[481]*481ROSENBLUM, J.
Defendant was charged with a number of offenses including eight counts of first-degree sexual abuse. ORS 163.427.1 A jury convicted him only on Count 7, first-degree sexual abuse, and acquitted him of the remaining charges. On appeal, defendant contends that the trial court erred in two respects: in admitting the hearsay testimony of a police detective concerning statements that the victim made to him through an interpreter, and in failing to instruct the jury that 10 or more of its members must agree on the same set of underlying facts to convict him of any particular count in the indictment. We affirm.
We take the following undisputed facts from the record. Defendant and the victim are cousins, and both speak Spanish as their first language. The victim moved to the United States from Mexico in 2000 and, in the summer of 2002, went to live, along with her father and two brothers, with defendant and his family. The victim was 13 years old at the time. Sometime later that summer, defendant and his family moved out of the home and relocated temporarily to California. They returned to the home in October 2002. The events leading to defendant’s trial and conviction occurred when the victim’s family and defendant’s family lived together, before defendant and his family moved to California.
Sometime after defendant returned from California, the victim told her friend Rosales and Rosales’s mother, Cortes, that someone had touched her all over her body and raped her. Cortes told the victim that she should talk to her family about it. The victim then told her aunt that defendant had raped her. Her aunt explained to her what it means to be [482]*482raped and asked her if she was sure. The victim then told her that it had not been rape but that defendant had touched her.
In December 2002, the victim disclosed to a tutor at her school, Perez, that someone had touched her “where they’re not supposed to.” The police were notified. Detective Lane interviewed the victim twice. He also interviewed defendant twice. We recount the substance of those interviews at some length below. Based on the victim’s disclosures to him, Lane arranged for the victim to be examined and interviewed at CARES Northwest, a child abuse assessment center. The examination revealed no physical signs of abuse, but the victim told the examining nurse and a social worker at the center, Burton, that defendant had touched her genital area twice.
Defendant was charged with one count of unlawful sexual penetration in the first degree; one count of unlawful sexual penetration in the second degree; eight counts of sexual abuse in the first degree; and one count of private indecency. At the beginning of the jury selection process in defendant’s trial, the court read the indictment to the potential jurors. All charges were based on incidents that were alleged to have occurred between December 2001 and August 2002. With respect to the sexual abuse charges, the indictment alleged that, on two “separate and distinct” occasions, defendant touched the victim’s breasts and vagina.2 For each act, the state charged two counts, one alleging that the victim [483]*483was under the age of 14 and one alleging that defendant had subjected the victim to forcible compulsion.3
The victim testified at trial that there were three different incidents during which defendant subjected her to sexual contact. Each incident took place in the home that the victim and her family shared with defendant and his family. The victim testified that one incident occurred when she was playing a card game with her brother, defendant, and defendant’s family. She testified that, after they finished the game, defendant touched her genital area on the outside of her clothes.
The victim testified further that, on another day, she was sitting on the couch in the living room watching television and defendant was sitting on the floor. According to the victim, her brother was asleep on the other couch and defendant’s wife was sleeping in the next room. The victim testified that defendant touched her breasts and put his hand down her pants, touched her vagina, and inserted his fingers inside. She said that he later pulled her into the kitchen, showed her his penis, and told her to touch it.
The victim testified that a third incident occurred on a day when defendant’s wife and children were in Salem. She stated that her cousin Martin and her brother had been at the house and that she had been playing outside with them and defendant; Martin later left. According to the victim, while her brother was taking a shower, defendant followed her into her bedroom, pushed her onto her bed, laid on top of her, and touched her breasts. She testified that that night she was watching TV when defendant came home from work, sat next to her, and touched her genital area on top of her clothes.
The state also presented corroborating evidence, primarily in the form of witness testimony, about statements that the victim made to those witnesses about being abused and statements that defendant made during the course of the investigation. Witnesses who testified that the victim had [484]*484told them that defendant had abused her included the victim’s friend Rosales, Rosales’s mother, the victim’s aunt, two school officials, Detective Lane, the CARES nurse who examined the victim, and Burton, the social worker.
As noted, Lane interviewed the victim on two occasions. Lane testified, without objection, to the substance of his initial interview with the victim, which occurred on December 5, 2002, after he was notified by staff at the victim’s school that she may have been abused. One of the school’s teachers, McCoy, helped interpret the interview. Lane testified that the victim was very hesitant to discuss the abuse; she eventually told him that defendant touched her “some place that made [her] feel uncomfortable,” but then “shut down and quit talking.”
