State v. Wright, 383 P.3d 385

Defendant was convicted of 1 count aggravated identity theft, 10 counts identity theft, and 1 count first-degree theft based on unauthorized use of Pizza Caboose customers’ account information to load Shari’s gift cards.
Evidence showed Sargent (a restaurant supervisor) supplied customer account info in exchange for drugs; information went to either defendant or his then-girlfriend Ingals.
Ingals testified she obtained and used the account information and directed defendant to perform limited tasks; she denied that defendant knew funds were stolen.
Prosecutor argued the jury could convict defendant either as a principal or as an aider-and-abettor; the court instructed on both theories but did not give a concurrence instruction requiring jurors to agree on one theory.
Defendant did not preserve the concurrence-instruction objection at trial and sought plain-error review on appeal.
The Court of Appeals found the failure to give a concurrence instruction was plain legal error under State v. Phillips and exercised its discretion to correct the error, reversing and remanding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to give a concurrence instruction when guilt could be found either as principal or aider-and-abettor is reviewable as plain error	State: Phillips does not always require a sua sponte concurrence instruction; error not necessarily plain or reversible	Devore: Trial court erred by not instructing jury that at least 10 jurors must agree on one theory (principal or aider-and-abettor); request not preserved but reviewable as plain error	Court: Error is one of law and apparent under Phillips; plain error review is available and appropriate
Whether omission of a concurrence instruction was harmless here	State: Error harmless because evidence showed defendant acted as a principal	Devore: Omission undermined required jury unanimity; reversal required	Court: Harmlessness not shown; because reasonable jurors could find liability under either theory, error was not harmless
Whether appellate court should exercise discretion to correct unpreserved plain error	State: Defendant may have strategically declined instruction; court should not correct	Devore: Trial occurred before Phillips; no strategic reason to forgo request	Court: Exercised discretion to correct error given gravity of felonies and lack of strategic waiver

State v. Phillips, 317 P.3d 236 (Or. 2013) (trial courts must instruct that a jury must have at least 10 jurors agree on either principal or aider-and-abettor when both theories are advanced)
State v. Gaines, 365 P.3d 1103 (Or. App. 2015) (apples Phillips to plain-error review; concurrence instruction error is reviewable)
State v. Boots, 780 P.2d 725 (Or. 1989) (unanimity requirement for juror agreement on elements)
State v. Pipkin, 316 P.3d 255 (Or. 2013) (reaffirming unanimity principles for elements of offenses)
State v. Thompson, 365 P.3d 1133 (Or. App. 2015) (standard for viewing evidence after conviction)