State v. Phillips

598 December 27, 2013 No. 64
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
JESSE JEROME PHILLIPS,
Petitioner on Review.
(CC 080431569; CA A140377; SC S059835)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 13, 2012; resubmitted
January 7, 2013.
Rankin Johnson, Portland, argued the cause and filed
the brief for respondent on review.
Jamie K. Contreras, Assistant Attorney General, Salem,
argued the cause for respondent on review. Greg Rios,
Assistant Attorney General, filed the brief. With him on the
brief were John R. Kroger, Attorney General, and Anna M.
Joyce, Solicitor General.
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
* On appeal from Multnomah County Circuit Court,Youlee Y. You, Judge.
242 Or App 253, 255 P3d 587 (2011).
Cite as 354 Or 598 (2013) 599
At his trial for third-degree assault, defendant requested a jury instruction
that at least 10 jurors must agree whether he was liable either because he hit and
injured the victim or because he aided and abetted another person who hit and
injured the victim. The trial court denied that request, the jury returned a guilty
verdict, and the Court of Appeals affirmed. Held: (1) ordinarily 10 jurors must
agree whether a defendant committed a crime him- or herself or whether the
defendant aided and abetted another person’s commission of that crime; (2) as a
result, the trial court erred in refusing to give the defendant’s requested instruc-
tion; (3) the trial court’s error was harmless, because, on the facts of this case, the
factual findings necessary to find defendant liable on one theory of liability either
subsumed or were the same as the findings on the other theory; and (4) the leg-
islative determination that causation in ORS 163.165(1)(e) can be proved either
by directly inflicting an injury or by engaging in acts extensively intertwined
with inflicting that injury did not violate either Article I, section 11, or the Due
Process Clause.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
600 State v. Phillips
KISTLER, J.
A jury found defendant guilty of third-degree
assault. See ORS 163.165(1)(e).1 The trial court’s instructions
permitted the jury to find defendant liable for that crime
either as the principal or as an accomplice. Throughout this
litigation, defendant has argued that, as a matter of statu-
tory and constitutional law, the jurors had to agree on which
role he played in the assault: Did he hit the victim or did he
aid and abet the person who did? The trial court declined
to give defendant’s requested instruction on that issue, and
the Court of Appeals affirmed. State v. Phillips, 242 Or App
253, 255 P3d 587 (2011). We allowed defendant’s petition for
review and now affirm the Court of Appeals decision and
the trial court’s judgment. We hold that, even though the
trial court should have given defendant’s requested instruc-
tion, the error was harmless.
This case arose out of a dispute over a cell phone.
The victim sold defendant a cell phone with prepaid min-
utes. Defendant made a down payment when he got the cell
phone and agreed to pay the balance in the future. When
defendant failed to pay the balance owed, the victim con-
tacted the cell phone provider and caused the remaining
prepaid minutes to be cancelled, angering defendant.
A few days after the victim cancelled the remaining
prepaid minutes, the victim and his older brother went over
to a neighbor’s house to smoke a bowl of methamphetamine.
When they got there, they discovered that defendant and
two of his friends were there, and a fight broke out among
the victim, the victim’s brother, defendant, and defendant’s
two friends. There is no dispute that, during the fight, defen-
dant hit the victim’s brother.2 There is also no dispute that,
during the fight, either defendant or defendant’s friend hit
the victim in the face and broke the bone around the victim’s
1
ORS 163.165(1) specifies nine ways in which a person can commit third-
degree assault. When we refer to third-degree assault in this opinion, we refer
only to ORS 163.165(1)(e), which provides that a person commits that crime “if
the person * * * [w]hile being aided by another person actually present, intention-
ally or knowingly causes physical injury to another.”
2
The victim’s brother testified, and no witness disputed, that defendant
“punched [the brother] in the nose.” With that blow, defendant “broke the [broth-
er’s nasal] bone, took it out of the skin.”
Cite as 354 Or 598 (2013) 601
eye.3 What is in dispute is the role that defendant played in
causing the victim’s injury. The evidence at trial permitted
the jury to draw three different conclusions regarding that
issue.
First, the jury could have found that defendant
initially hit the victim’s brother, disabling him. After that,
defendant’s two friends held the victim’s arms while defen-
dant hit the victim in the face, breaking the bone around his
eye.
