State v. Miranda, 417 P.3d 480

Background

Two consolidated appeals: A159583 (drug case) and A159582 (burglary case). Sentenced together; drug case affirmed, burglary case mostly reversed/remanded.
Drug case: defendant convicted of delivery and possession of methamphetamine. State relied on a "Boyd delivery" theory — large possession plus indicia of intent to sell; key witness Kolln testified she previously obtained meth from defendant and helped deliver for him.
Defendant requested ORS 10.095(4) accomplice-distrust instruction for Kolln; trial court denied, concluding Kolln was not an accomplice for the specific Boyd delivery charged.
Burglary case: defendant stayed at a house unlawfully occupied by Tibbetts, who faked rental paperwork and used/possessed IDs; defendant supplied/used meth while children were present. Indictment alleged burglary by entering with intent to commit theft; prosecution argued the intended/committed theft was using utilities (theft of services).
Trial court denied a general Rule 34 motion for judgment of acquittal on burglary, but later granted acquittal on a separate theft count after recognizing the distinction between theft and theft of services. Jury convicted on burglary, identity theft, and two child-endangerment counts.
On appeal, court held the trial court correctly denied the accomplice instruction in the drug case; but in the burglary case reversed the burglary conviction (remanding to enter first-degree trespass), reversed/remanded the identity-theft conviction for failure to give a concurrence instruction, and ordered resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kolln was an "accomplice" requiring ORS 10.095(4) instruction	Trial: evidence did not tie Kolln to the specific Boyd delivery, so instruction unnecessary	Def: Kolln aided other deliveries; indictment breadth means she qualified as accomplice for instruction	Court: Accomplice status requires evidence implicating witness in the particular charged conduct; instruction properly denied
Whether evidence was sufficient to deny judgment of acquittal on burglary (intent to commit theft as pleaded)	State: proof that defendant intended to commit some crime on entry suffices; Frey/Sanders should not bar conviction if intended crime differs	Def: indictment specifically alleged intent to commit theft (not theft of services); no evidence of intent to commit that pleaded offense	Court: Under Frey, state must plead/prove the specific crime intended; evidence supported only theft of services, not theft as pleaded — judgment of acquittal should have been granted; remand to enter trespass conviction
Whether trial court must instruct that at least 10 jurors must agree on principal vs accomplice theory	State: Phillips requires instruction if requested; here none requested so no plain error; for child-endangerment only accomplice theory advanced	Def: Failure to instruct on concurrence was plain error for burglary, identity theft, and child-endangerment counts	Court: No plain error as to burglary (now disposition moot) nor child-endangerment (only accomplice theory argued). But plain error for identity theft — instruction required; conviction reversed and remanded
Remedy for defective burglary conviction when unlawful entry proven but intended crime not proved	State: seek to uphold burglary based on any intended crime; alternatively remand	Def: acquittal on burglary required; at minimum, lesser offense if supported	Court: Remand to enter conviction for lesser included first-degree criminal trespass; reverse identity-theft conviction and remand for resentencing

Key Cases Cited

State v. Villagomez, 362 Or. 390 (describing Boyd delivery theory)
State v. Boyd, 92 Or. App. 51 (Boyd delivery framework)
State v. Hull, 286 Or. 511 (test for accomplice: probable cause witness could be charged with same offense)
State v. Walters, 105 Or. 662 (witness not accomplice where no evidence linking them to the particular charged homicide)
State v. Simson, 308 Or. 102 (purpose of accomplice-distrust instruction: prevent shifting blame)
State v. Phillips, 354 Or. 598 (concurrence instruction required when prosecution advances principal and aider/abettor theories)
State v. Frey, 248 Or. App. 1 (state must plead and prove the specific crime intended to commit on entry for burglary)
State v. Sanders, 280 Or. 685 (precedent concerning burglary intent and pleading)
State v. Cole, 290 Or. App. 553 (remanding to lesser-included offense where unlawful entry proven but intended crime unproved)