State v. Gaines

• Decision Date: 30 December 2015
• Docket Number: A150698.,115245FE
• Citation: 365 P.3d 1103,275 Or.App. 736
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Shamar Davon GAINES, Defendant–Appellant.
• Court: Oregon Court of Appeals

275 Or.App. 736

365 P.3d 1103

STATE of Oregon, Plaintiff–Respondent,

v.Shamar Davon GAINES, Defendant–Appellant.

115245FE

A150698.

Court of Appeals of Oregon.

Argued and Submitted March 21, 2014.

Decided Dec. 30, 2015.

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before EGAN, Presiding Judge, and ORTEGA, Judge, and De MUNIZ, Senior Judge.^*

ORTEGA, J.

In this criminal appeal, defendant appeals a judgment of conviction for second-degree robbery, ORS 164.405(1)(b), raising five assignments of error.¹ We reject defendant's fourth and fifth assignments of error without further written discussion, and our resolution of the case based on defendant's third assignment of error obviates our need to address his second assignment of error. The state presented the jury with two competing theories by which defendant was liable for second-degree robbery: (1) as a principal or (2) under an accomplice liability theory by aiding and abetting his accomplice's commission of second-degree robbery. In his first assignment of error, defendant challenges the trial court's jury instructions on accomplice liability, asserting that, as a matter of law, he could not be liable on an aid-and-abet theory for second-degree robbery because his presence was "necessarily incidental" to the commission of the crime and, therefore, ORS 161.165(2) precludes accomplice liability. We conclude that defendant failed to preserve that argument. However, defendant's third assignment of error—challenging as plain error the court's failure to give a jury concurrence instruction—is well-founded, and, given the circumstances of this case, we exercise our discretion to correct the error. Accordingly, we reverse and remand on that basis.²

Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state. State v. Lotches, 331 Or. 455, 457, 17 P.3d 1045 (2000), cert. den., 534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001). Two masked men entered The Adult Shop in Medford shortly after it opened one morning. The taller of the two—later alleged to be defendant—told an employee that she was being robbed and asked her to open the safe. The employee responded that, because the safe had a timer, it would not open for 10 minutes. Defendant instructed her to open the cash register, and, when she did, he took about $150 from it. Defendant then went outside to guard the door while the shorter man, who had a metal pipe concealed in his sleeve, waited for the safe to open. When the safe timer went off, the employee opened it and handed three money bags to the shorter man. The two men ran out of the store through an emergency exit, taking a total of about $800. A police investigation uncovered evidence that implicated defendant and his accomplice, Ellis.

A grand jury indicted defendant for second-degree robbery under ORS 164.405(1)(b) (a Class B felony) and second-degree theft under ORS 164.045 (a Class A misdemeanor). ORS 164.405(1)(b) provides, "A person commits the crime of robbery in the second degree if the person [commits third-degree robbery] and the person: * * * [i]s aided by another person actually present." As pertinent here, third-degree robbery is committed when "in the course of committing or attempting to commit theft * * * the person uses or threatens the immediate use of physical force upon another person with the intent of" preventing or overcoming resistance to the taking of the property or compelling the property owner to deliver the property. ORS 164.395(1).

The case proceeded to trial. The state proceeded on the theory that the evidence established that defendant was the taller of the two masked men, and that defendant and his accomplice, by their words and conduct, implicitly threatened the immediate use of physical force on the store clerk during the commission of a theft. In particular, the state pointed to evidence that the men concealed their faces and used authoritative demands when asking the clerk to empty the safe and cash register, and that Ellis had a piece of metal pipe concealed in his sleeve. Defendant's theory was that the state had failed to prove that he was one of the masked men and, alternatively, that the state had failed to prove that anything in the conduct of defendant or Ellis amounted to a threat of the immediate use of physical force upon another person.