Lane’s second interview with the victim took place on December 9, 2002, with Perez, the victim’s bilingual tutor at the school, acting as interpreter. Defendant objected to Lane’s testimony concerning that interview on hearsay grounds, but the trial court ruled that the testimony was admissible under OEC 803(18a)(b) as a statement concerning an act of abuse. Lane testified that the victim was more willing to tell him what had happened: “[S]he started talking and information just started flowing out of her.” According to Lane, the victim first described the day that defendant’s wife had gone to Salem. Lane’s testimony about what she said tracked many of the details that the victim gave in her trial testimony, including those about her cousin Martin, the game they played outside, the fact that defendant pushed her onto her bed and touched her breasts while her brother was in the shower, and that defendant touched her genital area later that night after he got home from work.
Lane also testified that the victim had told him about a night on which defendant’s wife was sleeping in another room and her brother was asleep on the other couch, and defendant touched her while she was watching TV. According to Lane, the victim told him that defendant touched her breasts and then put his hand “in her pants under her underwear” and touched her on “the inside of her body.” Lane testified that the victim also told him that defendant later pulled her into the kitchen, pulled down his pants, [485]*485and wanted her to touch his penis. Again, the details reflected the victim’s trial testimony.
After Lane testified, the state called Perez as a witness. Perez testified that he had worked for six years as a Spanish language tutor at the victim’s school. He also testified that Spanish was his native language and that he spoke the language “quite well.” When the prosecutor asked Perez if he had accurately interpreted the conversation between Lane and the victim, he testified, “I think so. I think it’s— yeah, as far as I — as far as I know.” There was no evidence that Perez was certified as an interpreter or that he had any professional training as an interpreter.
The state also called Burton, the CARES social worker, to testify, and introduced the videotape of her interview with the victim, along with a translated transcript of the interview. The transcript shows that the victim told Burton about the incident in which defendant’s wife was in Salem, including some of the details that she told Lane, but, beyond saying that it had happened twice, did not provide any details about any other incident.
The jury also heard testimony about defendant’s interviews with the police. Lane testified regarding his first interview with defendant, which occurred on December 6, 2002. According to Lane, defendant denied touching the victim sexually but explained that he sometimes wrestled with the victim and that one time he picked her up and may have inadvertently touched the genital area over her clothes. Defendant was interviewed by the police again on February 11, 2003. That interview was videotaped, and portions of the videotape were played and interpreted for the jury. In the interview, defendant told the officers that, one night, the victim sat down very close to him in the living room when his wife and the rest of the family were asleep in the bedrooms. Defendant said that the victim had put his hand on her stomach under her shirt and that he thought she was only playing, so he started caressing her. He said that, after a couple of minutes, he put his hand into her pants and could feel her pubic hair and the “skin under the hair,” but he denied that he touched her genitalia.
[486]*486Defendant testified in his own defense. He described a night when he and the victim were watching television and she lay down next to him on the couch, grabbed his hand, and put it on her stomach. He testified that he thought she was “just playing.” He said that she then “made herself skinny” and pushed his hand into her pants. He testified that he thought he “could have touched the pubic hair.” Defendant said that he pulled his hand out immediately. According to defendant, the incident occurred on a night when his wife was home but in the other room sleeping.
In closing argument, the prosecutor explained each of the charges in the indictment, using overhead slides. As to Count 7, she stated, in part:
“The second set of charges, Count 7 through 10, all deal with the day that defendant’s wife went to Salem, and [the victim] told you that the day that the defendant’s wife went to Salem was the day that they were playing this game of locking each other outside of the house. And on that day, after she got back inside the house, her brother, Jose, went to take a shower, and the defendant followed her into her room and they fell onto the bed. She told Detective Lane he actually pushed her on the bed, but the end result was that she was laying on her back, and the defendant was on top of her and she couldn’t get away, and he touched her breasts.
“Later that night, she was watching television with the defendant before her brother and her father came home, although her younger brother, David, was there, and the defendant, at that time, touched her on her vagina. So there’s a count of Sex Abuse in the First Degree — two counts of Sex Abuse in the First Degree for touching her breasts by force, and because she was under 14 years of age, and two counts of Sex Abuse in the First Degree for touching her vagina.”
