A Book from the Library of Defense

What if the Law Changed and No One Noticed, part 1

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by: Ryan • July 19, 2013 • no comments

The classic example of the law changing and few people noticing is NJ v Apprendi. Attorneys like Jess Barton said, "this is huge!" and most of us -- myself included -- didn't listen. Then Blakely came out -- and it didn't say anything Apprendi didn't already say -- and the rest is history.

There is a difference in degrees, but I suspect much the same thing has happened with accomplice liability. State v. Lopez-Minjarez, a great, great case, finally got rid of the "natural and probable consequences" portion of the standard accomplice jury instruction. But few people, I think, are following the case to its logical conclusion.

I discussed this issue at the 2012 OCDLA conference at the Benson Hotel. For a more thorough discussion, you want to order the materials from OCDLA. What follows is the first of two sample arguments, describing how the law may be much more favorable to accomplices than people realize.

Defendant is accused of aiding and abetting Delivery w/in 1000 feet of a school.

The principal does not need to know that the delivery occurred within 1000 feet of a school. State v. Rutley 343 Or 368, 171 P3d 361 (2007).

But does the accomplice? To be liable for a crime, you must, with the intent to promote or facilitate the commission of the crime, aid or abet or agree or attempt to aid or abet such other person in planning or committing the crime.

The “the” is very important. To be liable for DCS w/in 1000 feet of a school, the defendant must intend to facilitate that crime, DCS w/in 1000 feet of a school. If he only intends to facilitate DCS, then he’s only guilty of DCS.

The appellate courts take the legislative use of the word “the” – as in “the crime” – very seriously.

The legislature's use of the definite article "the" indicates that there is only one pertinent "time of judgment" at which a court may declare the conviction to be a misdemeanor. If the legislature had intended the construction that defendant proffers, that any judgment entered at any time may qualify as "the time of judgment" under ORS 166.270(3)(a), it likely would not have used the definite article "the." See State v. Nguyen, 223 Or App 286, 291, 196 P3d 40 (2008) (explaining, in the context of ORS 803.540(1)(b) that, "if the legislature had intended to allow drivers to choose among different 'fronts' of their vehicles in the positioning of registration plates, it would not have chosen the definite article 'the.'"); see also Osborn v. PSRB, 325 Or 135, 142-43, 143 n 7, 934 P2d 391 (1997) (discussing use of the definite article "the").

State v. Stark, 248 Or App 573, 273 P3d 941 (2012), petition for review granted, ___ Or ____ (2012)

To intend the crime of DCS w/1000 feet of a school, the defendant must intend the delivery occur within 1000 feet of a school. If the defendant merely intends DCS, then he doesn’t intend the greater offense. Nor is the accomplice liable for the “natural and probable consequences” of crimes he or she does intend.

The "natural and probable consequences" instruction (UCrJI 1051) builds on accomplice liability, but goes beyond it. The instruction advises a jury that a person who aids and abets in the commission of a crime, in addition to being criminally responsible for that crime, also is criminally responsible for "any act or other crime" that was the "natural and probable consequence" of the intended crime. In effect, the instruction tells a jury that, once it finds liability based on an aiding and abetting theory, it can find a defendant guilty of any other crimes that the jury finds to be the natural and probable consequence of the crime for which there was accomplice liability. That criminal responsibility attaches under the instruction for any naturally consequential crime, without regard to whether the defendant acted with the intent that ORS 161.155 requires.

State v Lopez-Minjarez, 350 Ore. 576, 260 P3d 439 (2011)

Consequently, if your client is an accomplice, he must intend every material element that he has been accused of, regardless of whether or not the principal must possess the same intent.