and submitted November 18, 2019
Washington County Circuit Court 17CR81040, James Lee Fun,
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.
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.
Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
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
Or.App. 431]JAMES, J.
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.
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.
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.
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.
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.
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.
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 ...