years old at the time of trial and was 

developmentally delayed. It may be inferred from her testimony that she is not adept with concepts such as dates, ages, 

and timelines. CS testified, for example, that defendant had 

moved in with her and her mother the year before trial, but 

she also testified that she had been living with her grandmother in the year before trial, that defendant had moved in 

with her and her mother when CS was in middle school, and 

2 Defendant was acquitted of a weapons-related charge that is not at issue on 

review.
Cite as 357 Or 642 (2015) 645

that defendant had married her mother and moved in with 

them in 2002 or 2003. CS’s descriptions of the offenses were 

in many respects nonspecific. She was unable to recall with 

clarity various statements that she previously had made 

about sexual abuse by defendant. Evidence was presented 

that, at various points, CS had given differing accounts of 

precisely what had occurred and how many times, that she 

initially had disclosed only two rapes and not any other sexual offenses, and that before defendant and her mother separated, CS had denied that any abuse had occurred.

As pertinent to the rape charge, CS testified that 

defendant had sexual intercourse with her on several occasions. CS identified three different locations where sexual 

intercourse had occurred: on a couch in the living room, on 

a table, and in her mother’s bedroom. With respect to the 

table, CS described the table variously as oval-shaped and 

rectangle-shaped, and she testified that intercourse had 

occurred while she was on the edge of the table. She stated 

that her mother was at work and her brother was in his bedroom. She also testified that her clothes were off and defendant’s pants were off but his shirt was on. She stated that 

she did not call for help because she was afraid. With respect 

to the bedroom, CS testified that defendant put her on the 

bed, but she could not recall specific details.

Without reference to a particular occurrence or 

location, CS testified that defendant sometimes used baby 

oil from a small purple bottle as a lubricant.3

 She further 

testified that defendant sometimes gave her drugs and that 

she had passed out, then awakened, to find him having 

intercourse with her. On cross-examination, CS acknowledged that she previously had told an interviewer that the 

sexual intercourse had occurred only twice, and only in the 

living room.

With respect to the sodomy charge, CS testified 

without differentiation about incidents in which defendant 

grabbed her hair and caused contact between his penis and 

3 A police investigator, Hingston, who talked to CS several times in the 

course of the criminal investigation, testified that CS previously had reported to 

him that defendant had used baby oil as a lubricant when he had sexual intercourse with her.
646 State v. Ashkins

CS’s mouth. CS used the phrase “sucking” to describe the 

contact; however, she later testified that defendant’s penis 

had not entered her mouth and that she did not know what 

“suck” meant. On cross-examination, CS acknowledged that 

she had not reported any sodomy incidents to the initial 

interviewer. Detective Hingston testified that CS also had 

told him that defendant had touched his “front privates” to 

her mouth on three occasions and that it was “gross.”

With respect to the unlawful sexual penetration 

charge, CS testified that defendant had penetrated her 

vagina with his fingers, that she had been 11 or 12 years 

old when it first occurred, and that defendant would pull her 

pants down and touch her vagina. She testified that it had 

happened on the couch, and that “sometimes” defendant told 

her to come with him to her mother’s bedroom and that he 

would then put his fingers into her vagina and try to take off 

her clothes. CS testified that she did not call for help because 

nobody could hear her. She also testified that defendant had 

penetrated her vagina with an object that she described as 

a “red rocket.” She testified that it hurt, but that she did not 

call for help because her mom was at work and nobody could 

hear her. CS acknowledged that she had not reported any of 

those incidents to the initial interviewer. However, Detective 

Hingston testified that CS had told him that defendant had 

penetrated her with the toy “red rocket” on eight occasions, 

and that defendant had made the toy himself.4

Defendant testified that no sexual contacts occurred 

between himself and CS. Defendant’s theory of the case was 

that the charges were fabricated by CS’s mother and grandmother in the context of the separation and dissolution of his 

marriage to CS’s mother.

At the close of the evidence, defendant requested 

the following jury instruction:

4 The state presented other evidence that defendant had a sexual relationship with or sexual interest in CS, such as photos that he had taken of her uncovered breast and pubic area and other photos of her on which he had written sexual comments. Evidence also was adduced that defendant had asked CS to dress 

in her mother’s lingerie, and commented about wanting to marry her. In addition, 

the state introduced evidence, including video evidence, that CS and defendant 

shared a bed at times. None of that evidence, however, constituted direct evidence 

of the three charged sexual offenses.
Cite as 357 Or 642 (2015) 647

“In order to reach a lawful verdict as to any count, 10 jurors 

must agree on what factual occurrence constituted the 

crime. Thus, in order to reach a guilty verdict on any count, 

10 jurors must agree on which factual occurrence constituted the offense.”

The trial court declined to give that instruction. The jury 

convicted defendant of the three offenses at issue, and this 

appeal ensued.

Before the Court of Appeals, defendant contended, 

among other arguments, that the trial court erred in declining 

to give the quoted instruction. The Court of Appeals concluded 

that the need for a jury concurrence instruction was not

“implicated where the evidence suggests that the crime 

was committed on multiple occasions but does not provide 

the jurors with enough specifics to distinguish one occasion 

from another in a way that would allow them to draw conflicting conclusions regarding the crime committed. That is 

particularly true where factual distinctions between different instances are not contested.”

