Right for the Wrong Reasons? Wrong. Right!

On October 11, 2012, the Oregon Supreme Court held that the state doesn’t get to proceed under one theory at trial – say, that defendant aided and abetted his codefendant’s assault – only on appeal to jump, Frogger-like, to another – say, principal liability. As the court put it, “the state’s failure in this case to pursue the separate factual and legal theory of principal liability at trial now precludes the state from successfully asserting that theory on appellate review as a means to sustain defendant’s conviction for assault in the first degree.” Where, as here, “it is highly likely that defendant would have developed the record differently if defendant had had actual notice that the state was pursuing principal liability,” the “right for the wrong reasons” principle does not apply. That’d just be wrong. Right.

State v. Burgess.