Second, the jury could have found that one of defen-
dant’s friends hit the victim in the face, breaking the bone
around his eye, and that defendant hit the victim’s brother
to prevent him from coming to the victim’s aid. Under that
version of the facts, the jury could have found that defendant
did not hit the victim but that he aided and abetted the per-
son who did.
Third, the jury could have found that defendant hit
the brother but that, when he did so, defendant was unaware
that one of his friends either was hitting or was going to hit
the victim. Under that version of the facts, the jury could
have found that defendant neither hit the victim nor aided
and abetted the person who did.
In instructing the jury, the trial court explained the
elements of third-degree assault under ORS 163.165(1)(e).
It also told the jury the circumstances in which one person
will be liable for another person’s criminal conduct for aid-
ing and abetting that conduct. See ORS 161.155 (defining
liability for aiding and abetting another person’s commis-
sion of a crime). The trial court did not, however, give defen-
dant’s requested instruction, which would have told the jury
that 10 jurors had to agree whether defendant was liable
for third-degree assault either because he hit the victim or
because he aided and abetted the person who did. The jury
returned a verdict finding defendant liable for third-degree
assault for the injuries that the victim sustained.4
3
Defendant and his witnesses testified that defendant’s friend was the per-
son who hit and injured the victim. Conversely, the victim and his brother testi-
fied that defendant was the person who hit and injured the victim.
4
The state had charged defendant with three counts of assault. The jury
acquitted defendant of the first count, which charged him with second-degree
602 State v. Phillips
On appeal, defendant assigned error to the trial
court’s refusal to give his requested instruction, and the
Court of Appeals affirmed. The Court of Appeals reasoned
that defendant “caused” the victim’s injury within the mean-
ing of the third-degree assault statute if defendant either
inflicted the injury himself or aided another in doing so.
242 Or App at 263. The court explained that, because direct
infliction of injury and aiding another in inflicting that
injury were alternative factual ways of proving a single ele-
ment of third-degree assault (causation), 10 jurors need not
agree which set of facts proved that element. Id. We allowed
defendant’s petition for review to consider whether, either as
a matter of statute or constitutional law, at least 10 jurors
must agree whether defendant was liable as a principal or
as an accomplice.
Before turning to that issue, it is helpful to discuss
briefly the crime of third-degree assault. ORS 163.165(1)(e)
provides that a person commits that crime “if the person
*  * [w]hile being aided by another person actually pres-
*
ent, intentionally or knowingly causes physical injury to
another.” Under that statute, three persons are necessary
for the crime of third-degree assault: a victim who suffers
physical injury, a person who “causes” that injury, and a
third person actually present who aids the infliction of that
injury. State v. Pine, 336 Or 194, 82 P3d 130 (2003). A per-
son can “cause” physical injury within the meaning of ORS
163.165(1)(e) in one of two ways. Id. at 207. A person can
either “inflic[t] physical injury directly himself or herself”
or, alternatively, “engag[e] in conduct so extensively inter-
twined with [another person’s] infliction of the injury that
such conduct can be found to have produced the injury.” Id.In Pine, this court quoted the following passage
from State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990), to
illustrate when a person’s conduct will be “so extensively
intertwined with [another person’s] infliction of the injury”
that it will “cause” the injury:
assault for causing “serious physical injury” to the victim. The jury convicted
defendant of the second and third counts, which charged him with third-degree
assault for causing physical injury, respectively, to the victim and his brother
while being aided by another person actually present. Only the conviction on the
second count for causing physical injury to the victim is at issue on review.
Cite as 354 Or 598 (2013) 603
“ ‘Joining in the stabbing of a dying victim or restraining the
victim so that he cannot avoid the fatal knife thrusts con-
stitutes “personally” committing the homicide. Thus, in the
instant case, even if [the] defendant choked and restrained
the victim[,] but did not also stab him, nonetheless [the]
defendant “personally” committed this homicide[,] and he
is directly responsible for it.’ ”
Id. at 206 (quoting Nefstad, 309 Or at 543; brackets in Pine);
see also id. at 206-07 and n 4 (explaining that, although
the issues in Pine and Nefstad were not identical, Nefstad’s
reasoning was persuasive in determining the meaning of
“cause” in the third-degree assault statute).