Ashkins, 263 Or App at 222-23. Relying in part on this 

court’s decision in State v. Sparks, 336 Or 298, 83 P3d 304, 

cert den, 543 US 893 (2004), the Court of Appeals concluded 

that “a jury concurrence instruction is not required as to the 

precise location or circumstances of defendant’s various acts 

of abuse.” Id. at 223.5

On review, defendant asserts that the Court of 

Appeals erred in failing to adhere to this court’s analysis 

of jury concurrence instruction requirements in Pipkin. We 

allowed review to consider whether, and if so, how, the jury 

concurrence requirement applies in situations where a single occurrence of each charged crime is alleged, but largely 

nonspecific and undifferentiated evidence is presented that 

the crime was committed by the same perpetrator against 

the same victim during separate occurrences within the 

time period alleged in the indictment.

5 In reaching its conclusion, the Court of Appeals also relied in part on its 

prior decisions in State v. Garcia, 211 Or App 290, 154 P3d 730, rev den, 343 Or 

160 (2007), and State v. Pervish, 202 Or App 442, 123 P3d 285 (2005), rev den, 340 

Or 308 (2006). We discuss those cases below because the state urges us to adopt 

a variation on the rationale of those cases here.
648 State v. Ashkins

II. ANALYSIS

A. Standard of Review

We review a trial court’s failure to give a requested 

jury instruction for errors of law. State v. Reyes-Camarena, 

330 Or 431, 441, 7 P3d 522 (2000). Generally speaking, an 

instruction is appropriate if it correctly states the law and 

is supported by evidence in the record, when the evidence is 

viewed in the light most favorable to the party requesting 

the instruction. State v. Oliphant, 347 Or 175, 178, 218 P3d 

1281 (2009).6

 A trial court, however, is not required to give 

a requested instruction if another instruction adequately 

addresses the issue. State v. Tucker, 315 Or 321, 332, 845 

P2d 904 (1993).

B. The Parties’ Arguments on Review

As noted above, defendant argues, based on Pipkin, 

that when a single occurrence of a crime is charged but evidence of multiple separate occurrences of that crime involving the same victim and the same perpetrator is adduced, 

the state either must elect a particular occurrence or the 

defendant is entitled to a jury concurrence instruction. It follows, defendant reasons, that the trial court erred in failing 

to give the concurrence instruction that he requested. For 

its part, the state acknowledges the rule on which defendant 

relies, but it urges this court to recognize an exception “[i]n

cases where the evidence establishes multiple occurrences 

of a crime but the evidence is nonspecific and undifferentiated.” In such circumstances, the state argues, a trial court 

should not give a concurrence instruction because “no genuine risk exists that the jurors will reach differing conclusions 

as to specific incidents.” Alternatively, the state suggests an 

approach that has been followed in several other jurisdictions: 

In cases involving such evidence, the state either may elect 

6 At oral argument, the state argued that the touchstone of our standard 

of review should be whether the lack of a concurrence instruction would cause 

“jury confusion.” See, e.g., State v. Hale, 335 Or 612, 627, 75 P3d 448 (2003) (noting that lack of concurrence instruction could cause “jury confusion”). Although 

that consideration is relevant to the analysis, it does not embody our standard 

of review; as with other failure-to-instruct challenges, the very nature of the 

inquiry into whether a jury concurrence instruction is required dictates that all 

the evidence must be considered in the light most favorable to the party seeking 

the instruction.
Cite as 357 Or 642 (2015) 649

or the jury should be instructed that it either must concur on 

a specific occurrence or concur that the defendant committed 

all the acts described by the victim. Finally, the state argues 

that, if a concurrence instruction should have been given in 

this case, the error in failing to do so was harmless.

C. Jury Concurrence When a Single Violation is Charged 

But the Evidence Permits a Finding of Multiple, Separate 

Occurrences of the Crime

This court has stated that a defendant’s right to jury 

concurrence arises from Article I, section 11. See Pipkin, 354 

Or at 518 n 6. In Pipkin, this court divided that right into 

two broad categories and explained the scope of each. “One 

situation occurs when a statute defines one crime but specifies alternative ways in which that crime can be committed.” 

Id. at 516. In that situation, if the legislature intended the 

crime to have alternative statutory elements, jury concurrence is required, whereas if the legislature merely specified different factual ways of proving the same element, jury 

concurrence is not necessary. Id. “The other situation arises 

when the indictment charges a single violation of a crime 

but the evidence permits the jury to find multiple, separate 

occurrences of that crime.” Id. at 517. With respect to that 

second category,

“[o]rdinarily, a defendant faced with that problem can ask 

the state to elect the occurrence on which it wishes to proceed and, in that way, limit the jury’s consideration to a 

single occurrence. See, e.g., State v. Lee, 202 Or 592, 276 

P2d 946 (1954); State v. Ewing, 174 Or 487, 496, 149 P2d 

765 (1944). Alternatively, [State v. Hale, 335 Or 612, 75 P3d 

448 (2003) and State v. Lotches, 331 Or 455, 17 P3d 1045 

(2000), cert den, 534 US 833 (2001)] hold that a defendant 

can ask for an instruction requiring jury concurrence on 

one of the several occurrences that the record discloses.”

