State v. Burgess, 240 Or. App. 641

Defendant Burgess was convicted of first-degree assault and appeals the denial of his motion for judgment of acquittal.
The State attempted to prove Burgess as an accessory (accomplice) to Cufaude’s assault using Cufaude’s steel-toed boots as the dangerous weapon.
Cufaude assaulted the victim with boots; Burgess then assaulted the victim minutes later, with no evidence of prior collusion.
The jury was instructed on accomplice liability; the State did not argue Burgess could be independently liable as a principal.
The trial court denied the MJOA, and Burgess was sentenced under Ballot Measure 11.
On review, the court found the evidence legally insufficient to support accomplice liability and declined to affirm on an unlit principal theory; remand for lesser-included offenses and other proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence supports accomplice liability for first-degree assault	Cufaude used a dangerous weapon; Burgess aided and abetted by continuing assault.	No concerted action; Burgess’s actions occurred after Cufaude’s assault; no aiding and abetting.	Accomplice liability insufficient; reversal required.
Whether the conviction can be affirmed on a principal (direct) liability theory not litigated to the jury	Strewn theory: muddy ground as dangerous weapon; injuries support principal liability.	No notice or litigation of principal theory; fundamentally unfair to affirm on unlit theory.	Fundamental fairness requires reversal; cannot affirm on unlit theory.
Appropriate disposition given missubmission of first-degree assault	Remand unnecessary; affirm on lesser-included offenses if possible.	Remand for lesser-included offenses preferable; avoids due process issues.	Remand for consideration of lesser-included offenses (second- and fourth-degree assault).

State v. Barrie, 227 Or.App. 378 (2009) (due process concerns when lesser-included offense considered without notice)
State v. Holloway, 102 Or.App. 553 (1990) (mere presence insufficient for accomplice liability; requires some concert)
State v. Anlauf, 164 Or.App. 672 (2000) (linkage required between defendant and weapon; mere involvement insufficient)
State v. Moriarty, 87 Or.App. 465 (1987) (actions after crime may show aiding and abetting but cannot alone constitute)
State v. Goddard, 178 Or.App. 538 (2002) (alternative basis upheld only if necessarily found by jury)