The court also explained in Pine that “the fact
that a defendant provided on-the-scene aid to another per-
son who inflicted physical injury upon a victim does not, in
itself, render the defendant liable for third-degree assault
under that statute.” Id. at 207; see also id. at 205 (conclud-
ing that “cause” in ORS 163.165(1)(e) reaches a narrower
range of conduct than “aid” does). Under Pine, not every-
one who aids another in committing third-degree assault
will “cause” the injury in a way that renders the aider liable
under ORS 163.165(1)(e). Having held that the defendant in
Pine would not be liable under ORS 163.165(1)(e) if he aided
but did not cause the physical injury, the court did not reach
the state’s argument that the defendant in Pine could still
be liable for third-degree assault for aiding and abetting the
commission of that crime. Id. at 207-08; see ORS 166.155
(defining liability for aiding and abetting another person’s
criminal conduct). The court explained that the state had
not preserved that theory of liability. Id.
As we read Pine, it stands for the following proposi-
tions: A person need not inflict physical injury personally to
“cause” that injury within the meaning of ORS 163.165(1)(e).
Some acts by a third person actually present that aid the
infliction of physical injury will also “cause” the injury—
namely, acts that are “extensively intertwined” with causing
the injury. However, not every act by a third person actu-
ally present that aids the infliction of physical injury will
“cause” the injury and render the third person liable under
ORS 163.165(1)(e). Finally, Pine recognized the possibility
604 State v. Phillips
that a person could be liable for third-degree assault under
ORS 161.155 for aiding and abetting the commission of that
crime, but the court did not have occasion to decide when, if
ever, the circumstances would justify imposition of aid-and-
abet liability.
This case differs from Pine in one respect (and in
another respect that we discuss later in the opinion). In
this case, the trial court’s instructions permitted the jury
to find defendant liable for third-degree assault if he aided
and abetted the person who caused the victim’s physical
injury, and defendant has not challenged that instruction on
review.5 Specifically, defendant does not dispute on review
that, if the jury found that one of his friends hit the victim
while defendant hit the victim’s brother to prevent him from
coming to the victim’s aid, the jury could find defendant lia-
ble for third-degree assault because he aided and abetted
his friend’s assault on the victim.
Defendant’s argument focuses on a different issue.
He argues that the trial court erred in not instructing the
jury that 10 of its members had to agree whether he hit the
victim or whether he aided and abetted the person who did.
In State v. Pipkin, 354 Or 513, ___ P3d ___ (2013), we clar-
ified the proper method for analyzing a claim that either
the state or federal constitution requires jury concurrence.
When 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. See id. at 521-22. If the legislature intended that each
alternative means is a separate element and if the indict-
ment charges that element, then at least 10 members of the
jury have to agree on it. Id. at 522, 527. If, however, the
alternative means are merely different factual ways of prov-
ing a single element, then the question becomes whether
permitting the jury to find that element based on that fac-
tual mix violates either Article I, section 11, of the Oregon
Constitution or the Due Process Clause. See id. at 522.
5
Defendant argued in the Court of Appeals that the trial court erred in
instructing the jury that it could find him liable for aiding and abetting. However,
the Court of Appeals concluded that defendant had not preserved that issue,
and it declined to reach it under the plain error doctrine. 242 Or App at 258-59.
Defendant has not challenged that ruling on review.
Cite as 354 Or 598 (2013) 605
In this case, the Court of Appeals began by seek-
ing to determine the legislature’s intent. As noted above, the
Court of Appeals held that, as a matter of legislative intent,
“(1) actual infliction of injury and (2) aiding another in doing
so are two alternative methods of meeting the ‘causes’ ele-
ment of a single crime, third-degree assault” and that, as a
result, 10 jurors need not agree on how defendant “caused”
the victim’s physical injury. Phillips, 242 Or App at 263. The
Court of Appeals’ interpretation of ORS 163.165(1)(e) is diffi-
cult to square with this court’s interpretation of that statute
in Pine. In Pine, this court held that not everyone who aids
the infliction of physical injury “causes” that injury within
the meaning of ORS 163.165(1)(e). Pine, 336 Or at 205, 207.
To the extent that the Court of Appeals held that everyone
who aids the infliction of physical injury “causes” the injury
within the meaning of ORS 163.165(1)(e), its interpretation
conflicts with Pine and cannot stand.