354 Or at 517.7

7 Some courts have described this type of principle as an “either/or” rule. See, 

e.g., State v. Petrich, 101 Wash 2d 566, 683 P2d 173 (1984) (describing rule); State 

v. Kitchen, 110 Wash 2d 403, 756 P2d 105 (1988) (applying rule, but concluding 

error was harmless); see also State v. Crane, 116 Wash 2d 315, 804 P2d 10 (1991) 

(recognizing that the rule does not apply when multiple acts are part of the same 

course of conduct). Cf. Pipkin, 354 Or at 517-18 (indicating that Oregon follows the 

“either/or” approach, albeit not specifically addressing the issue in the context of 

nonspecific and undifferentiated evidence in sexual abuse cases).
650 State v. Ashkins

The parties agree that only the second jury concurrence category described in Pipkin is potentially implicated 

in this case.8

 To determine whether it applies to the charges 

on which defendant was convicted, it is helpful to review 

several of this court’s earlier decisions.

Our first jury concurrence decision, Boots, did not 

actually address whether or when a concurrence instruction 

should be given. Rather, in that case, the trial court had 

given an erroneous nonconcurrence instruction to the jury. 

The defendant had been charged with aggravated murder, 

the state had alleged two different aggravating circumstances that elevated the crime to aggravated murder, and 

the trial court had instructed the jury that it was not necessary for its members to agree on which of the two aggravating circumstances had been proved. 308 Or at 374-75. 

In holding that giving the nonconcurrence instruction was 

erroneous, this court stated:

“We are not speaking here of factual details, such as 

whether a gun was a revolver or a pistol and whether it 

was held in the right or the left hand. We deal with facts 

that the law (or the indictment) has made essential to the 

crime.”

Id. at 379. See generally State v. King, 316 Or 437, 852 P2d 

190 (1993) (jury was not required to concur about whether 

defendant committed DUII by driving with blood alcohol 

content above statutory limit or driving while perceptibly 

impaired by alcohol, as those were simply factual details 

about how single element of offense could be proven).

Lotches was the first case following Boots in which 

this court addressed the second category described in 

Pipkin. In Lotches, the defendant was convicted on three 

counts of the aggravated murder of a single victim, each premised on a different aggravating circumstance. Unlike in 

Boots, the jury in Lotches did separately consider each of the 

three aggravating circumstances; the issue in Lotches was 

whether the jury should have been instructed that it must 

concur “as to the identity of the victim of the underlying 

8 Pipkin itself involved the first category of situations in which a concurrence 

right exists. 354 Or at 518. The particular circumstances of that case are not 

relevant to our analysis here.
Cite as 357 Or 642 (2015) 651

felony” with respect to each aggravating circumstance. The 

three theories alleged were aggravated murder in the course 

of and in furtherance of attempted first-degree robbery, 

attempted second-degree kidnapping, and attempted murder. 331 Or at 462-63. The state had adduced evidence that, 

in the course of events leading up to the murder, the defendant had robbed or attempted to rob two individuals, had 

attempted to kidnap two individuals, and attempted to kill 

two others (none of whom were the aggravated murder victim). Id. at 470-71. This court noted that the state appeared 

to concede “the notion that, if there is a possibility of jury 

confusion, the identity of the victim or the circumstances 

of the underlying felony is information that is material and 

for which jury unanimity is required.” Id. at 470 (emphasis omitted). The court went on to hold that the trial court 

had plainly erred in failing to require jury concurrence as to 

the identity of the victims of the underlying felonies. Id. at 

471-72.

Soon after deciding Lotches, this court addressed a 

similar plain error challenge in Hale, another aggravated 

murder case. In that case, the defendant and his accomplice Susbauer committed a series of crimes, culminating in 

the murder of three children. 335 Or at 615-16. The aggravated murder charges alleged as aggravating circumstances 

various underlying felonies of sexual abuse and murder. 

Susbauer entered into a plea agreement and testified that 

the defendant was the principal and that Susbauer had been 

an unwilling accomplice. The defendant’s theory of the case, 

on the other hand, was that Susbauer had personally committed the underlying crimes. The problem—similar to the 

problem in Lotches—was that there was evidence of multiple 

victims with respect to those underlying crimes, and there 

was conflicting evidence as to which of the two perpetrators 

had committed them. Hale, 335 Or at 625-27. The trial court 

gave no jury concurrence instruction and did not require the 

state to elect a particular instance involving a particular 

victim and a particular perpetrator with respect to each 

offense. The defendant was convicted of thirteen counts of 

aggravated murder. On review, this court concluded:

“We agree with defendant that, because the instructions that the jury was given with respect to each of the 
652 State v. Ashkins

aggravated murders counts based on the crimes of thirddegree sexual abuse and murder did not either limit the 

jury’s consideration to a specific instance of third-degree 

sexual abuse or murder, committed by a particular perpetrator against a particular victim, or require jury unanimity concerning a choice among alternative scenarios, each 

instruction carried an impermissible danger of jury confusion as to the crime underlying each count.”

