State v. Wright

When the State advances competing theories of liability on a defendant’s acts as principal or as an aider-and-abettor, a jury must be instructed that at least 10 jurors must agree that the defendant is liable under one theory or the other.

Defendant appealed a conviction for multiple counts of identity theft. At trial, the jury was instructed that they could find Defendant guilty either as a principal or as an aider-and-abettor.  On appeal, Defendant argued the trial court erred in failing to give the jury a concurrence instruction requiring jurors to agree on one of the two theories of liability. When the State advances competing theories of liability on a defendant’s acts as principal or as an aider-and-abettor, a jury must be instructed that at least 10 jurors must agree that the defendant is liable under one theory or the other. State v. Gaines, 275 Or App 736, 748 (2015).  Because a reasonable juror could have determined that Defendant was criminally liable as a principal or as an aider-and-abettor, and because the trial court’s instruction would have allowed fewer than 10 jurors to find Defendant liable under either theory, the trial court erred. Reversed and remanded.