S052150, Opinion — State v. Zweigart

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Argued and submitted January 4, 2007, in case number 02-1010, judgments of
conviction for aggravated murder on count 3 and kidnapping in the second degree
on count 10 reversed; judgments of conviction for aggravated murder on counts 1
and 2 and sentences of death affirmed; sentence on count 9 on defendant's
conviction for robbery in the first degree vacated; all other convictions and
sentences affirmed; case number 02-1010 remanded to circuit court for further
proceedings; case number 03-1113 affirmed June 26, 2008

STATE OF OREGON,
Respondent,
v.
ALLEN GARY ZWEIGART, SR.,
Appellant.
(CC 02-1010, 03-1113;
SCS052150 (control), S052673)
188 P3d 242

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CJS, Robbery § 31.

# En Banc

On automatic and direct review of the judgment of convic-
tion and sentence of death imposed by the Columbia County
Circuit Court.

Steven B. Reed, Judge.

Robin Adair Jones, Senior Deputy Public Defender,
Salem, argued the cause and filed the briefs for appellant.
With her on the briefs were Peter Ozanne, Executive
Director, and Peter Gartlan, Chief Defender, Office of Public
Defense Services.

Joanna Jenkins, Assistant Attorney General, Salem,
argued the cause for respondent. Kathleen Cegla, Assistant
Attorney General, Salem, filed the briefs for respondent.
With her on the briefs were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.

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## GILLETTE, J.

In case number 02-1010, the judgments of conviction for
aggravated murder on count 3 and kidnapping in the second
degree on count 10 are reversed. The judgments of conviction
for aggravated murder on counts 1 and 2 and the sentences of
death are affirmed. The sentence on count 9 on defendant's
conviction for robbery in the first degree is vacated. All other
convictions and sentences are affirmed. Case number
02-1010 is remanded to the circuit court for further proceed-
ings. Case number 03-1113 is affirmed.

Walters, J., dissented and filed an opinion, in which
Durham, J., joined.

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# GILLETTE, J.

This case is before this court on automatic and direct
review of defendant's conviction and sentence of death for
three counts of aggravated murder. See ORS 138.012 (provid-
ing for direct review in the Supreme Court when jury
imposes a death sentence). The same jury also convicted
defendant of multiple charges of murder, conspiracy, solici-
tation, robbery, and kidnapping. Defendant seeks reversal of
his convictions on the three counts of aggravated murder and
on various other counts including, as relevant here, his con-
viction based on allegations that he kidnapped the victim.
Defendant also challenges his sentence of death as well as
the trial court's imposition of consecutive sentences on sev-
eral of his felony convictions on the ground that the facts that
the trial court found to justify such sentences had not been
proved to the jury beyond a reasonable doubt. For the reasons
that follow, we reverse one of the aggravated murder convic-
tions and defendant's conviction on a charge of second-degree
kidnapping. We affirm the other convictions and sentences of
death. In addition, because we agree with defendant that the
trial court erred in imposing a consecutive sentence on a con-
viction for robbery based on the trial court's own fact-finding,
rather than on facts proved to the jury beyond a reasonable
doubt, we reverse that consecutive sentence. We remand the
case to the trial court for further proceedings.

Defendant was charged with, and the jury found him
guilty of, killing his wife, Hong Ha Zweigart. We therefore
state the facts in the light most favorable to the state. See
State v. Gibson, 338 Or 560, 562, 113 P3d 423, cert den, 546
US 1044, 126 S Ct 760, 163 L Ed 2d 591 (2005) (illustrating
that approach).

Defendant met and married the victim during his
military service in Viet Nam. The couple had three daughters
and one son, who are now adults. Defendant worked at the
St. Helens Safeway, where two of his adult children also had
been employed. While working there, defendant began hav-
ing an extramarital affair with a coworker, Maria Tinajero.
He asked Tinajero to help him find someone to kill his wife
and Tinajero eventually engaged her nephew, Nicholas
Fortier, for that task. Over the next few months, defendant

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relayed information to Fortier through Tinajero, instructing
Fortier to stage a burglary at defendant's home and, in the
process, kill his wife. Defendant placed guns in his garage
and left the garage door partially open to provide Fortier
access both to the guns and to the home. Twice, Fortier
entered the garage and retrieved a gun, but then left without
following through on the plan.

On January 10, 2002, after defendant had exerted
additional pressure on Tinajero, Fortier, carrying a gun
wrapped in a towel, made his way into defendant's and the
victim's home. Once inside, he found his way to the couple's
bedroom. There, Fortier pretended to be an intruder, bent on
robbery. Defendant told Fortier that he had guns and money,
and began pulling guns from a closet. Defendant and his wife
then went downstairs; Fortier followed, holding a gun. While
Fortier and the victim waited, defendant went into the
garage to retrieve one more gun, a loaded .22 caliber revolver.
He did not point that gun at Fortier or threaten him with it;
instead, he placed it with the other guns in a pile and then
opened a safe and removed money from it. Defendant placed
the money on the pile of firearms. Defendant then went
upstairs to get a pillowcase in which to carry the stolen prop-
erty. After returning downstairs, defendant and his wife lay
down on the floor.

What occurred next is disputed. Either defendant or
Fortier shot the victim in the head, killing her. Fortier testi-
fied that defendant goaded him to "do it" and that, when
Fortier could not comply, defendant grabbed a gun, shot the
victim himself and then handed Fortier the gun. Defendant
testified that "the burglar," referring to Fortier,1 shot his
wife.2

Defendant called 9-1-1 and, when the police arrived,
they found the victim lying in the kitchen, near the door.
Defendant also was lying on the kitchen floor, with his hands
and feet bound with duct tape and a phone receiver against

1 In his testimony at trial, defendant maintained that he had never met Fortier
and that he did not recognize the "burglar." However, it is clear from the evidence
presented at trial that Fortier was the "burglar."

2 Neither version of the facts is "more favorable to the state," but each version
supports at least one count of aggravated murder.

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his face. Later that morning, police questioned defendant
regarding the incident. After defendant twice said "I killed
my wife" to the police, he was arrested.

With respect to the foregoing events, the state
charged defendant with 11 crimes, including aggravated
murder, murder, conspiracy, solicitation, robbery, kidnap-
ping, and unlawful possession of a shotgun.3 The three aggra-
vated murder charges were based on allegations that defen-
dant intentionally killed the victim under three different
theories of aggravation: (1) that defendant solicited and
agreed to pay another person to kill the victim and, pursuant
to that solicitation and payment, the victim was killed;
(2) that defendant killed the victim in the course of and in fur-
therance of committing the crime of first-degree robbery; and
(3) that defendant killed the victim in the course of and in
furtherance of committing the crime of second-degree
kidnapping.