Id. at 627.

In a subsequent aggravated murder case, however, 

this court rejected the defendant’s plain error argument 

with respect to jury concurrence. In State v. Sparks, 336 

Or 298, 83 P3d 304 (2004), the defendant was convicted on 

15 counts of aggravated murder of a single victim, based 

on various theories of aggravation, including the commission of five different underlying offenses. 336 Or at 312. The 

murder and each of the underlying offenses were committed 

against the same victim within a period of several hours. 

Id. at 300-01. The jury considered each count, and thus 

each aggravating circumstance, separately, and the defendant raised no objection to how the jury was instructed. On 

appeal, the defendant noted that the evidence could have 

supported a determination that the underlying offenses 

occurred either in the defendant’s bedroom or at the location where he later moved the victim’s body. Id. Relying 

on Lotches, the defendant argued that “the evidence presented at trial could have supported more than one of each 

instance of each of the five underlying crimes.” Id. Although 

this court acknowledged its statement in Hale about limiting “the jury’s consideration to a specific instance” of an 

underlying offense, the court further noted that that statement was followed by the qualifying phrase, “committed by 

a particular perpetrator against a particular victim.” Id. at 

316. The court concluded:

“In Lotches, there were multiple possible victims for each of 

the underlying crimes. Similarly, in Hale, there were multiple possible victims and two possible perpetrators of each 

of the underlying crimes. In both of those cases, the jury 

was presented with multiple factual theories for each of the 

underlying crimes. It is not reasonably in dispute that a 

jury’s failure to agree unanimously on either the victim or 
Cite as 357 Or 642 (2015) 653

the perpetrator of the crime would violate the jury unanimity rule, because both those facts are material elements of 

the underlying crimes.

“In this case, however, it is not ‘obvious’ that a jury’s 

failure to agree unanimously on the precise location where 

defendant may have perpetrated the underlying crimes 

against the single victim would violate the jury unanimity 

rule. Nothing about the crimes charged in this case demonstrates that the precise location of the underlying crimes 

constitutes a material element of those crimes on which the 

jury must agree unanimously. In fact, the location of those 

crimes more logically constitutes a ‘factual detail’ that does 

not require jury unanimity. Boots, 308 Or at 379.”

Sparks, 336 Or at 316-17 (emphasis in original).

Sparks marked this court’s last examination of 

a situation implicating the second category of situations 

in which a concurrence right exists. However, none of this 

court’s previous decisions, including Sparks, involved the 

precise situation at issue here, to which we now turn.

D. Application of Concurrence Right Where Evidence of Multiple Occurrences of a Single Charged Crime Involving 

the Same Parties is Nonspecific and Undifferentiated

In the wake of Sparks, the Court of Appeals 

addressed jury concurrence issues that were somewhat similar to the one presented here, albeit in the context of unpreserved challenges. In Pervish, the defendant was charged 

with multiple instances of promoting and compelling prostitution. The facts were complicated, involving multiple victims and multiple acts of prostitution alleged as to several 

of the victims. The defendant argued that the trial court 

had plainly erred in failing to give a concurrence instruction 

requiring 10 jurors to agree on “specific factual incident[s] 

involving” each prostitute victim. 202 Or App at 442. The 

Court of Appeals concluded that no error was apparent. It 

observed: “The very generality of the evidence pertaining 

to [one of the challenged counts] ameliorated any risk that 

members of the jury could have picked different factual incidents in convicting defendant of that charge.” Pervish, 202 

Or App at 459.
654 State v. Ashkins

Later, in Garcia, 211 Or App at 293, the Court of 

Appeals addressed a similar problem involving a child sexual 

abuse victim who was unable to “relate detailed accounts of 

specific occasions of abuse.” Id. at 293-94. Relying on Sparks, 

the court stated that a concurrence instruction is required 

only if the evidence demonstrates the possibility of juror disagreement as to “material elements,” and concluded that “it 

is not ‘obvious’ that the location in which a sexual offense 

took place constitutes such a material element.” Garcia, 211 

Or App at 295. The court further stated:

“In addition, a Boots instruction is required only when 

there is a real possibility of juror confusion with respect to 

the evidence as it relates to each charge. When the state’s 

evidence is so general that it simply is not possible that 

the jurors might have disagreed about specific instances 

underlying the various charges—because they were not 

given evidence of specific instances on which they might 

disagree—it is not error for the court to fail to give a Boots

instruction.”

Id. at 296.

In a nutshell, both Pervish and Garcia suggested 

that, in the context of nonspecific and undifferentiated evidence of multiple occurrences of a single charged offense, 

a jury concurrence instruction may have been unnecessary 

because there would have been no basis for the jurors to 

choose any particular occurrence as the one proven.9

9 By contrast, in State v. Houston, 147 Or App 285, 287, 935 P2d 1242 (1997), 

the state charged the defendant with delivery of a controlled substance, but “produced evidence that the crime could have occurred at any of six different times.” 

