Argued and Submitted September 6, 2013
Washington County Circuit Court. C096022CV. Steven L. Price, Senior Judge.
Inge D. Wells, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Lawrence Taylor argued the cause for respondent. On the brief were Erin Galli and Chilton & Galli, LLC.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Egan, Judge.
[268 Or.App. 375] ORTEGA, P. J.
Defendant appeals a judgment vacating petitioner's convictions and granting her a new trial. Defendant assigns error to the post-conviction court's determination that petitioner's criminal trial counsel provided her with constitutionally deficient legal representation by failing to object to a Uniform Criminal Jury Instruction that instructed the jury that a person who aids or abets another in committing a crime is responsible for any other crimes that were a natural and probable consequence of the intended crime. Before petitioner's post-conviction trial but after her criminal trial, the Oregon Supreme Court held in State v. Lopez-Minjarez, 350 Or. 576,
260 P.3d 439 (2011),
that the " natural and probable consequences" jury instruction was an incorrect statement of the law. We conclude that the court did not err in granting post-conviction relief based on the failure of petitioner's trial counsel to object to the giving of that instruction. Accordingly, we affirm.
At petitioner's criminal trial, the state adduced the following evidence. Petitioner and the victim had known each other for about two months. During that time, the victim sold petitioner drugs and they used drugs together. The victim had a romantic interest in petitioner, which he believed she leveraged to her advantage to obtain " drugs and money." One night, petitioner called the victim to invite him to " a party," which the victim understood only he and petitioner would be attending. In anticipation of the " party," and desiring a romantic encounter with petitioner, the victim obtained a motel room. However, petitioner arrived at the motel room with her boyfriend, Pray, and another woman. Petitioner informed the victim that she " didn't have any money" and asked him if he had any drugs. The victim did not but agreed that he would go and buy some methamphetamine. Before leaving, the victim checked his wallet to see how much money he had and as he did so, noticed petitioner looking at the cash in his wallet, about $445. The victim managed to purchase $50 worth of methamphetamine and returned to the motel room, where the group proceeded to smoke some of it. Petitioner told the victim that she could [268 Or.App. 376] sell the remainder of the methamphetamine for a profit and bring back the proceeds to him. Petitioner left the motel room with her friends.
Later, at about 3:00 a.m., petitioner returned to the motel room with Pray and two unidentified women. Petitioner asked the victim if he wanted to " continue partying," and the victim invited her inside. Petitioner asked if her friends could also come inside, and the victim said that would be " fine." Petitioner sat down on the bed and began to rub the victim's feet. One of the unidentified women threw a hammer-like object in Pray's direction, and he picked it up off the floor and went to use the bathroom. Pray came out of the bathroom and then hit the victim in the nose and eye with the object, knocking him unconscious. When the victim regained consciousness, he saw that his phone and his wallet, which had contained about $395, were missing. He discovered that his van was missing as well.
Petitioner and Pray were arrested the following day. The state charged both with two counts of first-degree robbery, ORS 164.415 (robbery involving the use of a dangerous weapon and robbery involving infliction of serious injury), two counts of second-degree robbery, ORS 164.405 (robbery based on representation that a person is armed with a dangerous weapon and robbery aided by another person present), and one count of first-degree assault, ORS 163.185 (causing serious injury with a dangerous weapon). Petitioner appeared with Pray as codefendants in a trial that occurred in 2006. The state prosecuted its case on a theory that Pray was directly liable for the charged offenses--that he personally inflicted the blow to the victim's face--and that petitioner was liable on an aid-and-abet theory because she set up the victim for the robbery and assault.
In its closing argument, the state explained to the jury its theory of the case:
" What really happened is * * * this offer [petitioner] made to, quote, unquote, 'party' with [the victim] was nothing more than a ploy or trick to get him alone and get--put him in a vulnerable position.
" Now when she first made that call, she may or may not have had this Robbery and Assault planned in her mind. [268 Or.App. 377] * * * I don't have to prove that she--beyond a reasonable doubt that that was the moment that she cooked up this plan. It very well could have been that this was the plan set up from the beginning. It also could have been, and I admit, that [petitioner] simply wanted a meth fix. * * *
" * * * * *
" [The victim]'s all alone in the [motel room], it's 3 o'clock in the morning, he's basically a sitting duck. Later on in the
evening they're out, they're cooking this up, they need more money * * * because they're using meth continuously. * * * And they plan this. They cook this scheme up, they're going to go over there and relieve [the victim] of his money.
" It wasn't enough, though, to just go in and * * * have [petitioner] say, you know, 'Hey, [victim], how are you doing,' and--and soften him up and then grab his wallet and run out the door. It would've been, you know, potentially doable. Instead, it turned violent. * * *"
(Emphases added.) Petitioner's trial counsel and the state requested the following jury instruction:
" A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime." 
At the time, that instruction was Uniform Criminal Jury Instruction 1052. Petitioner's trial counsel did not object to the instruction. The jury found ...