After closing arguments, the trial court instructed the jury, in part, as follows:
“This being a criminal case, ten or more jurors must agree upon your verdict. When you’ve arrived at a verdict, presiding juror will sign the appropriate verdict form. Then at least ten of you that concur in that verdict will also sign ‡ ‡
[487]*487“* * * There are 11 verdict forms and you need to sign and return each of them.
% ‡ íH
“And just for your benefit, when you get back in there and you look at [the verdict forms], it’ll have Count 4, and in parens it’ll have her vagina. Count 5 will have — Count 5, and then in parens, her breasts. They’re distinguished between the different counts by the act.”
The verdict forms for Counts 4 and 7 were identical, each noting in parentheses that the count referred to “(touching her vagina and under age 14).”
The court also instructed the jury as to the elements of each count. With respect to Count 7, the court stated:
“Count 7, Oregon law provides a person commits the crime of Sexual Abuse in the First Degree when the person intentionally subjects another person to sexual contact and the victim is less than 14 years of age. In this case, to establish the crime of Sexual Abuse in the First Degree, the State must prove, beyond a reasonable doubt, the following elements: One, that the act occurred in Lincoln County, Oregon. Two, the act occurred on or between December 1, 2001 and August 31, 2002. Three, [defendant] intentionally subjected [the victim] to sexual contact, and four, that [the victim] was less than 14 years of age.”
The court gave an identical instruction with respect to Count 4. Neither defendant nor the state took exceptions to the instructions given, nor did either ask that the jurors be instructed that 10 or more of them must agree on the same set of underlying facts in order to convict defendant of any given count.
The jury convicted defendant on Count 7. It acquitted him on the remaining counts. Defendant appeals from the ensuing judgment of conviction.
In his first assignment of error, defendant argues that Lane’s testimony recounting Perez’s interpretation of the December 9, 2002, interview with the victim constituted inadmissible hearsay. Specifically, defendant asserts that Lane’s testimony about what the interpreter, Perez, told him [488]*488that the victim said during the December 9 interview is inadmissible double hearsay, not subject to any exception and, thus, it should have been excluded. The state responds that this court should adopt an “agency’ or “language conduit” theory under which the interpreter’s statements are treated as if they were made by the original declarant and thus do not constitute an additional level of hearsay. The state argues that, even if we do not adopt that theory, Lane’s testimony is properly admissible under the exception for statements concerning sexual abuse, the requirements of existing case law, or the residual hearsay exception in OEC 803(28).
We apply a two-part standard of review to an evidentiary ruling that a statement is admissible under an exception to the hearsay rule. State v. Cook, 340 Or 530, 537, 135 P3d 260 (2006). We will uphold the trial court’s preliminary factual determinations if there is any evidence in the record to support them. Id. We review for errors of law the trial court’s legal conclusion as to whether the statement is admissible under an exception to the hearsay rule. Id. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OEC 801. It is inadmissible unless it falls within one of the exceptions set out in OEC 801 to 806 or as “otherwise provided by law.” OEC 802. Hearsay within hearsay is admissible only if “each part of the combined statements conforms with an exception set forth in [OEC 803] or [OEC 804].” OEC 805. In this case, the challenged testimony consists of two levels of out-of-court statements that the state offered for the truth of the matters asserted: first, the victim’s statements to Perez, and second, Perez’s interpretation of the victim’s statements to Lane.4 The focus of defendant’s challenge is on Perez’s interpretation.5
[489]*489We begin our discussion with the ground relied on by the trial court for admitting Lane’s testimony, namely, that it was admissible under OEC 803(18a)(b), an exception to the hearsay rule for statements concerning acts of abuse. OEC 803(18a) provides, in part:
“(b) A statement made by a person concerning an act of abuse as defined in ORS 107.705 or 419B.005 * * * is not excluded by [OEC 802] if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made * * *
‡ ‡ ‡
“(c) This subsection applies to all civil, criminal and juvenile proceedings.
“(d) This subsection applies to a child declarant, a declarant who is an elderly person as defined in ORS 124.050 or an adult declarant with developmental disabilities.”
