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State v. Burris

Court of Appeals of Oregon

December 18, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TYLER JAMES BURRIS, Defendant-Appellant.

          Argued and submitted November 18, 2019

          Washington County Circuit Court 17CR81040, James Lee Fun, Jr., Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. On the opening brief were Erica Herb, Deputy Public Defender, and Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for one count of delivery and possession of a substantial quantity of heroin and one count of felon in possession of a restricted weapon, raising two assignments of error. The Court of Appeals addresses only defendant's second assignment of error- that the trial court erred in instructing the jury on both principal liability and aiding and abetting liability without also instructing the jury that it must concur as to which theory formed the basis of its verdict. The state responds that, although it does not dispute that a jury concurrence instruction was required, any error was harmless given the closing arguments advanced by the prosecutor. Held: The trial court's failure to properly instruct the jury that it must concur on the factual and legal basis for its verdict was error. Moreover, the closing arguments advanced by the prosecutor in this case were insufficient in rendering the trial court's error harmless.

         [301 Or.App. 431]JAMES, J.

         Defendant appeals from a judgment of conviction for one count of delivery and possession of a substantial quantity of heroin and one count of felon in possession of a restricted weapon, raising two assignments of error. Because we agree with defendant on his second assignment-that the trial court erred in instructing the jury on both principal liability and aiding and abetting liability, without also instructing the jury that it must concur as to which theory formed the basis of its verdict-we need not address defendant's first assignment of error. Accordingly, we reverse and remand.

         Defendant was a passenger in a minivan driven by another individual-Armour-that was stopped for traffic infractions. For reasons unrelated to our disposition on appeal, the officers arrested defendant and searched the minivan. During that search, the officers found both a dagger and a pink and black "makeup bag." Inside that bag, they found one bag that contained cocaine and one bag that contained heroin. The officers also found a scale and additional bags and rubber bands in the center console area of the minivan.

         At trial, Armour testified that all of the drugs in the minivan were hers and that she intended to sell them. She had gone to Salem earlier in the day to collect the winnings from playing video poker in The Dalles. Before Armour left The Dalles, she ran into defendant and asked him to ride with her so that she would not have to drive alone. After collecting the money in Salem, Armour drove with defendant to Hillsboro to meet her dealer at a restaurant and purchase methamphetamine.

         At the close of the trial, the trial court instructed the jury on the elements of defendant's liability as the principal for each crime charged. The trial court also instructed the jury that people can possess property individually or jointly. Then, the court instructed the jury on the elements of defendant's liability as an aider and abettor. The parties do not dispute that those instructions told the jury that it could find that defendant possessed the drugs individually with the intent to sell them, or that defendant possessed [301 Or.App. 432] the drugs jointly with Armour and intended to aid her in selling them. Further, the parties do not dispute that the instructions informed the jury that it could find defendant possessed the weapon directly, or that defendant aided Armour's possession of the weapon. Defense counsel did not request, and the court did not give, a jury concurrence instruction.

         On appeal, defendant argues that the trial court erred in failing to give a concurrence instruction and asks us to consider the error under our "plain error" doctrine, as articulated in Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991). Under the first prong of Ailes, unpreserved error is eligible for our correction if (1) the error is one of law; (2) the error is apparent, meaning that the legal point is obvious and not reasonably in dispute; and (3) the error appears on the record. Id. If that first Ailes prong is met, then this court has discretion-under the second prong of Ailes-to correct the error, or not. Id. at 382.

         The state acknowledges that a concurrence instruction was required under our case law in light of the court instructing the jury on both principal and aid-and-abet liability. However, the state argues that given the closing arguments advanced by the prosecutor in this case, any error did not likely influence the jury's decision making and is therefore harmless. Accordingly, the state asks us to decline to exercise our discretion to reach the error.

         This court reviews a trial court's jury instructions for errors of law. State v. Gray,261 Or.App. 121, 129, 322 P.3d 1094 (2014). In determining whether evidence supports giving an instruction, this court reviews the evidence in the light most favorable to the party requesting the instruction. State v. Beck,269 Or.App. 304, 309, 344 P.3d 140, rev den,357 Or. 164 (2015). For an error in jury instructions to constitute reversible error, it must have ...


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