(Emphasis added.) In that circumstance, the Court of Appeals concluded that the 

case was unlike King, “in which the state merely offered alternative evidence of 

a single factual occurrence,” but rather that the defendant was entitled to a jury 

concurrence instruction under the rationale of Boots, because the jury had been 

“allowed to base its verdict on alternative factual occurrences, each of which itself 

would be a separate crime.” Id. at 292. The court distinguished Houston in State 

v. Greeley, 220 Or App 19, 24-25, 184 P3d 1191 (2008), which involved proof of 

several reckless acts while driving over the course of about four minutes. The 

defendant in Greeley had requested an instruction requiring the jury to agree on 

a specific reckless act, but the Court of Appeals held that “the state was entitled 

to rely on the entire course of defendant’s driving to establish the element of 

recklessness.” Id. at 26. Houston and Greeley are consistent with our statement 

in Pipkin that a jury concurrence instruction is required when “the evidence permits the jury to find multiple, separate occurrences of that crime.” 354 Or at 517 

(emphasis added).
Cite as 357 Or 642 (2015) 655

As noted, relying in part on Pervish and Garcia, 

the state urges that where the evidence establishes multiple occurrences of a single charged crime but the evidence 

is nonspecific and undifferentiated, a trial court should not 

give a special concurrence instruction because no genuine 

risk exists that the jurors will reach differing conclusions 

as to specific incidents. The rationale for such an exception 

to the concurrence requirement was aptly stated in People 

v. Jones, 51 Cal 3d 294, 305, 270 Cal Rptr 611, 792 P2d 643 

(1990):

“[A child], assertedly molested over a substantial period by 

a parent or other adult residing in [the] home, may have 

no practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all 

or even any such incidents. (Indeed, even a mature victim 

might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or 

circumstance.)”

(Citation omitted.)10

In Jones, the defendant was charged with sexual 

offenses against multiple victims, including children in the 

defendant’s home; the indictment alleged that the abuse 

occurred over a two-year period. 51 Cal 3d at 301-02. One of 

the children was able to identify locations where the defendant had committed the charged offense, but was not able to 

specify dates or “additional details to further identify these 

acts.” Id. at 302. The court concluded that, if adequate jury 

instructions were given, the defendant’s right to jury concurrence was not violated where the evidence of the crimes 

was “generic”:

“As for the necessity of a unanimous jury on specific 

charges, we acknowledge *** the requirement of [unanimity under the California constitution]. But we reject the 

contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses 

is presented in child molestation cases. In such cases, 

10 See also R.L.G. v. State, 712 So 2d 348, 356 (Ala 1997) (evidence of “abuse 

of a young child by an abuser residing with the child [such that the] abuser could 

perpetuate the abuse so frequently and in so many locations that the young child 

loses any frame of reference in which to compartmentalize the abuse” has been 

termed “generic evidence”).
656 State v. Ashkins

although the jury may not be able to readily distinguish 

between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and 

manner described.

“As previously stated, even generic testimony describes 

a repeated series of specific, though indistinguishable, 

acts of molestation. The unanimity instruction assists in 

focusing the jury’s attention on each such act related by 

the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find 

a defendant guilty of more than one indistinguishable act, 

providing the three minimum prerequisites heretofore discussed are satisfied.

“*****

“* ** [I]f an information charged two counts of lewd 

conduct during a particular time period, the child victim 

testified that such conduct took place three times during 

that same period, and the jury believed that testimony 

in toto, its difficulty in differentiating between the various acts should not preclude a conviction of the two counts 

charged, so long as there is no possibility of jury disagreement regarding the defendant’s commission of any of these 

acts.”

Id. at 321 (citations omitted).

The court in Jones held that, in situations where 

jurors might disagree about the act committed, a standard 

concurrence instruction should be given. It further held, 

though, that “when there is no reasonable likelihood of juror 

disagreement as to particular acts, and the only question is 

whether or not the defendant in fact committed all of them, 

the jury should be given a modified unanimity instruction.” 

Id. The court described such an instruction as allowing a 

conviction if the jury agreed on “specific acts” or that “the 

defendant committed all the acts described by the victim.” 

Id. at 321-22; see also Thomas v. People, 803 P2d 144 (Colo 

1990) (adopting approach in Jones).

We appreciate the practical appeal of such an 

approach. A child’s difficulty in distinguishing among multiple similar past events generally is within a jury’s ability 

to evaluate, and such an instruction might encourage the 

jury to turn directly to fundamental questions concerning 
Cite as 357 Or 642 (2015) 657

credibility. Moreover, as a conceptual matter, such an 

instruction does not misinform the jury about the concurrence requirement. A jury that determines that a defendant 

committed “all of the acts” necessarily would find that the 

defendant committed each of the specific acts.11

Such an instruction is not, however, free from 

its own problems. The instruction endorsed in Jones was 

phrased in terms of what the jury may do if it agrees that 

“the defendant committed all of the acts described by the 

victim.” Jones, 51 Cal 3d at 322 (emphasis added); see also

Thomas, 803 P2d at 154. Such an instruction could cause 

jury confusion where the complaining witness has made 

conflicting statements about what occurrences involved 

what acts, how many occurrences there were, or whether 

in fact any crimes occurred at all. See, e.g., R.L.G. v. State, 

712 So 2d 348, 352 (Ala 1997) (child victim made numerous specific disclosures before trial, but at trial testified she 

did not remember making disclosures and that defendant 

had never hurt her); State v. Becker, 211 Or App 1, 6, 153 

P2d 158, rev den, 343 Or 223 (2007) (conviction was based 

on child’s out-of-court disclosures of sexual abuse, although 

child recanted at trial and indicated she had fabricated the 

disclosures). Such a scenario is sufficiently common in child 

sexual abuse cases that a body of law has developed concerning the admissibility of testimony about it. See, e.g., State v. 