The state argues that Lane’s recital of Perez’s interpretation of the victim’s statements was admissible under OEC 803(18a)(b), because the statements concerned acts of abuse and “both Perez and the victim testified at trial and were subject to cross-examination.” That argument, however, ignores the plain language of OEC 803(18a)(d), which limits the applicability of subsection (18a), including (18a)(b), to a declarant who is a child, an elderly person, or an adult with developmental disabilities. Here, the relevant declarant was Perez, an adult, and there was no evidence that he was elderly or had developmental disabilities. Thus, the second level of hearsay — Perez’s interpretation of the victim’s statements — does not fall within the exception of OEC (18a)(b). The trial court erred in admitting Lane’s testimony on that ground.
Although OEC 803(18a)(b) did not furnish a proper basis for admitting Lane’s testimony, the court’s ruling was not erroneous if the testimony was admissible on some other ground. Under the “right for the wrong reason” doctrine, we may affirm a trial court ruling, even though the court’s legal reasoning for the ruling was erroneous, if (1) the facts in the [490]*490record are sufficient to support a proffered alternative basis; (2) the trial court’s ruling is consistent with the view of the evidence under the alternative basis; and (3) the record is materially the same as would have been developed had the prevailing party raised the alternative basis for affirmance below. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). We conclude that those requirements are satisfied in this case.
As noted, the state argues that Lane’s testimony was admissible under the “agency” or “language conduit” theory. That theory, adopted by several federal circuits, rejects the premise that a translation constitutes an additional layer of hearsay. This court has had previous occasion to consider the agency theory in deciding the admissibility of out-of-court statements made through an interpreter. See State v. Letterman, 47 Or App 1145, 616 P2d 505 (1980), aff'd by an equally divided court, 291 Or 3, 627 P2d 484 (1981). Letterman concerned the testimony of a police officer about his interview with the defendant, a hearing- and speech-impaired person, conducted with the assistance of an interpreter. We noted that the first level of hearsay — the interpreter’s translation of the defendant’s statements — was admissible as the defendant’s admissions. Thus, at issue was whether the second-level statements, that is, the officer’s testimony concerning the interpreter’s translation of the defendant’s statements, were admissible. Id. at 1148. After reviewing the cases and commentary that had addressed that question, we declined to adopt the agency theory that the state urges us to reconsider now. Id. at 1151.
Nevertheless, we concluded that the testimony was admissible under the “general” common-law hearsay exception described in Timber Access Ind. v. U. S. Plywood, 263 Or 509, 503 Pd 482 (1972). Letterman, 47 Or App at 1152. Timber Access Ind. concerned the admissibility of testimony about an extrajudicial statement made by one of the defendant’s employees that the defendant had contracted unconditionally to buy certain logs. Although the statement did not fit within a generally recognized exception to the hearsay rule, the Supreme Court found “an aura of trustworthiness about [the declarant’s words] which makes evidence of them admissible.” Timber Access Ind., 263 Or at 519. The Supreme [491]*491Court deemed the statement trustworthy because the declar-ant was in a position to know the facts and ordinarily would not make a statement against his interest unless it was truthful. Id. at 520. Applying the principles of Timber Access Ind. in Letterman, we concluded that the interpreter’s translation was admissible because it “satisfie[d] the two requirements common to most, if not all, of the exceptions to the hearsay rule: (1) circumstantial guarantees of trustworthiness, and (2) necessity for use of the out-of-court statement.” Letterman, 47 Or App at 1151.
However, our decision in Letterman predated the enactment of the Oregon Evidence Code.6 Therefore, it is necessary to consider the effect of that enactment on the exception announced in Letterman. As noted, in Letterman, we applied a common-law “general” exception to the hearsay rule and concluded that the interpreter’s translation in that case was admissible. The legislature later enacted OEC 802, which provides that “[H]earsay is not admissible except as provided in [OEC 801] to [OEC 806] or as otherwise provided by law.” Thus, we must discern whether, by using the phrase “or as otherwise provided by law” in OEC 802, the legislature intended to preserve the common-law exception stated in Letterman. When construing a statute, we begin with the text in context and, if necessary, resort to legislative history and other aids to construction. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).
