State v. Ryder

• Decision Date: 26 November 2014
• Docket Number: 11FE0153,A151869.
• Citation: 267 Or.App. 150,340 P.3d 663
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Lance Wayne RYDER, Defendant–Appellant.
• Court: Oregon Court of Appeals

267 Or.App. 150
340 P.3d 663

STATE of Oregon, Plaintiff–Respondent,
v.
Lance Wayne RYDER, Defendant–Appellant.

11FE0153; A151869.

Court of Appeals of Oregon.

Submitted March 26, 2014.
Decided Nov. 26, 2014.

Affirmed.

[340 P.3d 664]

Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and EDMONDS, Senior Judge. ORTEGA, P.J.

Defendant challenges his judgment of conviction for third-degree assault, ORS 163.165(1)(e) (intentionally or knowingly causing physical injury to another with the aid of another person actually present), which is based on his involvement in an assault committed by his son and three other teenagers. Because defendant did not directly assault the victim himself, but recorded the assault on his cell phone and helped to plan the assault, which occurred in his home, the state prosecuted him on a theory of aiding and abetting, ORS 161.155(2)(b). Defendant challenges that theory of accomplice liability, arguing that, “under the principles announced” in State v. Pine, 336 Or. 194, 82 P.3d 130 (2003), and State v. Merida–Medina, 221 Or.App. 614, 191 P.3d 708 (2008), rev. den., 345 Or. 690, 201 P.3d 910 (2009), a person who is present during an assault involving multiple assailants and who aids in its planning is not liable under a theory of aiding and abetting if the person did not directly inflict physical injury or take action that produced the physical injury. He raises four assignments of error, all of which are predicated on that argument. We disagree with defendant's reading of those cases and conclude that, under the applicable statutes, the trial court did not err in its denial of defendant's motion for judgment of acquittal (MJOA), its giving of jury instructions, and its refusal to give defendant's requested jury instructions. We affirm.

In reviewing the denial of a motion for judgment of acquittal, we state the facts in the light most favorable to the state. State v. Casey, 346 Or. 54, 56, 203 P.3d 202 (2009). In December 2010, the victim was staying in the basement of defendant's home. On an occasion when the victim was not there, defendant's teenaged son, Ryder, and his three friends, Zulim, Selbo, and Kingham, searched the victim's jacket and found paperwork revealing that he was a registered sex offender. Kingham reacted in anger and wanted to lure the victim back to defendant's house so that the group could “beat him up” and “get him down [to the basement] and like do some damage.” The four went upstairs to tell defendant of their discovery, and defendant returned to the basement with them to discuss the discovered paperwork and what to do about it. The group—four teenagers and defendant—devised a plan. Kingham would inform the victim via text message that they had a “bunch of beer” and that he should return to defendant's house and get drunk with them. When the victim returned, they would “jump him” as soon as he reached the basement. It was defendant's idea to lure the victim with beer that he would purchase. Defendant also would record the attack on his mobile phone, which they planned to upload to YouTube.

Kingham texted the victim as planned, and the victim arrived at defendant's house and went down to the basement. The victim handed Ryder a cigarette, and Ryder tackled him to the ground. Kingham asked to be the first to hit the victim; after she did, the three others proceeded to hit or kick him as he lay on the ground on his back. During the attack, defendant—who, because of a physical disability does not have the use of his right arm and right leg—did not directly attack the victim, but recorded the attack on his phone. Eventually, the teenage assailants stopped assaulting the victim after defendant told them to, and the victim left the house. After the assault, the teenagers went upstairs to get drunk and watch the video of the attack on defendant's phone.

Defendant was later charged with third-degree assault, ORS 163.165(1)(e). That statute provides:

[340 P.3d 665]

“(1) A person commits the crime of assault in the third degree if the person:

“ * * * * *

“(e) While being aided by another person actually present, intentionally or knowingly causes physical injury to another[.]”