Middleton, 294 Or 427, 437, 657 P2d 1215 (1983) (discussing 

admissibility of expert evidence on typical child victim reactions to familial sexual abuse, including inconsistent statements and recantation). Indeed, evidence was presented at 

trial in this case that children often do not initially disclose 

the full extent of sexual abuse and that they can become 

confused about details when abuse occurs over long periods 

of time. In short, depending on the nature of the evidence, 

11 Other jurisdictions have dealt with the “undifferentiated evidence” 

dilemma in child sexual abuse cases by treating a single alleged crime as a continuing or aggregated offense, or by enacting “continuing child sexual abuse” statutes. See generally R.L.G., 712 So 2d at 358-60 (describing case law and statutes); 

Note, Jury Unanimity and the Problem with Specificity: Trying to Understand 

What Jurors Must Agree About by Examining the Problem of Prosecuting Child 

Molesters, 91 Texas Tech L Rev 1203 (2013) (describing continuing child sexual 

abuse statutes and their potential constitutional infirmities). The state does not 

assert that the criminal statutes at issue here could be interpreted in such a 

manner.
658 State v. Ashkins

asking jurors to determine what constitutes “all” of the acts 

described by a complaining child witness could pose as difficult a challenge as asking them to determine what constitutes a “factual occurrence” under a concurrence instruction 

in the second category of cases described in Pipkin.

That said, this case does not require us to determine 

whether an instruction such as the one approved in Jones should 

have been given, because no such instruction was requested.12

The question, rather, is whether the instruction requested by 

defendant was, in fact, a correct statement of the law.

With respect to that question, the fact that evidence 

of multiple occurrences of a single charged crime is nonspecific and undifferentiated does not obviate the risk that 

jurors will fail to agree by the requisite degree of concurrence on the act that constitutes the charged offense. See, 

e.g., State v. Ewing, 174 Or 487, 496, 149 P2d 765 (1944) 

(reversing defendant’s conviction because trial court failed 

to require an election where it was “entirely possible that 

some of the jurors may have found the defendant guilty of 

one of the prohibited acts, while others relied upon some 

other and different alleged act”). Stated differently, the 

rationale underlying the concurrence right is not satisfied 

merely because the state’s witnesses may have difficulties 

in recalling, recounting, or distinguishing among separate 

occurrences of a particular crime.

Nor does this court’s decision in Sparks suggest a 

different conclusion. Although this court in Sparks distinguished Hale and Lotches on the ground that they involved 

aggravating circumstances where the jury could mix and 

match multiple victims or perpetrators, the court in Sparks

12 In this case, the evidence of sodomy might be described as classically 

“generic” in that the victim identified no locations or specific instances for those 

occurrences. On the other hand, although some of the victim’s statements with 

respect to the rape and unlawful sexual penetration charges were generic, others

provided at least some detail. Given our conclusion set out below, 357 Or at

659-60, that defendant’s requested instruction was legally correct and should 

have been given, we express no opinion on whether (or as to which charges) the 

trial court properly could have given an instruction such as the one endorsed in 

Jones, if such an instruction had been requested. See generally State v. Moore, 324 

Or 396, 427, 927 P2d 1073 (1996) (“We review a trial court’s choice among legally 

correct requested jury instructions that provide the necessary information for 

abuse of discretion.”).
Cite as 357 Or 642 (2015) 659

ultimately concluded that the concurrence requirement had 

not obviously been violated because there was no indication 

that the precise location of the underlying crimes constituted a material element of those crimes on which the jury 

must agree unanimously. Sparks, 336 Or at 317. Although, 

like Sparks, this case involves a single perpetrator and a 

single victim, the issue here is not whether the fact on which 

jurors might fail to agree constituted a material element of 

an offense; the issue, rather, is whether jurors must agree on 

the same occurrence in reaching a verdict on a single count 

of a charged crime. Unlike Sparks, the situation in this 

case fits precisely within the second category described in 

Pipkin.

13 The indictment here charged a single occurrence of 

each offense, but the evidence permitted the jury to find any 

one or more among multiple, separate occurrences of that 

offense involving the same victim and the same perpetrator.

Accordingly, the state in this case was required 

to elect which occurrence it would prove or, alternatively, 

defendant was entitled to a concurrence instruction. Pipkin, 

354 Or at 517. The state made no election, and thus, defendant was entitled to a concurrence instruction that correctly 

stated the law. The instruction requested by defendant, that 

“10 jurors must agree on which factual occurrence constituted the offense,” was a correct statement of the law as it 

applies to the circumstances of this case. Boots, 308 Or at 

378-79.14 It follows that the trial court erred in declining to 

give that instruction.

