State v. Jones ( 2024 )

No. 497 July 17, 2024 797
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES SEKOU JONES,
Defendant-Appellant.
Washington County Circuit Court
20CR42436; A176173
Erik M. Bucher, Judge.
Submitted June 20, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Convictions on Counts 5 and 6 reversed and remanded;
remanded for resentencing; otherwise affirmed.
798 State v. Jones
HELLMAN, J.
Defendant appeals from a judgment of conviction
for two counts of second-degree robbery (Counts 5 and 6).1
See ORS 164.405(1)(b) (“A person commits the crime of rob-
bery in the second degree if the person violates ORS 164.395
and the person * * * * * [i]s aided by another person actually
present.”); ORS 164.395(1) (“A person commits the crime of
robbery in the third degree if in the course of committing or
attempting to commit theft or unauthorized use of a vehi-
cle * * * the person uses or threatens the immediate use of
physical force upon another person[.]”). On appeal, he raises
four assignments of error. In his first and second, he argues
that the trial court erred when it did not enter judgments
of acquittal on the two counts of second-degree robbery,
because the state did not prove that defendant personally
committed the robbery while aided by another person. In his
third, he argues that the trial court plainly erred when it
failed to instruct the jury that it could not find him guilty of
second-degree robbery on an aiding-and-abetting theory. In
his fourth, he argues that the trial court plainly erred when
it did not instruct the jury that all members must agree
whether defendant was guilty as the principal or accomplice.
We conclude that defendant’s first and second assign-
ments of error are unpreserved, and that the trial court did
not plainly err when it did not sua sponte enter judgments of
acquittal. However, on defendant’s fourth assignment of error,
we conclude that the trial court plainly erred when it did not
give a concurrence instruction that required the jury to agree
about the legal basis for defendant’s guilt. Accordingly, we
remand for a new trial on Counts 5 and 6. Finally, because
the record could develop differently on remand, we do not
reach defendant’s third assignment of error.
The colloquial description of this case is that of
“a drug deal gone wrong.” Through Snapchat, defendant
arranged to meet J in the parking lot of an apartment
1
Defendant was also convicted of unauthorized use of a vehicle (ORS
164.135), but he does not raise any challenges on appeal to that conviction.
Defendant was acquitted on the remainder of the counts in the indictment, spe-
cifically: two counts of robbery in the first degree (ORS 164.415), two counts of
robbery in the second degree (ORS 164.405), and two counts of unlawful use of a
weapon (ORS 166.220(1)(a)).
Cite as 333 Or App 797 (2024) 799
complex to purchase drugs. Defendant brought his brother,
and J brought a friend, A. J and A drove to the apartment
complex, and when they arrived, defendant and his brother
got in the back seat of the car. In the middle of the drug pur-
chase, one of the men in the backseat grabbed J around the
chest from behind, in something “like a choke hold,” and held
something to J’s ribs that A thought was a gun. The men told
J and A that they wanted the drugs and directed them to leave
their belongings in the car and get out. J and A complied.
The men took the car and drove away. J and A borrowed a
cellphone from a bystander and called 9-1-1. Law enforcement
officers found J’s car in the parking lot of a nearby apartment
complex, where defendant was staying with his brother. Using
the Snapchat information provided by J, law enforcement
identified defendant as the buyer in the drug sale.
Defendant was indicted for multiple counts, includ-
ing first-degree robbery, second-degree robbery, unlawful
use of a weapon, and unauthorized use of a vehicle. During
the ensuing jury trial, at the close of the state’s case, defen-
dant moved for a judgment of acquittal, arguing that the
state failed to produce sufficient evidence of guilt on the rob-
bery counts. The trial court denied the motion.
Although the state’s primary position at trial was
that defendant was the principal actor and the one who used
the firearm, the state also pursued convictions based on
accomplice liability.2 In a discussion held outside the presence
of the jury, the parties and the court agreed on jury instruc-
tions regarding accomplice liability. That agreement included
an understanding that certain instructions on accomplice
liability would apply to Counts 5 and 6 (charged under ORS
164.405(1)(b)), and certain instructions on accomplice liabil-
ity would apply to the remainder of the charges. The parties
reached that understanding based on what the law required
for second-degree robbery under ORS 164.405(1)(b) (personally
committing the crime while “aided by another person actu-
ally present”), and how accomplice liability functioned for the
2
Accomplice liability is governed by ORS 161.155(2)(b), under which, “A per-
son is criminally liable for the conduct of another person constituting a 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.”