We conclude that the phrase “otherwise provided by law” is ambiguous. In particular, the intended scope of the term “law” is not clear. It is not clear whether the legislature intended for the term to encompass statutory law, constitutional law, and common law, or a limited subset thereof. In other words, we are unable to determine whether the legislature intended to preserve preexisting common-law hearsay principles, including the Letterman framework for evaluating the admissibility of hearsay statements made through an interpreter, that are not provided for statutorily. It is equally plausible to read the rule as encompassing the common law and to read it as excluding the common law. Because the rule [492]*492is capable of more than one plausible interpretation, and we have discerned no contextual solution to that dilemma, it is ambiguous.
We, therefore, turn to the pertinent legislative history, beginning with the Legislative Commentary. See State ex rel OHSU v. Haas, 325 Or 492, 506 n 10, 942 P2d 261 (1997) (“Legislative Commentary on the Oregon Evidence Code should be considered as part of that Code’s legislative history.”). The commentary resolves the ambiguity:
“[OEC 802] is a modified version of Rule 802 of the Federal Rules of Evidence. Like the federal rule, it considers Rules 801 through 806 to contain the primary list of hearsay exceptions, but recognizes that the admission of hearsay evidence may be allowed by specific sections of the Oregon Revised Statutes outside the Evidence Code. In any event, the Legislative Assembly intends that hearsay only be admitted pursuant to some statutory or constitutional authority.”
Legislative Commentary to OEC 802, reprinted in Laird C. Kirkpatrick, Oregon Evidence § 802.02, Art VIII-51 (4th ed 2002). The express reference to “statutory or constitutional authority” leaves no doubt as to the legislature’s intent with respect to the continuing vitality of common-law exceptions to the hearsay rule. To the extent that the hearsay exceptions announced in Timber Access Ind. and in Letterman are less stringent than statutory or constitutional requirements for admissibility, we conclude that the legislature abrogated them.7 See Legislative Commentary to OEC 803(27), reprinted in Kirkpatrick, Oregon Evidence § 803.29[2], Art VIII-154 (4th ed 2002) (“The Legislative Assembly feels that [493]*493the court in Timber Access went too far in admitting [a hearsay statement] under a general exception to the hearsay rule, and, to this extent only, intends to change Oregon law”). Consequently, we may not rely on the Letterman exception in this case.
The question remains, however, whether Lane’s testimony was admissible under OEC 802. We conclude that it was. Although none of the exceptions in OEC 801 to 806 is directly applicable to statements made through an interpreter, OEC 803(28) provides a “catch all” or “residual” exception to the hearsay rule for statements “not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness * * *.” The rule permits admission of the evidence only if the court finds the following:
“(A) The statement is relevant;
“(B) The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and
“(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.”
OEC 803(28)(a). The rule also imposes a procedural requirement:
“A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.”
OEC 803(28)(b).
Defendant argues that Lane’s testimony fails to meet three of the criteria for admissibility in OEC 803(28). He contends first that the testimony lacked circumstantial guarantees of trustworthiness because there is no evidence regarding Perez’s qualifications as an interpreter. Next, he argues that Lane’s testimony was not more probative than [494]*494any other evidence that the state could have procured because the victim herself could have testified about what she told Lane during that interview. Finally, defendant argues that the state failed to notify him of its intention to offer Lane’s testimony about what Perez told him that the victim said during the interview.
We begin with the circumstantial guarantees of the trustworthiness of Perez’s statements to Lane. We disagree with defendant’s assertion that there is no evidence regarding his qualifications as an interpreter. Although there was no direct evidence of Perez’s qualifications, there is ample circumstantial evidence indicating that his interpreting abilities were sufficient to make his statements reliable. Perez testified that Spanish was his first language, that he had been speaking both Spanish and English since he was a young child, and that he speaks Spanish “quite well.”8 In fact, he is employed as a bilingual tutor. He testified that he believed that he interpreted the interview accurately, and defendant did not cross-examine him on that point or any other. Perhaps most importantly, the trustworthiness of Perez’s interpretation was established by the other evidence of the victim’s story, particularly the victim’s testimony, which was largely consistent with Lane’s testimony about the interview. That consistency shows that Perez accurately interpreted the victim’s statements during the interview. We conclude that, under the circumstances, the trustworthiness of Perez’s interpretation was sufficiently guaranteed.9
We also conclude that Lane’s testimony was more probative than any other evidence that the state could have [495]*495adduced. Lane’s testimony demonstrated that the victim had told essentially the same story seven months earlier that she told the jury at trial. Having the victim testify about what she recalled telling Lane would not have had the same effect. Although Perez himself could have testified as to the victim’s statements during the interview, he did say, in his testimony at trial, that his recollection of his earlier discussion with her was “not exact.” Lane, on the other hand, took notes during the interview from which he was able to refresh his memory about the details of what the victim said. Because Lane’s testimony was likely to furnish the most precise rendition of the victim’s statements during the interview, it was the most probative evidence available to the state on that point.
