Background
A jury convicted Tanya Louise Forgette of second-degree burglary and acquitted her of first-degree theft. At trial, the state advanced alternative theories of burglary liability: that Forgette entered or remained in a home intending to commit theft, or that she was liable as an accomplice even if she did not enter the home.
The trial court instructed the jury on accomplice liability but did not instruct jurors that they had to agree on the elements of one theory of liability or the other. Forgette challenged that omission for the first time on appeal and separately challenged the restitution award.
The Court’s Holding
The Oregon Court of Appeals held that the trial court plainly erred by failing to give a jury-concurrence instruction. Under Article I, section 11, of the Oregon Constitution, jurors must agree that the state proved every legislatively defined element of the offense. When the instructions permit conviction under both principal and accomplice theories, the jury must be instructed that the jurors voting to convict must concur on every element of one theory or the other.
The state conceded the error and agreed that Forgette was entitled to a new trial. The court accepted that concession and exercised its discretion to correct the unpreserved error because of its gravity and the interests of the parties. It reversed and remanded Count 1, otherwise affirmed, and did not reach the restitution challenge.
Key Takeaways
- When the state submits both principal and accomplice theories, the jury must unanimously agree on the elements of at least one complete theory of liability.
- Failure to provide the required concurrence instruction can constitute plain error even when the defendant did not preserve the objection at trial.
- Reversal of the underlying conviction made it unnecessary to decide the separate challenge to restitution.
Why It Matters
The decision reinforces Oregon’s requirement that a guilty verdict rest on juror agreement about a legally complete theory of criminal liability, rather than a combination of votes based on different theories.
The opinion also illustrates that Oregon appellate courts may correct an unpreserved instructional error when it is apparent from the record, is sufficiently serious, and correction serves the ends of justice. The memorandum opinion is nonprecedential and may not be cited except as permitted by ORAP 10.30(1).