State v. Stowell , 304 Or. App. 1 ( 2020 )

1
Argued and submitted December 19, 2018, reversed and remanded May 6, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
LEE ROY STOWELL,
Defendant-Appellant.
Multnomah County Circuit Court
16CR40152; A165177
466 P3d 1009
Defendant was convicted of first-degree burglary, ORS 164.225, unautho-
rized use of a vehicle, ORS 164.135, and first-degree theft, ORS 164.055. In this
appeal, defendant asserts that the trial court plainly erred in failing to instruct
the jury that its members needed to concur on whether defendant acted as a
principal or as an aider and abettor to the charged offenses. The state did not
contest that failure to provide the jury concurrence instruction constituted plain
error but argues that the error was harmless. Defendant further assigns error
to the trial court’s refusal to provide jury instruction that the state was required
to prove that defendant was negligently unaware that the value of stolen prop-
erty exceeded $1,000 as an element of the first-degree theft charge. Held: The
trial court plainly erred in failing to give a jury concurrence instruction on
aiding-and-abetting liability, that error was not harmless, and The Court of
Appeals exercised its discretion to correct the error. The trial court did not err
in refusing to give defendant’s proposed jury instruction on the state’s burden of
proof regarding mens rea.
Reversed and remanded.
Bronson D. James, Judge.
Erica Herb, 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.
Peenesh Shah, 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 Shorr, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
2 State v. Stowell
ARMSTRONG, P. J.
Defendant, who was convicted after jury trial of
first-degree burglary, ORS 164.225, unauthorized use of a
vehicle, ORS 164.135, and first-degree theft, ORS 164.055,
argues on appeal that the trial court erred in two respects in
instructing the jury. Defendant asserts that the trial court
plainly erred in failing to instruct the jury that it needed to
concur as to whether he was liable as a principal or as an
aider and abettor on all three counts. We agree with defen-
dant that this was plain error and, as explained below, exer-
cise discretion to correct the error. We therefore reverse and
remand. With regard to defendant’s remaining argument—
that the trial court erred in failing to give his requested
jury instruction on first-degree theft and that the state was
required to prove that defendant was “negligently unaware”
that the value of the stolen property exceeded $1,000—we
address it for the reason that it is likely to arise on remand,
and conclude that the trial court did not err in declining to
give defendant’s proposed instruction.
We summarize the evidence in light of both parties’
theories of the case, and review for legal error. This case
concerns a home-invasion burglary. The facts are straight-
forward. The victims returned to their home and discovered
numerous items missing from inside the home, including
passports, blank checks, tax documents, electronics, wom-
en’s apparel, and the key to a truck belonging to one of the
victims. The truck itself that had been parked outside also
was missing. Police investigated and determined that the
entry point was a kitchen window that had been forced open
after its screen had been cut. A criminalist was able to lift
a fingerprint from the window that he later determined
belonged to defendant.
Three days after the burglary, an officer executing
a search warrant related to another matter discovered in
a car belonging to Brandy Littlepage passports and blank
checks stolen from the victims. The officer who searched
Littlepage’s car also found other items that he believed to
be stolen, as well as cutting tools. The stolen truck was
recovered, parked and locked, with the ignition intact,
approximately a week after the burglary. Items in the truck
Cite as 304 Or App 1 (2020) 3
included women’s clothing that did not belong to the victims,
and the seat of the truck had been adjusted to fit a short
person.
Defendant was questioned several weeks after the
burglary. When defendant was shown some of the items
found in Littlepage’s car, he denied knowledge of them.
When asked if he knew Brandy Littlepage, defendant
paused briefly, then said “Amanda.” When shown a picture
of Littlepage, he indicated that he knew her as Amanda,
that he had met her when he began using methamphet-
amine about a month earlier, and that he had purchased
methamphetamine from her.
