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State v. Slaviak

Court of Appeals of Oregon

April 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
CHRISTOPHER ALLEN MARC SLAVIAK, Defendant-Appellant.

          Argued and Submitted July 30, 2018

          Clackamas County Circuit Court CR1501354; Eve L. Miller, Judge.

          Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405, challenging only the two sexual-abuse convictions. One sexual-abuse count related to touching the victim's genital area, while the other count related to touching the victim's breasts. At trial, the victim testified that defendant touched her in both of the ways described in two separate instances. On appeal, defendant contends that the trial court plainly erred by not giving a jury concurrence instruction for the sexual-abuse counts because jurors could find from the evidence that defendant sexually abused the victim in either of the ways alleged in either of the instances described. Held: The trial court plainly erred. Because different jurors could have voted to convict on each count based on different factual findings, a concurrence instruction was required. Further, the trial court's error was not harmless, and, given the gravity of that error, the Court of Appeals exercised its discretion to correct it.

         Convictions for first-degree sexual abuse reversed and remanded; remanded for resentencing; otherwise affirmed.

         [296 Or.App. 806] HADLOCK, P.J.

         Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405. Defendant does not challenge the conviction for attempted sexual abuse and our opinion in this case does not disturb that conviction. Defendant does, however, challenge the two sexual-abuse convictions. He contends that the trial court plainly erred by not giving a jury concurrence instruction related to those two counts. For the reasons set out below, we agree that a concurrence instruction was plainly required in the circumstances present here. We also conclude that this is an appropriate case in which to exercise our discretion to address that error. Accordingly, we reverse and remand defendant's convictions for first-degree sexual abuse, remand for resentencing, and otherwise affirm.[1]

         Under State v. Ashkins, 357 Or. 642, 659, 357 P.3d 490 (2015), a jury concurrence instruction is required when an indictment charges a single offense, but "the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator" if the state has not elected which occurrence constitutes the crime. In determining whether a concurrence instruction was required, we must consider all pertinent evidence admitted at trial. We summarize that evidence here, along with the pertinent procedural facts.

         Defendant was charged with two counts of first-degree sexual abuse as follows, the first involving the victim's genital area and the second involving her breast:

"COUNT 1 The defendant, on or about May 24, 2015, in Clackamas County, Oregon, did unlawfully and knowingly, by means of forcible compulsion, subject [the victim] to sexual contact by touching her genital area, a sexual and intimate part of [the victim].
[296 Or.App. 807]"COUNT 2 The defendant, on or about May 24, 2015, in Clackamas County, Oregon, did unlawfully and knowingly, by means of forcible compulsion, subject [the victim], to sexual contact by touching her ...

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