and Submitted February 8, 2016
County Circuit Court 120532226; Cheryl A. Albrecht, Judge.
Wilner-Nugent argued the cause and fled the briefs for
Peenesh H. Shah, Assistant Attorney General, argued the cause
for respondent. With him on the briefs were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
appeals a judgment of conviction for one count of murder, ORS
163.115. He assigns error to the trial court's denial of
his request for a jury concurrence instruction with regard to
principal or accomplice liability. Held: The trial
court erred in denying the request for a jury concurrence
Or.App. 254] Conviction for murder reversed and remanded;
appeals a judgment of conviction, entered after a combined
trial with codefendants Allen and Riley, for one count of
murder, ORS 163.115. See State v. Allen, 288 Or.App.
244, __P.3d__(2017); State v. Riley, 288 Or.App.
264, __P.3d__(2017). Defendant assigns error to the trial
court's denial of his request for a jury concurrence
instruction with regard to principal or accomplice liability.
For the reasons explained below, we conclude that the trial
court erred in not giving the proposed concurrence
instruction, in violation of Article I, section 11, of the
Oregon Constitution. Accordingly, we reverse and remand
defendant's conviction for murder.
Allen, and Riley, were each convicted of one count of murder
for killing Henry, who was dealing marijuana from his home at
a price considerably lower than that offered by
gang-affiliated dealers and the rest of the illegal marijuana
market; the state's theory at trial was that the killing
was gang related. Because the jury found defendant guilty, we
view the evidence presented at trial in the light most
favorable to the state. State v. Lotches, 331 Or.
455, 457, 17 P.3d 1045 (2000), cert den, 534 U.S.
9, 2012, Riley and his friend, Fair, were running errands to
buy marijuana and snacks. They first went to a nearby
convenience store, where they encountered defendant and
Allen, who got into Fair's Buick Regal. Fair called her
marijuana dealer but was unable get in touch with him, so she
asked if anyone knew where to get marijuana. Allen made a
phone call and then directed Fair to Henry's apartment;
Fair stayed in the car while the men got out and walked
toward the apartment.
Or.App. 255] Meanwhile, Henry was home with his domestic
partner, Nettles, and their children. At around 11:30 p.m.,
Nettles heard somebody knocking on the front door, so she
went to the door and looked through the peephole. She told
Henry that someone was at the door, which seemed to confuse
him. Henry opened the dining room window and began talking
with the man at the door. The man said that his name was
Jordon and that either "B" or "V" had
sent him to get some "fire"; Henry and Nettles had
friends who went by those initials, and they understood fire
to mean marijuana.
grabbed the keys to his truck, where he kept the marijuana
that he sold, and went outside. Seconds later, Nettles heard
someone shout Henry's name and the sound of gunfire. She
ran to her children to make sure they were safe and then
returned to the front door. Nettles heard Henry begging her
to open the door, and, when she did, Henry fell inside the
home, gravely injured. Nettles called 9-1-1 and attempted to
perform CPR, but Henry died before emergency personnel
was sitting in her car when she heard the gunfire. She then
saw defendant, Riley, and Allen running toward her, and,
after they got inside the car, ...