430
Argued and submitted November 18, reversed and remanded
December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
TYLER JAMES BURRIS,
Defendant-Appellant.
Washington County Circuit Court
17CR81040; A167349
456 P3d 684
Defendant appeals from a judgment of conviction for one count of delivery
and possession of a substantial quantity of heroin and one count of felon in possession of a restricted weapon, raising two assignments of error. The Court of
Appeals addresses only defendant’s second assignment of error—that the trial
court erred in instructing the jury on both principal liability and aiding and
abetting liability without also instructing the jury that it must concur as to
which theory formed the basis of its verdict. The state responds that, although
it does not dispute that a jury concurrence instruction was required, any error
was harmless given the closing arguments advanced by the prosecutor. Held:
The trial court’s failure to properly instruct the jury that it must concur on the
factual and legal basis for its verdict was error. Moreover, the closing arguments
advanced by the prosecutor in this case were insufficient in rendering the trial
court’s error harmless.
Reversed and remanded.
James Lee Fun, Jr., Judge.
Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the reply brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services. On the opening brief were Erica
Herb, Deputy Public Defender, and Ernest G. Lannet, Chief
Defender, Criminal Appellate Section.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
JAMES, J.
Reversed and remanded.
Cite as 301 Or App 430 (2019) 431
JAMES, J.
Defendant appeals from a judgment of conviction for
one count of delivery and possession of a substantial quantity
of heroin and one count of felon in possession of a restricted
weapon, raising two assignments of error. Because we agree
with defendant on his second assignment—that the trial
court erred in instructing the jury on both principal liability
and aiding and abetting liability, without also instructing
the jury that it must concur as to which theory formed the
basis of its verdict—we need not address defendant’s first
assignment of error. Accordingly, we reverse and remand.
Defendant was a passenger in a minivan driven by
another individual—Armour—that was stopped for traffic infractions. For reasons unrelated to our disposition on
appeal, the officers arrested defendant and searched the
minivan. During that search, the officers found both a dagger and a pink and black “makeup bag.” Inside that bag,
they found one bag that contained cocaine and one bag that
contained heroin. The officers also found a scale and additional bags and rubber bands in the center console area of
the minivan.
At trial, Armour testified that all of the drugs in the
minivan were hers and that she intended to sell them. She
had gone to Salem earlier in the day to collect the winnings
from playing video poker in The Dalles. Before Armour left
The Dalles, she ran into defendant and asked him to ride
with her so that she would not have to drive alone. After collecting the money in Salem, Armour drove with defendant
to Hillsboro to meet her dealer at a restaurant and purchase
methamphetamine.
At the close of the trial, the trial court instructed
the jury on the elements of defendant’s liability as the principal for each crime charged. The trial court also instructed
the jury that people can possess property individually or
jointly. Then, the court instructed the jury on the elements
of defendant’s liability as an aider and abettor. The parties
do not dispute that those instructions told the jury that it
could find that defendant possessed the drugs individually
with the intent to sell them, or that defendant possessed
432 State v. Burris
the drugs jointly with Armour and intended to aid her in
selling them. Further, the parties do not dispute that the
instructions informed the jury that it could find defendant
possessed the weapon directly, or that defendant aided
Armour’s possession of the weapon. Defense counsel did
not request, and the court did not give, a jury concurrence
instruction.
On appeal, defendant argues that the trial court
erred in failing to give a concurrence instruction and asks
us to consider the error under our “plain error” doctrine,
as articulated in Ailes v. Portland Meadows, Inc., 312 Or
376, 381,
823 P2d 956 (1991). Under the first prong of Ailes,
unpreserved error is eligible for our correction if (1) the error
is one of law; (2) the error is apparent, meaning that the
legal point is obvious and not reasonably in dispute; and
(3) the error appears on the record.
Id. If that first Ailes
prong is met, then this court has discretion—under the second prong of Ailes—to correct the error, or not.
Id. at 382.
The state acknowledges that a concurrence instruction was required under our case law in light of the court
instructing the jury on both principal and aid-and-abet liability. However, the state argues that given the closing arguments advanced by the prosecutor in this case, any error did
not likely influence the jury’s decision making and is therefore harmless. Accordingly, the state asks us to decline to
exercise our discretion to reach the error.
This court reviews a trial court’s jury instructions
for errors of law. State v. Gray, 261 Or App 121, 129,
322
P3d 1094 (2014). In determining whether evidence supports
giving an instruction, this court reviews the evidence in the
light most favorable to the party requesting the instruction.