The jury found defendant guilty of 10 of the 11
crimes charged, including the three aggravated murder
charges. The court dismissed count 11, unlawful possession
of a short-barreled shotgun. ORS 166.272. The jury also
found defendant guilty on all the charges in the second, con-
solidated case. After a penalty-phase proceeding, the jury
sentenced defendant to death. The trial court entered the
convictions and sentences on both cases December 10, 2004.

Defendant has assigned 23 rulings of the trial court
as error. We will address certain of those assignments of

3 Those charges were alleged in the indictment case number 02-1010. There
was, moreover, an additional set of charges arising out of facts that occurred after
defendant was arrested for the murder of his wife: While in jail after his arrest for
the murder of his wife, defendant told other inmates that he had planned to have
his wife killed to protect his assets. During that incarceration, defendant sought to
enlist the assistance of his cellmate to keep two of his children and a coworker from
testifying at trial, either by threatening them to keep them quiet or by murdering
them, if necessary. Defendant's plan involved having the cellmate, after his release
from jail, break into the Safeway store that employed defendant's son and the
coworker and, while there, steal money from the safe. The plan also called for the
cellmate to burglarize his daughter's home. In a second case, number 03-1113, the
indictment charged defendant with multiple counts of solicitation to commit aggra-
vated murder, solicitation to commit murder, and solicitation to commit various
other felonies, all arising out of those later incidents. That second case was consol-
idated with this first case for trial.

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error, which we find to merit discussion, later in this opin-
ion.4 Other issues must be addressed first, however. After
oral argument, we asked the parties for supplemental brief-
ing to address questions about verdict inconsistency and jury
unanimity: (1) In finding defendant guilty of aggravated
murder by hire, did the jury necessarily determine that
Fortier shot the victim? (2) In finding defendant guilty of per-
sonally committing aggravated felony murder, did the jury
necessarily determine that defendant shot the victim?
(3) Were the jury verdicts inconsistent and was the jury
unanimous respecting the material facts supporting those
verdicts?

In his supplemental brief, defendant asserts that the
verdict of guilty on count 1 (murder for hire) necessarily is
inconsistent with the verdicts of guilty on counts 2 and 3
(murder in the course of robbery and kidnapping, respec-
tively), and that the inconsistency requires reversal of his
convictions. He contends that, to find him guilty on count 1,
murder for hire, the jury necessarily had to have found that
Fortier actually killed the victim and, to find him guilty on
counts 2 and 3, the jury had to have found that he personally
and intentionally killed the victim. By entering verdicts on
all three counts, defendant argues, the jury effectively found
that the state had proved neither scenario beyond a reason-
able doubt. The state, in its supplemental brief, asserts, first,
that jurors could have found, consistently on all three counts,
either that defendant or Fortier shot the victim and, second,
that, given the level of involvement of both defendant and
Fortier in the homicide, the identity of the person who actu-
ally pulled the trigger was not a material fact on which the
jury had to agree unanimously. As we shall explain, we do
not find either of the parties' approaches wholly persuasive.

4 We have considered each of defendant's remaining assignments of error,
which include several pertaining to defendant's trial and convictions on the
charges in the second case, and every argument in support thereof. Several of those
assignments of error were not preserved for review or are otherwise not well taken.
Others present questions that do not warrant discussion in this opinion because
they have been resolved in other decisions by this court. Discussion of those assign-
ments of error would not benefit the bench, the bar or the public and, therefore, we
do not address them in this opinion.

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## A. Inconsistent Verdicts and Jury Unanimity

Before we address the concerns reflected in the ques-
tions that we posed to the parties, it is helpful to set out the
applicable statutes. ORS 163.115 provides that a criminal
homicide constitutes murder when a person intentionally
causes the death of another person, ORS 163.115(1)(a), or
when a person participates in one of certain enumerated fel-
onies and, in the course of that felony, that person, or any
other person, causes the death of another person, whether
intentionally or not, ORS 163.115(1)(b).5 ORS 163.095
defines aggravated murder as (1) "murder as defined in ORS
163.115" that (2) is "committed under, or accompanied by"
one or more listed aggravating circumstances.

ORS 163.095(1) lists the aggravating circumstances
that can elevate murder to aggravated murder. As pertinent
here, defendant was charged in count 1 with aggravated
murder for hire under ORS 163.095(1)(b), which provides
that a murder is aggravated murder if:

"The defendant solicited another to commit the murder
and paid or agreed to pay the person money or other thing of
value for committing the murder."

Defendant also was charged, in counts 2 and 3, with aggra-
vated felony murder under ORS 163.095(2)(d), which pro-
vides that a murder is aggravated murder if:

"Notwithstanding ORS 163.115(1)(b), the defendant
personally and intentionally committed the homicide under
the circumstances set forth in ORS 163.115(1)(b)."

Among the felonies that ORS 163.115(1)(b) lists as support-
ing a felony murder charge are "[k]idnapping in the second
degree as defined in ORS 163.225," ORS 163.115(1)(b)(E),
and "[r]obbery in the first degree as defined in ORS 164.415,"
ORS 163.115(1)(b)(G).

In addressing defendant's contention that the jury's
guilty verdicts on the three aggravated murder counts in this
case were inconsistent, we begin by considering what facts

5 That second circumstance is known as felony murder.

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the jury necessarily found in reaching those verdicts. Count 1
of the amended indictment alleged as follows:

"[D]efendant *** did unlawfully and intentionally
solicit and agree to pay * * * Fortier money to unlawfully
and intentionally cause the death of [victim] and pursuant
to that payment * * * Fortier did unlawfully and intention-
ally cause the death of [victim]."

The question thus becomes whether, in finding defendant
guilty of aggravated murder on count 1, the jury was required
to, and in fact did, find that Fortier was the person who
pulled the trigger, causing the victim's death.

