State v. Jones

553 P.3d 1057

333 Or.App. 797

STATE of Oregon, Plaintiff-Respondent,

v.James Sekou JONES, Defendant-Appellant.

A176173

Court of Appeals of Oregon.

Submitted June 20, 2023

July 17, 2024

Washington County Circuit Court, 20CR42436; Erik M. Bucher, Judge.

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.

₇₉₈Defendant appeals from a judgment of conviction for two counts of second-degree robbery (Counts 5 and 6).¹ Sea ORS 164.405(1)(b) ("A person commits the crime of robbery 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 vehicle * * * 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 assignments 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 ₇₉₉complex 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 purchase, 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, including 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, defendant moved for a judgment of acquittal, arguing that the state failed to produce sufficient evidence of guilt on the robbery 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 instructions 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 liability 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 actually present"), and how accomplice liability functioned for the ₈₀₀remainder 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 indication 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 committing the crime. "AID OR ABET

"A person aids or abets another person in the commission 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 robbery in Counts 5 and 6, on the basis that defendant committed robbery and was aided by another person actually present.³ See ORS 164.405(1)(b); ORS 164.395(1). The verdict ₈₀₁form 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 discussed 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 sentencing 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 inconsistent, 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 sentencing 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.

₈₀₂"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 schedule sentencing proceedings for] one week, two weeks, three weeks?"

Although in the subsequent sentencing proceeding, defendant 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, defendant argues that the trial court erred when it did not enter judgments of acquittal on Counts 5 and 6. Defendant concedes 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 constituting 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.

[1, 2] Defendant did not move for a judgment of acquittal 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 ₈₀₃determine 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 P.3d 889 (2013). If those three requirements are met, we must then determine...