In this criminal appeal, defendant appeals a judgment of conviction for second-degree robbery, ORS 164.405(l)(b), raising five assignments of error.
Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state. State v. Lotches,
A grand jury indicted defendant for second-degree robbery under ORS 164.405 (1) (b) (a Class B felony) and second-degree theft under ORS 164.045 (a Class A misdemeanor). ORS 164.405(1)(b) provides, “A person commits the crime of robbery in the second degree if the person [commits third-degree robbery] and the person: * * * [i] s aided by another person actually present.” As pertinent here, third-degree robbery is committed when “in the course of committing or attempting to commit theft * * * the person uses or threatens the immediate use of physical force upon another person with the intent of’ preventing or overcoming resistance to the taking of the property or compelling the property owner to deliver the property. ORS 164.395(1).
The case proceeded to trial. The state proceeded on the theory that the evidence established that defendant was the taller of the two masked men, and that defendant and his accomplice, by their words and conduct, implicitly threatened the immediate use of physical force on the store clerk during the commission of a theft. In particular, the state pointed to evidence that the men concealed their faces and used authoritative demands when asking the clerk to empty the safe and cash register, and that Ellis had a piece of metal pipe concealed in his sleeve. Defendant’s theory was that the state had failed to prove that he was one of the masked men and, alternatively, that the state had failed to prove that anything in the conduct of defendant or Ellis amounted to a threat of the immediate use of physical force upon another person.
At the close of evidence, the court and parties discussed the proposed jury instructions. The state requested, and defendant did not object to, a jury instruction on second-degree theft and an instruction on second-degree robbery. The state also requested Uniform Criminal Jury Instruction (UCrJI) 1051 (Criminal Liability for Conduct of Another Person):
“A person who is involved in committing a crime may be charged and convicted of that crime if, with the intent to promote or facilitate commission of the crime, that person aids and abets someone in committing the crime. Under these circumstances, it is not necessary for that person to be personally present at the time and place of the commission of the crime [;]”
and UCrJI 1052 (Aid or Abet):
“A person aids or abets another person in the commission of a crime if the person:
“(1) With intent to promote or make easier the commission of the crime,
“(2) Encourages, procures, advises, or assists, by act or advice, the planning or commission of the crime.”
Defendant appeals, first assigning error to the trial court’s jury instructions. We begin our analysis with preservation. Although the state does not contend that defendant failed to preserve his first assignment, as a general rule, claims of error that were not raised before the trial court will not be considered on appeal. ORAP 5.45(1); State v. Wyatt,
When the court indicated that it was going to give the accomplice liability instructions, defendant objected on the basis of our decision in State v. Rennells,
“THE COURT: Okay go ahead and make your objection on the record.
“[DEFENDANT]: It’s — it’s attached to my request for the other instruction. Basically the case that we’ve talked about a few times, State v. Rennells, in that case Rennells was convicted of a robbery in the second degree for his role as a getaway driver in a robbery case where he’s about 25 feet away from an actual physical attack. In that case the court looked at the jury instructions that were given and determined that there was a harmful error and overturned Mr. Rennells’ conviction. The trial court in that case gave [a second-degree robbery instruction.] *** And then he further gave the Aided by Another Person Actually Present instruction. The defense asserted that the instruction should have required the jury find that Mr. Rennells used or threatened to use physical force himself as the principal actor and not as an aider and abettor based on the statute, ORS 164.405.
“Robbery in the second degree works sort of like assault in the third degree which requires that an individual have liability for violating the robbery. And in the third degree statute, the court looked back at the commentary to the Criminal Law Revision Commission proposed Oregon Criminal Code Final Draft and Report Sections 148 through 50 from July of 1970 and determined that the Commission intended this to apply only to the robber or the actor unless the individual charged with robbery in the second degree had to have at least principal liability for a violation of the robbery in the third degree statute. * * *
“In our case today, the taller suspect, who is alleged to be [defendant], doesn’t carry any alleged weapons. They have charged him with a violator of the same subsection that Mr. Rennells was charged with. The taller suspect made no explicit threats, did not have his hands in his pockets on the video, was polite, didn’t seem to want to hurt anyone, just wanted to get out of there, never saw it, never touched them or saw any weapons and that his predominate job was to be the lookout. And thus we need to make sure that the jury understands that the taller suspect can only be convicted if he has liability as for aiding and abetting and a threat for being a part of a threat of use of immediate physical force. And that’s why the defense is requesting the instruction that we submitted that’s in the file. Basically if you find that [defendant] was involved in the incident you must find that he threatened the immediate use of physical force upon the alleged victims with the intent of compelling those individuals to deliver money. And so we’re asking for that instruction that was filed and asking that the court not give the 1051, 1052 instructionsthat are requested by the State based on State v. Rennells.”
