Can these two quotes be reconciled? Imagine thousands of prison sentences depend on it.

This wikilog article is a draft, it was not published yet.

by: Ryan • December 27, 2013 • no comments

Years ago, I assisted with the appeal in State v. Cobb, arguing M11 didn't apply to accomplices. The state responded that accomplice liability was simply a different theory of criminal liability. It wasn't a separate offense with separate elements. The COA agreed with the state:

Defendant contends that, because he was convicted of robbery in the second degree on a theory of aiding and abetting, he was not convicted of the offense "as defined in ORS 164.405."(3) Rather, he contends, he was convicted of robbery in the second degree as defined in ORS 161.155(2)(b), which imposes liability on a person who "aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime." Defendant contends that ORS 137.700 makes no express reference to ORS 161.155, and he asserts for that reason that a person convicted of second-degree robbery--a Measure 11 offense--on an aiding and abetting theory is not subject to a Measure 11 sentence.

The flaw in defendant's reasoning is that aiding and abetting is a theory of criminal liability, not a separate offense. State v. Arnold, 214 Or App 201, 212, 164 P3d 334 (2007).

Today, the Oregon Supreme Court, in ''St v Philips, held that the elements of accomplice liability are different than the elements of principal liability.

As we reiterated in Pipkin, jury concurrence is required for each legislatively defined element necessary to impose criminal liability. See 354 Or at 527. Moreover, as Blake explained, the elements necessary to prove liability as an aider and abettor ordinarily will not be coextensive with the elements necessary to prove liability as a principal. See 348 Or at 101. It follows that jurors usually will have to agree on the elements necessary to prove that a defendant is liable for aiding and abetting another person's commission of a crime.

Does this mean Cobb was wrongly decided? Probably not. Today's opinion also cites Blake for the idea that accomplice liability is not a "separate offense" because an accomplice is liable for the crime even if he or she didn't commit the elements necessary to be a principal. That said, liability for a crime doesn't necessarily equal being subject to the same punishment. See cases like St v. Flanagan and St v Lark or for that matter, St v. Pine. You can argue that a person can be guilty of robbery in the second degree but not guilty of robbery in the second degree "as defined in ORS 164.405," which only lists the elements of principal liability. The accomplice's crime is not defined at ORS 164.405, if one assumes that a crime is defined by its elements.

But, unfortunately, I think that's a bridge too far for the appellate courts. The OSC seems quite comfortable saying that while the elements of principal and accomplice liability are different, they aren't separate offenses. I'm not sure I have completed absorbed the difference, but I acknowledge that the court at least seems to think there is one.