Defendant was charged with first-degree burglary
in an indictment that alleged that he unlawfully and know-
ingly entered and remained in the victims’ residence with
the intent to commit the crimes of theft and unlawful use
of a vehicle. The indictment also alleged unlawful use of the
stolen truck, and that defendant had knowingly committed
theft of personal property valued at $1,000 or more.
In its opening argument, the state asserted that,
because defendant’s fingerprint was found on the victims’
window, and because a woman who was connected to him
ended up with some of the items stolen from the victims, the
jury should infer that defendant committed those offenses.
Defense counsel countered, in opening, that multiple infer-
ences could be drawn from the evidence that the state would
present, leaving room for reasonable doubt that defendant
had committed the offenses. Neither party specifically
argued in opening about defendant’s potential liability as
an aider and abettor.
After the evidence described above was adduced by
the state, the prosecutor presented in closing argument a
theory that defendant had cut the screen, forced open the
window, entered the victims’ home himself in order to steal
their belongings, and drove away in the truck. The pros-
ecutor also argued, in the alternative, that the jury could
convict on an aid-and-abet theory by finding that defendant
opened the window with the intent to facilitate theft, and
Littlepage entered the home and took the items. In response,
defense counsel acknowledged that defendant’s fingerprint
4 State v. Stowell
was on the window but argued that the state had presented
no evidence that he had entered the house. Counsel noted
that women’s clothing had been taken from the home and
more women’s clothing had been found in the truck, and
that Littlepage’s vehicle contained not only items stolen
during the burglary, but also cutting tools. Counsel argued
that the state’s evidence of defendant’s fingerprint on the
window was insufficient to support an inference that he was
assisting Littlepage or anyone else to enter the home with
intent to steal, and that no evidence connected him to the
stolen truck. Counsel observed that the theft of the truck
derived from the burglary of the home, because the keys for
the truck had been inside the home. She argued that the
evidence connected Littlepage to the crimes but was not suf-
ficient to establish that defendant had assisted Littlepage
with intent to facilitate the crimes. She argued that the
fact that he touched the window established at most that
he had trespassed on the property. She suggested that the
viable inference to draw from the state’s evidence was that
defendant unwittingly became involved with and opened the
window for Littlepage, not knowing that Littlepage was a
professional thief. The jury was given standard instructions
on aid-and-abet liability but was not given an instruction
that it needed to concur on whether defendant was liable
as a principal or as an aider and abettor. The jury returned
a verdict of guilty on all three counts. The verdicts did not
indicate whether the jury convicted defendant on an aid-
and-abet theory of liability.
We first turn to the question whether the trial court
plainly erred in failing to instruct the jury that its members
needed to concur on whether defendant acted as a princi-
pal or as an aider and abettor to the charged offenses. In
State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013), the
court addressed the question whether the jurors needed to
concur as to whether the defendant committed third-degree
assault as a principal or as an aider and abettor. The court
noted that, “[w]hen a statute specifies alternative means of
committing a crime, the initial question is what, as a matter
of legislative intent, are the elements of the crime that the
state must prove.” Id. at 604 (citing State v. Pipkin, 354 Or
513, 521-22, 316 P3d 255 (2013)). The court explained that
Cite as 304 Or App 1 (2020) 5
“the elements necessary to prove liability as an aider and
abettor ordinarily will not be coextensive with the ele-
ments necessary to prove liability as a principal. It follows
that 10 jurors usually will have to agree on the elements
necessary to prove that a defendant is liable for aiding and
abetting another person’s commission of a crime. Put dif-
ferently, if 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 at least 10 jurors must agree on each
legislatively defined element necessary to find the defen-
dant liable under one theory or the other.”
