State v. Burgess

• Decision Date: 16 February 2011
• Docket Number: C080070CR; A139500.
• Citation: 251 P.3d 765,240 Or.App. 641
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Clifton Cory BURGESS, Defendant–Appellant.
• Court: Oregon Court of Appeals

240 Or.App. 641

251 P.3d 765

STATE of Oregon, Plaintiff–Respondent,

v.Clifton Cory BURGESS, Defendant–Appellant.

C080070CR; A139500.

Court of Appeals of Oregon.

Argued and Submitted April 29, 2010.Decided Feb. 16, 2011.

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.Kristen G. Williams, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and EDMONDS, Senior Judge.HASELTON, P.J.

Defendant, who was convicted of first-degree assault, ORS 163.185, appeals, raising three assignments of error. We write to address only defendant's first assignment, which challenges the trial court's denial of his motion for judgment of acquittal (MJOA). As amplified below, we conclude that (a) the evidence was legally insufficient to support defendant's conviction on the sole theory that the state argued to the jury, viz., that defendant was liable for aiding and abetting a first-degree assault perpetrated by another person; and (b) in the circumstances of this case, defendant's conviction cannot be affirmed on a theory of principal liability that was never litigated or presented to the jury. Accordingly, we reverse defendant's conviction for first-degree assault and remand for further proceedings.¹

In reviewing the denial of an MJOA, we view the facts and reasonable attendant inferences in the light most favorable to the state. See State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998). Consistently with that standard, the facts material to our review are as follows: On New Year's Eve 2007, defendant, Nicholas Cufaude, and the victim were all guests at a party. All three were intoxicated, and the host provided methamphetamine to all three. Thereafter, when the host and the victim became involved in a physical confrontation, Cufaude intervened and knocked the victim down with one or two punches. Cufaude, who was wearing steel-toed boots, then kicked the victim three or four times in the face, “like somebody kicking a football.” A bystander intervened to pull Cufaude away from the victim, who was unconscious. Cufaude then walked away.

Defendant and the victim had a hostile relationship. As Cufaude assaulted the victim, defendant stood nearby, without participating. Approximately a minute and a half after Cufaude had been pulled away, defendant approached the victim, who was lying face up, and “stomped” him on the chest “a couple of times.” Defendant then rolled the victim over, so that he was face down, grabbed his hair, and then “pile-drived” or “slammed” the victim's face into the muddy ground several times, saying, “Don't ever disrespect me again.” Finally, and before stopping, defendant punched the victim in the face several times in the same area where the victim had been kicked by Cufaude. After bystanders carried the victim away for medical care, defendant and Cufaude “high-fived,” congratulating each other. There was, however, no evidence that defendant and Cufaude had jointly planned or otherwise coordinated their conduct.

The victim suffered, among other injuries, a fractured right eye socket, which required reconstructive surgery, several other facial fractures, including to his jaw, and a lacerated arterial vein in his left temple. Ultimately, at trial, no expert medical testimony was presented relating or apportioning those injuries, or their degree or severity, to Cufaude's and defendant's respective conduct.

Defendant and Cufaude were both charged with, inter alia, first-degree assault. ORS 163.185.² The indictment charging defendant alleged, without elaboration, that defendant “did unlawfully and intentionally cause serious physical injury to [the victim] by means of a dangerous weapon,” without referring to either principal or accomplice liability. Although Cufaude waived a jury, and defendant did not, the two were tried jointly; thus, defendant was tried before a jury while Cufaude was tried simultaneously before the court.

In opening statement, the prosecutor propounded the state's exclusive contention that defendant was guilty of first-degree assault by reason of having aided and abetted Cufaude's assault on the victim. Specifically: (1) Cufaude, as principal, had employed a “dangerous weapon,” his steel-toed boots—“[i]n this case the weapons are the steel-toed work boots that Mr. Cufaude was wearing”—to inflict “serious physical injuries” to the victim; and (2) defendant, through his own conduct, had aided and abetted that assault by “compound[ing]” the injuries that Cufaude had inflicted.³ The state did not contend that defendant could be alternatively and independently liable for first-degree assault as a principal—and, particularly, did not identify any “dangerous weapon” other than Cufaude's steel-toed boots.

