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State v. Lomax

Court of Appeals of Oregon

October 18, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
TRACEY CHRISTOPHER LOMAX, Defendant-Appellant.

          Argued and Submitted February 8, 2016

         Multnomah County Circuit Court 120532226; Cheryl A. Albrecht, Judge.

          Bear Wilner-Nugent argued the cause and fled the briefs for appellant.

          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 General.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         Defendant 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 instruction.

         [288 Or.App. 254] Conviction for murder reversed and remanded; otherwise affirmed.

          ARMSTRONG, P.J.

         Defendant appeals a judgment of conviction, entered after a combined trial with codefendants Allen and Riley, for one count of murder, ORS 163.115.[1] 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.[2]

         Defendant, 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. 833 (2001).

         On May 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.

         [288 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.

         Henry 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 arrived.

         Fair 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, ...


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