800 State v. Jones
remainder of the counts (permitting criminal liability even if
defendant did not personally commit the crime). However, the
jury instructions themselves did not make those distinctions.
The jury received the following instructions without any indi-
cation as to the counts to which they applied:
“CRIMINAL LIABILITY FOR CONDUCT OF ANOTHER
PERSON
“A person who is involved in committing a crime may be
charged and convicted of that crime if, with the intent to
promote or facilitate commission of the crime, that person:
aids and abets or attempts to aid and abet someone in com-
mitting the crime.
“AID OR ABET
“A person aids or abets another person in the commis-
sion of a crime if the person:
“(1) With the intent to promote or make easier the
commission of the crime,
“(2) Encourages, procures, advises, or assists, by act or
advice, the planning or commission of the crime.
“DEFINITIONS
“* * * * *
“Aid by another person actually present—means aided
by a person who is close enough to be in a position to aid in
exerting force upon the victim. It includes a person who is
at hand, or within reach, sight, or call, or who presents an
added threat to the alleged victim’s safety.”
The jury convicted defendant of second-degree rob-
bery in Counts 5 and 6, on the basis that defendant commit-
ted robbery and was aided by another person actually pres-
ent.3 See ORS 164.405(1)(b); ORS 164.395(1). The verdict
3
In the indictment, Count 5 alleged:
“As part of the same act and transaction and part of crimes that are of
the same or similar character and a common scheme and plan as Counts
1-4: The defendant, on or about November 13, 2019, in Washington County,
Oregon, did unlawfully and knowingly, while in the course of committing or
attempting to commit theft and unauthorized use of a vehicle, use or threaten
the immediate use of physical force upon [J], with the intent of compelling
[J] to deliver the property, and being aided by another person actually
present.
Cite as 333 Or App 797 (2024) 801
form asked specifically whether defendant used or threated
to use a firearm on all of the robbery counts; the jury found
that he did not. After the jury was excused, defendant dis-
cussed with the court that the verdict might be inconsistent:
“THE COURT: Quite frankly, * * * it’s interesting to
me because they said not guilty as to the firearm.
“[DEFENSE COUNSEL]: And it is a—I think it’s
something of an inconsistent verdict—
“* * * * *
“THE COURT: Well, and we’re not going to do sen-
tencing today, so you’ve got plenty of time to file motions or
whatever—
“* * * * *
“[DEFENSE COUNSEL]: If there—if there is some
sort of an inconsistent verdict, I think the motion * * *
has to be made before the jury is discharged, if I recollect
correctly.
“THE COURT: Yeah. And I don’t think it’s incon-
sistent, but that’s something you can look into. You could
always—
“[DEFENSE COUNSEL]: Okay.
“THE COURT: —file motions, whatever. You have
plenty of time to do that because, again, I’m not sentenc-
ing him today. I just thought it was—I brought that up
because, again, they found him guilty of those, and we both
know that the State’s theory—
“[DEFENSE COUNSEL]: Right.
“THE COURT: —was that a gun was used.
“[DEFENSE COUNSEL]: Absolutely.
“THE COURT: And then they said there wasn’t a
firearm.
“But they also found that he did not—as far as Unlawful
Use of a Weapon charges—let me get to those. Not guilty.
“The State further alleges that the defendant used or threatened the use
of a firearm.”
Count 6 used identical language for acts against A.
802 State v. Jones
“And, so, I think it’s consistent with—obviously, there’s
several—
“[DEFENSE COUNSEL]: It’s an aid and abet.
“THE COURT: Exactly. There are theories that the
jury could have found that he didn’t have the gun, that his
brother or someone else had the gun.
“But, since he was aiding and abetting, he’s guilty of the
offense, but he’s not guilty of using or possessing a firearm
because they found that he didn’t have the gun, that the
co-defendant did. * * * But, anyways—
“[DEFENSE COUNSEL]: (Indiscernible)—
“THE COURT: Something that you can look at, think
about, whatever. Anyway, let’s just—do you want [to sched-
ule sentencing proceedings for] one week, two weeks, three
weeks?”
Although in the subsequent sentencing proceeding, defen-
dant referred to the verdict as “odd” and argued for a lesser
sentence because the jury should not have been able to
return the verdict it did, having acquitted on the firearm
charges, defendant did not make any formal motion based
on an assertion that the verdicts were inconsistent.