(Underscoring in original.)
The problem with defendant’s reliance on Rennells is that our analysis in that case was limited to the question of whether the defendant, who drove the getaway car after his accomplice stole a purse by force, could be directly liable for second-degree robbery by violating ORS 164.405(1)(b).
On appeal, perhaps realizing that Rennells is not particularly illuminating on the issue of accomplice liability in the circumstances presented in this case, defendant has shifted his argument to rely on ORS 161.165(2). He contends that, because the presence of at least one “aiding person” is “necessarily incidental” to the crime of second-degree robbery under ORS 164.405(1)(b), ORS 161.165(2) prevents that “aiding person” from being liable as an accomplice. ORS 161.165 provides:
“Except as otherwise provided by the statute defining the crime, a person is not criminally liable for conduct of another constituting a crime if:
“(1) The person is a victim of that crime; or
“(2) The crime is so defined that the conduct of the person is necessarily incidental thereto”
(Emphasis added.)
Essentially, defendant argues that ORS 161.165(2) precludes criminal liability for second-degree robbery as an “aider and abettor” because the conduct of an aider and abettor is “necessarily incidental” to that crime. Put another way, because second-degree robbery under ORS 164.405(1)(b) cannot be committed without “another person'actually present,” the presence of the other person is indispensable to that crime (i.e., “necessarily incidental thereto”), and operation of ORS 161.165(2) precludes liability of the other person under an aid-and-abet theory. Accordingly, defendant argues that the instructions given were erroneous because they would have allowed the jury to find defendant guilty of second-degree robbery on either of two theories: (1) that he personally threatened the immediate use of physical force during the theft while being aided by Ellis (as “another person actually present”) or (2) that he aided and abetted Ellis’s threatened use of force during the theft.
Given the shift in defendant’s position, the preservation issue is a close one. The purpose of preservation is “to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.” State v. Whitmore, 257 Or App 664, 666,
As we recently stated in State v. Blasingame,
“Although there is some degree of liberality to the preservation requirement, the requirement is not meant to be ‘a cursory search for some common thread, however remote, between an issue on appeal and a position that was advanced at trial.’ Instead, when determining if an issue has been adequately preserved for review, the appropriate focus ‘is whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.’”
(Quoting State v. Walker,
That is so because defendant’s appellate challenge is “qualitatively different” from his objection at trial. See id. (holding that the defendant’s appellate contention was qualitatively different from his exception at trial when at trial he had never referred to ORCP 59 E; instead, he had argued that the instruction was ambiguous). We acknowledge that the overarching legal principle presented by defendant in his requested special instruction — that an accomplice liability theory for second-degree robbery was unavailable in this case — is the same as his position on appeal. Nevertheless, the “common thread” between the position he advanced at trial and the issue he presents on appeal is too remote to give the trial court and the state enough information to have understood defendant’s current argument based on ORS 161.165(2) and to fairly respond to it. When examining the effect of ORS 161.165(2) on the availability of accomplice liability, a court must examine the statute defining the underlying crime, in this case ORS 164.405(1), to determine if the person’s conduct is a “necessary part of the crime.” State v. Merida-Medina,
Next, we consider defendant’s third assignment of error, which, if well taken, is dispositive. He argues that the court committed plain error because it failed to give the jury a concurrence instruction requiring 10 of its members to agree on the same theory of his guilt. As noted, at trial, the state presented two competing theories of criminal liability for second-degree robbery: (1) that defendant was liable as a principal, or (2) that defendant was liable under an accomplice liability theory because he aided and abetted his accomplice’s commission of second-degree robbery.
After the trial in this case, the Supreme Court issued State v. Phillips,
“[I]f the state seeks to hold a defendant liable as the principal or as an aider and abettor and if a party requests an appropriate instruction, the trial court should instruct the jury that at least 10 jurorsmust agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.”
Id.
Given Phillips, the trial court erred when it failed to give a jury concurrence instruction in this case. See State v. Jury,
When an error is unpreserved, we can address it under ORAP 5.45(1) as “error of law apparent on the record” only if (1) the error is one “of law,” (2) the point of law is “apparent,” (i.e., the point must be obvious, not reasonably in dispute), and (3) the error appears “on the face of the record,” (i.e., the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable). Ailes v. Portland Meadows, Inc.,
With respect to instructional error, the Supreme Court and this court have generally held that “the question of what must be included in a jury instruction is a question of law, and what was or was not included is determined readily by examining the instructions that were given.” Lotches,
The state contends that any error is not obvious. To support that argument, the state mainly relies on the passing statement in Phillips that the trial court should give a jury concurrence instruction “if a party requests an appropriate instruction.”
