No. 6 January 7, 2026 423
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DERRICK JERMAINE JAY,
Defendant-Appellant.
Clackamas County Circuit Court
CR0901085; A184157
Susie L. Norby, Judge.
Submitted November 13, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil Francis Byl, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
PAGÁN, J.
Remanded for resentencing; otherwise affirmed.
424 State v. Jay
Cite as 346 Or App 423 (2026) 425
PAGÁN, J.
In this criminal case, defendant raises a single
assignment of error, in which he asserts that the trial court
erred in designating his sentence for second-degree assault
with a firearm as one subject to a “gun minimum” sentence.1
See ORS 161.610(4) (requiring a mandatory minimum sentence for certain firearm offenses). A gun minimum sentence
is appropriate only when a jury finds “that the defendant
personally used or threatened to use a firearm” during the
commission of the offense, State v. Thiehoff, 169 Or App 630,
636,
10 P3d 322 (2000), rev den,
332 Or 137 (2001) (emphasis
added), and defendant argues that the jury’s verdict did not
explicitly or implicitly include such a finding and that we
should remand for resentencing. We agree with defendant,
remand for resentencing, and otherwise affirm.
As relevant here, the state charged defendant with
one count of first-degree assault with a firearm and one
count of first-degree burglary with a firearm, alleging as
an element of each offense that defendant “used a firearm
during the commission” of the offense. See ORS 161.610(2)
(providing that any felony can be charged as an aggravated
firearm offense if the state pleads and proves that the defendant “use[d] or threatened use of a firearm … during the
commission of [the] felony”). It is important to our analysis
that the state did not charge defendant on the theory that
he “threatened the use of a firearm.” See generally State v.
Burk, 282 Or App 638, 645,
386 P3d 148 (2016) (explaining
that a court may not instruct on theories of guilt that are
not charged in the indictment).
1
The trial court concluded that defendant’s second-degree assault with a
firearm conviction was subject to both the mandatory minimum 70-month sentence required by ORS 137.700(2)(a)(H) and the 60-month gun minimum sentence
under ORS 161.610(4)(a). It then imposed the greater of the two. The judgment
designates the sentence as being subject to both mandatory minimum sentences.
On its face it might seem that the claimed error—which relates to the trial
court’s determination that ORS 161.610(4)(a) applied—is of no consequence
given that there was independent justification for the longer 70-month sentence
imposed. But as defendant correctly points out, a person is subject to higher penalties in the future if they have previously been “punish[ed] pursuant to [ORS
161.610(4)(a)].” ORS 161.610(4)(b). Therefore, improperly designating a sentence
as subject to ORS 161.610(4)(a) can have substantial repercussions in future
cases.
426 State v. Jay
At trial, the state produced evidence that defendant
and two other men—each with a gun in hand—entered JG’s
home and that one of the three men shot JG. The two other
men testified that defendant was the shooter, and the state’s
primary argument to the jury was that defendant was the
shooter. But, in the alternative and in accordance with a
jury instruction on accomplice liability, the state argued that
defendant was guilty on an aid-and-abet theory. The jury
ultimately returned a guilty verdict for the lesser-included
offense of second-degree assault with a firearm and first-degree burglary with a firearm. The jury’s verdicts gave no
explicit indication of whether it found defendant guilty as a
principal or as an accomplice or whether it found that defendant personally “used” a firearm. The trial court designated
both the assault and burglary sentences as subject to a gun
minimum sentence.
After defendant received post-conviction relief on an
unrelated issue, he was resentenced, and at the resentencing
hearing, he challenged for the first time the legality of the
gun minimum designation. He argued that the sentencing
court lacked the statutory authority to designate a gun minimum sentence because the jury’s verdict did not establish that
defendant personally “used” a firearm during the commission
of the relevant offenses. The resentencing court disagreed.
The parties debated whether the court should designate the
assault or burglary sentence as one subject to the gun minimum sentence. Ultimately, the court designated the assault
sentence as subject to the minimum firearm sentence.
