State v. Vinson

                                     690

      Argued and submitted September 30, 2020, reversed May 26, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     SABRINA GAY VINSON,
                        Defendant-Appellant.
                    Lincoln County Circuit Court
                        18CR47488; A169850
                                 

    Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894 (2017), under an aider-abettor theory. On appeal,
defendant assigns error to the trial court’s denial of her motion for judgment of
acquittal (MJOA). The state concedes that the trial court should have granted
defendant’s MJOA and contends that the judgment should be reversed because
the evidence could not establish that defendant aided and abetted another’s
possession of methamphetamine. Held: The Court of Appeals agreed with and
accepted the state’s concession, concluding that the trial court erred when it
denied defendant’s MJOA.
    Reversed.



    Sheryl Bachart, Judge.
   Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Christopher Page, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Hadlock, Judge pro tempore.
    TOOKEY, J.
    Reversed.
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 (2021)                            691

        TOOKEY, J.
         Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894
(2017). In her first assignment of error, defendant argues
that the trial court erred by denying her motion for judgment of acquittal (MJOA). In her second through seventh
assignments of error, defendant argues that the trial court
erred by delivering a nonunanimous jury instruction and by
receiving a nonunanimous guilty verdict. Regarding defendant’s first assignment of error, we conclude that the trial
court erred when it denied defendant’s MJOA; therefore, we
reverse defendant’s conviction for unlawful possession of
methamphetamine. Our reversal of defendant’s conviction
obviates the need to address her second through seventh
assignments of error.
         “We review the trial court’s ruling on defendant’s
motion for judgment of acquittal to determine whether,
viewing the facts and reasonable inferences that may be
drawn from those facts in the light most favorable to the
state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable
doubt.” State v. Borden, 

, 

 (2020) (internal quotation marks omitted). In accordance with that standard of review, we state the following
facts.
          In early July 2018, Newport police were investigating defendant’s son, Joseph, for selling narcotics. The
investigating officers also knew Joseph had an active arrest
warrant. After learning that Joseph had been seen entering
a room at a local motel, the officers obtained a search warrant for that room and entered by force. Once inside, officers
arrested Joseph and discovered defendant sitting nearby
in a chair. The officers searched defendant and found more
than $2,500 in cash tucked in her bra. Defendant told the
officers that the cash had been given to her by Joseph, and it
was his money. The officers also searched the chair in which
defendant had been sitting and found a small bag containing 0.5 grams of methamphetamine underneath one of the
legs, and a small tube containing a methamphetamine pipe
on the seat. Additionally, the officers searched Joseph’s car
692                                                      State v. Vinson

and found “[s]cales, package material,” and “a substantial
quantity of methamphetamine.”
         The state charged defendant with, among other
offenses, unlawful possession of methamphetamine, ORS
475.894.1 At defendant’s jury trial, the state advanced two
theories of liability: a principal-liability theory based on
defendant’s alleged constructive possession of the methamphetamine, and an accomplice-liability theory for aiding and abetting Joseph’s possession of methamphetamine.
After the state finished its case-in-chief, defendant moved
for judgment of acquittal, arguing that, although the state’s
evidence showed her presence in the motel room, “the mere
presence in the proximity of controlled substances is not
sufficient to establish constructive possession,” and that
“presence—no matter how extensive—is not enough to
establish that a person aided or abetted in a criminal act.”
The trial court denied defendant’s MJOA, reasoning that
defendant’s proximity to the pipe and small bag of methamphetamine, along with the money in defendant’s bra strap,
provided “circumstantial evidence the jury may use that is
… more than just mere presence.”
         The trial court subsequently instructed the jury
that, among other things, “If you find the defendant guilty
of unlawful possession of methamphetamine, then you must
consider the additional question, whether defendant is liable
for unlawful possession of methamphetamine, because she
committed the unlawful possession of methamphetamine,
or because she aided and abetted the person who did.” The
trial court also provided the jury with two verdict forms,
which corresponded with the court’s jury instructions. The
first form simply asked whether defendant was guilty or not
guilty of unlawful possession of methamphetamine. The
second form asked whether defendant was liable for that
crime as an aider and abettor or as a principal, and it listed
each theory with a checkbox next to it. After deliberating,
the jury returned a 10-2 guilty verdict, marking the “aider
and abettor” box on the second verdict form.
    1
      The state also charged defendant with one count of laundering a monetary
instrument, ORS 164.170 (Count 2). That count was subsequently dismissed by
the trial court.
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 (2021)                               693

