471 P.3d 119
Or. Ct. App.2020Background
- Torres was convicted of first-degree robbery and unauthorized use of a vehicle on theory she aided and abetted her husband in robbing a man (M) whom she had invited to her apartment.
- Torres had told M her husband was out of state; after M arrived, husband entered, threatened and assaulted M, took M’s belongings and car, and left. The prosecution argued Torres lured M and signaled her husband; no direct evidence linked her to use of the car after the robbery.
- At trial the court instructed the jury on aid-and-abet liability using the uniform instruction; defense counsel did not request special instructions stating that mere presence or mere acquiescence, standing alone, do not establish aiding and abetting.
- Torres raised ineffective-assistance claims in post-conviction alleging counsel was constitutionally deficient for not requesting those two special instructions and that she was prejudiced by their absence.
- The post-conviction court found the special instructions would have been correct if requested but unnecessary under the evidence and that counsel’s tactical choice to rely on uniform instructions and argument was reasonable; the court denied relief.
- On appeal the court affirmed, holding Torres failed to show counsel’s performance was constitutionally deficient in not requesting the special instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to request a "mere presence" instruction | Moriarty-based instruction correctly states law and should have been requested; its omission lowered the bar for conviction | Instruction unnecessary; uniform aid-and-abet instruction and counsel's argument adequately covered the point; tactical decision reasonable | Counsel not deficient; reasonable not to request it given precedent (Nefstad/Jackson/Williams) |
| Failure to request an "acquiescence" instruction | Acquiescence instruction (Stark-based) correctly states law and would have supported defense | Same as above: covered by uniform instruction/argument; acquiescence and presence are closely related; counsel’s choice reasonable | Counsel not deficient for same reasons as mere-presence claim; no relief granted |
Key Cases Cited
- State v. Moriarty, 87 Or App 465 (Or. 1987) (source for "mere presence" instruction principle)
- State v. Stark, 7 Or App 145 (Or. 1971) (acquiescence principle)
- State v. Nefstad, 309 Or 523 (Or. 1990) (trial court may refuse converse/negative instructions; such issues often left to argument)
- State v. Jackson, 64 Or App 667 (Or. 1983) (requested mere-presence instruction properly rejected where other evidence supported submission to jury)
- State v. Williams, 313 Or 19 (Or. 1992) (upholding refusal to give mere-presence instruction where aid-and-abet elements were properly instructed)
- Ossanna v. Nike, Inc., 365 Or 196 (Or. 2019) (party entitled to instruction only if it correctly states law, is supported by pleadings and evidence; but no need to give converse/negative instructions)