State v. ATES, III

Court of Appeals of Oregon

State v. ATES, III

222 P.3d 52, 233 Or. App. 223, 2010 Ore. App. LEXIS 6

CourtCourt of Appeals of Oregon

DecidedJanuary 6, 2010

DocketC071536CR D073680M A138180 (Control) A138181

StatusPublished

This text of 222 P.3d 52 (State v. ATES, III) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. ATES, III, 222 P.3d 52, 233 Or. App. 223, 2010 Ore. App. LEXIS 6 (Or. Ct. App. 2010).

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Opinion

*224 PER CURIAM

In this consolidated criminal appeal, defendant appeals a judgment of conviction for third-degree assault in Case Number A138180 and a judgment of conviction for one count each of fourth-degree assault, misdemeanor attempting to elude a police officer, and harassment in Case Number A138181.

On appeal, defendant advances three assignments of error, all of them pertaining to his third-degree assault conviction in Case Number A138180. In his first assignment, he contends that the trial court erroneously admitted certain evidence that connected defendant to the assault. In his second assignment, defendant asserts that the court erred in instructing the jury that defendant could be liable for third-degree assault on an aid-and-abet theory when it was the fact of his presence in aid of the principal that made the offense an assault in the third degree. In his third assignment, defendant asserts that the court should have instructed the jury that at least 10 of the jurors must agree on whether defendant was guilty as principal or as aider-abettor. The state concedes the point that defendant raises in his second assignment of error. We write only to address that assignment and agree with the parties that the trial court erred. See State v. Merida-Medina, 221 Or App 614, 619-20, 191 P3d 708 (2008), rev den, 345 Or 690 (2009) (holding that, “[b]ecause the aid of ‘another person’ is necessary for the crime [of third-degree assault] to occur, under ORS 161.165(2), the ‘other’ person is not deemed to be an accomplice in the third-degree assault” and concluding that the trial court erred in instructing the jury that it could find the defendant guilty of third-degree assault under an aid-and-abet theory).

Our conclusion renders defendant’s third assignment — that the trial court erred in instructing the jury that it could convict defendant on a theory of either principal liability or accomplice (aid-and-abet) liability — a moot point.

Case Number A138180 reversed and remanded; Case Number A138181 affirmed.

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*224 PER CURIAM

In this consolidated criminal appeal, defendant appeals a judgment of conviction for third-degree assault in Case Number A138180 and a judgment of conviction for one count each of fourth-degree assault, misdemeanor attempting to elude a police officer, and harassment in Case Number A138181.

On appeal, defendant advances three assignments of error, all of them pertaining to his third-degree assault conviction in Case Number A138180. In his first assignment, he contends that the trial court erroneously admitted certain evidence that connected defendant to the assault. In his second assignment, defendant asserts that the court erred in instructing the jury that defendant could be liable for third-degree assault on an aid-and-abet theory when it was the fact of his presence in aid of the principal that made the offense an assault in the third degree. In his third assignment, defendant asserts that the court should have instructed the jury that at least 10 of the jurors must agree on whether defendant was guilty as principal or as aider-abettor. The state concedes the point that defendant raises in his second assignment of error. We write only to address that assignment and agree with the parties that the trial court erred. See State v. Merida-Medina, 221 Or App 614, 619-20, 191 P3d 708 (2008), rev den, 345 Or 690 (2009) (holding that, “[b]ecause the aid of ‘another person’ is necessary for the crime [of third-degree assault] to occur, under ORS 161.165(2), the ‘other’ person is not deemed to be an accomplice in the third-degree assault” and concluding that the trial court erred in instructing the jury that it could find the defendant guilty of third-degree assault under an aid-and-abet theory).

Our conclusion renders defendant’s third assignment — that the trial court erred in instructing the jury that it could convict defendant on a theory of either principal liability or accomplice (aid-and-abet) liability — a moot point.

Case Number A138180 reversed and remanded; Case Number A138181 affirmed.

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Bluebook (online)

222 P.3d 52, 233 Or. App. 223, 2010 Ore. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ates-iii-orctapp-2010.

Opinion

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