State v. Gaines
275 Or. App. 736
Or. Ct. App.2015Background
- Two masked men enter a Medford store; the taller is defendant and the shorter is Ellis.
- Defendant directs cashier to open the safe; after a timer expires, they take about $800 total.
- Defendant remains outside to guard the door; Ellis retrieves money with a metal pipe later observed.
- Indictment: second-degree robbery under ORS 164.405(1)(b) and second-degree theft; jury could find liability as principal or as aider-and-abetter.
- Trial court instructed on accomplice liability with UCrJI 1051 and 1052; defense proposed a narrow instruction tying liability to defendant’s own threats.
- Court later held defendant’s first assignment unpreserved but overlooked plain-error issue on jury concurrence under Phillips, reversing and remanding on Count 1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of accomplice-liability challenge | State | Rennells-based theory invalid for accomplice liability | First assignment not preserved |
| Plain-error review of jury-concurrence instruction | Phillips requires 10-juror concurrence where competing theories exist | No plain error given preservation issue and evidence | Plain error; reverse and remand for Count 1 |
| Effect of jury instructions on liability theory | State theory allowed principal or aider-and-abettor verdicts | Instruction should require concurrence on each theory | Instruction error; remand for re-trial with proper concurrence rule |
Key Cases Cited
- State v. Rennells, 213 Or App 423 (2007) (addressed direct liability, not accomplice liability; limited applicability)
- State v. Merida-Medina, 221 Or App 614 (2008) (analyzes whether conduct is a necessary part of the crime)
- State v. Phillips, 354 Or 598 (2013) (concurrence required for competing theories; informs plain-error analysis)
- State v. Lotches, 331 Or 455 (2000) (plain-error when concurrence on material elements is required)
- State v. Gray, 261 Or App 121 (2014) (instructional error analyzed for plain-error doctrine; face-of-record review)
- State v. Blake, 348 Or 95 (2010) (elements for aiding and abetting may differ from principal liability)
- State v. Fults, 343 Or 515 (2007) (consideration of defendant's strategic choices in plain-error review)
- State v. Gornick, 340 Or 160 (2006) (strategic decision not to object in context of instructional error)