We turn next to defendant’s assertion that the state failed to notify him of its intention to offer Lane’s testimony about what Perez told him that the victim said during the interview. We disagree with defendant. As noted, OEC 803(28)(b) provides that a statement may not be admitted under that subsection unless the proponent of it “makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial * * * to provide the adverse party with a fair opportunity to prepare to meet it.” In early May 2003, nearly two months before trial began, the state filed a notice of intent to offer statements under OEC 803(18a)(b), the hearsay exception for statements made concerning an act of abuse. The prosecutor’s affidavit in support of that notice states that the prosecution provided defendant with “copies of all reports,” copies of which were also attached to the affidavit. It states further that “the foregoing reports contain the particulars of the statements made by [the victim] that the state intends to offer [,]” and that “the reports contain the particulars of the statements made by [the victim] to * * * Charles Lane [and] Pedro Perez,” among others.
One of the reports attached to the affidavit is Lane’s police report. The second page of the report lists each person mentioned in the report along with an address and telephone number for each person. Perez is included in that list. The body of the report describes all of Lane’s interactions with the [496]*496victim, defendant, and the other witnesses that he interviewed. In the portion describing his interview with the victim on December 9, 2002, Lane noted, "As she talked, Mr. Perez interpreted.”
Although the state’s notice indicated that the state intended to offer hearsay statements pursuant to OEC 803(18a)(b), the notice was sufficient to satisfy the requirements of OEC 803(28)(b) as well. It was clear that the state intended to offer the victim’s statements to Lane, that those statements were made through interpreters, and that, in the December 9, 2002, interview, Perez was the interpreter. Thus, defendant was on notice that Lane would testify about what Perez told him the victim was saying during the interview.
Because Lane’s testimony regarding the interview satisfied the requirements of OEC 803(28), his testimony was admissible. It follows that the trial court did not err in admitting it.
We turn to defendant’s second assignment of error. Defendant argues that the trial court erred in failing to instruct the jury that at least 10 of its members had to agree on the particular facts that constituted the offense that it found him guilty of. Defendant contends that the evidence adduced at trial indicated that he touched the victim’s vagina at least three different times: when he and the victim were playing cards, when his wife was sleeping in the bedroom, and when his wife was in Salem. He argues that a jury concurrence instruction — often referred to as a “Boots instruction” — was necessary to ensure that all of the jurors who voted to convict agreed on the same set of underlying facts. Defendant acknowledges that he did not preserve the asserted error by requesting such an instruction, but he argues that failure to give the instruction constitutes plain error, and he urges us to exercise our discretion to review it as such.
For crimes other than first-degree murder, Article I, section 11, of the Oregon Constitution requires the agreement of at least 10 members of the jury to render a guilty verdict.10 At least 10 jurors must agree on the factual [497]*497occurrences that constitute the crime, and it is error not to instruct the jury on “the necessity of agreement on all material elements of a charge in order to convict.” State v. Lotches, 331 Or 455, 472, 17 P3d 1045 (2000), cert den, 534 US 833 (2001) (citing State v. Boots, 308 Or 371, 379, 780 P2d 725 (1989)). The Sixth Amendment to the United States Constitution similarly requires jurors “to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.” United States v. Gipson, 553 F2d 453, 457-58 (5th Cir 1977).
We conclude that the trial court did not err. Although the court did not expressly instruct the jury that a requisite number of the jurors must agree on the same set of underlying facts in order to return a conviction on any particular count, the information that the court gave to the jury adequately explained the requirement and left no room for doubt about precisely what the jury was required to do.
Early in the proceedings, the trial court informed the jurors that Count 7 in the indictment alleged “an act of similar nature” involving “sexual contact by touching [the victim’s] vagina” on an “occasion separate and distinct” from the acts alleged in Counts 1 through 6. And when it instructed the jury on Count 7 after closing arguments, the trial court twice referred to the alleged crime as “the act.”11 Those references — “the act,” which occurred on an occasion that was “separate and distinct” from other acts alleged — indicate that Count 7 referred to a single, particular event. (Emphasis added.)
