State v. Burris, 456 P.3d 684

Defendant (Burris) was a passenger in a minivan stopped by police; officers found a dagger, a makeup bag containing heroin and cocaine, a scale, and packaging materials in the vehicle.
The driver, Armour, testified she owned the drugs and intended to sell them; she had picked up cash earlier and driven to meet a dealer that day.
Trial court instructed the jury on both liability as a principal and liability as an aider and abettor for the drug and weapon charges, and on joint/individual possession, but did not give a jury concurrence instruction.
Defense did not request a concurrence instruction; on appeal Burris argued the omission was reversible plain error under Ailes.
The State conceded a concurrence instruction was required but argued the prosecutor’s closing made any error harmless; the Court of Appeals disagreed.
The court held the failure to instruct on jury concurrence was legal error, the prosecutor’s closing argument was insufficient to cure it, and the conviction was reversed and remanded.

Issue	State's Argument	Burris' Argument	Held
Whether a jury concurrence instruction was required when the court instructed on both principal liability and aiding-and-abetting liability	State effectively conceded that a concurrence instruction was required under Oregon case law	Failure to give the concurrence instruction was legal error	Yes — the court must instruct on concurrence when both theories are given
Whether the omission was harmless and whether appellate plain-error review should be exercised	The prosecutor’s closing argument made clear which theory supported conviction, so error was harmless; court should not overturn	Closing argument is insufficient to replace a required court instruction; appellant sought reversal under plain-error doctrine	The closing argument was insufficient to make the error harmless; the court exercised its discretion to correct plain error and reversed and remanded

Ailes v. Portland Meadows, 312 Or. 376 (plain-error doctrine for unpreserved errors)
State v. Boots, 308 Or. 371 (jury must be instructed on necessity of agreement on material elements)
State v. Lotches, 331 Or. 455 (concurrence requirement explained)
State v. Phillips, 354 Or. 598 (concurrence instruction required when prosecution proceeds under both theories)
State v. Payne, 298 Or. App. 411 (court must communicate concurrence requirement — instructions, neutral statement of issues, or verdict interrogatories)
State v. Davis, 336 Or. 19 (Oregon constitutional harmless-error standard)
State v. Wright, 281 Or. App. 399 (exercising discretion to correct failure to give concurrence instruction)
State v. Bowen, 280 Or. App. 514 (same)
State v. Gaines, 275 Or. App. 736 (same)
State v. Charboneau, 323 Or. 38 (vouching invades jury credibility role)
State v. Southard, 347 Or. 127 (risk that jury will defer to expert credibility)