251 P.3d 224
Or. Ct. App.2011Background
- Defendant Andrew Tucker was convicted of robbery in the second degree, burglary in the first degree, burglary in the second degree, and aggravated theft in the first degree, with four conspiracy counts.
- Evidence showed Tucker’s co-conspirators planned and committed burglaries targeting Murakami and Sullivan houses; Vitales and Stone testified about Tucker’s involvement and planning.
- The trial court gave a “natural and probable consequences” accomplice-liability instruction, which Tucker challenged.
- The jury found Counts 1, 2, and 4 (Murakami-related) and Count 3 (Sullivan burglary) with varying theories of liability.
- The court later reversed its initial judgment on Count 1, Count 2, and Count 4, affirmed Count 3, and denied Tucker’s motion to contact jurors.
- Post-trial, Tucker challenged the jury-contact ruling, which the court denied; the appellate court held multiple errors warranted reversal on some counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the natural and probable consequences instruction error, and did it affect the verdict? | State argued the instruction correctly stated law. | Tucker argued the instruction misstated law and misled jurors. | Yes, error probable, requiring reversal on Counts 1, 2, and 4. |
| Can a defendant not physically present at a crime be convicted of second-degree robbery? | State asserted theory supported by accomplice liability. | Tucker claimed no actual presence precluded second-degree robbery conviction. | Rejected; held admissible under accomplice theory. |
| Did the trial court err in reinstating the second-degree robbery acquittal after initially granting it? | State contended reinstatement proper under ORS 136.445. | Tucker argued double jeopardy and prejudicial effect. | No error; oral ruling could be rescinded when no reliance occurred. |
| Did the trial court abuse its discretion in denying Tucker’s motion to contact jurors? | State argued no basis to disturb verdicts. | Tucker claimed juror misconduct warranted inquiry. | No abuse; juror misconduct not shown to undermine fairness. |
Key Cases Cited
- Lopez-Minjarez v. State, 236 Or.App. 270 (Or. App. 2010) (accomplice liability and natural and probable consequences misstate law; reversible error)
- State v. Sperry, 149 Or.App. 690 (Or. App. 1997) (oral judgment of acquittal may be rescinded when no detrimental reliance)