State v. Holycross

                                409

       Submitted September 11, 2019, affirmed February 18, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               TIMOTHY RAY HOLYCROSS,
                   Defendant-Appellant.
              Washington County Circuit Court
                   17CR37337; A166533
                             

  Beth L. Roberts, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the briefs for respondent.
  Before Lagesen, Presiding Judge, and DeVore, Judge,
and Powers, Judge.
  PER CURIAM
  Affirmed.
410                                        State v. Holycross

        PER CURIAM
        For his role in detonating a pipe bomb near the
home of his former wife and her new partner, defendant
was convicted by a jury of, among other things, two counts
of attempted aggravated murder, Counts 3 and 4, ORS
163.095. The verdicts on all counts were unanimous. For the
reasons that follow, we affirm.
          In the first assignment of error, defendant contends
that the trial court plainly erred by not instructing the jury
that it had to concur as to whether defendant committed the
charged acts as a principal or, instead, as an accomplice.
But, as the state points out, the jury was not instructed on
aiding-and-abetting liability because defendant objected to
the jury being so instructed. It is not plain that the court,
having agreed with defendant that the jury should not
be instructed on an aid-and-abet theory of liability at all,
was obligated, as a matter of law, to nonetheless instruct
the jury that it needed to concur as to whether defendant
was liable as a principal or, instead, as an accomplice. In
any event, by persuading the court not to instruct the jury
on aiding-and-abetting liability, defendant was actively
instrumental in inducing the court to omit the concurrence
instruction that would have been required if the jury had
been instructed on accomplice liability as the state had
requested. For that reason, the alleged error, if error, is not
a reversible one. State v. Goodenough, 

,

, rev den, 

 (2014) (“[T]he general rule
is that if an appellant was actively instrumental in bringing
about the error, then the appellant cannot be heard to complain, and the case ought not to be reversed because of it.”
(Internal quotation marks omitted.)).
          In the second and third assignments of error, defendant contends that the trial court erred in denying his
demurrer as to Counts 3 and 4. That contention is predicated on an argument identical to the one we rejected in
State v. Kyger, 

, 

 (2020), and
State v. Gant, 

, 

 (2020), and we
reject it for that reason.
       Defendant’s final contention, in a supplemental
assignment of error, is that the trial court erred when it
Cite as 

 (2021)                            411

instructed the jury that it could convict by nonunanimous
verdicts. Defendant contends that the error requires reversal even though the jury’s verdicts in this case were unanimous. Although the instruction was, indeed, erroneous,
because the verdicts were unanimous, the error does not
entitle defendant to reversal. See State v. Flores Ramos, 

, 

 (2020) (holding that error
in instructing the jury that it could return nonunanimous
guilty verdicts did not require reversal of convictions rendered by unanimous guilty verdicts); State v. Kincheloe, 

, 

 (2020) (same).
        Affirmed.