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Things You Really Need to Know About Special Jury Instructions

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by: Ryan Scott • February 16, 2017 • no comments

Today, the Oregon Supreme Court came out with an opinion in State v. Morgan. It's a good defense opinion but not a good one for this particular defendant.

The most significant holding is that in a robbery in the second degree based on "aided by another person actually present," the "other person" must actually intend to aid the principal in the commission of the robbery. It can't be inadvertent assistance.

But there are a few things from the opinion that are very much worth highlighting.

First, this opinion reinforces the need to ask for special jury instructions in a bench trial, and to get the judge to commit whether or not he or she is abiding by that instruction. The defendant did not do that, and moreover, her closing argument -- which appellate courts may sometimes interpret as arguing for a special instruction -- was, according to the OSC, really just about the insufficiency of the evidence. If she had requested a special jury instruction, despite it being a bench trial, she would have had her conviction reversed today rather than upheld.

Secondly, the Court talked a little about Simonov, the opinion that held that "without consent of the owner" was -- rather than being an independent circumstance element -- a part of the conduct element, and thus the state was required to prove the defendant knew the vehicle was being used without consent. The court referenced Simonov as follows:

State v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016) (minimum culpable mental state for a conduct element is knowledge, and minimum culpable mental state for a result or circumstance element is criminal negligence).

Immediately preceding that quote is a reminder that if a crime is in the criminal code, every element must have a mental state. "The parties acknowledge that, to be convicted of a crime, a defendant must have acted with the requisite mental state for every “material element” of the offense, and that the material elements of second-degree robbery include the fact that the defendant was 'aided by another person actually present.'" (The rules are different for crimes that aren't in the criminal code, e.g., Felon in Possession of a Firearm or DCS w/in 1000 feet of a School.)

And that is really all you need to know in order to argue that the standard jury instructions for theft-by-taking, statutory rape, criminal mischief I and assault II are probably WRONG! Please contact me if you're going to trial on any of those crimes. I will happily send you a special jury instruction that will either move the goal line a little bit in your favor or give you a basis for reversal on appeal.

Along those same lines, today's opinion strongly hints -- for essentially the same reason I'm arguing in those other cases -- that the standard Rob II instruction is wrong. Here's the Court saying what it isn't deciding:

Before considering those opposing positions, we think it important to observe that the issue that the parties raise is not the requisite mental state of a defendant who is charged with second-degree robbery. The parties acknowledge that, to be convicted of a crime, a defendant must have acted with the requisite mental state for every “material element” of the offense, and that the material elements of second-degree robbery include the fact that the defendant was “aided by another person actually present.” See ORS 161.095(2) (person not guilty of offense unless person acts with culpable mental state with respect to each material element that necessarily requires culpable mental state); State v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016) (minimum culpable mental state for a conduct element is knowledge, and minimum culpable mental state for a result or circumstance element is criminal negligence). The parties also do not ask this court to determine the mental state that a defendant must have with regard to that element. The parties do not ask whether a defendant must know that he or she is receiving aid, or whether some other mental state is required, and we do not consider that question. We raise it only to point out the distinction: Although defendant is the person who is accused of the crime of second-degree robbery, it is not defendant’s mental state—but rather the mental state of another person who was present at the time of the robbery—that is the subject of this appeal. [Emphasis added.]

Yes, I'm sure that the Court was just putting out that clarification and not in anyway telling defense attorneys that they need to take care of business and ask for instructions that accurately reflect the law.