In his first and second assignments of error, defen-
dant argues that the trial court erred when it did not enter
judgments of acquittal on Counts 5 and 6. Defendant con-
cedes that the state presented sufficient evidence for a jury
to find that he was the principal actor in the robbery and
that he used a firearm. But he argues that the verdict shows
that the jury found that he did not engage in conduct consti-
tuting third-degree robbery under ORS 164.395 (i.e., he did
not “use[ ] or threaten[ ] the immediate use of physical force
upon another person”), and as such, a trier of fact could not,
as a matter of law, find him guilty of second-degree robbery
under ORS 164.405(1)(b). We therefore understand defendant
to argue that the trial court should have sua sponte entered a
judgment of acquittal after the jury returned its verdict.
Defendant did not move for a judgment of acquit-
tal after the verdict, so this argument is unpreserved. Our
review is thus for plain error. See ORAP 5.45(1), (4)(b), (7).
Plain error review is a two-step process. We must first
Cite as 333 Or App 797 (2024) 803
determine that the error is plain, which means that it is
“an error of law, obvious and not reasonably in dispute, and
apparent on the record without requiring the court to choose
among competing inferences.” State v. Vanornum, 354 Or
614, 629, 317 P3d 889 (2013). If those three requirements
are met, we must then determine whether to exercise our
discretion to correct the error. Ailes v. Portland Meadows,
Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991).
We conclude that the trial court did not plainly err
because we find no error apparent on the face of the record.
Counts 5 and 6 charged that defendant committed the crime
of second-degree robbery under the theory that defendant
was aided by another person actually present. The state
presented evidence from which a jury could find that defen-
dant grabbed J from behind in a “choke hold * * * around his
chest,” held something to J’s ribs that appeared to A to be
a gun, demanded the drugs and personal property, ordered
J and A out of the car, and left with the car. Those facts
are sufficient to establish that defendant used or threated
force on J and A in the course of committing theft and unau-
thorized use of a vehicle. The state also presented evidence
from which a jury could find that defendant’s brother was in
the backseat of the car with him during the act, took a fanny
pack from A, and drove the car away. Those facts are suffi-
cient to establish that defendant’s brother aided defendant
in the theft and unauthorized use of a vehicle.
Notwithstanding the existence of those facts, defen-
dant argues that the judgment of acquittal was still neces-
sary because the jury acquitted defendant on all counts that
involved use of a firearm. Defendant contends that the jury
necessarily concluded that defendant was present at the
robbery but was not the person who used or threatened the
immediate use of physical force on the victim. As a result,
defendant asserts, the jury must have determined that he
was not directly liable, and his conviction must have been
based on him aiding and abetting his brother in committing
the crimes. Defendant therefore argues that because he did
not actually engage in the conduct constituting third-degree
robbery, a trier of fact could not, as a matter of law, find that
he violated ORS 164.405(1)(b).
804 State v. Jones
We agree with defendant that a person needs to
directly engage in the conduct for criminal liability under
ORS 164.405(1)(b). State v. Rennells, 213 Or App 423, 439,
162 P3d 1006 (2007) (“[O]nly a person who actually engages
in the conduct constituting third-degree robbery * * * ‘vio-
lates ORS 164.395’ for purposes of ORS 164.405(1)(b).”).
However, we disagree that because the jury found that
defendant did not use a firearm, the jury necessarily found
that he did not personally engage in conduct constituting
third-degree robbery.
On this record, the jury’s acquittal on the firearm
counts could have been because the jury found that the state
did not prove beyond a reasonable doubt that a firearm was
used in the robbery at all. A was the only witness to posi-
tively identify that a gun was used, and police never recov-
ered a firearm matching the description that A provided.
Although A testified that a gun was held to J’s ribs, and
A’s description of the gun resembled one that defendant was
holding in a photograph, the jury was free to disbelieve A’s
memory of the events.
In addition, the presence of a firearm was not
essential to the convictions, because ORS 164.395 does not
require the use of a dangerous or deadly weapon, only a use
or threatened use of force. The jury could have determined
that defendant violated ORS 164.395 when he grabbed J
from behind before demanding the drugs and personal prop-
erty. Then, the jury needed only find that defendant was
“aided by another person actually present” to convict defen-
dant of Counts 5 and 6. As we explained above, that finding
was permissible on the record. Because there is more than
one way to interpret the record in this case, the trial court
did not plainly err when it did not enter judgments of acquit-
tal on Counts 5 and 6.4
We reach a different conclusion about defendant’s
fourth assignment of error, under which defendant chal-
lenges the trial court’s failure to give a concurrence instruc-
tion that required the jury to unanimously decide whether
4
Indeed, if the jury found that a firearm was used and defendant aided and
abetted his brother in the robbery, it is likely that they would have also convicted
him of other counts.