The state proceeded with the theory that defendant was liable for that offense because he aided and abetted the assault by encouraging, promoting, and advising the teenagers' actions, ORS 161.155(2). State v. Burgess, 240 Or.App. 641, 649–50, 251 P.3d 765 (2011), aff'd, 352 Or. 499, 287 P.3d 1093 (2012), provides a summary of aid-and-abet accomplice liability:

“A person may be culpable for * * * conduct [proscribed by a criminal offense] as an accomplice if ‘[w]ith the intent to promote or facilitate the commission of the crime the person * * * [a]ids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime [.]’ ORS 161.155(2)(b) (emphases added). * * *

“Although ‘the least degree of concert or collusion between accomplices suffices' to establish culpability as an aider or abettor, mere presence or acquiescence alone are not sufficient. State ex rel. Juv. Dept. v. Holloway, 102 Or.App. 553, 557, 795 P.2d 589 (1990).”

At the close of trial, defendant moved for a judgment of acquittal, arguing that the Supreme Court had rejected an aid-and-abet theory for third-degree assault in Pine and that “the plain text of ORS 163.165(1)(e) requires the State to prove, as a distinct element of the crime, that a defendant caused physical injury to the victim.” Thus, in defendant's view, the case need not proceed to the jury because the state had not adduced any evidence that defendant directly inflicted or took actions that produced physical injury.

The trial court denied the MJOA. In its view, Pine did not hold that an aid-and-abet theory of liability was unavailable for ORS 163.165(1)(e). The trial court also considered Merida–Medina, 221 Or.App. at 619, 191 P.3d 708, which held that the defendant's aid to a single assailant was conduct “necessarily incidental” to the crime as provided by ORS 161.165(2), so that the defendant could not be liable as an accomplice.¹ The trial court concluded that, because defendant was involved in an assault involving more than one assailant, Merida–Medina was distinguishable.

Defendant then objected to jury instructions that would allow the jury to find him guilty of third-degree assault on the theory that he aided and abetted the assault, and requested special instructions that (1) “[d]efendant must inflict physical injury directly” and (2) “[d]efendant's mere presence at scene of crime [is] insufficient to prove aid abed [ sic ].” The trial court rejected defendant's challenge to the jury instructions and his request for special instructions, for the reasons it provided in its denial of the MJOA. Defendant took exception to the trial court's jury instructions. On appeal, defendant reprises the arguments he made to the trial court.

“In ruling on the sufficiency of the evidence in a criminal case, the relevant question is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). “[W]e usually first determine what, precisely, the legislature intended to require the state to prove.” State v. Lockamy, 227 Or.App. 108, 113, 204 P.3d 822 (2009). What the state must prove turns on whether defendant can only be convicted of ORS 163.165(1)(e) on the basis of direct liability (defendant's argument) or whether a theory of aiding-and-abetting accomplice liability is allowed (the state's argument). We first discuss the two cases upon which defendant primarily relies, Pine and Merida–Medina, and then discuss the legislative

[340 P.3d 666]

intent of the third-degree assault statute, ORS 163.165(1)(e).

In Pine, the Supreme Court considered a third-degree assault conviction under ORS 163.165(1)(e) where the trial court had instructed the jury that the offense “requires proof that the defendant either caused physical injury while being aided by another who was actually present, or * * * aided another who was actually present in causing physical injury.” 336 Or. at 198, 82 P.3d 130 (emphasis in original). The issue before the court was whether the defendant was directly liable under ORS 163.165(1)(e) for aiding another person in causing the injury even if the defendant did not personally inflict the injury. Id. In deciding the limits of direct liability under ORS 163.165(1)(e), the court concluded that, if a person does not directly inflict a physical injury, he “must have engaged in conduct so extensively intertwined with infliction of the injury that such conduct can be found to have produced the injury.” ² Id. at 207, 82 P.3d 130. The state raised on appeal a theory that the defendant was liable for aiding-and-abetting under ORS 161.155(2), but that argument was not preserved, so the court limited its analysis to whether aiding an assailant could result in direct liability under ORS 163.165(1)(e). Id. at 207, 82 P.3d 130.

In arriving at the conclusion that the defendant could not be directly liable for aiding the assailant under ORS 163.165(1)(e), the court reasoned that liability for that offense did not extend to the person who aids the assault because such a broad reading undercuts accomplice liability under ORS 161.155(2)(b); it “would impose direct liability under ORS 163.165(1)(e) upon a defendant who ‘ * * * aid[ed] and abet[ted]’ another person actually present in committing the assault.” Id. at 204, 82 P.3d 130 (emphases altered from original). The court added:

“Such a result would...