§ 1.5 Vicarious Liability

LibraryCriminal Law in Oregon (OSBar) (2022 Ed.)

§ 1.5 VICARIOUS LIABILITY

Under Oregon law, a person is criminally liable for the conduct of another person if

(1) The person is made criminally liable by the statute defining the crime; or

(2) With the intent to promote or facilitate the commission of the crime the person:

(a) Solicits or commands such other person to commit the crime; or

(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime; or

(c) Having a legal duty to prevent the commission of the crime, fails to make an effort the person is legally required to make.

ORS 161.155.

A person is thus vicariously liable for the conduct of another under Oregon law primarily under two circumstances: (1) when the person solicits another to commit a crime (see § 1.6-2), and (2) when the person aids or abets another person in committing a crime (see § 1.5-1).

In addition, a corporation may be liable for the criminal conduct of its agents and officers. ORS 161.170. See § 1.5-2.

§ 1.5-1 Aiding and Abetting

Under ORS 161.155(2)(b),

for accomplice liability to attach, the person (1) must have the requisite mens rea—intent to promote or facilitate the commission of the crime—and, at the same time, (2) must perform the requisite actus reus—aiding, abetting, or agreeing or attempting to aid or abet the principal in planning or committing the crime.

State v. Stewart, 259 Or App 588, 600, 314 P3d 966 (2013).

"Aiding and abetting after the fact is not a crime." State v. Wilson, 240 Or App 475, 489, 248 P3d 10 (2011) (disposing of stolen items did not constitute aiding and abetting of theft that had already been completed); However, activity after the fact may serve as evidence that earlier activities were undertaken with criminal intent. State v. Holcomb, 246 Or App 687, 695-96, 268 P3d 684 (2011), rev den, 351 Or 675 (2012); State v. Moriarty, 87 Or App 465, 468-69, 742 P2d 704, rev den, 304 Or 547 (1987).

A defendant's mere presence at the scene of a crime is not enough to support a conviction on a theory of aiding and abetting. Moriarty, 87 Or App at 468. Rather, the defendant must manifest complicity by some act. See State v. Lavadores, 230 Or App 163, 172 n 6, 214 P3d 86 (2009) (defendant's agreement to serve codefendant as "back up" in fight distinguished case from one of "mere presence"); State v. Crawford, 90 Or App 242, 246, 752 P2d 316, rev den, 306 Or 195 (1988). See also State ex rel. Juvenile Department of Multnomah County v. Holloway, 102 Or App...

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