As noted, the applicable statute, ORS 163.095(1)(b),
provides that a defendant is guilty of aggravated murder if
"[t]he defendant solicited another to commit the murder and
paid or agreed to pay the person money or other thing of
value for committing the murder." That statute does not
specify whether the person whom the defendant hired and
paid must be the person who ultimately performed the phys-
ical act that caused the person's death. Indeed, the words
could be read to say that the crime is complete when (1) the
defendant solicits another to commit a murder, (2) the defen-
dant pays or agrees to pay that person to commit the murder,
and (3) the homicide occurs. And, under ORS 163.115, a hom-
icide was "murder" if the victim was killed either intention-
ally or, whether intentionally or not, during the commission
of any one of several enumerated felonies. Under that literal
reading of the statute, the jury was not required to find that
Fortier was the person who performed the physical act that
killed the victim, as long as it found that defendant solicited
Fortier to do so, paid or agreed to pay him to do so, and the
victim was killed as a consequence of that arrangement. The
state argues, in part, that that is the way in which the statute
should be read.

Although the statutory question thus posed is inter-
esting, we conclude that we do not need to sustain that read-
ing of the statute, in light of the procedural history of this
case. That is so because the jury specifically was instructed,
with respect to count 1, that, to find defendant guilty, it had
to find that defendant hired "another" to commit the murder,
paid that "other" person to commit the murder, and

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succeeded in causing the murder "by" doing so." Read con-
textually, we think that the jury would have understood that
instruction to require that, to find defendant guilty, it had to
find that Fortier (who, from the evidence, was the "other")
had personally killed the victim. We shall assume that the
jury so found, i.e., that it specifically found that Fortier killed
the victim. And, if the jury so found, defendant would be
guilty on count 1.

We turn to count 2 of the amended indictment,
which charged defendant with aggravated felony murder,
i.e., murder committed intentionally during a robbery.7 As we
did with respect to count 1, we first consider whether, to con-
vict defendant of aggravated felony murder in count 2, the
jury was required to find that defendant himself caused the
victim's death.

Count 2 alleged that:

"[D]efendant * * * did unlawfully and knowingly com-
mit the crime of Robbery in the First Degree and in the
course of and in furtherance of the crime that defendant
was committing, defendant personally and intentionally
caused the death of [victim]."

With respect to that count, the court instructed the jurors,
among other things, that the state was required to prove
beyond a reasonable doubt that defendant "personally and

6 The jury instructions stated, in part:

"Oregon law provides that a person commits the crime of aggravated mur-
der if that person intentionally cases the death of another human being under,
or accompanied by, certain defined circumstances.

"In this case, to establish the crime of aggravated murder, the state must
prove beyond a reasonable doubt the following three elements:

"[Defendant] intentionally caused the death of [victim], another human
being, by soliciting another to commit the murder and paying or agreeing to
pay the person money or other things of value for committing the murder."

7 As we discuss in more detail later in this opinion, we reverse defendant's con-
viction on count 3, aggravated murder committed during the course of the commis-
sion of the crime of kidnapping in the second degree, because the evidence is insuf-
ficient to prove that defendant committed the underlying crime of kidnapping in
the second degree. Accordingly, we confine our discussion in the remainder of this
section to count 2.

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intentionally caused the death" of the victim. Again assum-
ing (as we do) that the jury followed the court's instructions,8
we also assume that the jury found that defendant personally
killed the victim during the course of a robbery. And, if the
jury so found, defendant would be guilty on count 2.

As a result, we can easily dispose of the main prob-
lem that the dissent has identified in this case: that the trial
court erred in failing to instruct the jurors that they must
agree on the identity of the triggerman and that they did not
reach unanimous agreement on that material fact.9 The trial
court instructed the jurors that they must decide, unani-
mously, on count 1, that defendant hired Fortier to kill defen-
dant's wife and that Fortier did so; and instructed them that
they must decide, unanimously, on count 2, that the defen-
dant personally and intentionally killed the victim in the
course of a robbery.

Even if there were some possibility that the jury
instructions did not require juror agreement on the identity
of the triggerman, defendant did not preserve an objection
either as to the clarity or the completeness of the instructions
that the court did give regarding jury unanimity.10 The dis-
sent acknowledges that failing, but asserts that this court
nonetheless should review the issue as one involving "plain
error," citing for that proposition State v. Boots, 308 Or 371,
780 P2d 725 (1989); State v. Lotches, 331 Or 455, 17 P3d 1045
(2000); and State v. Hale, 335 Or 612, 75 P3d 448 (2003). We
think that reliance is misplaced.

Boots is not on point. The jury there was told that it
did not need to be unanimous respecting which of two alter-
native theories of criminal responsibility was the correct one.
Boots, 308 Or at 374-75. The precise opposite was true here-

· Each juror was given a copy of the court's instructions to take to the jury
room.

9 Defendant himself never saw this problem, even after having been specifi-
cally invited by this court to consider whether the jury unanimously agreed on the
facts necessary to convict defendant of aggravated murder.

1\. We do not wish to be understood as approving the court's instructions; we
simply note that defendant did not preserve any objection concerning them.

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the jury was told that it must agree unanimously as to each of
the theories of criminal responsibility submitted to it.

Lotches and Hale also are not on point. In those
cases, although the court did not expressly permit jurors to
disagree as to the facts that constituted the felonies underly-
ing the charges of aggravated murder, including the identi-
ties of the perpetrators and victims of those felonies, neither
did the court constrain their discretion to do so. In this case,
the dissent cannot contend, as the defendants in Lotches and
Hale did, that the jury could have been confused about the
identities of the perpetrators or victims of unidentified
underlying crimes about which it received no instruction.
Instead, the dissent is concerned that the jury could have dis-
agreed as to defendant's role in the murder itself. We think
the jury instructions in each instance fairly told the jurors
what facts they must find to identify the perpetrator of the
murder and return a guilty verdict. But even if the instruc-
tions left the door open to some measure of disagreement, we
do not think the likelihood of that disagreement was so high
that we should consider the instructions erroneous notwith-
standing defendant's failure to object to them. Ambiguity
(assuming there is any) respecting the basis for the jury's ver-
dict on each count under consideration here is far too tenuous
to justify application of the rule from Boots, Lotches, and
Hale, or to say that any error was "plain."

For his part, defendant argues that the verdicts
present what he claims to be an "inconsistency" on the two
counts: If the jury unanimously found that Fortier personally
killed the victim (count 1), defendant argues, how can we
accept the proposition that the jury unanimously also found
that defendant personally killed that same victim (count 2)?
As to that question, however, defendant made no objection
respecting either the verdicts or the sentences entered pur-
suant to them. There was a procedure under which defendant
could have asked to have the jurors reconsider their verdicts,
ORS 136.480,11 but defendant did not attempt to use that

11 ORS 136.480 provides:

"When a verdict is found in which it appears to the court that the jury has
mistaken the law, the court may explain the reason for that opinion and direct
the jury to reconsider its verdict; but if after such reconsideration the jury finds
the same verdict, it must be received."