We disagree. First, the Supreme Court was not addressing the availability of plain error review in Phillips, so we decline to adopt the state’s rigid position that the court intended to preclude plain error review in such circumstances. Second, other pre-Phillips cases demonstrate that plain error review may be available when a court fails to give jury concurrence instructions. For example, in Lotches, where there was the potential to find the defendant guilty of multiple underlying felonies to support an aggravated murder charge, the court explained that, when a court fails to give a jury concurrence instruction that would require 10 jurors to agree on the material elements of a crime, all three elements of
After Phillips, it is “obvious” that, when the state advances competing theories of liability based on a defendant’s acts as principal or as an aider-and-abettor — as the state did in this case — a jury must be instructed that at least 10 jurors must agree that the defendant is liable under one theory or the other. The instructions given in this case, combined with the evidence presented, would have allowed fewer than the required number of jurors to find defendant liable as a principal, and fewer than the required number of jurors to find him liable as an accomplice. Cf. Phillips,
Given our conclusion that the claimed error is reviewable as plain error, we must decide whether to affirmatively exercise our discretion to correct the error. Factors that we consider in deciding whether to exercise that discretion include
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in a particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Ailes,
The state contends that we should not exercise our discretion because defendant could have avoided the problem by requesting the instruction, or moving to require the state to elect one theory over the other — essentially asserting that the purposes of preservation will be undermined if we exercise our discretion. Further, the state asserts that any error was not grave because there is little likelihood that jurors would have disagreed on a theory of liability given that the evidence strongly demonstrated that defendant was guilty as a principal by entering the store, “pretending to have a gun,” and ordering the cashier to empty the safe and cash register. Defendant counters that the error is particularly grave because he was convicted of a serious felony based on a jury verdict where it is possible that the jury did not agree on all of the elements necessary to find defendant liable. Defendant also asserts that failing to require jury unanimity “undermines the most basic principles of the justice system.”
Ultimately, in light of the unique circumstances of this case, we affirmatively exercise our discretion to correct the error, and reverse and remand to the trial court. We begin with the state’s argument that defendant’s failure to request a concurrence instruction deprived the state of the option of electing a theory of liability and, in that sense, the purposes of preservation are undermined if we exercise our discretion. The purposes of preservation include ensuring fairness to the parties in making and responding to arguments asserted in a case and efficient judicial administration.
Here, defendant was convicted of second-degree robbery — a serious felony — and sentenced to 70 months’ imprisonment. The manner in which the jury was instructed would have allowed the jury to find defendant guilty of that felony as a principal or as an accomplice. Without a jury concurrence instruction, given the state’s theory that defendant and Ellis implicitly threatened the immediate use of physical force and the equivocal evidence of those threats, we are not persuaded that a sufficient number of jurors concurred on a single theory of liability. That is, we disagree with the state’s assertion that there is little chance that the jury disagreed that defendant was guilty of second-degree robbery on the theory of principal liability.
We also note that we perceive no plausible strategic reason for defendant’s failure to seek a concurrence instruction. See Fults,
Notably, given our decision today, it may be permissible to draw an inference in future cases that a defendant who fails to seek a concurrence instruction in similar circumstances did so for strategic reasons. It may be plausible that a defendant in the future could decide not to seek a jury concurrence instruction for strategic reasons — essentially gambling that, if the defendant was convicted, a reviewing court would reach the error as plain error and reverse and remand the defendant’s conviction. Although whether and when such an inference may be permissible is left for another case, we simply caution
Reversed and remanded on Count 1; remanded for resentencing; otherwise affirmed.
Notes
The jury found defendant guilty of second-degree robbery (Count 1) and second-degree theft (Count 2), but the trial court merged those guilty verdicts into a single conviction for second-degree robbery. Ultimately, we reverse and remand based on defendant’s third assignment of error, which challenges the trial court’s failure to give a jury concurrence instruction. That assignment of error does not implicate the jury’s guilty verdict of second-degree theft.
Because defendant’s third assignment of error affords him the same or more relief than he would obtain if he succeeded on his first assignment of error, we normally would address only the third assignment. However, both assignments are uniquely related, and we are compelled to address his first assignment because if we were to agree with that theory, which invites us to hold that defendant could not be found guilty of second-degree robbery on an accomplice liability theory as a matter of law, there would be no need for the jury concurrence instruction that is the basis of his third assignment of error.
We note that the state argues that any error is not plain error because it is possible that a “defendant might not want such an instruction depending on his defense theory,” such as when a concurrence instruction “might serve to focus the jury’s attention on discrete factual occurrences that a defendant does not want emphasized.” Although the state frames that argument as relevant to whether any error was “obvious,” we understand the state’s argument to be placed more properly within the framework applied by the Supreme Court in State v. Gornick,