Appellate Cases – 5-26-10
Jury Instructions – theory instructed must match theory charged
Where the indictment only alleges one theory of the crime, the judge may only instruct on that one theory. Stated another way, the judge may not instruct the jury on uncharged elements of the crime. It violates Article VII, Sec 5 of the Oregon Constitution. Here, the indictment charged that the defendant committed UUV in that he “did unlawfully and knowingly take a vehicle, to wit: . . .”. But the judge instructed the jury that “The crime of Unauthorized Use of a Motor Vehicle can be committed by either taking, operating, exercising control over, riding in or by otherwise using the vehicle. Proof of any means is sufficient to sustain a conviction.” Conviction reversed. State v Pierce.
Merger – Rob II – per curiam
The state concedes, based on State v White, that two counts of Robbery II merge where they are different theories of the same crime. Ie, represents being armed with a weapon and aided by another person actually present. If you commit a robbery with another person in which you tell the victim you’re armed with a knife, it is a single robbery. Not two robberies. State v Paniagua-Miguel