Id. at 606 (citation and footnote omitted).1
The court then turned to whether the error in fail-
ing to give a jury concurrence instruction in that case was
harmless. In Phillips, the defendant was convicted of third-
degree assault, and there was evidence that the defendant
either hit the victim himself or hit the victim’s brother to
keep him from aiding the victim. Although the state pre-
sented both direct and aid-and-abet liability theories, the
court noted that, under its case law concerning third-degree
assault, a defendant can “cause” a victim’s injury not only by
directly inflicting it, but also when the defendant’s conduct
was “ ‘so extensively intertwined with [another person’s]
infliction of the [victim’s] injury’ that defendant’s conduct
‘caused’ the injury.” Id. at 606-07 (quoting State v. Pine,
336 Or 194, 206, 82 P3d 130 (2003) (brackets in Phillips)).
The court noted that “the jury could find that, by hitting
the brother to keep him from coming to the victim’s aid,
defendant ‘caused’ the victim’s injury, as this court defined
that term in Pine.” Id. at 607-08. Thus, the court concluded,
either version of the facts presented to the jury would have
established direct liability rather than aid-and-abet liabil-
ity. And, although the jury had been instructed on aiding
and abetting and could have found the defendant guilty on
that theory, “when the only act that could have constituted
1
Phillips referred to the need for 10 of 12 jurors to concur. In Ramos v.
Louisiana, ___ US ___, ___ S Ct ___, ___ L Ed 2d ___, 2020 WL 1906545 (Apr 20,
2020), the United States Supreme Court held that juries must be unanimous.
Although Phillips’s references to only 10 jurors needing to concur is no longer
good law in light of Ramos, its conclusion that jury concurrence is required on
this issue remains sound.
6 State v. Stowell
aiding and abetting the infliction of physical injury * * * also
constituted ‘causing’ that injury * * *, we fail to see how any
error in requiring jury concurrence on one theory or the
other prejudiced defendant.” Id. at 608.
The failure to give a jury-concurrence instruction
on aiding-and-abetting liability can constitute plain error,
State v. Miranda, 290 Or App 741, 754, 417 P3d 480 (2018),
and the state acknowledges that the trial court’s failure to
instruct on this matter constituted plain error. We agree.
The state further argues, however, that we should not exer-
cise our discretion to correct the error because it was harm-
less under the circumstances presented here, citing Phillips
for the proposition that the error was harmless. The state
asserts that, because it is unlikely that any juror convicted
without finding that defendant opened the window, although
some jurors may have concluded that he entered the house
and personally committed the theft crimes while others con-
cluded he aided and abetted another in committing those
crimes, the jurors all necessarily found that defendant had
the requisite intent and any jurors “who found him guilty
as a principal necessarily found facts sufficient to convict
him as an accomplice.” We disagree. The state’s two theo-
ries of the case as presented to the jury were that (a) defen-
dant acted alone in breaking into the victims’ residence
and stealing items, or (b) defendant assisted Littlepage by
opening the window to allow Littlepage to enter the victims’
residence to steal the items. Jurors who found defendant
guilty as a principal would not necessarily have found facts
to convict him as an aider and abettor, because the state’s
theory of direct liability did not involve any accomplice.2 Nor
is the obverse true: That is, if jurors believed that Littlepage
alone entered the residence and stole the items, those jurors
would not have found facts sufficient to convict defendant on
a direct liability theory while finding that defendant opened
the window with the intent to facilitate Littlepage’s thefts.
2
We note, in particular, that there was no direct evidence at all in this case
that Littlepage had actually been on the victims’ property. Defendant’s argument
that Littlepage committed the crimes, and the state’s response that if she did so
it was with defendant’s help, were based solely on evidence that Littlepage was
eventually found in possession of some of the stolen items, and the inference that
a woman might have been in the stolen vehicle at some point.
Cite as 304 Or App 1 (2020) 7
Where evidence is presented of different acts by a defendant
that could have constituted the charged offenses, jury con-
currence is required in order to avoid an impermissible “mix
and match” verdict where some jurors would find a defen-
dant guilty based on one act and other jurors would find a
defendant guilty based on another. See State v. Ashkins, 357
Or 642, 658-59, 357 P3d 490 (2015) (so noting); Mellerio v.