On appeal, defendant reiterates the arguments
made below. For its part, the state does not dispute the
statutory requirement that a defendant personally use or
threaten the use of a firearm to qualify for a gun minimum
sentence, nor does the state argue that there are any procedural barriers to us addressing defendant’s argument at this
stage of his case. Instead, it argues only that—regardless
of whether the jury relied on a principal or accomplice theory of guilt—the jury necessarily found that defendant personally “used” his firearm during the crime.
ORS 161.610(4) provides for the imposition of specified “minimum terms of imprisonment for felonies having as
Cite as 346 Or App 423 (2026) 427
an element the defendant’s use or threatened use of a firearm in the commission of the crime.” In that context, “use
or threatened use of a firearm” has a very specific meaning,
namely that the defendant discharged or threatened to discharge a firearm. State v. Harris,
174 Or App 105, 112,
25
P3d 404 (2001). The gun minimum sentence is applicable
only when the factfinder finds that a defendant personally
used or threatened the use of a firearm. Thiehoff,
169 Or
App at 636. It “does not apply when the defendant merely
aided and abetted in the commission of the crime.”
Id. at
633. When the factfinder is a jury, the jury must explicitly
make a finding that the defendant personally used or threatened the use of a firearm or a guilty verdict must necessarily require that finding.
Id. at 636. “The trial court cannot
make the requisite finding of fact post hoc.”
Id.
Because it is undisputed that the jury did not explicitly make the necessary finding, this case turns on whether
its verdict necessarily required it. The state argues it did
because both the principal and accomplice theories of guilt
presented to the jury required it to find that defendant personally “used” a firearm. In the state’s view,
“If the jury convicted defendant as a principal, it found that
he personally used a firearm by shooting the victim. And
if the jury convicted defendant as an accomplice, it found
that defendant used a firearm—that he was openly carrying into a planned robbery—to make the victim more vulnerable to his codefendant’s assault.”
We are not persuaded.
The state relies on a particular theory of principal
liability described in State v. Phillips, 354 Or 598,
317 P3d
236 (2013), wherein the Supreme Court explained:
“A person can [personally] ‘cause’ physical injury …
in one of two ways. A person can either ‘inflic[t] physical
injury directly himself or herself or, alternatively, engag[e]
in conduct so extensively intertwined with [another person’s] infliction of the injury that such conduct can be found
to have produced the injury.’ ”
Id. at 602 (quoting State v. Pine,
336 Or 194, 207,
82 P3d
130 (2003) (first brackets added; other brackets in Phillips)).
428 State v. Jay
For example, relying on its reasoning in Pine, the court
explained, a person can be liable as a principal for the stabbing of a victim either by being the one who actually stabs
the victim or by holding the victim down so that the victim
cannot avoid the knife thrusts. Id. at 602-03. In the latter
case, the defendant’s conduct is “so extensively intertwined”
with the infliction of the injury that the defendant can be
said to have personally taken part in “caus[ing]” it. Id. at
602 (internal quotation marks omitted).
This case does not track the pattern described in
Phillips. At trial, the state’s theory was that the first of the
three men through JG’s door shot him—it was not that the
other two men restrained JG or otherwise confined him so
that he could not avoid the gun shot. In fact, the prosecutor
argued to the jury that a co-conspirator who was not physically present at the scene of the shooting was fully liable
as an accomplice and, by comparison, the jury could find
defendant guilty as an accomplice even if it was not convinced that defendant was the shooter. Based on the prosecution’s theory and the trial court’s instructions, we are not
convinced that the only two avenues to guilt available to
the jury were that defendant was the shooter or that, if he
was not the shooter, his conduct was nonetheless so extensively intertwined with the shooting itself that he can be
considered to have personally used the firearm against JG.
And because the state charged defendant only on the theory
that he “used” a firearm, we need not consider whether the
principal and accomplice theories before the jury necessarily required a finding that petitioner “threatened the use” of
a firearm.
Because the jury’s verdict did not explicitly or necessarily include a finding that defendant personally used a
firearm during the commission of the relevant crimes, we
remand for resentencing.
Remanded for resentencing; otherwise affirmed.
