State v. Phillips
317 P.3d 236
Or.2013Background
- Trial for third-degree assault under ORS 163.165(1)(e) where the jury was instructed on liability as principal or accomplice; defendant requested a 10-person-concurrence instruction on whether he hit the victim or aided and abetted the other who did; the trial court denied, jury convicted, and Court of Appeals affirmed; facts involved a fight where defendant hit the victim’s brother and either defendant or his friend hit the victim; evidence allowed three plausible theories of how the injury was caused; Pine and related cases define “cause” as either direct infliction or acts so intertwined with the infliction; Oregon’s jury unanimity framework under Article I, section 11 and the 1934 amendment is relevant; the Court of Appeals held that concurrent theories could be treated as alternative means of proving a single element; Phillips allows review of whether 10 jurors must agree on the theory, but finds the error harmless under the facts; the Court ultimately affirms the Court of Appeals and circuit court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 10 jurors must concur on each theory of causation | Phillips argued that separate theories require 10-person concurrence | Phillips argued against need for separate concurrence | Yes, usually 10 jurors must agree on each theory |
| Whether the trial court’s noninstruction on concurrence was harmless | State contends error affected verdict | Defendant contends possible prejudice | Harmless under the facts given that theories were subsumed |
| Whether ORS 163.165(1)(e) violates Article I, §11 or Due Process | Constitutional challenge to alternative means of proving causation | Legislature can define causation with alternative intertwined acts | No constitutional violation; statute permissible |
Key Cases Cited
- State v. Pine, 336 Or 194 (2003) (definition of cause; extensive intertwining)
- State v. Nefstad, 309 Or 523 (1990) (intertwined conduct as cause; limits of ‘cause’)
- State v. Pipkin, 354 Or 513 (2013) (jury concurrence for legislatively defined elements; affects multi- theory theories)
- State v. Boots, 308 Or 371 (1989) (ten jurors must concur on elements; aiding/abetting context)
- State v. Blake, 348 Or 95 (2010) (accomplice liability not an independent offense; separate elements)
- State v. Lopez-Minjarez, 350 Or 576 (2011) (aiding and abetting elements; liability theory)
- State v. Moran, 15 Or 262 (1887) (common-law principals; indistinguishability of degrees)