State v. Beck,
269 Or App 304, 309,
344 P3d 140, rev den,
357
Or 164 (2015). For an error in jury instructions to constitute
reversible error, it must have prejudiced the defendant when
the instructions are considered as a whole. State v. Brown,
310 Or 347, 355,
800 P2d 259 (1990).
The right to jury concurrence arises from Article I,
section 11, of the Oregon Constitution. State v. Ashkins,
357 Or 642, 649,
357 P3d 490 (2015). “It has been clear in
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301 Or App 430 (2019) 433
Oregon, at least since [State v. Boots,
308 Or 371,
780 P2d
725 (1989)], that a jury must be instructed concerning the
necessity of agreement on all material elements of a charge
to convict.” State v. Lotches,
331 Or 455, 472,
17 P3d 1045
(2000).
A trial court must charge the jury as to its concurrence obligation whenever the prosecution has proceeded
under both theories. State v. Phillips, 354 Or 598, 606,
317
P3d 236 (2013). That is because “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.”
Id. When they are not coextensive “at least
10 jurors must agree on each legislatively defined element
necessary to find the defendant liable under one theory or
the other.”
Id.
Thus, like the parties on appeal, we conclude that
the failure to give a concurrence instruction was legal error
apparent on the face of the record. We disagree with the
state, however, that the prosecutor’s closing arguments rendered the error harmless. As we have recently noted, a court
faced with a concurrence issue can
“(1) give a jury concurrence instruction, or (2) direct the
parties to develop and submit an approved neutral statement of issues that limits the jury to the agreed upon factual allegation for the charged crime, or (3) create a general
verdict form with interrogatories. Those options are neither
singular nor exclusive, and the cautious court might wisely
utilize a combination of methods. In any case, some form
of communication from the court, to the jury, is required.”
State v. Payne, 298 Or App 411, 427-28,
447 P3d 515 (2019).
Ensuring jury concurrence requires a charge from the
court—arguments by the parties are typically insufficient
to properly charge the jury. Accordingly, we conclude in this
case that argument by one party, in the face of competing
instructions by the court on both principal and aid-andabet liability, is insufficient to persuade us that the failure
to charge the jury as to concurrence had “little likelihood”
of “affect[ing] the verdict”—the standard for harmless error
under the Oregon Constitution. State v. Davis,
336 Or 19,
32,
77 P3d 1111 (2003).
434 State v. Burris
Finally, we choose to exercise our discretion to correct the error. We recognize that the exercise of discretion
by an appellate court to correct an error raised for the first
time on appeal carries with it significant implications for
trial courts. Courts are, first and foremost, intended to be a
fair and neutral ground where litigants can try their cases.
Sometimes such litigation involves choices, and theories,
that may be highly questionable. But, at the end of the day,
it is the litigants’ case to try, not the court’s. Every time an
appellate court reverses on plain error for something not
raised at trial, it sends a signal that the trial court, in that
instance, should have sua sponte injected itself into that
litigation. See, e.g., State v. Corkill, 262 Or App 543, 551,
325 P3d 796, rev den,
355 Or 751 (2014) (“Rather, any ‘plain
error’ must relate to the trial court having not taken affirmative steps to intervene in the parties’ litigation.”). Trial
courts are rightly concerned, as are we, about the effect on
the perception of neutrality that occurs when a court intervenes in the parties’ litigation in that way.
With those prudential concerns in mind, we nevertheless have exercised our discretion to correct an error
raised for the first time on appeal when the error went to the
heart of the jury’s deliberative process. For example, in the
context of evidentiary plain error, we have most frequently
reached such error under the plain error doctrine when it
concerned vouching—a category of evidentiary error that
the Oregon Supreme Court has noted “invade[s] the jury’s
role as the sole judge of the credibility of another witness,”
State v. Charboneau, 323 Or 38, 47,
913 P2d 308 (1996)—or
creates a “risk that the jury will not make its own credibility determination, which it is fully capable of doing, but will
instead defer” to an expert’s opinion on that point, State v.
Southard,
347 Or 127, 141,
218 P3d 104 (2009).
The failure to properly instruct a jury that it must
concur on the factual and legal basis for its verdict, like evidentiary vouching, threatens to undermine the deliberative
process and affect not just what the jury considers, but how
it considers it. Accordingly, we have exercised our discretion to reach such error in previous cases. See, e.g., State v.
Wright, 281 Or App 399, 406,
383 P3d 385 (2016) (exercising
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301 Or App 430 (2019) 435
discretion to correct plain error in failing to give concurrence instruction where evidence would have allowed fewer
than the required number of jurors to find the defendant
liable either as a principal or an accomplice); State v. Bowen,
280 Or App 514, 536,
380 P3d 1054 (2016) (same); State v.
Gaines,
275 Or App 736, 750,
365 P3d 1103 (2015) (same).
The same concerns are present here.
Reversed and remanded.