Nooth, 279 Or App 419, 436, 379 P3d 560 (2016), rev den, 361
Or 803 (2017) (same).
Thus, we reject the state’s argument that we should
not exercise discretion to correct the error on the ground
that it is harmless. See State v. Gaines, 275 Or App 736, 747-
49, 365 P3d 1103 (2015) (rejecting plain-error harmlessness
argument involving direct or accomplice liability for rob-
bery). Based on the considerations set forth in Miranda, 290
Or App at 755 (lack of harmlessness, gravity of the error,
and little chance that counsel made a strategic choice in
failing to request instruction), we exercise discretion to cor-
rect the error.
We turn to defendant’s remaining assignment of
error, because it is likely to arise on remand. Defendant
contends that the trial court erred in failing to give his
requested instruction concerning mens rea on the theft
charge. Defendant requested the following instruction:
“(1) For theft in the first degree, in order to find the
defendant guilty, you must find he was negligently unaware
that the value of the property stolen was valued at $1,000
or more.
“(2) To find that he was negligently unaware that the
value of the property stolen was more than $1,000, you
must find he failed to be aware of a substantial and unjus-
tifiable risk that the property stolen was valued at $1,000
or more. The risk must be of such nature and degree that
the failure to be aware of it constitutes a gross deviation
from the standard of care that a reasonable person would
observe in the situation.
“(3) If the state has proven that the defendant
intended, knew or was reckless as to the property being
valued at $1,000 or more, then the state has also satisfied
the requirement of proving the defendant was negligent.”
8 State v. Stowell
The trial court declined to give the instruction, concluding
that it did not comport with our decision in State v. Jones,
223 Or App 611, 196 P3d 97 (2008), rev den, 345 Or 618(2009).
On appeal, defendant acknowledges that we held in
Jones that the state was not required “to prove a defendant’s
intent to steal property worth at least [ $1,000 3 ] in order to
convict him of first-degree theft.” Id. at 621. He contends,
however, that Jones addressed only whether the mental
state of “intentional” must be proven with respect to that
element and did not foreclose the possibility that the state
was required to prove the lesser mental state of criminal
negligence with respect to the value of the stolen goods.4 In
support of his argument, defendant cites State v. Simonov,
358 Or 531, 368 P3d 11 (2016), asserting that it stands for
the broad proposition that, if a statute does not prescribe
a culpable mental state for a given element of a crime, cul-
pability “is established only if a person acts intentionally,
knowingly, recklessly, or with criminal negligence.” Id. at
538 (quoting ORS 161.115(2)).
As explained below, defendant is incorrect that
Jones does not foreclose his argument and is incorrect that
Simonov undermines our analysis in Jones. In Jones, the
defendant, who had been convicted of first-degree theft,
argued that the state had failed to adduce sufficient evi-
dence that he knew the value of the items stolen. The state
responded that it was not required to prove a culpable men-
tal state with respect to the value of the property. 223 Or
App at 616. In concluding that the state was correct, we first
noted that ORS 164.015 incorporates the definition of theft
found in ORS 164.015, and that ORS 164.015 provides that,
in order to commit theft, a person must act “ ‘with the intent
to deprive another of property.’ ” 223 Or App at 616 (quoting
ORS 164.015; emphasis added). We further noted that ORS
161.115(1) provides that, “[i]f a statute defining an offense
prescribes a culpable mental state but does not specify the
3
At the time that Jones was decided, first-degree theft required proof that
the property stolen was worth at least $750. ORS 164.055 (2007).
4
Defendant does not argue that Jones was incorrect in its conclusion that the
“intentional” mental state did not apply to the element of the offense concerning
the value of the stolen goods.
