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

by: Ryan • February 16, 2012 • no comments

Two cases in today's press release are those same two cases I mentioned in my mea culpa from last week.

State of Oregon v. Bruce Lynn Pipkin (S059769) (A142469) (appeal from Lane County Circuit Court; opinion reported at 245 Or App 73, 261 P3d 60 (2011)).

Defendant Bruce Lynn Pipkin has been granted review of a Court of Appeals decision that affirmed his convictions for first-degree burglary, fourth-degree assault, and menacing.

On review, the issues are:

1. When the state charges a defendant with alternative theories of the same crime in the same count, must the jury agree on at least one of those theories, even though guilty verdicts for those theories will merge into a single crime?
2. Do "unlawfully entering" and "unlawfully remaining" constitute alternative theories of the crime of burglary, and, therefore require that either (a) the jury agree on at least one of those theories or (b) the state elect which theory to present to the jury, even though guilty verdicts for those two alternatives would merge into a single conviction?

State of Oregon v. Jesse Jerome Phillips (S059835) (A140377) (appeal from Multnomah County Circuit Court; opinion reported at 242 Or App 253, 255 P3d 587 (2011)).

Defendant Jesse Jerome Phillips has been granted review of a Court of Appeals decision that affirmed his conviction of third-degree assault for intentionally or knowingly causing injury to a person "[w]hile being aided by another person actually present," ORS 163.165(1)(e).

On review, the issues are:

1. Is the crime of assault in the third degree, committed by the defendant while aided by another person actually present, the same crime as assault in the third degree committed by another person aided by the defendant?
2. If principal- and accomplice-liability are the same crime, are they also the same prosecution theory?
3. Should the jury be instructed that, in order to convict, ten or more jurors must agree on one of those two different theories?

I will likely have more to say on these cases in the future. But I do want to remind you to seek jury concurrence - or, better yet, election - whenever you can, but especially in cases where your client might be found as either an accomplice or a principal.

One observation about accomplice and principal liability. Not just different theories, they have different elements. For one thing, accomplice liability always requires intent. See this article and State v. Lopez-Minjarez.

But beyond that, the COA has noted:

That is not to say that the substantive requirements of proof were collapsed as well. Even after the adoption of the reforms, liability based on a theory of aiding and abetting required different proof from liability based on the theory that a defendant was the principal actor, that is, one who would have been regarded as the principal in the first degree at common law. [Emphasis added.] Burney at 234.

In his concurrence in State v. Pine, 181 Or App 105, 117 (2002), reversed on other grounds, State v. Pine, 336 Or App 194 (2003), Judge Edmonds stated:

The evidence of defendant's involvement in the assault, in concert with the other evidence, satisfies both an element of ORS 163.165(1)(e) and the elements of ORS 161.155(2)(b)[the aid and abet statute], which were put into issue by the state's alternative theory. [Emphasis added.]

Because the elements are significantly different, I'm inclined to think the OSC is more likely to require jury concurrence in accomplice/principal situations than it is in the burglary situation above. But maybe we'll get the whole enchilada.