State v. Burney

Citation82 P.3d 164,191 Or. App. 227
PartiesSTATE of Oregon, Respondent, v. Tracy Lamar BURNEY, Appellant.
Decision Date17 December 2003
CourtCourt of Appeals of Oregon

Rankin Johnson IV, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

LANDAU, P.J.

Defendant appeals his conviction for assault in the third degree. ORS 163.165(1)(e). He assigns error to the trial court's denial of his motion for judgment of acquittal and to its calculation of his criminal history for the purpose of determining his sentence. We affirm.

Because defendant was convicted, we state the facts in the light most favorable to the state. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). On October 16, 2000, defendant and three other persons, Rucker, Viall, and Emerson, were involved in an assault in a restaurant parking lot. Rucker, Viall, and Emerson struck and kicked the victim; defendant held back another person who attempted to assist the victim.

Defendant, Rucker, and Viall were charged in a single indictment with assault in the third degree. The indictment alleged that the three defendants "did unlawfully and knowingly cause physical injury to [the victim] while aided by another person actually present." (Emphasis added.) Defendant and Rucker were tried together. At the close of the state's case-in-chief, defendant moved for a judgment of acquittal, arguing that there was no evidence that he personally participated in the assault on the victim and that he therefore could not be convicted as a principal. The trial court denied the motion, holding that "there is enough evidence for a reasonable trier of fact to believe that he participated in assault in the third degree." The court held that the jury could reach that conclusion on a theory that defendant aided and abetted the assault. Defendant complained that the state had not pleaded in the indictment that he had aided and abetted and that the failure to do so was fatal, because finding criminal liability on an aid and abet theory requires proof of an additional element of intent to promote or facilitate the commission of the crime. The trial court rejected defendant's argument, holding that, although the jury would have to be instructed on the additional element, the state was not required to have pleaded it in order to send the case to the jury on an aid and abet theory.

At the close of the evidence, the trial court instructed the jury regarding the elements of assault in the third degree as provided in ORS 163.165(1)(e). It also instructed the jury as follows regarding aid and abet liability:

"A person who is involved in committing a crime may be charged and convicted of the c[rime] if, with the intent to promote or facilitate the commission of the crime, that person aids and abets someone in committing the crime or solicits or commands someone to commit the crime or attempts to aid or abet someone in committing the crime. Under these circumstances, it is not necessary for that person actually to be personally present at the time and place of the commission of the crime.
"A person aids and abets another person in the commission of a crime if the person, * * * with the intent to promote or make easier the commission of the crime, engage—encourages, procures, advises, or assists, by act or advice, the planning or the commission of the crime.
"A person acts intentionally or with intent when that person acts with a conscious objective either, one, to cause a particular result or, two, to engage in particular conduct."

The jury found defendant guilty of assault in the third degree.

At sentencing, the trial court assigned defendant a criminal history ranking of C. The trial court did so based on the fact that defendant had several out-of-state convictions, which, pursuant to OAR 213-004-0011(3), the trial court treated as person misdemeanors. Defendant objected that the court should not give him a ranking of C, because the out-of-state convictions should be treated as nonperson misdemeanors. According to defendant, the rule on which the court relied was invalid and could not be used in calculating his criminal history score. The trial court rejected the argument and sentenced defendant accordingly.

On appeal, defendant first assigns error to the trial court's denial of his motion for judgment of acquittal. Specifically, he reiterates his argument that the state failed to prove that he personally committed the assault and that, to the extent that the state relied on the theory that he aided and abetted the commission of that crime, it was required to allege in the indictment that he did so with "the intent to promote or facilitate the commission of" that crime.

The state argues that, consistently with this court's opinion in State v. LeBrun, 37 Or.App. 411, 587 P.2d 1044 (1978), rev. den., 286 Or. 149 (1979), it was not required to allege more than the elements of the crime of assault in the third degree in order to send the case to the jury on an aid and abet theory. Defendant replies that LeBrun was wrongly decided because it relied on cases interpreting a different statute with materially different wording from the currently applicable statutes. The state rejoins that LeBrun was correctly decided.

In LeBrun, the defendant was charged with first-degree rape and first-degree sodomy. He was charged as a principal actor. At trial, the state requested a jury instruction permitting the jury to find the defendant guilty of both offenses if it found that he aided and abetted the commission of the offenses. The defendant objected that, because the indictment alleged that he was a principal actor, he could not be found guilty on an aid and abet theory. We rejected the defendant's argument. Our analysis, in its entirety, was as follows:

"Both our Supreme Court and this court have previously rejected such a claim, based on former ORS 161.220. State v. Glenn, 233 Or. 566, 379 P.2d 550 (1963); State v. Capitan, 8 Or.App. 582, 596, 494 P.2d 443, rev. den. (1972). Although ORS 161.220 was repealed in 1971 as part of the revision of the Criminal Code, ORS 161.150 and 161.155, defining criminal liability, lead us to the same conclusion."

Id. at 416, 587 P.2d 1044 (footnote omitted).

LeBrun is not the only case in which we addressed the question whether a defendant indicted as a principal may be convicted on proof that he aided or abetted the commission of the crime. In State v. Bunyea, 44 Or.App. 611, 606 P.2d 685 (1980), the defendant was charged with first-degree rape, but was convicted on proof that he aided and abetted a rape committed by someone else. We affirmed. Citing LeBrun, we explained, "That the indictment only accuses a defendant of perpetrating a criminal act does not prevent his being found guilty as an aider and abettor." Id. at 616, 606 P.2d 685.