         On appeal, defendant argues that “[t]he trial court
erred when it denied defendant’s motion for judgment of
acquittal of aiding and abetting,” and that, “[b]ecause the
state proved, at best, only that defendant was present
during, acquiesced to, and helped cover up Joseph’s possession of methamphetamine, the state failed to adduce legally
sufficient evidence to support the conviction.” In response,
the state “concedes that the trial court should have granted
the motion as to that theory and this court should reverse
the judgment,” because “[t]he evidence did not establish that
defendant aided and abetted her son’s possession of methamphetamine.” For the reasons that follow, we agree with
and accept the state’s concession.
         A person aids and abets another’s crime “if …
[w]ith the intent to promote or facilitate the commission
of the crime the person … [a]ids or abets or agrees or
attempts to aid or abet such other person in planning or
committing the crime[.]” ORS 161.155(2)(b). As we have previously explained,
   “for accomplice liability to attach, the person (1) must
   have the requisite mens rea—intent to promote or facilitate the commission of the crime—and, at the same time,
   (2) must perform the requisite actus reus—aiding, abetting,
   or agreeing or attempting to aid or abet the principal in
   planning or committing the crime.”
State v. Stewart, 

, 

 (2013).
Thus, to uphold the trial court’s denial of defendant’s MJOA,
the state’s evidence in this case must be sufficient for a
rational trier of fact to conclude that defendant intended to
promote or facilitate Joseph’s unlawful possession of methamphetamine, and that she performed some act that aided
and abetted Joseph in planning or committing that crime.
          Here, the evidence is not sufficient to meet that
standard with respect to defendant’s intent nor with respect
to her actions. As the state observes on appeal, “the evidence fails to link defendant’s actions with aiding her son
… in possessing methamphetamine.” The state concedes
that the evidence does not show defendant aided and abetted Joseph “beyond an attempt to conceal his potential
criminal acts.” But any actions defendant took to cover up
694                                            State v. Vinson

Joseph’s crime after it had occurred are alone insufficient
to show that defendant aided and abetted that crime. See
State v. Wilson, 

, 

 (2011)
(“[A]lthough actions after the commission of a crime …
may be used as evidence that earlier activities were aiding
and abetting, those actions cannot alone constitute aiding or
abetting.” (Emphasis in original; citation and internal quotation marks omitted.)). Likewise, defendant’s knowledge of,
acquiescence to, or mere presence during, Joseph’s unlawful
possession of methamphetamine do not suffice to show that
defendant aided and abetted Joseph’s crime. Stewart, 

 (“[M]ere knowledge of, or presence during,
the commission of a crime is insufficient to establish accomplice liability.”); State v. Lavadores, 

, 

 (2009) (“In the context of accomplice liability, mere
presence or acquiescence alone are not sufficient to establish aiding and abetting[.]” (Citation and internal quotation
marks omitted.)). Thus, on this record, the state’s concession is well taken, and we conclude that the trial court erred
when it denied defendant’s MJOA.

         Having reached that conclusion, we briefly turn to
the question of the proper disposition of this case. Defendant
contends that the proper disposition is an “outright reversal”
of her conviction because, in not concluding that she was
guilty as a principal, “the jury’s silence is properly interpreted as an ‘implied acquittal’ ” and thus retrial is barred
on “double jeopardy grounds.” The state, however, contends
that we “should remand this case for a retrial on the principal liability theory,” and that we “should not preemptively
conclude that a retrial is barred by double jeopardy”; as support for those contentions, it cites several cases from this
state, and additional state and federal case law, some of
which defendant also cites.

          Without undue elaboration, we are not persuaded
that we should remand defendant’s case for retrial on a
principal-liability theory in spite of our usual practice of
reversing without a remand when we have determined that
a trial court has erroneously denied a defendant’s MJOA (or
MJOAs) on every conviction in the judgment being appealed.
See, e.g., Borden, 

 & n 1 (reversing without
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remand where trial court erroneously denied defendant’s
MJOAs as to both counts in the appealed judgment and
noting that “defendant is entitled to entry of judgment of
acquittal on each charge”).
          To be sure, in other cases, we have reversed the
defendant’s conviction and remanded for a new trial on a
still-viable theory of liability, based on the presence of particular postural circumstances. See, e.g., State v. McDougal,

, 101, 

 (2019) (noting this court’s
“common practice” of reversing and remanding for a new
trial “cases in which trial courts, sitting as factfinders, have
based verdicts on a misunderstanding of the law or of the
evidence”); State v. Andrews, 

, 

 (2001), abrogated in part on other grounds by State v.
Rutley, 

, 

 (2005), aff’d in part
and rev’d in part, 

, 

 (2007) (reversing
and remanding, “as we have done previously,” where “the
trial court convicted defendant without deciding a material
element for which there was proof sufficient to withstand a
motion for judgment of acquittal”); State v. Burgess, 

, 

, aff’d, 

 (2012) (reversing
and remanding for a retrial on the lesser-included offenses
that the jury would have considered but for reaching conviction on the first-degree assault charge). Such circumstances,
however, are not present in this case, and—given the idiosyncratic circumstances of this case, including the wording
of the verdict forms and the jury instructions—we are not
persuaded that the principal-liability theory remained viable once the jury announced its verdict on the forms provided. Accordingly, we reverse defendant’s conviction.
        Reversed.