State v. Thompson, 365 P.3d 1133

Defendant and Dawson encountered park caretaker Borella; after being told to leave, an altercation occurred in which Borella was knocked down and beaten and suffered scratches and bruises.
Dawson pleaded guilty to third-degree assault; at trial Dawson testified that defendant suggested hitting and running and then hit Borella; defendant denied striking Borella and said he pushed Borella’s hands off his legs.
State prosecuted defendant for third-degree assault under ORS 163.165(1)(e) (causing physical injury while aided by another actually present).
At trial the state advanced two alternative factual theories to prove the causation element: (1) defendant directly caused injury while aided by another, or (2) defendant’s conduct was so extensively intertwined with Dawson’s that it produced the injury.
Jury was instructed using the statutory language including both alternative means of proving causation; defendant did not request a jury-concurrence instruction or an aiding-and-abetting instruction.
Jury convicted defendant of third-degree assault; on appeal he argued the court plainly erred by failing to instruct that jurors must concur on which factual theory supported guilt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by not instructing jury that jurors must concur on the factual means (direct causation vs. extensively intertwined conduct) used to prove the causation element of third-degree assault	State: No plain error; concurrence instruction is required only if requested; alternatively, existing precedent forecloses defendant’s claim	Defendant: Court should review for plain error because jury could convict under different factual theories without juror concurrence on which one	Court: No error — the two factual methods are alternative means to prove a single legislatively defined element under Phillips, so a concurrence instruction was not required
Whether plain-error review is available when defendant did not request a concurrence instruction	State: Plain-error review unavailable if defendant failed to request appropriate instruction	Defendant: Plain-error review is available; Phillips does not preclude it	Court: Declined to apply plain-error review because, under current law (Phillips), there was no error to correct

State v. Phillips, 317 P.3d 236 (Or. 2013) (holding two alternative means to prove causation for ORS 163.165(1)(e) are alternative factual means of a single element and do not require juror concurrence)
State v. Gaines, 365 P.3d 1103 (Or. Ct. App. 2015) (discussion of availability of plain-error review when concurrence instruction not requested)
State v. King, 852 P.2d 190 (Or. 1993) (aiding-and-abetting and principal liability principles)
State v. Pine, 82 P.3d 130 (Or. 2003) (concurrence instruction jurisprudence)
State v. Brown, 800 P.2d 259 (Or. 1990) (plain-error review standards)
State v. Lotches, 17 P.3d 1045 (Or. 2000) (reviewing evidence in light most favorable to the state following conviction)