Similarly, in State v. Garcia, 74 Or.App. 649, 704 P.2d 544, rev. den., 300 Or. 180, 708 P.2d 1146 (1985), the defendant was charged with first-degree robbery and apparently convicted on proof that he was an accomplice only. In the course of his arguments on appeal, he asserted that the convictions were defective because he was indicted as a principal. We ultimately concluded that the matter was not properly assigned as error. We nevertheless commented that the

"[d]efendant's argument that he had no notice that the robbery charge would be based on accomplice liability is without merit. There is no contention that he was denied pretrial discovery, and it is clear that the state may obtain a conviction on an accomplice theory after charging a defendant as a principal. ORS 161.155[.]"

Id. at 652 n. 2, 704 P.2d 544.

Thus, LeBrun, Bunyea, and Garcia addressed—either in holding or in dictumdefendant's contention in this case that one who is indicted as a principal may not be convicted on proof that he or she aided and abetted the commission of the crime, and each squarely rejected it. The question remains whether those cases were correctly decided. Because those cases—in particular, LeBrun—were based, in significant part, on case law construing earlier statutes, our evaluation requires a brief bit of history.

At common law, parties to the commission of a felony were classified as principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. In very general terms, principals were present at the scene of the crime when it was committed, while accessories were not, although the rules regarding whether one was "present" were quite flexible and often employed legal fictions such as "constructive" presence. A principal in the first degree was the criminal actor. A principal in the second degree was present at the commission of the crime but merely aided and abetted its commission. An accessory before the fact also aided and abetted, but was not present at the scene. And an accessory after the fact was one who knowingly rendered aid to a felon after the commission of the offense. See generally Wayne R. LaFave, 2 Substantive Criminal Law § 13.1, 326-33 (2d ed. 2003) (describing common-law accomplice liability); Rollin M. Perkins and Ronald N. Boyce, Criminal Law 727-35 (3d ed 1982) (same).

The liability of those parties depended upon an elaborate structure of rules that took into account the particular classification of the party and a variety of circumstances, resulting in a state of the law that has been described as "quite absurd" and producing "technical embarassments." Perkins and Boyce, Criminal Law at 755, 758. In particular, courts developed rules—often highly technical...

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8 cases
  • State v. Barboe
    • United States
    • Oregon Court of Appeals
    • November 7, 2012
    ...stated: “Under ORS 161.155, a person is liable as the principal for aiding and abetting, planning or committing a crime. UnderState v. Burney, 191 Or.App. 227 (2003), in that case the Court noted the aid and abet, proof of intent, was to promote or further the commission of a crime under OR......
  • Kelly v. Hard Money Funding, Inc.
    • United States
    • Utah Court of Appeals
    • March 4, 2004
    ...was incorrect on this point. Accordingly, we decline to address this argument. See Smith v. Fairfax Realty, Inc., 2003 UT 41,¶30 n.12, 82 P.3d 164 ("This court is not obligated to address issues that are not adequately 5. Kelly refers us to Julian v. Petersen, 966 P.2d 878 (Utah Ct. App. 19......
  • United States v. Mendoza
    • United States
    • U.S. District Court — District of Oregon
    • June 28, 2018
    ...Oregon law dictates that an indictment implicitly encompasses liability as either a principal or as an accomplice, State v. Burney, 82 P.3d 164, 168 (Or. Ct. App. 2003), and his plea petition merely admitted the allegations in the indictment, the petition must implicitly be phrased in the c......
  • State v. Burgess
    • United States
    • Oregon Court of Appeals
    • February 16, 2011
    ...liability are qualitatively different theories that implicate materially different operative facts. See generally State v. Burney, 191 Or.App. 227, 234, 82 P.3d 164 (2003), rev. den., 337 Or. 182, 94 P.3d 877 (2004) (noting the “existence of different substantive requirements of proof betwe......
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3 books & journal articles
  • § 30.03 ACCOMPLICE LIABILITY: COMMON LAW TERMINOLOGY
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Chapter 30 Liability For the Acts of Others
    • Invalid date
    ...to treason as "principals."[20] . State v. Williams, 916 A.2d 294, 307 (Md. 2007) (quoting earlier decisions).[21] . State v. Burney, 82 P.3d 164, 166 (Or. Ct. App. 2003).[22] . 4 William Blackstone, Commentaries on the Laws of England *35 (1769) (a party is a principal if he kills another ......
  • § 30.03 Accomplice Liability: Common Law Terminology
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2022 Title Chapter 30 Liability for the Acts of Others
    • Invalid date
    ...parties to treason as "principals."[20] State v. Williams, 916 A.2d 294, 307 (Md. 2007) (quoting earlier decisions).[21] State v. Burney, 82 P.3d 164, 166 (Or. Ct. App. 2003). [22] 4 William Blackstone, Commentaries on the Laws of England *35 (1769) (a party is a principal if he kills anoth......
  • TABLE OF CASES
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Table of Cases
    • Invalid date
    ...261 Burden, People v., 72 Cal. App. 3d 603 (Ct. App. 1977), 487, 512 Burks v. United States, 437 U.S. 1 (1978), 410 Burney, State v., 82 P.3d 164 (Or. Ct. App. 2003), 438, 440 Burrage v. United States, 134 S. Ct. 881 (2014) , 30, 171, 172, 175 Burrell, State v., 609 A.2d 751 (N.H. 1992), 92......

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