Cite as 304 Or App 1 (2020) 9
element to which it applies, the prescribed culpable mental
state applies to each material element of the offense that
necessarily requires a culpable mental state.” 223 Or App at
617. Thus, because ORS 164.055 prescribed a culpable men-
tal state of “intentional,” the state was required under ORS
161.115(1) to prove that mental state as to “each material
element of the offense that necessarily requires a culpable
mental state.” 223 Or App at 618-19 (“ORS 164.055, of which
defendant was convicted, is within the criminal code, and
ORS 164.015 specifies the culpable mental state. * * * ORS
164.015 specifies the applicable culpable mental state for
theft, that is, ‘intent to deprive.’ ”).
To the extent that defendant is suggesting in the
present case that Jones did not foreclose the possibility that
a lesser mental state than “intentional” might apply to the
element of first-degree theft concerning the value of the
property, we disagree. In Jones, we stated that “we do not
understand defendant to assert that a ‘knowing’ mens rea
applies to ORS 164.055 in its entirety, an argument that
would fail because ORS 164.015 specifies a mens rea of ‘with
intent,’ not ‘knowingly’ or ‘with knowledge.’ ORS 161.085(8).”
223 Or App at 619. Implicit in that statement was the conclu-
sion that, because the theft statute specified an intentional
mental state, lesser mental states, which include not only
“knowingly” but “recklessly” and “criminally negligent,” do
not apply. See ORS 161.085(8), (9), (10). We then turned to
the question whether the value of the stolen property was an
element that “necessarily” required a culpable mental state,
a chronically vexing issue given the ambiguity of the phrase
“necessarily requires a culpable mental state.” 223 Or App
at 619-21.5 We concluded that it was not such an element. Id.Simonov did not undermine our conclusions in Jones.
In Simonov, the court considered whether unauthorized
5
The phrase “necessarily requires a culpable mental state,” appears not only
in ORS 161.0015, which was at issue in Jones, but in ORS 161.095 (“Except as pro-
vided in ORS 161.105, a person is not guilty of an offense unless the person acts
with a culpable mental state with respect to each material element of the offense
that necessarily requires a culpable mental state.”). As the Oregon Supreme
Court has noted, this phrase “introduces a confusing appearance of circularity
in the text.” State v. Blanton, 284 Or 591, 594, 588 P2d 28 (1978). See also State
v. Rainoldi, 351 Or 486, 490, 268 P3d 568 (2011) (describing text as “somewhat
circular”).
10 State v. Stowell
use of a vehicle, ORS 164.135(1)(a), which involves use of
a vehicle without the owner’s consent, required proof that
the defendant had a culpable mental state with respect to
the owner’s lack of consent. The defendant contended that
the mental state of “knowingly” was required as to that ele-
ment, and that the trial court had erred in instructing the
jury that the state was required to prove only that he acted
with criminal negligence. ORS 164.135 does not prescribe
any mental state for the crime of unauthorized use of a vehi-
cle. The state argued that, because the statute did not pre-
scribe a mental state, it was required under ORS 161.115(2)
to prove only that the defendant acted “intentionally, know-
ingly, recklessly or with criminal negligence.” Simonov, 358
Or at 535-36. By way of introduction, the court observed:
“If a statute defining an offense in the Criminal Code
includes a single mental state ‘but does not specify the ele-
ment to which it applies, the prescribed culpable mental
state applies to each material element of the offense.’ ORS
161.115(1).
“If, as with the UUV statute, ORS 164.135(1)(a), the
statute does not prescribe a culpable mental state for all
or some of the material elements of the offense, ‘culpability
is nonetheless required and is established only if a person
acts intentionally, knowingly, recklessly or with criminal
negligence.’ ORS 161.115(2). Those four enumerated states
do not freely apply to any element; rather, they each apply
only to particular types of elements.”
358 Or at 538-39 (citing State v. Crosby, 342 Or 419, 428-29,
154 P3d 97 (2007)). The court reiterated: “To identify which
mental state applies when a statute does not prescribe a cul-
pable mental state for material elements of the offense, it is
necessary to determine the type or types of those elements.”