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procedure. We therefore decline to correct any "plain error"
that may exist.

Our decision in this respect is based on an analo-
gous, long-standing rule of Oregon civil law:

"We hold that defendants waived their objection to the
defect in the jury's verdict by failing to object when the jury
was present. Defendants cannot remain silent, permit the
trial court to discharge the jury and enter a judgment
[on the verdict returned] by the jury, and then, at a later
date, seek a new trial because the verdict contains a defect.
Because defendants waived their objection to the verdict,
they are not permitted to rely later on the same objection in
seeking a new trial."

Building Structures, Inc. v. Young, 328 Or 100, 113-14, 968
P2d 1287 (1998) (citing earlier cases).

The dissent argues that defendant's aggravated
murder convictions must be reversed because of the "logical
impossibility" that the jury could have found both that defen-
dant shot the victim and that Fortier shot the victim. The dis-
sent agrees that there was sufficient evidence to support a
verdict of guilty of aggravated murder under either theory.
Nevertheless, the dissent asserts that the instructions that
the trial court gave were such that there was a "real danger"
of juror confusion and therefore that the convictions are con-
stitutionally infirm. As we have described above, the verdicts
might be inconsistent, but that would have been apparent at
the time the verdicts were rendered, and defendant could
have raised that issue and obtained clarification from the
jury at that time. ORS 136.480. Whether defendant failed to
do so because it was obvious that either verdict, standing
alone, was sufficient to support a conviction for aggravated
murder or for some other reason, defendant did not raise that
objection and we see no justification for addressing it as
"plain" error. The dissent's arguments are well-articulated
and raise some interesting hypothetical questions about
what the jurors may have been thinking, but they do not
demonstrate legal error or suggest that, considering the evi-
dence, the jury necessarily acted impermissibly in finding
defendant guilty of aggravated murder on either count.

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## B. Insufficiency of Evidence of Robbery and Kidnapping

We next consider defendant's assignments of error
relating to the sufficiency of the evidence to establish the fel-
onies of robbery and kidnapping. Defendant contends that
the state failed to prove that he had committed either robbery
or kidnapping and, therefore, the trial court should have
granted his motion for judgment of acquittal on the counts
that depended on findings that he committed those offenses.
We turn first to the assignments of error relating to the suf-
ficiency of the evidence of the crime of robbery in the first
degree. In that regard, defendant assigns error to the trial
court's denial of his motions for a judgment of acquittal on
counts 2 (aggravated murder based on the underlying felony
of robbery in the first degree) and 9 (robbery in the first
degree). On review of a challenge to a denial of a motion for
acquittal, we view the facts in the light most favorable to the
state and consider whether a rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. State v. Krummacher, 269 Or 125, 137-38, 523
P2d 1009, 1015 (1974).

Under ORS 164.415,12 to prove robbery in the first
degree in the context of this case, the state was required to
prove: (1) that the defendant committed theft;18 (2) that

12 ORS 164.415, in relevant part, defines robbery in the first degree as follows:

"(1) A person commits the crime of robbery in the first degree if the person
violates ORS 164.395 and the person:

"(a) Is armed with a deadly weapon."

ORS 164.395, in turn, provides, in relevant part:

"(1) A person commits the crime of robbery in the third degree if in the
course of committing or attempting to commit theft * * * the person uses or
threatens the immediate use of physical force upon another person with the
intent of:

"(a) Preventing or overcoming resistance to the taking of the property or
to retention thereof immediately after the taking; or

"(b) Compelling the owner of such property or another person to deliver
the property or to engage in other conduct which might aid in the commission
of the theft * * *. "

13 ORS 164.015, in relevant part, defines theft as follows:

"A person commits theft when, with intent to deprive another of property
or to appropriate property to the person or to a third person, the person:

"(1) Takes, appropriates, obtains or withholds such property from an
owner therof[.]"

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defendant used or threatened immediate use of physical
force; and (3) that defendant was armed with a deadly
weapon. It is the first two elements of the crime of robbery
that are at issue here.

Defendant makes three arguments: (1) all of the evi-
dence adduced at trial showed that defendant voluntarily
surrendered his own property, and "one cannot commit theft
of his own property;" (2) even if the stolen money had been
earned by the victim, there was no evidence to show that it
was not "joint property;" and, (3) even if one of the stolen fire-
arms belonged solely to the victim, there was no evidence
that that weapon was taken by force or threat of force.

As the state explains, its theory was not that defen-
dant robbed himself, but that Fortier robbed Hong Ha
Zweigart, the victim, and defendant aided and abetted
Fortier in that robbery, thereby making himself a principal in
that crime. The state advanced its theory of accomplice lia-
bility at trial and adduced evidence that, as an accomplice,
defendant offered and gathered the goods and provided assis-
tance and direction to Fortier in a variety of ways. Indeed,
there is ample evidence in the record that defendant had
orchestrated the entire plan. We hold that a rational juror
could have found that defendant assisted Fortier in robbing a
third person, the victim.

In addition, there was abundant evidence that the
victim was an owner of at least some of the stolen property.
An "[o]wner of property taken, obtained or withheld" is "any
person who has a right to possession thereof superior to that
of the taker, obtainer or withholder." ORS 164.005(4). Fortier
was the "taker, obtainer or withholder" of the money and fire-
arms. The victim's right to possess the money was superior to
that of Fortier, even if it was not also superior to that of
defendant. That is, whether defendant was also an "owner" is
of no consequence under the statute: The victim was in joint
possession of the property, and it was taken from her by force.
Based on the foregoing, we hold that a rational jury could
have found that the victim was an "owner" of the money.

We also have no difficulty concluding that a rational
jury could have found that Fortier acted with force or threat
of force. Fortier entered the victim's house at night, entered

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her bedroom as she slept, and was carrying a gun throughout
the entire episode. In addition, Fortier testified that he fol-
lowed the defendant and the victim down the stairs carrying
the gun, and that the victim asked him to "please not hurt
[her] husband." Those facts are sufficient to support the
jury's verdict. Accordingly, we affirm defendant's conviction
for robbery in the first degree on count 9. For the same rea-
sons, we conclude that defendant's challenge to the suffi-
ciency of the evidence is not a basis for reversing defendant's
conviction for aggravated felony murder based on the under-
lying crime of first-degree robbery in count 2.

