State v. Phillips
Case #: S059835
Kistler, J.; En Banc.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/S059835.pdf
Criminal Procedure: At least 10 jurors must agree on each legislatively-defined element of a crime.
Defendant appealed his conviction for third-degree assault. Defendant was involved in a fight with five people. At trial, he requested a jury instruction that would have instructed that at least 10 jurors needed to agree on whether he hit the victim or whether he aided and abetted the person who did. The trial court refused to give Defendant’s requested instruction. The jury found Defendant guilty and the Court of Appeals affirmed. The Supreme Court held that the trial court erred in refusing the instruction because at least 10 jurors must agree on each legislatively-defined element. Because the elements necessary to find Defendant liable for aiding and abetting a crime ordinarily will be separate from and in addition to the elements necessary to prove the principal liable for the underlying crime, the trial court should have given the instruction. The Court held, however, this error was harmless because, in this case, the factual findings necessary for criminal liability on one theory either subsumed or were the same as the findings for the other theory. Finally, the Court explained that neither the state nor federal constitution prohibited the legislative determination that causation in ORS 163.165(1)(e) can be proved either by directly inflicting an injury or by engaging in acts extensively intertwined with inflicting that injury. Affirmed.