Background
Daniel Simbaco Tracy was convicted of third-degree rape, first-degree online sexual corruption of a child, using a child in a display of sexually explicit conduct, and solicitation. The charges arose from allegations that Tracy, an adult, used Snapchat to ask a 14-year-old girl to send sexually explicit photographs and encouraged her to meet him for sex, which occurred.
Although Snapchat had automatically deleted the exchanged images, investigators recovered more than 1,000 pages of messages containing sexualized requests and references to photographs. They also retrieved two nude photographs that the girl had taken of herself and sent to Tracy. On appeal, Tracy challenged the absence of an instruction requiring jurors to agree on the specific factual occurrences supporting the display and solicitation counts, but he acknowledged that he had not preserved the issue and sought plain-error review.
The Court’s Holding
The Oregon Court of Appeals affirmed, holding that the trial court did not plainly err by failing to give a concurrence instruction. The prosecution presented only one occurrence supporting each disputed count: both rested on the two nude photographs in Exhibit 22. The many Snapchat messages collectively supplied evidence of inducement for the display count and solicitation and intent for the solicitation count; they were not presented as alternative criminal occurrences.
The court also reasoned that convicting Tracy based solely on messages associated with deleted media likely would have required impermissible speculation about whether the missing material depicted sexually explicit conduct. Because the evidence and prosecution theory did not give jurors multiple distinct occurrences from which to choose, there was no risk that jurors based their verdicts on different acts. The court added that any instructional error would have been harmless for the same reason.
Key Takeaways
- A concurrence instruction is required when multiple factually distinct occurrences could independently support the charged offense, creating a risk that jurors will rely on different acts.
- Numerous communications do not necessarily constitute alternative criminal occurrences when the prosecution presents them collectively as proof of elements relating to a single charged occurrence.
- An unpreserved instructional claim does not qualify as plain error when the asserted duty to give the instruction is not obvious and beyond reasonable dispute.
Why It Matters
The opinion illustrates that the need for a jury-concurrence instruction depends on how the evidence and the parties’ theories frame the charged conduct, not merely on the volume of evidence or the existence of multiple communications. Courts will examine whether jurors actually received legally viable, distinguishable factual alternatives supporting conviction.
The decision is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.