Id. at 539 (emphasis added).
To be sure, in its broad-ranging discussion of what
types of elements require proof of which mental states, and
in particular drawing distinctions between “conduct” and
“circumstance” elements, the court in Simonov did not con-
fine itself to crimes such as unauthorized use of a vehicle
that are within the Criminal Code and prescribe no men-
tal state and thus are analyzed under ORS 161.115(2). In
fact, the court cited approvingly our decision in Jones for
Cite as 304 Or App 1 (2020) 11
the proposition that the value of stolen property is not a
“conduct” element of the crime. Simonov, 358 Or at 542 (cit-
ing Jones, 223 Or App at 621). See also id. at 542-43, 543
n 4 (discussing State v. Rainoldi, 351 Or 486, 268 P3d 568
(2011), and State v. Rutley, 343 Or 368, 171 P3d 361 (2007),
which concerned statutes outside the Criminal Code and
therefore were governed not by either ORS 161.115(1) or (2)
but, rather, by ORS 161.105). The court concluded that,
“when an element of an offense within the Criminal Code
describes the nature, that is, the essential character, of a
proscribed act or omission, it generally is a conduct ele-
ment, and (unless different mental states are specified in the
statute defining the offense), the minimum culpable men-
tal state is knowledge. In contrast, when an element of a
Criminal Code offense describes an accessory fact that
accompanies the defendant’s conduct, it is a circumstance
element for which (again, unless different mental states are
specified), the minimum culpable mental state is criminal
negligence.”
Id. at 546 (emphases added). Thus, the court was describ-
ing the analysis for crimes within the Criminal Code that
do not specify mental states and, thus, are governed by
ORS 161.115(2). The emphasized language above makes it
entirely clear that the analysis set forth pertained to ORS
161.115(2), governing crimes that do not specify mental stat-
utes, and not ORS 161.115(1), which concerns crimes that do
specify a mental state.
Defendant’s proposed analysis in the present case
conflates the requirements of ORS 161.115(1) and (2). He
argues that, because ORS 164.055 and ORS 164.015 do not
“explicitly provide for a culpable mental state with regard
to the value of the property that is the subject of a theft,”
the state is required to prove at least criminal negligence
with respect to that element. (Emphasis added.) Defendant
appears to accept—or at least does not dispute—that the
theft statutes prescribe “intentional” conduct (“intent to
deprive”). He seems to assume, however, that everything
other than the “intent to deprive” element is governed by
the Simonov analysis concerning ORS 161.115(2). That
is incorrect. We reiterate the text of ORS 161.115(1): “If a
statute defining an offense prescribes a culpable mental
12 State v. Stowell
state but does not specify the element to which it applies,
the prescribed culpable mental state applies to each material
element of the offense that necessarily requires a culpable
mental state.” Unlike ORS 161.115(2), ORS 161.115(1) does
not permit, much less require, an analysis as to whether
some aspects of the crime may be proved by a lesser mental
state than that required by the applicable statute within the
Criminal Code. Under ORS 161.115(1), the analysis is more
straightforward: If a material element is one that “necessar-
ily requires a culpable mental state,” then the mental state
is the one set forth in the statute.
The mental state prescribed in ORS 164.055 and
ORS 164.015 is “intentional.” In Jones, we concluded that the
value of the property stolen was not an element that “nec-
essarily requires a culpable mental state.” ORS 161.115(1).
Given the strictures of ORS 161.115(1), our conclusion in
Jones did not leave open the possibility that a mental state
of less than “intentional” might be required as to value of
the stolen property. The trial court therefore did not err in
refusing to give defendant’s proposed “negligently unaware”
jury instruction for first-degree theft.
In sum, the trial court did not err in refusing to
give defendant’s proposed jury instruction on mens rea. It
did, however, plainly err in failing to give a jury concur-
rence instruction with respect to aid-and-abet liability, and
we exercise our discretion to correct that error.
Reversed and remanded.