State v. Ashkins, 32
| Decision Date | 11 September 2015 |
| Docket Number | CC 10C42610,CA A150038,SC S062468,No. 32,32 |
| Citation | 357 Or 642 |
| Court | Oregon Supreme Court |
| Parties | STATE OF OREGON, Respondent on Review, v. SCOTT MICHAEL ASHKINS, Petitioner on Review. |
En Banc
On review from the Court of Appeals.*
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.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
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) ( rule); see also State v. Boots, 308 Or 371, 780 P2d 725 (1989) (). 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.
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 pertinentcharges, which were read to the jury as part of the court's preliminary instructions, were as follows:
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, andthat defendant had married her mother and moved in with them in 2002 or 2003. CS's descriptions of the offenses were in many respects non-specific. 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 andCS'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:
The trial court declined to give that instruction. The jury convicted defendant of the three offenses at issue, and this appeal ensued.
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...
To continue reading
Request your trial