13 In Sparks, a plain error case, this court did not directly address the defendant’s argument that the evidence supported a finding of multiple instances of 

the crimes underlying each count of aggravated murder. Instead, because the 

“defendant [did] not explain why the location of the underlying crimes constitute[d] a fact that the law makes essential to those crimes,” the court concluded 

that it was not “obvious” that a jury’s failure to agree unanimously on the location 

at which the underlying crimes were committed would violate the concurrence 

requirement. 336 Or at 317.

14 We emphasize that our holding is a narrow one, based on the factual circumstances of this case, where defendant was charged with a single count of each 

offense, and the evidence disclosed separate occurrences of each offense involving 

the same victim and the same perpetrator within the time period alleged in the 

indictment. The analysis may vary under different circumstances—for example, 

where multiple counts of the same offense are charged or the evidence discloses 

multiple criminal acts during the same occurrence. In addition, as noted, we do 

not foreclose the possibility that the type of modified instruction proposed by the 

state might be appropriate in some circumstances.
660 State v. Ashkins

E. Harmless Error

The question remains whether the trial court’s failure to give the requested instruction constituted reversible 

error. Defendant asserts that reversal is required because 

CS testified at trial to multiple occurrences of each of the 

charged offenses, and jurors could have disagreed as to 

which occurrence constituted the single charged count of 

each offense. The state counters that the error was harmless because the evidence provided no rational basis for 

jurors to differentiate among multiple occurrences of the 

same offense.

“Under Oregon law, a verdict against a criminal 

defendant may be affirmed notwithstanding trial error if 

the error did not affect a ‘substantial right’ of the defendant.” 

OEC 103(1). This court has interpreted this to mean that 

the verdict may be affirmed if there is “little likelihood that 

the error affected the verdict.” State v. Hansen, 304 Or 169, 

180-81, 743 P2d 157 (1987); see also State v. Isom, 306 Or 

587, 595-96, 761 P2d 524 (1988).15 In making that determination, the court considers the instructions as a whole and 

in the context of the evidence and record at trial, including 

the parties’ theories of the case with respect to the various 

charges and defenses at issue. State v. Lopez–Minjarez, 350 

Or 576, 578, 260 P3d 439 (2011) (to assess whether error in 

instructing jury substantially affected appellant’s rights on 

various charges involved, “it is important to describe both 

sides’ respective evidence and theories of the case”); see also

State v. Phillips, 354 Or 598, 613, 317 P3d 236 (2013) (erroneous failure to give jury concurrence instruction did not 

substantially affect defendant’s rights because, “on the facts 

in this case, the factual findings necessary to find defendant 

liable on one theory either subsumed or were the same as 

the factual findings on the other theory”); Hale, 335 Or at 

15 As noted above, defendant also has asserted that the Sixth Amendment to 

the United States Constitution includes a jury concurrence requirement. Because 

we have resolved defendant’s claim of error under Oregon law, it is not necessary 

to consider defendant’s federal constitutional argument. We note, however, that 

the applicable standard under the federal constitution is that the error must be 

harmless beyond a reasonable doubt. State v. Cook, 340 Or 530, 544, 135 P3d 260 

(2006). Defendant does not assert that the difference in the two constitutional 

standards is meaningful to the harmless error analysis in this case. Accordingly, 

we do not further consider the issue.
Cite as 357 Or 642 (2015) 661

628-29 (court discerned from verdicts on other counts that 

jury necessarily had requisite concurrence on some counts 

for which omitted concurrence instructions should have 

been given).

This case is not wholly analogous to our prior jury 

concurrence cases addressing harmless error because, as 

noted, we have not before addressed the precise situation 

presented here. Our previous decisions involving motions to 

require an election, however, do provide some guidance. In 

particular, State v. Lee, 202 Or 592, 276 P2d 946 (1954), concerned the erroneous failure to require an election in a case 

involving a single count of rape of a child, where the evidence indicated two separate occurrences that transpired 

several months apart. 202 Or at 597. In that case, the trial 

court instructed the jury that it must find that the crime 

occurred “on or about” the latter date, the testimony focused 

on the latter date, and the defendant adduced alibi evidence 

as to the latter date. Id. at 598-99, 601. This court concluded 

that the trial court erred in denying the defendant’s motion 

to require an election. The court further concluded, however, 

that the error was harmless because, as a practical matter, 

the parties and the court understood that the state intended 

to prove the latter date. Id. at 607-08. Such a practical focus 

on the context of the entire record is a useful tool in instructional error cases. Lopez-Minjarez, 350 Or at 578.

In a related vein, several of the contextual considerations that supported the giving of a modified concurrence instruction in Jones have a bearing on our harmless 

error analysis here. In particular, the court in Jones noted 

that “only infrequently can an alibi or identity defense be 

raised in resident child molester cases. Usually, the trial 

centers on a basic credibility issue—the victim testifies to 

a long series of molestations and the defendant denies that 

any wrongful touching occurred.” 51 Cal 3d at 319. And in 

Thomas, the court concluded on facts similar to those here 

that the error in failing to give a concurrence instruction 

was harmless:

“The evidence at trial included nothing that would lead a 

juror to conclude that the acts of those types described by 

the victims occurred on some occasions testified to by the 
662 State v. Ashkins

victim but not on others. * ** The defense evidence was 

general and designed to show that none of the incidents 

occurred, rather than providing an individualized defense 

aimed at discrete alleged instances.”