The Court of Appeals’ reasoning is problematic
for another reason. ORS 161.155 defines when one person
will be “criminally liable for the conduct of another per-
son constituting a crime.” One instance is when a person
aids and abets another person’s commission of a crime. See
ORS 161.155(2)(b) (defining liability for aiding and abetting
another person’s criminal conduct); State v. Lopez-Minjarez,
350 Or 576, 582-83, 260 P3d 439 (2011) (explaining the ele-
ments required to prove liability for aiding and abetting
another person’s commission of a crime).6 In State v. Blake,
348 Or 95, 101, 228 P3d 560 (2010), this court explained
that “[a]ccomplice *  * liability is not itself an independent
*
offense.” Id. Rather, “[a]ccomplice liability makes a person
who aids or abets a crime liable for that crime even though
the accomplice may not have committed any of the acts that
the crime entails.” Id. Blake thus recognized that the ele-
ments necessary to prove accomplice liability ordinarily will
6
The court explained in Lopez-Minjarez:
“[ORS 161.155(2)(b)] requires a specific intent: the intent to promote or
facilitate the commission of the crime committed by another. The statute also
has a conduct element: with that requisite intent, the person must assist,
agree to assist, or attempt to assist in either the planning or commission of
the crime committed by another.”
350 Or at 582.
606 State v. Phillips
be separate from and in addition to the elements necessary
to prove the principal’s liability for the underlying offense.
As we reiterated in Pipkin, jury concurrence is
required for each legislatively defined element necessary to
impose criminal liability. See 354 Or at 527. Moreover, as
Blake explained, the elements necessary to prove liability as
an aider and abettor ordinarily will not be coextensive with
the elements necessary to prove liability as a principal. See
348 Or at 101. 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.7 Put differently, if the state seeks to hold a defen-
dant 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 defendant liable under one theory or the other. The
trial court erred in refusing to give defendant’s requested
instruction.
The question that remains is whether, in light of the
facts of this case and the terms of the third-degree assault
statute, that error was harmless.8 In this case, the facts
permitted the jury to find defendant liable for third-degree
assault on one of two bases: (1) defendant hit the victim in
the face while defendant’s friends held the victim’s arms or
(2) one of defendant’s friends hit the victim in the face while
defendant hit the victim’s brother to keep him from coming
to the victim’s aid.9 Under the first set of facts, the jury could
7
We need not decide what the result would be if the legislature had defined
criminal liability differently. See Holland v. State, 280 NW2d 288 (Wis 1979)
(considering a state statute that required proof of a single element (that the
defendant was a principal) and that defined a principal as a person who either
committed a crime directly or intentionally aided and abetted its commission); cf.
State v. Boots, 308 Or 371, 379-80, 780 P2d 725 (reserving the question whether a
statute similar to the one at issue in Holland would run afoul of either Article I,
section 11, or the Due Process Clause).
8
It is possible to read the Court of Appeals’ opinion as being confined to the
facts of this case and thus implicitly resting on a harmless error analysis.
9
As noted above, the facts also permitted the jury to find that defendant
was unaware that one of his friends was hitting or about to hit the victim when
defendant hit the victim’s brother. Those facts, however, would not have permit-
ted the jury to find defendant liable for third-degree assault either for causing
the victim’s physical injury or for aiding and abetting the person who caused it.
Cite as 354 Or 598 (2013) 607
find that defendant “caused” the victim’s injury by directly
inflicting it. See Pine, 336 Or at 207. Under the second set
of facts, the jury could find that defendant’s conduct was “so
extensively intertwined with [another person’s] infliction of
the [victim’s] injury” that defendant’s conduct “caused” that
injury, as this court explained the meaning of “cause” in
Pine. See id. at 207.