At the close of evidence, the court and parties discussed the proposed jury instructions. The state requested, and defendant did not object to, a jury instruction on second-degree theft and an instruction on second-degree robbery. The state also requested Uniform Criminal Jury Instruction (UCrJI) 1051 (Criminal Liability for Conduct of Another Person):

"A person who is involved in committing a crime may be charged and convicted of that crime if, with the intent to promote or facilitate commission of the crime, that person aids and abets someone in committing the crime. Under these circumstances, it is not necessary for that person to be personally present at the time and place of the commission of the crime[;]"

and UCrJI 1052 (Aid or Abet):

"A person aids or abets another person in the commission of a crime if the person:

"(1) With intent to promote or make easier the commission of the crime,

"(2) Encourages, procures, advises, or assists, by act or advice, the planning or commission of the crime."

Defendant objected to UCrJI 1051 and UCrJI 1052, and proposed his own special instruction. Defendant's special instruction would have informed the jury that it could convict defendant of second-degree robbery only if it found that defendant, and not the "another person actually present," was the one who threatened the immediate use of physical force. That is, the jury could not convict defendant for second-degree robbery on an accomplice liability theory. The court rejected defendant's proposed special instruction and gave the jury UCrJI 1051 and UCrJI 1052. The jury found defendant guilty of second-degree robbery and second-degree theft, and the court merged the guilty verdicts and entered a judgment of conviction for second-degree robbery.

Defendant appeals, first assigning error to the trial court's jury instructions. We begin our analysis with preservation. Although the state does not contend that defendant failed to preserve his first assignment, as a general rule, claims of error that were not raised before the trial court will not be considered on appeal. ORAP 5.45(1) ; State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000). Because it is central to our preservation analysis, we recount in detail defendant's objection to the accomplice liability instructions.

When the court indicated that it was going to give the accomplice liability instructions, defendant objected on the basis of our decision in State v. Rennells, 213 Or.App. 423, 162 P.3d 1006 (2007) :

"THE COURT: Okay go ahead and make your objection on the record.

"[DEFENDANT]: It's—it's attached to my request for the other instruction. Basically the case that we've talked about a few times, State v. Rennells, in that case Rennells was convicted of a robbery in the second degree for his role as a getaway driver in a robbery case where he's about 25 feet away from an actual physical attack. In that case the court looked at the jury instructions that were given and determined that there was a harmful error and overturned Mr. Rennells' conviction. The trial court in that case gave [a second-degree robbery instruction.] * * * And then he further gave the Aided by Another Person Actually Present instruction. The defense asserted that the instruction should have required the jury find that Mr. Rennells used or threatened to use physical force himself as the principal actor and not as an aider and abettor based on the statute, ORS 164.405.

"Robbery in the second degree works sort of like assault in the third degree which requires that an individual have liability for violating the robbery. And in the third degree statute, the court looked back at the commentary to the Criminal Law Revision Commission proposed Oregon Criminal Code Final Draft and Report Sections 148 through 50 from July of 1970 and determined that the Commission intended this to apply only to the robber or the actor unless the individual charged with robbery in the second degree had to have at least principal liability for a violation of the robbery in the third degree statute. * * *

"In our case today, the taller suspect, who is alleged to be [defendant], doesn't carry any alleged weapons. They have charged him with a violator of the same subsection that Mr. Rennells was charged with. The taller suspect made no explicit threats, did not have his hands in his pockets on the video, was polite, didn't seem to want to hurt anyone, just wanted to get out of there, never saw it, never touched them or saw any weapons and that his predominate job was to be the lookout. And thus we need to make sure that the jury understands that the taller suspect can only be convicted if he has liability as for aiding and abetting and a threat for being a part of a threat of use of immediate physical force. And that's why the defense is requesting the instruction that we submitted that's in the file. Basically if you find that [defendant] was involved in the incident you must find that he threatened the immediate use of physical force upon the alleged victims with the intent of compelling those individuals to deliver money. And so we're asking for that instruction that was filed and asking that the court not give the 1051, 1052 instructions that are requested by the State based on State v. Rennells. "

(Underscoring in original.)

The problem with defendant's...