April 25, 2013, Argued and Submitted
Washington County Circuit Court C100792CR. Rick Knapp, Judge.
Eric R. Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.
[269 Or.App. 771] DUNCAN, P. J.
In this criminal case, defendant appeals, assigning error to the trial court's jury instruction on accomplice liability. The instruction informed the jury tat a defendant who aids or abets another person in the commission of a crime with the intent to promote or facilitate the crime is criminally liable not only for the crime, but also for any other crimes that were committed as a " natural and probable consequence" of the crime. Defendant argues that, under State v. Lopez-Minjarez, 350 Or. 576, 260 P.3d 439 (2011), the " natural and probable consequences" instruction was erroneous. The state does not dispute that the instruction was erroneous, but argues that defendant did not preserve his challenge to the instruction and that the instruction did not prejudice defendant. For the reasons explained below, we conclude that (1) defendant preserved his challenge to the instruction, (2) the instruction was erroneous, and (3) the instruction prejudiced defendant with respect to two of the five charged crimes (specifically, Counts 1 and 3), but not with respect to the other three charged crimes (specifically, Counts 2, 4, and 5). Therefore, we reverse and remand the judgment on Counts 1 and 3, remand for resentencing, and otherwise affirm.
We begin our discussion with a description of the procedural facts and the evidence and arguments that the parties presented at trial. The state charged defendant with five crimes: attempted murder, ORS 163.115 (Count 1); first-degree robbery, ORS 164.415 (Count 2); second-degree assault, ORS 163.175 (Count 3); second-degree robbery, ORS 164.405 (Count 4); and unlawful use of a weapon (UUW), ORS 166.220 (Count 5). Defendant pleaded not guilty to all of the charges, and the case was tried to a jury.
At trial, the complainant, Barrett, testified that, at approximately 11:30 p.m. on the date of the alleged crimes, he was walking and carrying a cup of coffee when two men [269 Or.App. 772] stopped him and demanded his money and cell phone. One man had a knife and told Barrett that he would " shank [him] if [he] moved or did anything." The other man put his hand in Barrett's pocket and took Barrett's cell phone. Barrett dropped his coffee and pushed both men back. The man who had taken Barrett's cell phone punched Barrett in the face, and the man with the knife stabbed Barrett in the chest. Barrett fled, called 9-1-1, and was taken to the hospital for treatment of the knife wound, which was closed with seven staples.
When interviewed by the police, Barrett reported that the man who had taken his phone and punched him was wearing a blue jacket and a bandana and the man who had stabbed him was wearing a brown jacket.
A detective, Louka, testified that, shortly after the robbery, he asked Barrett's cell phone service provider to track the location of Barrett's phone. Around noon the next day, police officers used information about the phone's location to stop two men: defendant and Reyes-Gutierrez. At the time of the stop, defendant had a knife and Reyes-Gutierrez had Barrett's phone.
Another detective, Hegland, testified that, a few hours after the police officers stopped defendant and Reyes-Gutierrez, he showed Barrett eight photographs, including one of defendant. Barrett did not identify defendant as either one of the robbers.
At trial, Barrett identified defendant as the man who had stabbed him. But, when shown a photograph that police found on defendant's phone that had been taken hours before the robbery, in which defendant was wearing a plaid jacket and a bandana, Barrett testified that ...