Specifically, if defendant had held the victim so that
his friend could hit the victim in the face, there would be
little dispute that defendant “caused” the resulting physical
injury within the meaning of ORS 163.165(1)(e). See Pine,
336 Or at 206 (explaining that restraining the victim so
that another person could hit him would be so extensively
intertwined with the infliction of physical injury that the
restraint would be as much a cause of the injury as the
blow). In this case, defendant did not hold the victim so that
his friend could hit him.10 Rather, he hit the victim’s older
brother to prevent the brother from coming to the victim’s
aid. It is difficult, however, to see how the latter act placed
the victim in any different situation from the former. If the
jury found defendant liable for aiding his friend’s infliction
of physical injury, it had to find that defendant acted for the
purpose of making the victim vulnerable to that injury. See
Lopez-Minjarez, 350 Or at 582-83 (explaining the mental
state necessary for aiding and abetting). Moreover, in this
case, the direct and immediate effect of defendant’s act was
to prevent the victim from escaping the blow that resulted
in his injury. On this record, the jury could find that, by hit-
ting the brother to keep him from coming to the victim’s aid,
See Lopez-Minjarez, 350 Or at 582 (explaining that to find a defendant liable for
aiding and abetting another person’s commission of a crime, the jury would have
to find that the defendant had “the intent to promote or facilitate the commission
of the crime”).
10
One witness agreed on cross-examination that he had testified at the
grand jury that “when [the victim] walked out, that actually [defendant] grabbed
[the victim], and that then a kid hit [the victim].” Considered in isolation, that
grand jury testimony could be read two ways. The word “then” could imply that
“a kid hit” the victim while defendant was holding him, or it could imply that the
kid hit the victim after defendant had let go of the victim. At trial, the witness
clarified that the latter meaning was correct; he testified that defendant was not
“holding [the victim] while the kid hit him.” Even if the jury could have disre-
garded the witness’s trial testimony, that does not help defendant. If defendant
were holding the victim when his friend hit him, defendant “caused” the injury as
this court explained that term in Pine.
608 State v. Phillips
defendant “caused” the victim’s injury, as this court defined
that term in Pine.
Under Pine, the only two sets of facts that permitted
the jury to find defendant liable for third-degree assault were
alternative factual ways of proving a single element of third-
degree assault—that defendant “caused” the victim’s phys-
ical injury. On this record, the jury was not presented with
two competing theories of liability, each of which required
proof of discrete, separate facts. Rather, the facts in this
case presented the jury with two alternative factual ways of
proving the “causes” element of third-degree assault.
To be sure, the trial court instructed the jury that
it could find defendant liable for aiding and abetting the
infliction of injury, and some jurors could have found defen-
dant liable under ORS 161.155 rather than directly under
ORS 163.165(1)(e). However, when the only act that could
have constituted aiding and abetting the infliction of phys-
ical injury under ORS 161.155 also constituted “causing”
that injury within the meaning of ORS 163.165(1)(e), we fail
to see how any error in requiring jury concurrence on one
theory or the other prejudiced defendant. The same is true
for intent. A finding that defendant intended to promote or
facilitate the assault subsumes a finding that he intention-
ally or knowingly caused the injury. See State v. Boots, 308
Or 371, 377-78 n 6, 780 P2d 725 (1989) (distinguishing cases
from other jurisdictions because the facts necessary to prove
one theory of liability were subsumed within the other). On
this record, we cannot say that the trial court committed
reversible error in declining to give defendant’s requested
instruction.
That is not the end of the inquiry, however. Even
though the trial court’s failure to give defendant’s requested
instruction did not prejudice defendant’s right to have 10
jurors agree on each legislatively defined element of the
offense, ORS 163.165(1)(e) still permitted the jury to find
that defendant “caused” the injury by either inflicting the
injury directly or by taking actions that were extensively
intertwined with causing it. Both Article I, section 11, of the
Oregon Constitution and the Due Process Clause place lim-
its on the legislature’s ability to define alternative factual
Cite as 354 Or 598 (2013) 609
means of proving a single element. See Pipkin, 354 Or at
527-29 (Article I, section 11); Schad v. Arizona, 501 US 624,
637-38, 111 S Ct 2491, 115 L Ed 2d 555 (1991) (due process).11
And the constitutional question in this case reduces to
whether the legislature could provide that a person “causes”
physical injury either by directly inflicting it or by engaging
in conduct “so extensively intertwined” with inflicting the
injury that the conduct can be said to have caused it. See
Pine, 336 Or at 207 (describing those two alternative means
of causing physical injury).