At the close of the state's case, defendant moved for a judgment of acquittal, contending, in part, that the only dangerous weapon in the case was Cufaude's steel-toed boots and that the state had failed to establish a legally cognizable connection between those boots and defendant, in that defendant's conduct with respect to the victim “was subsequent to, not in conjunction with, Mr. Cufaude.” In that regard, defense counsel emphasized that “there is really no evidence that the two were colluding on this” and that “what we have according to the state's evidence at this point is sequential events.” Defense counsel concluded, “[T]hey must tie him in through an aiding and abetting theory to Mr. Cufaude, but they've failed to do so.”

In opposing the MJOA, the state adhered to, and reiterated, its aid-and-abet theory against defendant:

“In the light most favorable to the state, the first defendant, Mr. Cufaude, used a dangerous weapon, which if the court has felt those, they weigh about five pounds each, to kick in the face of the victim. His intent was to seriously injure the victim.

“The question for the court is in the light most favorable to the state did an act on the part of [defendant] further that injury, further that goal on the part of the codefendant and it absolutely did, because he went for the same place. He's taken his fist and pound[ed] him in the face, turning his head over and slamming it into the ground and that clearly, by an act, made easier the commission, furthered the commission, of the injury caused by Mr. Cufaude.”

The state did not contend that, regardless of the sufficiency of the evidence as to accessory liability, the evidence was alternatively sufficient to establish defendant's independent culpability as a principal for first-degree assault.

The trial court denied the motion. In so ruling, the court noted that “the boots can be considered a dangerous weapon” and that, viewing the evidence most favorably to the state, there was a triable issue of fact for the jury as to “whether or not there was aiding and abetting.”

In closing argument to the jury, as throughout the case, the state relied solely on a theory of accomplice liability. Again, the prosecutor referred to Cufaude's boots—and only those boots—as the referent and requisite “dangerous weapon.” Again, as in opening statement, the prosecutor referred at length to principles of accomplice liability.⁴ Again, there was no suggestion that defendant could be independently culpable, as a principal, for first-degree assault.⁵

The jury, which received standard instructions on accomplice liability, convicted defendant of first-degree assault, and the court imposed a Ballot Measure 11–prescribed sentence of 90 months' imprisonment, with three years of post-prison supervision.⁶

On appeal, defendant, reiterating his arguments before the trial court, contends that the court erred in denying his MJOA. The gravamen of defendant's position is that Cufaude's assault on the victim, involving the use of a dangerous weapon, was completed before defendant had any physical contact with the victim and, consequently, in the absence of any evidence of cooperative or concerted action, he cannot be deemed to have aided and abetted that already completed first-degree assault. Defendant contends that we should remand with instructions to the trial court to enter a judgment of acquittal on Count 1 or, failing that, we should vacate defendant's conviction and remand for a new trial.

The state, as respondent, does not attempt to dispute defendant's contention that the evidence was legally insufficient to establish accomplice liability. Rather, the state asserts that the denial of the MJOA must be sustained because there was sufficient evidence to support defendant's conviction, albeit on a theory that the state never presented in the trial court— viz., that defendant could be liable as a principal with respect to his own seriatim first-degree assault on the victim. Specifically, the state posits, for the first time, that (1) by analogy to State v. Reed, 101 Or.App. 277, 279, 790 P.2d 551, rev. den., 310 Or. 195, 795 P.2d 554 (1990) (concrete sidewalk was a “dangerous weapon” when the defendant struck the victim's head against it), the muddy ground into which defendant “pile-drived” the victim's head was a “dangerous weapon”; and (2) a trier of fact could reasonably infer that the victim had suffered serious physical injuries as a result of defendant's use of that “dangerous weapon.” The state emphasizes that the indictment was broadly worded, without reference to accomplice liability, and that the trial court, albeit instructing the jury on accomplice liability, did not explicitly inform the jury that it could convict only on that theory. Given those circumstances, the state concludes, “as long as sufficient evidence existed to convict defendant as either the principal or an accomplice, the conviction must stand.” (Emphasis in original.)

Finally, and...