State v. Moore

437 P.3d 330, 296 Or. App. 899

• Court: Court of Appeals of Oregon
• Decided: April 3, 2019
• Docket: A165058 (Control); A165059
• Status: Published

Opinion

PER CURIAM

*900Defendant appeals judgments of conviction for second-degree forgery (case number 16CR46643) and second-degree failure to appear (case number 17CR12053). On appeal, defendant challenges only her conviction for second-degree forgery. In her fourth assignment of error challenging that conviction, defendant argues that the trial court plainly erred in failing to give a jury concurrence instruction because the state advanced a theory of both principal liability and accomplice liability. See State v. Gaines , 275 Or. App. 736, 746-48, 365 P.3d 1103 (2015) (trial court plainly erred when it failed to give a jury concurrence instruction in light of the state advancing competing theories of principal and accomplice liability). The state concedes that the trial court plainly erred.

We agree with and accept the state's concession that the trial court plainly erred in failing to give a jury concurrence instruction. Additionally, we conclude that we should exercise our discretion to correct that error because the error was not harmless and defendant's failure to request the instruction was not likely the product of a reasonable strategy choice. Accordingly, we reverse and remand the judgment in case number 16CR46643. Based on that disposition, we do not address defendant's second, third, or fifth assignments of error. Finally, we reject without discussion defendant's first assignment of error.

In case number 16CR46643, reversed and remanded. In case number 17CR12053, affirmed.