State v. Lomax

“[W]hen the state advances competing theories of liability based on a defendant’s acts as a principal and as an aider or abettor, the jury must be instructed that they must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.” State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013).

Defendant appealed the conviction of one count murder against himself and two co-defendants. See State v. Allen, 288 Or App 244, ___ P3d ___ (2017); State v. Riley, 288 Or App 264, ___ P3d ___ (2017). Defendant assigned error to the trial court’s denial to provide the jury concurrence instructions for principal or accomplice liability. On appeal, Defendant argued that the court’s denial violated his Article I, section 11 rights of the Oregon Constitution because the jury must come to a unanimous concurrence of principle or aider-and-abettor to convict someone of murder. In response, the State argued that the Defendant failed to preserve his claim because he did not continue to renew his desires for jury instruction after the jury was given a copy of aid-or-abet instructions and therefore concurrence in instruction is not necessary. “[W]hen the state advances competing theories of liability based on a defendant’s acts as a principal and as an aider or abettor, the jury must be instructed that they must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.” State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013). The Court of Appeals held that the trial court erred based upon the its failure to provide the concurrence aid-or-abet instruction. Conviction for murder reversed and remanded; otherwise affirmed.