In addition, the court gave the jury separate verdict forms for each count indicating the body part involved in the alleged abuse and instructed it that “ten or more jurors must agree upon your verdict. When you’ve arrived at a verdict, [the] presiding juror will sign the appropriate verdict form. Then at least ten of you that concur in that verdict will also sign it.” (Emphasis added.) Thus, the court instructed the [498]*498jury that, to reach a guilty verdict on any given count, at least 10 jurors had to concur in that verdict.
Taking the indictment, the jury instructions, and the verdict forms together, the jury could not have been confused about the fact that, to convict defendant on Count 7, at least 10 of its members had to agree that, on a “distinct” occasion, defendant committed the act alleged in that count. It was clear to the jury that Count 7 corresponded to a particular factual incident. The indictment, jury instructions, and verdict forms together conveyed the same information that the concurrence instruction that defendant now calls for would have conveyed. In our view, giving such an instruction would not have added anything. It follows that the jury instructions, as given, were not erroneous.
Even if there were some chance that the jury misunderstood the concurrence requirement, we do not find this to be a case of plain error. It is not obvious that the facts on which the jurors might have disagreed are material elements of the crime, as opposed to “factual details” on which the jury is not required to agree. Assuming, for the sake of argument, that some of the jurors believed that defendant committed the crime on the night when his wife was asleep in the bedroom, others believed that the crime occurred when defendant’s wife was in Salem, and still others believed that defendant was guilty of touching the victim the night they were playing the card game,12 this case would nevertheless be controlled by State v. Sparks, 336 Or 298, 83 P3d 304, cert den, 543 US 893 (2004). In Sparks, the Supreme Court concluded that it was not plain error to fail to give a concurrence instruction even though — in that case, as in this one — there was evidence of more than one occasion when the defendant could have committed the sexual abuse in question. This case does not materially differ from Sparks.
Sparks was an aggravated murder case in which there was evidence that the defendant kidnapped the victim, [499]*499sexually abused her, and attempted to rape her.13 One witness testified that he had seen the defendant with the victim in the defendant’s trailer sometime between 8:30 p.m. and 12:30 a.m. on the night of the twentieth. Another witness testified that he had seen the defendant near the railroad tracks — where the victim was later found dead — sometime between 4:00 a.m. and 5:30 a.m. on the morning of the twenty-first. The defendant argued to the Supreme Court that the trial court should have given a jury concurrence instruction because the evidence presented at trial could have supported more than one “instance” of each of the underlying crimes, which “could have occurred at either, or both, of two distinct locations — [the] defendant’s bedroom, where he first brought the victim, or the railroad embankment, where police found the victim’s body.” 336 Or at 313. In other words, some of the jurors might have believed that he committed the underlying offenses at his trailer but not at the railroad tracks, others might have believed that he committed them at the railroad tracks but not at his trailer, and still others might have believed that he committed the offenses at both locations. If that were the case, the jury would not have agreed unanimously on the set of facts for which the defendant should be convicted.
The Supreme Court concluded that there was no error apparent on the face of the record. In doing so, it first distinguished Lotches and State v. Hale, 335 Or 612, 75 P3d 448 (2003), cert den, 541 US 942 (2004), where the court had found plain error. It noted that, in Lotches, there were multiple possible victims for each of the underlying crimes and, in Hale, there were multiple possible victims and two possible perpetrators of each of the underlying crimes. The Sparks court stated that “[i]t is not reasonably in dispute that a jury’s failure to agree unanimously on either the victim or the perpetrator of the crime would violate the jury unanimity rule, because both those facts are material elements of the [500]*500underlying crimes.” 336 Or at 316 (emphasis in original). It was not “obvious,” however, that the jury’s failure to agree on the location of the underlying crimes also violated the jury unanimity rule. Id. at 317. Instead, the court reasoned, the location of the crime more logically constituted a “factual detail” that did not require unanimity. Id. (citing Boots, 308 Or at 379). The court stated that “[t]he line between those facts that are essential to the crime and those that are merely factual details may not always be clear” and concluded that, because it was not clear on which side of that line the location of the crime falls, failing to give a jury concurrence instruction was not plainly erroneous. Id.
