Argued and submitted June 13, 2012; resubmitted January 7, 2013.
On review from the Court of Appeals CC 080431569; CA A140377. [*]
Rankin Johnson, Portland, argued the cause and filed the brief for respondent on review.
Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause for respondent on review. Greg Rios, Assistant Attorney General, filed the brief. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
A jury found defendant guilty of third-degree assault. See ORS 163.165(1)(e). The trial court's instructions permitted the jury to find defendant liable for that crime either as the principal or as an accomplice. Throughout this litigation, defendant has argued that, as a matter of statutory and constitutional law, the jurors had to agree on which role he played in the assault: Did he hit the victim or did he aid and abet the person who did? The trial court declined to give defendant's requested instruction on that issue, and the Court of Appeals affirmed. State v. Phillips, 242 Or.App. 253, 255 P.3d 587 (2011). We allowed defendant's petition for review and now affirm the Court of Appeals decision and the trial court's judgment. We hold that, even though the trial court should have given defendant's requested instruction, the error was harmless.
This case arose out of a dispute over a cell phone. The victim sold defendant a cell phone with prepaid minutes. Defendant made a down payment when he got the cell phone and agreed to pay the balance in the future. When defendant failed to pay the balance owed, the victim contacted the cell phone provider and caused the remaining prepaid minutes to be cancelled, angering defendant.
A few days after the victim cancelled the remaining prepaid minutes, the victim and his older brother went over to a neighbor's house to smoke a bowl of methamphetamine. When they got there, they discovered that defendant and two of his friends were there, and a fight broke out among the victim, the victim's brother, defendant, and defendant's two friends. There is no dispute that, during the fight, defendant hit the victim's brother. There is also no dispute that, during the fight, either defendant or defendant's friend hit the victim in the face and broke the bone around the victim's eye. What is in dispute is the role that defendant played in causing the victim's injury. The evidence at trial permitted the jury to draw three different conclusions regarding that issue.
First, the jury could have found that defendant initially hit the victim's brother, disabling him. After that, defendant's two friends held the victim's arms while defendant hit the victim in the face, breaking the bone around his eye.
Second, the jury could have found that one of defendant's friends hit the victim in the face, breaking the bone around his eye, and that defendant hit the victim's brother to prevent him from coming to the victim's aid. Under that version of the facts, the jury could have found that defendant did not hit the victim but that he aided and abetted the person who did.
Third, the jury could have found that defendant hit the brother but that, when he did so, defendant was unaware that one of his friends either was hitting or was going to hit the victim. Under that version of the facts, the jury could have found that defendant neither hit the victim nor aided and abetted the person who did.
In instructing the jury, the trial court explained the elements of third-degree assault under ORS 163.165(1)(e). It also told the jury the circumstances in which one person will be liable for another person's criminal conduct for aiding and abetting that conduct. See ORS 161.155 (defining liability for aiding and abetting another person's commission of a crime). The trial court did not, however, give defendant's requested instruction, which would have told the jury that 10 jurors had to agree whether defendant was liable for third-degree assault either because he hit the victim or because he aided and abetted the person who did. The jury returned a verdict finding defendant liable for third-degree assault for the injuries that the victim sustained.
On appeal, defendant assigned error to the trial court's refusal to give his requested instruction, and the Court of Appeals affirmed. The Court of Appeals reasoned that defendant "caused" the victim's injury within the meaning of the third-degree assault statute if defendant either inflicted the injury himself or aided another in doing so. 242 Or.App. at 263. The court explained that, because direct infliction of injury and aiding another in inflicting that injury were alternative factual ways of proving a single element of third-degree assault (causation), 10 jurors need not agree which set of facts proved that element. Id. We allowed defendant's petition for review to consider whether, either as a matter of statute or constitutional law, at least 10 jurors must agree whether defendant was liable as a principal or as an accomplice.
Before turning to that issue, it is helpful to discuss briefly the crime of third-degree assault. ORS 163.165(1)(e) provides that a person commits that crime "if the person * * * [w]hile being aided by another person actually present, intentionally or knowingly causes physical injury to another." Under that statute, three persons are necessary for the crime of third-degree assault: a victim who suffers physical injury, a person who "causes" that injury, and a third person actually present who aids the infliction of that injury. State v. Pine, 336 Or 194, 82 P.3d 130 (2003). A person can "cause" physical injury within the meaning of ORS 163.165(1)(e) in one of two ways. Id. at 207. A person can either "inflic[t] physical injury directly himself or herself" or, alternatively, "engag[e] ...