State v. Valerio

“Accomplice liability is both created by and limited by ORS 161.155” in that criminal liability of an accomplice can be attached to a crime that is intended but the statute does not extend the liability to the natural and probable consequence of the intended crime.

Defendant appealed contending erroneous jury instructions which indicated that one who aids or abets another with the intent to promote or facilitate a crime is criminally liable, not only for the intended crime, but for any other crimes that result as a “natural and probable consequence” of the intended crime. The state claims that Defendant did not preserve his challenge to the instruction and that the given instruction was not prejudicial to the defendant. This Court concluded that the challenge was preserved in light of previous decisions, both by this Court and the Oregon Supreme Court, which showed that the preservation of a challenge to jury instructions can still stand even if not in direct compliance with ORCP 59. This Court reasoned that the wrongful jury instruction was harmful because “if the jury found that defendant had aided or abetted in the robbery at knife point, it could have then found defendant guilty of the attempted murder and second-degree assault counts by reasoning that those crimes were natural and probable consequences of the robbery, without determining whether defendant actually intended to aid or abet in those more serious crimes.” Counts 1 and 3 Reversed and Remanded. Remanded for sentencing. Otherwise Affirmed.