The Oregon Supreme Court has taken review of my case State v. Phillips. The Supreme Court only accepts review in a small percentage of appellate cases, usually only to resolve important and unanswered questions of Oregon law. The issue in Phillips is whether the jury must agree on a basis to convict when a criminal defendant is accused of both committing a crime and assisting another person to commit the crime. That issue could have far-reaching consequences, about how detailed an indictment must be, about how many crimes arise from related events, and about how many convictions or sentences can be imposed for related crimes.
The issue in Phillips is an application of an important Oregon case, State v. Boots. In Boots, the defendant was charged with aggravated murder, which is murder accompanied by one of a list of statutory aggravating circumstances. The Supreme Court decided in Boots that the jury had to agree which circumstance elevated the murder to aggravated murder.
The jury does not have to agree on all the details of the crime, though. In State v. King, the defendant was charged with driving under the influence of intoxicants. Intoxication is defined in the statute as either being noticeably impaired, or having a blood alcohol content of more than .08%. In King, the Oregon Supreme Court decided that the jury did not have to agree on the basis to find the defendant was intoxicated.
Generally, a person can commit a crime as the ‘principal,’ the person committing the crime, or as an ‘accomplice,’ who does something to assist the principal with the intent that the crime be committed. The wheelman who drives the bank robber away after the crime is also guilty of bank robbery under Oregon law. The question in Phillips is whether the jury has to decide whether the defendant acted as a principal or an accomplice. It is complicated by the unusual crime at issue. Mr. Phillips was accused of assault in the third degree. Assault in the fourth degree is causing physical injury to another person. Assault in the third degree is, among other things, causing physical injury while aided by another person. So, if the defendant assaults the victim while the defendant’s buddy is watching to make sure that the victim doesn’t win the fight, the defendant is guilty of assault in the third degree. The Oregon Supreme Court held in State v. Pine that the buddy is not guilty of assault in the third degree as a principal. The buddy is guilty of assault in the fourth degree as an accomplice, and the courts have not decided whether the buddy might also be guilty of assault in the third degree as an accomplice.
So, the issue in Phillips is whether the jury has to agree whether the defendant acted as a principal or an accomplice. If the jury has to agree on which theory applies, and if there weren’t enough jurors to return a verdict on either theory, then the defendant was convicted even though the state didn’t prove any theory to the jury’s satisfaction. That is unjust, and I hope that the Oregon Supreme Court agrees.