On that issue, defendant relies solely on the com-
mon law to argue that permitting the jury to find him liable
for third-degree assault based on either of those two theo-
ries violates the state and federal constitutions. He reasons
that, because the common law treated principal and accom-
plice liability as separate, distinct theories, permitting the
jury to base its verdict on what amounts to a combination
of those theories violates his constitutional rights. Before
turning to defendant’s argument, it is helpful to describe the
common law that preceded the ratification of the Fourteenth
Amendment in 1868 and then turn to the Oregon statutes
and cases that preceded the adoption of the relevant part of
Article I, section 11, in 1934.
The common law divided persons charged with fel-
onies into three classes: principals in the first degree; prin-
cipals in the second degree; and accessories before the fact.
See Wayne R. LaFave, 2 Substantive Criminal Law § 13.1(b)
(2d ed 2003).12 “[A] principal of the first degree is one who
does the act, either himself directly, or by means of an inno-
cent agent.” Joel Prentiss Bishop, 1 Commentaries on the
Criminal Law § 456 (2d ed 1858). “A principal of the second
11
Article I, section 11, of the Oregon Constitution provides, in part:
“[I]n the circuit court ten members of the jury may render a verdict of guilty
or not guilty, save and except a verdict of guilty of first degree murder, which
shall be found only by a unanimous verdict.”
The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any
State deprive any person of life, liberty, or property, without due process of law.”
US Const, Amend XIV, § 1.
12
The common law also classified persons as accessories after the fact if
they aided a person after the commission of a felony. See LaFave, 2 Substantive
Criminal Law § 13.6(a). That classification is not relevant to the issues defendant
raises.
610 State v. Phillips
degree is one who is present lending his countenance and
encouragement, or otherwise aiding, while another does
it.” Id.; accord James Fitzjames Stephen, 2 A History of the
Criminal Law of England 230 (1883). At common law, a prin-
cipal in the second degree could be actually or constructively
present. Bishop, Criminal Law § 460; LaFave, 2 Substantive
Criminal Law § 13.1(b). Finally, a person who aided and
abetted the commission of a crime but who was not actually
or constructively present was an accessory before the fact.
Bishop, 1 Criminal Law §§ 473-74.
Viewed through a common-law lens, a person
who “caused” physical injury within the meaning of ORS
163.165(1)(e) would be either a principal in the first degree
or a principal in the second degree. If a person caused the
injury by directly inflicting it, the person would be a prin-
cipal in the first degree. If the person caused the injury
because that person’s conduct was extensively intertwined
with the injury’s infliction, that person would be a principal
in the second degree; that is, he or she would be a person
who, while actually present, aided the infliction of physical
injury. It follows that, whether defendant personally hit the
victim or hit the victim’s brother to keep him from coming
to the victim’s aid, defendant would have been either a prin-
cipal in the first or second degree at common law. He would
not have been an accessory before the fact because, at a min-
imum, he was actually present when he aided his friend’s
infliction of the victim’s physical injury.
At common law, the distinction between a princi-
pal in the first and second degree had “no practical use or
effect whatever.” Bishop, 1 Criminal Law § 456. The state
could charge a defendant as a principal in the second degree
and prove that he was a principal in the first degree or vice
versa.13 Id. As Bishop explained, “[t]he distinction is in all
respects without a difference.” Id. Similarly, at common law,
“[a] second degree principal could be tried and convicted
13
Bishop stated:
“And now an indictment against a man as principal of the first degree is
sustained by proof of his being principal of the second degree; and, on the
contrary, an indictment against him as principal of the second degree is sup-
ported by proof that he is principal of the first degree.”
Bishop, Criminal Law § 456.
Cite as 354 Or 598 (2013) 611
even though the person who actually committed the crime
had not yet been tried.” LaFave, 2 Substantive Criminal Law
§ 13.1(d). Whatever distinctions may have existed at com-
mon law between principals and accessories before the fact,
the common law did not recognize a distinction of any prac-
tical significance between principals of the first and second
degree.
Oregon went further than the common law. It made
no distinction between principals and accessories before the
fact. The Deady Code provided:
“All persons concerned in the commission of a crime,
whether it be felony or misdemeanor, and whether they
directly commit the act constituting the crime, or aid and
abet in its commission, though not present, are principals,
and to be tried and punished as such.”