We next address defendant's assignments of error
relating to count 3, the aggravated murder charge based on
the underlying felony of second-degree kidnapping, and
count 10, charging defendant with second-degree kidnap-
ping. Defendant contends that the state did not present suf-
ficient evidence from which a rational juror could have found
that he committed kidnapping in the second degree and,
therefore, that the court erred in denying his motion for judg-
ments of acquittal on those counts based on that crime. See
Krummacher, 269 Or at 137-38 (stating rational juror stan-
dard). Specifically, defendant argues that the victim's move-
ment in this case "was merely incidental" to the robbery or
murder crimes and that the state failed to establish that
defendant intended to interfere substantially with victim's
personal liberty as required by ORS 163.225(1).14

In response, the state argues that both the distance
that Fortier moved the victim and the amount of time that he
stayed with her were substantial, and that Fortier's move-
ment of the victim was not incidental to the crimes of robbery
and murder because those crimes could have been accom-
plished sooner and in one place:

14 ORS 163.225(1) provides:

"A person commits the crime of kidnapping in the second degree if, with
intent to interfere substantially with another's personal liberty, and without
consent or legal authority, the person:

"(a) Takes the person from one place to another; or

"(b) Secretly confines the person in a place where the person is not likely
to be found."

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"There is no evidence in the record that the victim's pres-
ence was necessary to get the money out of the safe[;] * * *
[d]efendant could have accomplished his goal of killing the
victim and paying off Fortier without ever moving her from
the bedroom[; and] * * * defendant (or Fortier) could have
shot [victim] while she lay in bed and then gathered up the
property that Fortier took with him."15

### (Emphasis in original.)

This court's recent decision in State v. Wolleat, 338
Or 469, 473, 111 P3d 1131 (2005), presented a similar issue.
In that case, the defendant was charged with kidnapping
based on the fact that he moved the victim from room to room
in their apartment during the course of an assault. In evalu-
ating the matter, the court observed that the kidnapping
statute requires the state to prove two elements: the mental
state, or intent, element ("inten[ding] to interfere substan-
tially with [the victim]'s personal liberty"), and the physical
act, or asportation, element (taking the victim "from one
place to another"). The defendant in that case had not con-
tended that the movement of the victim was insufficient to
prove asportation and the court did not address that issue.
Instead, the court focused on the mental state element of the
crime. The court noted that the legislature distinguished the
crime of kidnapping from other crimes that may also involve
moving or restraining a victim by focusing, in describing the
intent element of the crime of kidnapping, on the victim's
interest in personal liberty. In describing that interest, the
court stated:

"[t]he liberty interest that the [kidnapping] statute protects
from interference is the interest in freedom of movement[;]
\* \* \* a defendant must intend either to move the victim a
'substantial distance' or to confine the victim for a 'substan-
tial period of time.'"

15 The state asserts that defendant failed to preserve at trial the issue of the
sufficiency of the state's proof of the intent element of kidnapping, implying that
this court should not consider it. It is true that, in his motion for judgment of
acquittal, defendant did not specifically argue that the state had not established
the intent element of the crime. He did, however, point specifically to the lack of
evidence of forced movement or constraint. We conclude that defendant's motion
for acquittal adequately raised the issue that we now resolve.

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Id. at 475. The court stated that, although the intent and
asportation elements are distinct, they are closely related.
That is, a reasonable juror may infer intent to interfere sub-
stantially with a victim's freedom of movement from evidence
that the defendant moved the victim a substantial distance.
However, the court emphasized, minimal movement that
amounts to incidental conduct that might accompany some
other crime is, standing alone, insufficient proof of intent to
support a conviction. Id. at 478.

In this case, defendant also does not argue that his
or Fortier's movement of the victim is insufficient to prove
asportation. Rather, he contends, the movement of the victim
merely was incidental to another crime that he was commit-
ting, the robbery, and was insufficient to establish his intent
to interfere with the victim's personal liberty.

At the outset, we observe that the state presented no
evidence other than the movement of the victim from which
the jury could have inferred that Fortier or defendant
intended to kidnap her. Indeed, no witness mentioned or
even implied that either Fortier or the defendant had any
separate plans to move the victim from one place to another,
hold her somewhere, or otherwise interfere with her liberty.
The only question, then, is whether a rational juror could
have found that Fortier's conduct in forcing the victim at gun-
point down the stairs so that the defendant could retrieve
guns and open the safe was more than incidental to the other
crimes that he and defendant committed and, therefore,
could have based a finding of intent upon it.

In Wolleat, this court cited as an example of"inciden-
tal" movement the " ' taking of a holdup victim from the front
office to a back room against his will so that he might open a
safe.'" 338 Or at 477 (quoting legislative history of kidnap-
ping statute). Although, here, Fortier did not force the victim
to open the safe, the evidence at trial demonstrated, at most,
that Fortier moved the victim along with defendant while the
two men engaged in robbery of the victim's property. Either
Fortier or defendant then directed the victim to lie down, but
they did not tie or otherwise restrain her, and someone shot
her just moments later. Those movements of the victim were
incidental to the robbery and shooting. We hold that a

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rational juror could not conclude from the evidence presented
that either Fortier or defendant intended to interfere sub-
stantially with the victim's liberty. Accordingly, we reverse
defendant's conviction for the crime of kidnapping charged in
count 10 and defendant's conviction for aggravated felony
murder based on the underlying crime of kidnapping charged
in count 3.

## C. Propriety of Consecutive Sentences

One final matter bears discussion. At sentencing in
the aggravated murder case, the trial court, in addition to
imposing the death sentence for each of defendant's convic-
tions for aggravated murder, made various sentencing rul-
ings including, among other things, choosing to merge many
of the convictions for sentencing. However, with respect to
defendant's conviction for first-degree robbery, count 9, the
court held that the conviction does not merge with any other
conviction and found that the offense demonstrated a willing-
ness by defendant to commit more than one criminal offense
justifying a consecutive sentence under ORS 137.123. The
court stated that it made that finding beyond a reasonable
doubt and acknowledged that the jury had not made that
finding. On that count, the court sentenced defendant to a
90-month prison term, to be served consecutively to the death
sentence. In addition, in the second case, number 03-1113,
the court ordered the sentence on count 10 (defendant's solic-
itation to burglarize the St. Helens Safeway and to commit
theft there) be served consecutive to the sentences for defen-
dant's convictions on counts 1, 2, and 3 for solicitation to com-
mit aggravated murder. In so doing, the court found that the
solicitation to commit burglary was a "separate, distinct
offense; separate, distinct victim."