Thomas, 803 P2d at 154-55. See also R.L.G., 712 So 2d at 

367-68 (similarly concluding on undifferentiated evidence 

from child victims that there was no possibility of juror 

disagreement as to specific acts and thus no reversible 

error).

In this case, the direct evidence on each charge 

came almost exclusively from the complaining witness, CS, 

who testified to numerous sexual encounters with defendant 

that occurred over the course of several years in their home. 

Her testimony was primarily nonspecific and undifferentiated; although she identified some occurrences at particular locations, most of the occurrences were described only 

generally, and without reference to a time frame. Additional 

circumstantial evidence that supported the convictions that 

was not based on CS’s testimony consisted of evidence about 

how defendant controlled her, statements that defendant 

made about her, and sexually suggestive photos that defendant took of her.

The evidence that supported defendant’s theory of 

the case consisted of (1) his denial that any of the sexual acts 

occurred, (2) evidence that CS initially had denied any abuse 

and had later provided some inconsistent details about the 

abuse, and (3) evidence that CS’s mother and grandmother 

harbored animosity toward defendant. Nothing about defendant’s theory of defense concerned particular occurrences of 

the sexual acts described by CS. There was no alibi defense, 

nor any defense that CS had misidentified the perpetrator. That is, nothing in the defense theory called into question CS’s description of any particular occurrence. Rather, 

defense counsel focused on inconsistencies in CS’s statements and the absence of physical evidence to support the 

charges. In sum, there was evidence that defendant committed multiple acts of rape, sodomy, and unlawful sexual penetration against CS, but there was nothing to indicate that, 

in evaluating the evidence to determine if those offenses had 

been committed, the jury would have reached one conclusion 
Cite as 357 Or 642 (2015) 663

as to some of the occurrences but a different conclusion as to 

others.

Defendant remonstrates that the state’s evidence 

relating to the unlawful sexual penetration charge showed 

that he penetrated CS not only with his finger but also with 

the “red rocket.” To the extent that defendant is arguing 

the state was required to elect an occurrence on that basis 

or that he was entitled to a jury concurrence instruction 

with respect to the specific object with which he carried 

out the unlawful sexual penetration, neither case law nor 

the text of the statute supports that contention. See ORS 

163.341 (describing crime as penetration “of the vagina, 

anus or penis of another with any object other than the penis 

or mouth”) (emphasis added). To the extent that defendant 

means to argue that evidence that different objects were 

used for unlawful sexual penetration gave the jury a basis 

from which it could distinguish one separate occurrence 

from another, the record does not support that proposition. 

CS’s testimony regarding the unlawful sexual penetration 

charge was generic enough such that no occurrences were 

identified where penetration occurred with one object but 

not the other.16 Moreover, the indictment alleged, and the 

jury was instructed, that the charged act concerned unlawful sexual penetration with a finger. Thus, to the extent that 

16 Additionally, we reject defendant’s criticism of the Court of Appeals’ account 

of the trial court record relating to the unlawful sexual penetration count. That 

court noted (albeit not in a harmless error context) that the unlawful sexual penetration count “specifically identified defendant’s finger as the ‘object other than 

[his] mouth’ that penetrated the victim (‘to wit: his finger’).” Ashkins, 263 Or App 

at 210. Defendant argues that, although the trial court initially instructed the 

jury as quoted, its instructions before the jury retired did not include the reference to “finger” and thus the jury was likely to have been confused. Although it is 

true that the final instruction on the elements of unlawful sexual penetration did 

not refer to defendant’s “finger,” defendant himself requested that instruction, 

UCrJi 1610, and the court gave the instruction in the exact wording proposed by 

defendant. Defendant also suggests that the Court of Appeals erred in stating 

that the prosecutor’s closing statement “made clear that the object of the penetration for Count 3 was defendant’s finger,” noting that the “red rocket” also was 

mentioned. Ashkins, 263 Or App at 223 n 11. The prosecutor’s brief mention of the 

“red rocket” during closing argument did not refer to a specific charge, but was 

made to show that CS provided consistent details in her accounts. By contrast, 

when the prosecutor discussed the unlawful sexual penetration charge during 

closing argument, he specifically stated that it concerned “digital penetration of 

[CS] with his finger when she was under the age of 14 years old.” In short, defendant’s criticism of the Court of Appeals’ description of the record is not well taken.
664 State v. Ashkins

defendant suggests that the error with respect to the unlawful sexual penetration count differs from the other counts, 

we reject that argument.17

In short, we conclude that there is little likelihood 

that, if it had been given the concurrence instruction that 

defendant requested, the jury would have reached a different result. Accordingly, we further conclude that, although 

the trial court erred in denying defendant’s request for a 

jury concurrence instruction, the error was harmless.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

17 We note that there also was evidence of two different ways in which sodomy 

was committed, but defendant makes no similar argument with respect to the 

sodomy count.