State v. Burris

Whenever the State is proceeding under the aid-and-abet theory, as well as the principle liability theory, "a trial court must charge the jury as to its concurrence obligation." State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013).

Defendant appealed a judgment of conviction for Delivery and Possession of a Substantial Quanitity of Heroin and Felon in Possession of a Restricted Weapon. On appeal, Defendant argued that the trial court erred in failing to give a concurrence instruction to the jury. In response, the State argued that due to the prosecution’s closing argument, any error likely did not influence the jury and was harmless. Whenever the State is proceeding under the aid-and-abet theory, as well as the principle liability theory, "a trial court must charge the jury as to its concurrence obligation." State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013). The Court found that the State's closing argument did not render the error harmless because it is the duty of the court to ensure jury concurrence, and arguments by the parties are insufficient to properly charge the jury. The Court exercised its discretion to correct the error  as it “went to the heart of the jury’s deliberative process.” Reversed and remanded.