Defendant argues in three assignments of error that
the court erred in ordering the sentence for the robbery con-
viction in the first case to be served consecutively to the death
sentence, and in ordering the sentence for the solicitation-to-
commit-burglary conviction in the second case to be served
consecutively to other sentences imposed in the second case.
Defendant contends that the trial court improperly based its
decision to impose those consecutive sentences on its own
judicial fact-finding rather than, as constitutionally required,

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on facts that defendant had admitted or that had been proved
to the jury beyond a reasonable doubt.

In State v. Ice, 343 Or 248, 170 P3d 1049 (2007), cert
granted, \_US\_, 128 S Ct 1657, 170 L Ed 2d 353
(2008), which this court decided after the parties filed the
briefs in this court, this court held that, under the Sixth
Amendment to the United States Constitution and the
United States Supreme Court's decisions in Apprendi v. New
Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000)
and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L
Ed 2d 403 (2004), a trial court may base a decision to impose
consecutive sentences only on facts necessarily found beyond
a reasonable doubt by a jury or admitted by the defendant
and may not base that decision on its own judicial fact-
finding. Ice, 343 Or at 265-67. Applying that holding to the
facts in Ice, this court held that the trial court in that case
erred in imposing consecutive sentences for the defendant's
convictions for burglary and sexual assault based on its own
finding that the offense for which the consecutive sentence
was contemplated was not merely an incidental violation of a
separate statutory provision but, rather, demonstrated the
defendant's willingness to commit more than one criminal
offense. Id. at 267.

With respect to the robbery sentence in this case, the
trial court based its decision to impose a consecutive sentence
for defendant's robbery conviction on its own judicial finding
that that conviction was not merely an incidental violation
of a separate statutory provision but, rather, demon-
strated the defendant's willingness to commit more than one
criminal offense. That fact had not been proved to the jury
beyond a reasonable doubt.16 As in Ice, therefore, that
ruling violated defendant's Sixth Amendment rights and
was error. We vacate defendant's sentence on count 9, and
require that the trial court reconsider that sentence on
remand.

16 The issue was preserved. Defendant timely argued to the sentencing court
that that court could not impose consecutive sentences for convictions arising out of
the same continuous, uninterrupted course of conduct based on any fact not found
by a jury beyond a reasonable doubt.

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The trial court's decision to impose a consecutive sen-
tence on one of defendant's convictions in case number
03-1113 is a different matter, however. As noted above, all of
defendant's convictions in that second case arose out of defen-
dant's attempt to solicit his cellmate to intimidate or murder
his two children and one of his coworkers so that they would
not testify against him in his murder trial. Under defendant's
plan, the cellmate was to break into the St. Helens Safeway
store, where two of the intended victims worked, steal money
out of the store safe, and prevent the two intended victims
from testifying with respect to the earlier murder case-by
killing them, if necessary. In counts 1, 2, and 3 in that case,
defendant was convicted of that solicitation to commit aggra-
vated murder, one count for each of the intended victims. On
those convictions, the court imposed consecutive 100-month
sentences. On count 10 in that case, defendant was convicted
of solicitation to commit burglary for soliciting the cellmate to
unlawfully enter and remain in the St. Helens Safeway store
and commit theft while using a dangerous weapon
(a firearm). The court imposed a sentence of 20 months in
prison on that conviction, to run consecutive to the sentences
that the court already had imposed on counts 1, 2, and 3. In
ordering that sentence to run consecutive to the other sen-
tences, the court stated, "I am doing so because there is a sep-
arate, distinct offense; separate, distinct victim as required
by ORS 137.123(5), and I so find beyond a reasonable doubt."

Although the trial court purported to base the con-
secutive sentence on count 10 on its own judicial finding of
"separate, distinct offense; separate, distinct victim," the fact
that the St. Helens Safeway store was a separate victim from
any victim named in counts 1, 2, and 3, and that solicitation
to commit burglary of or theft from that store was a separate
offense from the offense of solicitation to commit aggravated
murder of each of the three individuals named as the
intended victims in counts 1, 2, and 3 is inherent in the
indictment and in the jury's verdicts on those counts. That is,
the jury necessarily found beyond a reasonable doubt that
count 10 involved a different victim than the victims involved
in counts 1, 2, and 3. Accordingly, the trial court did not err in

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imposing a consecutive sentence on count 10 in case number
03-1113.

In case number 02-1010, the judgments of conviction
for aggravated murder on count 3 and kidnapping in the sec-
ond degree on count 10 are reversed. The judgments of con-
viction for aggravated murder on counts 1 and 2 and the sen-
tences of death are affirmed. The sentence on count 9 on
defendant's conviction for robbery in the first degree is
vacated. All other convictions and sentences are affirmed.
Case number 02-1010 is remanded to the circuit court for fur-
ther proceedings. Case number 03-1113 is affirmed.

# WALTERS, J., dissenting.

The majority sustains defendant's convictions for
aggravated murder by concluding that the trial court
instructed the jury that it unanimously must decide who shot
Hong Ha Zweigart and that the jury did so. Specifically, the
majority opines that the trial court instructed the jury that,
on count 1, it must find that Fortier shot the victim, and that,
on count 2, it must find that defendant did so. If the majority
is correct in its presumption that the jury understood and fol-
lowed those instructions, then the jury found that both For-
tier and defendant pulled the trigger, when the inescapable
fact that stares out of the record is that only one man did so.
To me, the logical impossibility of the jury's verdicts spot-
lights the errors that I discern in the instructions. The
instructions permitted some jurors to decide that Fortier was
the shooter and others to decide that defendant played that
role. Because the instructions did not clearly inform the jury
that it must reach unanimous agreement on the identity of
the shooter, the court cannot determine that the jury agreed
on that essential fact. And because unanimous juror agree-
ment on that essential fact is necessary for both convictions,
the court cannot sustain them. Respectfully, I must dissent.1

Article I, section 11, of the Oregon Constitution
requires that a jury's verdict of guilty on every charge of

1 I have limited my written dissent to the issues and assignments of error that
the majority has chosen to discuss, but do not intend that limitation to express an
opinion on whether I would affirm or reverse on any other grounds.

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first-degree murder must be unanimous.2 This court has held
that, in returning a verdict in a criminal case, a jury must
agree, not only that a defendant is guilty of a crime, but also
on all the facts material to prove the crime. State v. Boots, 308
Or 371, 780 P2d 725 (1989). The state may allege alternative
sets of facts, any one which may be sufficient to establish
guilt, and may offer proof of alternative sets of facts, but the
jury, in returning its verdict, must select one of those alter-
native scenarios and agree on it. Id. at 377. It is not permis-
sible for half of the jurors to select one scenario, half to select
another, and all to agree only that the defendant is "guilty."
Id.