Cite as 333 Or App 797 (2024) 805
defendant acted as the principal or accomplice. We agree
with defendant that the trial court plainly erred when it did
not give such an instruction. Because “the question of what
must be included in a jury instruction is a question of law,
and what was or was not included is determined readily by
examining the instructions that were given[,] * * * the only
issue [before us] is whether the error[ ] w[as] ‘obvious.’ ” State
v. Lotches, 331 Or 455, 472, 17 P3d 1045 (2000). We con-
clude that the error was obvious under State v. Gaines, 275
Or App 736, 365 P3d 1103 (2015), and exercise our discretion
to correct it.
The Supreme Court has established:
“[I]f the state seeks to hold a defendant liable either as the
principal or as an aider and abettor and if a party requests
an appropriate instruction, the trial court should instruct
the jury that [the] jurors must agree on each legislatively
defined element necessary to find the defendant liable
under one theory or the other.”
State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013). As the
Phillips court recognized, “the elements necessary to prove
liability as an aider and abettor ordinarily will not be coex-
tensive with the elements necessary to prove liability as a
principal.” Id. In Gaines, we followed Phillips and decided
that the trial court committed plain error when it failed to
give a concurrence instruction after the jury was presented
with both principal and accomplice theories of guilt on a
second-degree robbery charge. 275 Or App at 748. We decide
the same here.
We recognize that when the parties discussed the
instructions with the court outside of the presence of the
jury, it was clear to all involved that the “criminal liabil-
ity for conduct of another person” and the “aid-or-abet” jury
instructions applied only to Counts 1 through 4, 7, and 8,
and that it was the “aid by another person” definition that
applied to Counts 5 and 6. However, the final instructions to
the jury did not make that distinction. Therefore, the jury
could have used the “criminal liability for conduct of another
person” and/or the “aid-or-abet” instruction to find defen-
dant guilty of second-degree robbery in Counts 5 and 6.
Thus, the jury was presented with both principal and
806 State v. Jones
accomplice theories for Counts 5 and 6, and the jury instruc-
tions did not require the jurors to agree on a theory of liabil-
ity. Under Gaines, that error is obvious. 275 Or App at 748(“After Phillips, it is ‘obvious’ that, when the state advances
competing theories of liability based on a defendant’s acts
as principal or as an aider-and-abettor[,] * * * a jury must be
instructed that * * * jurors must agree that the defendant is
liable under one theory or the other.”).
Having found plain error, we exercise our discre-
tion to correct it. Ailes, 312 Or at 382 n 6. We have exercised
our discretion to correct the trial court’s failure to deliver a
jury-concurrence instruction on aiding-and-abetting liabil-
ity in multiple cases. See, e.g., State v. Stowell, 304 Or App 1,
2, 466 P3d 1009 (2020), abrogated on other grounds by State
v. Prophet, 318 Or App 330, 507 P3d 735 (2022), and abro-
gated on other grounds by State v. Shedrick, 370 Or 255, 518
P3d 559 (2022); State v. Miranda, 290 Or App 741, 755, 417
P3d 480 (2018); State v. Wright, 281 Or App 399, 406, 383
P3d 385 (2016); Gaines, 275 Or App at 749. We follow suit
and exercise our discretion here: “[B]ecause * * * defendant’s
convictions were for serious felonies, and the error was not
harmless, the gravity of the error compel[s] us to exercise
our discretion to correct the error.” Gaines, 275 Or App at
750-51 (also noting that there was no “plausible strategic
reason for defendant’s failure to seek a concurrence instruc-
tion”); see also Stowell, 304 Or App at 7 (exercising discretion
to correct plain error due to “lack of harmlessness, gravity
of the error, and little chance that counsel made a strategic
choice in failing to request instruction”).
Because defendant’s fourth assignment of error is
dispositive, we do not address defendant’s third assignment
of error, which relates to other jury instructions, as the
record may develop differently on remand.
Convictions on Counts 5 and 6 reversed and remanded;
remanded for resentencing; otherwise affirmed.