The only material distinction between the facts in Lotches and Hale and those in Sparks is that, in the former cases, each crime charged could have involved different victims or perpetrators whereas, in the latter, there was only one victim and one perpetrator associated with each count. For example, in Lotches, the defendant was charged with, among other things, one count of aggravated murder based on the underlying crime of attempted murder. There was evidence from which the jury could have concluded that the defendant committed the underlying crime more than once, but each incident involved a different victim. Lotches, 331 Or at 468. In Sparks, there was evidence from which the jury could have concluded that the defendant committed each of the underlying crimes more than once, but the same victim was involved each time. Because each crime could have occurred more than once, the jury may have failed to agree about which incident the defendant committed. Indeed, that is the very argument that the defendant made to the Supreme Court. See Sparks, 336 Or at 313 (“[Defendant contends that the evidence presented at trial could have supported more than one instance of each of the five underlying crimes.”). Sparks, then, appears to say that, if there is evidence of more than one incidence of a particular crime, as long as the same perpetrator and victim are involved in each incident, failing to instruct the jury that it must agree on the same set of underlying facts does not constitute plain error.14
[501]*501In this case, Count 7 involved one victim and one perpetrator. It follows that, in this case, as in Sparks, failing to give a jury concurrence instruction was not plainly erroneous.15
Finally, even if the failure to give such an instruction were plainly erroneous, we would exercise our discretion not to consider the error. See State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990) (considering unpreserved error is a matter of discretion for appellate courts). The principle established in Boots had been in existence for well over a decade when this case was tried in 2003, and defense counsel also had the benefit of the Supreme Court’s opinion in Botches — decided in 2000. Had he raised an objection under either precedent, the trial court could easily have avoided any potential error by giving an express jury concurrence instruction. Furthermore, counsel may have had a tactical reason for not requesting a more specific concurrence instruction, particularly in light of the other efforts of the court to inform the jury that Count 7 referred to a discrete incident and that at least 10 of their number had to agree in order to convict on that count. Cf. State v. Gornick, 340 Or 160, 169, 130 P3d 780 (2006) (affirming the trial court’s judgment after noting that the defendant could have chosen, for strategic reasons, not to object to the trial court action that he assigned as error on appeal).16
[502]*502In his dissent, Chief Judge Brewer argues that the gravity of the error is “profound” because, “[w]ithout the proper instruction, the jury was not required to ‘seriously [confront] the question whether they agree [d] that any factual requirement of [the offense had] been proved beyond a reasonable doubt * * *.” 210 Or App at 527 (Brewer, C. J., dissenting) (quoting Boots) (brackets in original). Chief Judge Brewer further contends that, were we to fail to address it under these facts, there would be little room left for “any plain error review under Boots.” 210 Or App at 528 (Brewer, C. J., dissenting) (emphasis in original). We respectfully disagree with Chief Judge Brewer’s assessment of the gravity of the error. In light of the instructions and information that the trial court gave to the jury, it is very unlikely— if likely at all — that the jury did not understand that it had to agree on which facts the state proved. Consequently, any error in failing to give a concurrence instruction was not grave. For similar reasons, we also disagree that our decision leaves little room for any plain error review under Boots. Not every case arising under Boots will involve instructions and information like what was given to the jury in the case before us. There is no reason to assume that we would not exercise our discretion to correct a plain error where the gravity of the error is greater than it is in this case.
In sum, the trial court did not err in failing to give an express Boots-type instruction, because the instructions and information that it gave sufficiently apprised the jurors of the need for concurrence. Even if the court did err, under Sparks, the error was not plain and the likelihood of jury confusion was extremely low. Given that low likelihood and the ease with which defendant could have eliminated any chance of confusion, this would not be an appropriate case for excusing the failure to satisfy the preservation requirement. See Gornick, 340 Or at 166 (“ ‘It is only in rare and exceptional cases that this court will notice an alleged error where no ruling has been sought from the trial judge.’ ” (Quoting [503]*503Hotelling v. Walther, 174 Or 381, 385-86, 148 P2d 933 (1944).)); Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991) (“A court’s decision to recognize unpres-erved or unraised error in this manner should be made with utmost caution. Such an action is contrary to the strong policies requiring preservation and raising of error.”). Thus, even if there were plain error, we would exercise our discretion not to address it.
Affirmed.
Haselton, Schuman, and Ortega, JJ., join in this lead opinion.