In the past, the court has reviewed guilty verdicts in
aggravated murder cases to ensure that juries were unani-
mous in finding all material facts, and has reversed convic-
tions when it could not be certain that that requirement was
met. And, in the past, the court has reversed convictions in
those cases even if the defendant failed to preserve the error.
State v. Hale, 335 Or 612, 75 P3d 448 (2003); State v. Lotches,
331 Or 455, 17 P3d 1045 (2000).

In Hale, the state charged the defendant with
numerous counts of aggravated murder. Some counts of the
indictment alleged that the defendant had committed aggra-
vated felony murder, that is, intentional homicide committed
in the course of the commission of another felony, in that
case, the felony of sexual abuse. The indictment did not allege
the identity of the perpetrator of the underlying sexual abuse

2 Article I, section 11, of the Oregon Constitution provides:

"In all criminal prosecutions, the accused shall have the right to public trial by
an impartial jury in the county in which the offense shall have been committed;
to be heard by himself and counsel; to demand the nature and cause of the
accusation against him, and to have a copy thereof; to meet the witnesses face
to face, and to have compulsory process for obtaining witnesses in his favor;
provided, however, that any accused person, in other than capital cases, and
with the consent of the trial judge, may elect to waive trial by jury and consent
to be tried by the judge of the court alone, such election to be in writing; pro-
vided, however, that in the circuit court ten members of the jury may render a
verdict of guilty or not guilty, save and except a verdict of guilty of first degree
murder, which shall be found only by a unanimous verdict, and not otherwise;
provided further, that the existing laws and constitutional provisions relative
to criminal prosecutions shall be continued and remain in effect as to all pros-
ecutions for crimes committed before the taking effect of this amendment."

(Emphasis added.)

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or the victim of that abuse. At trial, the state presented evi-
dence that either the defendant or his friend had sexually
abused multiple victims under multiple circumstances. The
trial court did not instruct the jurors specifically that they
had to agree unanimously on the identity of either the per-
petrator or the victim of the sexual abuse. The defendant did
not request an instruction to that effect, nor did he object to
the instructions that the trial court gave. The jury returned
guilty verdicts, finding, in accordance with the court's
instructions, that the defendant had intentionally killed the
victim in the course of the commission of the felony of sexual
abuse. On review, this court reversed those convictions. The
court applied its holding in Lotches, in which the court had
held that the jury must reach unanimity on all material facts
necessary to establish " just what defendant did' to bring
himself within the purview of the particular subsection of the
aggravated murder statute under which he was charged."
331 Or at 468-69 (quoting United States v. Gipson, 553 F2d
453, 457 (5th Cir 1977)). Even though the identities of the
perpetrators and the victims of the underlying abuse were
not "elements" of the crimes in the sense that the particular
identities of those people would not make the difference
between guilt and innocence, the court explained that their
identities were material, and held that because the instruc-
tions did not specifically inform the jury that it must unani-
mously agree on those facts, they "carried an impermissible
danger of jury confusion." Hale, 335 Or at 627.

In the case before us, defendant's role in the mur-
der-as either the person who hired the shooter or as the
actual shooter-is a factual issue that the jury must decide in
determining "just what defendant did" to render him guilty of
aggravated murder. A jury determination of that fact was
necessary for the entry of lawful verdicts on both counts. As
the majority explains it, the court's instructions informed the
jurors that they were required to find on count 1 that the per-
son that defendant hired, Fortier, was the shooter, and on
count 2, that defendant shot the victim "personally." 344 Or
at 629. The majority then reasons that, because we must
assume that the jurors followed those instructions, we must
also conclude that the jurors found the identity of the shooter
and did so unanimously. As a result, claims the majority, the

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instructions were not defective in the respect identified in
Hale.

That reasoning is flawed. As the state acknowledges,
the instructions were not as clear as the majority makes
them out to be. On count 1, the trial court instructed the
jurors that they must find that defendant "caused" the mur-
der of the victim "by" soliciting and paying Fortier. Jurors-
one, some, or all-could have understood that they could ren-
der a guilty verdict on count 1 if they found that defendant
"caused" the murder "by" soliciting and paying Fortier, and
then firing the gun himself. See ORS 163.095(1)(b) (subsec-
tion of aggravated murder statute requiring proof that the
defendant committed murder and that the murder was "com-
mitted under, or accompanied by" circumstances of solicita-
tion and payment). Any number of jurors also could have
found defendant guilty on count 1 based on an additional
"aiding and abetting" instruction that the court gave. That
instruction permitted the jury to hold defendant criminally
liable for aggravated murder if he aided and abetted someone
else who committed that crime.3 Some jurors reasonably
could have determined that defendant was guilty on count 1
because he solicited and paid Fortier to kill his wife and then
aided and abetted Fortier by himself doing the shooting.

Similarly, on count 2, as the state again acknowl-
edges, some jurors could have understood the word "person-
ally" to require only that they find that defendant had "an
actual role in causing the death." See State v. Nefstad, 309 Or
523, 541, 789 P2d 1326 (1990) (jury was properly instructed
that "'[p]ersonally in the context of aggravated murder
means that to be guilty of that crime the [d]efendant must
have had an actual role in causing the death and not merely
a role in the felony during which the death occurred' "). With-
out an instruction that precluded them from doing so, jurors

3 The aiding and abetting instruction, which applied to all of the counts in this
case, stated:

"A person aids and abets another person in the commission of a crime if the
person

"(1) With the intent to promote or make easier the commission of the crime,

"(2) Encourages, procures, advises, or assists, by act or advice, the planning or
commission of the crime."

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could have found that defendant played the necessary role
because he supplied Fortier with the gun and goaded Fortier
to "do it." Jurors with that understanding of the instructions
did not necessarily decide that defendant shot the victim,
despite voting "guilty" on count 2. And again, relying upon
the aiding and abetting instruction the trial court gave,
jurors could have convicted defendant on count 2 by finding
that he did not shoot the victim but "aided and abetted" the
person who did, i.e. Fortier.

To summarize, some jurors could have understood
that they had to find that Fortier was the shooter to reach a
guilty verdict on count 1 and that defendant was the shooter
to reach a guilty verdict on count 2, but others could have had
a different understanding. Because the instructions permit-
ted some of the jurors to select one scenario and the rest to
select another, the instructions presented the exact constitu-
tional defect that required reversal in Hale.