General Laws of Oregon, Crim Code, ch LIII, § 691, p 573
(Deady 1845-1864). Given that legislative choice, this court
held in 1887 that it was immaterial that the indictment
charged the defendant as a principal in the victim’s murder
but that the state proved only that the defendant aided and
abetted another person who administered the fatal poison.
State v. Moran, 15 Or 262, 275, 14 P 419 (1887). Since then,
this court consistently has adhered to that proposition. See
State v. Fraser, 105 Or 589, 594-95, 209 P 467 (1922); State
v. Branton, 33 Or 533, 540-42, 56 P 267 (1899).
With that background in mind, we turn to Article I,
section 11. As initially adopted in 1857, Article I, section
11, did not expressly address jury unanimity or jury con-
currence. Or Const, Art I, § 11 (1857); Pipkin, 354 Or at 526
(discussing that issue). In 1934, the people approved a legis-
latively referred amendment to Article I, section 11, that for
the first time expressly addressed jury concurrence and jury
unanimity. The amendment added the following provision
to Article I, section 11: “[I]n the circuit court ten members
of the jury may render a verdict of guilty or not guilty, save
and except a verdict of guilty of first degree murder, which
shall be found only by a unanimous verdict.” See Or Laws
1935, p 5.
Nothing in the context that preceded the enactment
of the 1934 amendment to Article I, section 11, suggests any
612 State v. Phillips
state constitutional problem with defining “causes” broadly
enough to include actors who, at common law, would have
been principals in the first and second degree. Rather, as
explained above, the common law, the Deady Code, and the
Oregon cases that preceded the adoption of the 1934 amend-
ment regarded those categories as interchangeable.
The same is true for the Fourteenth Amendment,
which was ratified by three-fourths of the states in 1868.
To be sure, defendant argues that the common law that
preceded the ratification of the Fourteenth Amendment dis-
tinguished between principals and accessories before the
fact. The difficulty, however, with defendant’s argument is
that the word “causes” in ORS 163.165(1)(e) embraces only
principals in the first and second degree. The common law
that preceded the adoption of the Fourteenth Amendment
drew no meaningful distinction between those two classes of
actors. Even if there might be a federal due process problem
with a statute that allowed a jury to find a defendant liable
for a crime without regard to whether the defendant acted
as a principal or an accessory before the fact, this case does
not present that problem. Nothing in the common law sug-
gests that due process would be offended by permitting the
state to prove that a defendant caused a victim’s physical
injury either by directly inflicting that injury or by taking
actions while actually present that were extensively inter-
twined with the infliction of the injury. See Schad, 501 US at
637 (plurality); id. at 649-51 (Scalia, J., concurring in part
and concurring in the judgment).14
We summarize our conclusions briefly. The require-
ment recognized in Boots and reaffirmed in Pipkin that
at least 10 jurors must agree on each legislatively defined
14
In determining whether due process permitted a legislatively defined ele-
ment to be proved by alternative factual means, the plurality in Schad considered
history, the breadth of the practice, and the “moral and practical equivalence” of
the alternative means. 501 US at 637 (plurality). In this case, defendant bases his
due process argument solely on history and does not contend that the two ways of
proving “cause” in ORS 163.165(1)(e) are either novel or lack “moral and practical
equivalence.” Justice Scalia’s separate opinion in Schad looked solely to history
to determine what due process requires. See 501 US at 649-51 (opinion concur-
ring in part and concurring in the judgment). As explained above, defendant’s
argument based solely on history fails, and he provides no other reason for us to
conclude that the Oregon legislature’s decision in ORS 163.165(1)(e) to permit
juries to find alternative factual bases for proving causation violates due process.
Cite as 354 Or 598 (2013) 613
element of a crime means that 10 jurors ordinarily must
agree whether a defendant committed a crime him or herself
or, alternatively, whether the defendant aided and abetted
another person’s commission of that crime. Even though the
trial court should have given defendant’s requested instruc-
tion to that effect, the error was harmless because, on the
facts in this case, the factual findings necessary to find
defendant liable on one theory either subsumed or were the
same as the factual findings on the other theory. Finally, the
legislative determination that causation in ORS 163.165(1)
(e) can be proved either by directly inflicting an injury or
by engaging in acts extensively intertwined with inflicting
that injury does not violate either Article I, section 11, or the
Due Process Clause.
The Court of Appeals decision and the judgment of
the circuit court are affirmed.