[DV_listserv] Need for concurrence instruction

[Domestic Violence issues]

(From DOJ's Appellate Update):

INSTRUCTIONS: Where defendant was charged with only one count of fourth-degree assault but the state presented evidence of two distinct assaults that were separated by time and place, and each of which caused a distinct physical injury, and the prosecutor argued to the jury that either occurrence could support a conviction for fourth-degree assault, defendant was entitled to a Boots instruction.
State v. Teagues, 281 Or App 182, __ P3d __ (2016) (Lane) (AAG Susan Yorke). Defendant was charged one count of fourth-degree assault, among other crimes, based upon his abuse of his then-girlfriend over the course of an evening. A witness testified that she saw defendant push the victim to the ground on a driveway, causing her to fall and scrape her knee. Sometime later (long enough that a third-party witness had fallen asleep after the knee incident and was awoken by the renewed fighting), defendant strangled the victim, impeding her breathing and leaving a mark on her neck. At the close of the evidence, defendant requested that the state be required to elect which of the two incidents constituted the assault or, in the alternative, that the trial court provide a concurrence instruction. The trial court (Judge Cynthia Carlson) denied that motion. In closing, the state argued that either incident, and either corresponding injury, was sufficient to establish fourth-degree assault. The jury found defendant guilty.
Held: Conviction for fourth-degree assault reversed and remanded; otherwise affirmed (Duncan, P.J.). The trial court erred in failing to provide a concurrence instruction. [1] Either an election or a concurrence instruction-i.e., a Boots instruction-is required when the state charges a defendant with one count of a crime, but presents evidence of more than one occurrence of that crime, to ensure that the requisite number of jurors agree on which incident constituted the crime. [2] The record contained evidence of two "temporally, spatially, and substantively distinct occurrences" of fourth-degree assault. The state therefore should have been required to elect one of the two occurrences, or the jury should have been instructed that it had to agree upon the factual concurrence that constituted the assault.
http://www.publications.ojd.state.or.us/docs/A155051.pdf



Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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