McMillan v. Kelly

Under Oregon law, a defendant may only be convicted as an accomplice to a crime the defendant has the specific intent to facilitate, assist, or promote; the defendant may not be convicted of every crime which is a natural and probable consequence to the specific crime. Specific intent is required for conviction based on accomplice liability. State v. Lopez-Minjarez, 350 Or 576, 582, 260 P3d 439 (2011).

Petitioner was convicted of twelve offenses in connection with a beating, ten of which were based on a theory of accomplice liability. Petitioner appealed a denial of post-conviction relief. Petitioner assigned error to his trial counsel’s failure to object to the natural and probable consequence instruction given to the jury and in the prosecutor's closing argument. On appeal, Petitioner argued the failure to object to the misstatement of accomplice liability in Oregon constituted inadequate assistance of counsel. In response, the superintendent argued that the jury found that Petitioner acted as the principal in the charged crimes due to his use of a firearm. Under Oregon law, a defendant must have the specific intent to assist or facilitate the commission of a crime in order to be convicted as an accomplice in that crime. State v. Lopez-Minjarez, 350 Or 576, 582, 260 P3d 439 (2011). The Court held that the jury instruction and the prosecutor’s closing argument allowed the jury to convict Petitioner of crimes that Petitioner did not have the specific intent to help commit. This constituted inadequate assistance of counsel because: (1) the failure to object to the natural and probable consequence instruction fell below the level of adequate assistance of counsel; and (2) this failure resulted in prejudice against Petitioner on some of his convictions. Thus, the Court reversed and remanded the convictions on the ten offenses based on accomplice liability and affirmed the convictions for the offenses Petitioner acted as the principal.