Although the majority admits the danger of confu-
sion that the instructions presented, it shields its eyes by
relying on defendant's failure to preserve that error. The
majority states, "Even if there were some possibility that the
jury instructions did not require juror agreement on the iden-
tity of the triggerman, defendant did not preserve an objec-
tion either as to the clarity or the completeness of the instruc-
tions that the court did give regarding jury unanimity." 344
Or at 629. The majority acknowledges that the instructions
may have "left the door open to some measure of disagree-
ment," but declares that the likelihood of juror disagreement
was not so high "that we should consider the instructions
erroneous notwithstanding defendant's failure to object to
them," and that any ambiguity was "far too tenuous" to con-
stitute "plain" error. 344 Or at 630. The majority attempts to
distinguish its exercise of plain error review in Hale by
explaining that the danger presented by the jury instructions
in that case was that the jury could be confused about the
defendant's role in the underlying felony, while in this case
the danger was that the jury could be confused about defen-
dant's role in the murder itself. 344 Or at 630.

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For me, close enough is not good enough in a capital
case. The majority's reasoning disregards, rather than distin-
guishes, Hale, and the circumstances of this case expose,
rather than allay, a basis for judicial concern. See State v.
Brown, 310 Or 347, 355-56, 800 P2d 259 (1990) (instruction
may have led jury to have convicted defendant without find-
ing material fact and "prejudice to defendant is profound,
because the missing element makes the difference between
life and death"). If the jurors were confused here about
whether they had to agree upon the identity of the perpetra-
tor of the murder, as opposed to the identity of the perpetra-
tor of an underlying felony, as in Hale, they were confused
about an even more important fact than the factual issue in
Hale, and the justification for engaging in plain error review
is even stronger than in Hale. Whether the trial court made a
faulty attempt to instruct the jury as to the material fact at
issue, as it did in this case, or failed to instruct at all, as it did
in Hale, should make no difference. Both errors carry the
same risk: juror confusion. Because of the magnitude of the
resulting prejudice to the accused, both errors call for "plain
error" review.

Most importantly, and uniquely, in this case, we
need not engage in speculation to discern the degree of risk of
juror confusion. We know that there was a real danger and
we know that it was realized. The majority does not explain
how a rational jury could have arrived, unanimously, at
mutually exclusive verdicts, because a rational explanation
is impossible. If the instructions on count 1 clearly had
required that the jury unanimously find that Fortier shot the
victim, and if the instructions on count 2 clearly had required
that the jury unanimously find that defendant shot the vic-
tim, then the jury would have understood that it could not
return verdicts of guilty on both counts. The logical impossi-
bility of the jury's verdicts demonstrates that the jurors
either failed to understand that they were required to agree
unanimously on the identity of the shooter or failed to follow
the instructions that the court gave. Neither conclusion
should lead to an affirmance of the convictions.

In upholding the jury's inconsistent verdicts, the
majority points to an Oregon statute that permitted the trial

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court to ask the jury to reconsider a mistaken verdict, and
notes that defendant failed to invoke that procedure. 344 Or
at 630-31 (citing ORS 136.4804). However, that statute is an
authorization to the court; it does not require action by a
party.

The majority's announcement that it will not correct
"plain error" because defendant failed to object undermines
the entire "plain error" doctrine. The "plain error" exception
to the rule requiring preservation exists for the purpose of
addressing circumstances in which a party has failed to take
the required action below to preserve an issue for appeal. An
appellate court may invoke that doctrine when unpreserved
error (1) is an error of law; (2) is apparent, which means that
"the legal point is obvious, not reasonably in dispute[ ]"; and
(3) appears on the face of the record, meaning that the court
"need not go outside the record or choose between competing
inferences to find it, and the facts that comprise the error are
irrefutable." Brown, 310 Or at 355.

The first and third prongs of the "plain error" analy-
sis do not present any difficulty in this case. As to the first,
"the issue of what must be included in jury instructions is a
question of law[,]" Hale, 335 Or at 630, and "[w]hether ver-
dicts are consistent is a question of law[.]" State v. Thompson,
328 Or 248, 268, 971 P2d 879 (1999). As to the third, the
defects in the instructions and verdicts are obvious from a
review of the applicable statutes, the jury instructions, and
the verdicts themselves.

The errors in the instructions and verdicts also meet
the second prong of the "plain error" test. The parties and the
trial court knew that the jury must agree on all material facts
and they clearly anticipated that the jury would select
between alternative scenarios. The parties and the court dis-
cussed the alternative facts that the state pleaded and the

\+ ORS 136.480 provides:

"When a verdict is found in which it appears to the court that the jury has
mistaken the law, the court may explain the reason for that opinion and direct
the jury to reconsider its verdict; but if after such reconsideration the jury finds
the same verdict, it must be received."

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inconsistency that they created during argument on defen-
dant's motions for acquittal. The prosecutor argued as
follows:

"We cannot bootstrap them into counts that exist except
for lesser includeds, and you have to file sometimes what
appear to be inconsistent theories because the Supreme
Court says you go to do them all at once, can't string them
out.

"Youcan't have your he shot her trial and then they shot
her trial. You can't do it. So I know it's hard. Sometimes
juries scratch their heads and say well, what the heck are
you guys doing, can't you make up your mind, but we'll
explain that in argument and I'm sure they'll understand
that."

(Emphasis added.) Although the majority asserts that the
state and the court were "sure [the jurors would] under-
stand," the jurors plainly did not. When they returned guilty
verdicts on both counts, the legal point-the jury's confusion
regarding the necessity that they agree upon and find
the identity of the shooter-was obvious. In my view, the
requirements of the "plain error" exception were met.

It is true that defendant did not object to the instruc-
tions or the verdicts. But we cannot turn away from the truth
that, if the jury instructions in this case were sufficiently
clear, this court readily could determine from the verdicts the
identity of the man who shot Hong Ha Zweigart. The court
also would know which, if either, of the mutually exclusive
verdicts to sustain. Instead there is a very real likelihood
that, although the jurors thought that defendant was
"guilty," they did not agree unanimously on a fact essential to
defendant's conviction. Our prior cases insist that there is
more to justice than two irreconcilable guilty verdicts. Justice
requires that this court be able to determine that a jury
unanimously decided just what defendant did that yielded a
sentence of death. Because we cannot, I must dissent.

Durham, J., joins in this dissenting opinion.