State v. Duran

                                   208

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
 Submitted November 21, 2022; conviction on Count 3 reversed and remanded,
      remanded for resentencing, otherwise affirmed February 8, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                       JOE LUIS DURAN,
                       Defendant-Appellant.
                    Linn County Circuit Court
                      20CR13303; A175322


   David E. Delsman, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, and Lagesen, Chief Judge,
and James, Judge pro tempore.
   JAMES, J. pro tempore.
   Conviction on Count 3 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2023)             209

        JAMES, J. pro tempore
         Defendant appeals a judgment of conviction for four
counts of unlawful delivery of methamphetamine for consideration, ORS 475.890 (Counts 1, 2, 3, and 4) and one count
of unlawful possession of methamphetamine, ORS 475.894
(Count 6), raising three assignments of error. Defendant’s
first assignment of error challenges the admission of an
alleged hearsay statement. Even if the statement in question qualifies as hearsay, a point we do not decide, we conclude the admission was harmless in light of the trial testimony, and accordingly reject that assignment of error.
         Defendant’s second assignment of error concerns
the failure to give a concurrence instruction. At trial, the
state argued that defendant committed four counts of
unlawful delivery of methamphetamine, either by directly
transferring the drugs to or by aiding or abetting the delivery of drugs. The trial court did not instruct the jury that
it must agree on a particular theory of guilt in order to find
defendant guilty of the charged crimes—that is, whether
defendant acted as the principal in delivering drugs, or as
an accomplice by aiding or abetting the delivery of drugs.
         The state agrees with defendant that such an
instruction was warranted, and that the trial court plainly
erred. State v. Phillips, 

, 

 (2013)
(failure to provide jury-concurrence instruction regarding
principal liability versus accomplice liability was error). We
accept the concession.
        However, the state argues that any error was harmless. When determining whether the lack of a concurrence
instruction was harmless, this court views the lack of an
instruction “in the context of the evidence and record at trial,
including the parties’ theories of the case with respect to the
various charges and defenses at issue.” State v. Ashkins, 

, 

 (2015).
         Having reviewed the record, it appears that Count 3
was the only incident for which there was a question of
whether defendant personally delivered the drugs or merely
facilitated the transfer as an aider and abettor. Because
the error had little likelihood of affecting the verdicts, the
210                                               State v. Duran

error was harmless as to Counts 1, 2, and 4, and we therefore decline to exercise our discretion to correct the error
as plain. See State v. Nelson, 

, 

,
rev den, 

 (2021) (“Instructional error is harmless if
there is little likelihood that it affected the jury’s verdict[.]”);
State v. Ross, 

, 

, rev den,

 (2015) (declining to exercise discretion to correct jury-instruction error where it was harmless). However,
we cannot say that the error had little likelihood of affecting the verdict as to Count 3, where the evidence allows for
conflicting inferences as to whether defendant acted as the
principal or aider and abettor.
         In defendant’s third assignment of error he claims
that the trial court plainly erred by instructing the jury that
“[p]ossession with the intent to deliver constitutes delivery,
even when no actual transfer is shown.” The state concedes
that, under State v. Hubbell, 

, 

(2021), such an instruction was plainly erroneous. We accept
the concession.
          However, like the second assignment of error, here
the state argues that any error was harmless. Again, we
agree and decline to exercise our discretion to correct the
error. With the exception of Count 3, which we have already
reversed, our review of the record shows that the state proceeded under a single theory for the remaining counts that
defendant actually transferred narcotics. Accordingly, there
is little likelihood the erroneous instruction affected the
verdict.
       Conviction on Count 3 reversed and remanded;
remanded for resentencing; otherwise affirmed.