S055516, Opinion — State v. Link

187
Argued and submitted November 4, 2008, decision of Court of Appeals affirmed
in part and reversed in part; judgment of circuit court affirmed in part and reversed
in part, and case remanded to circuit court for further proceedings May 7, 2009
STATE OF OREGON,
Respondent on Review,
v.
JUSTIN ALAN LINK,
Petitioner on Review.
(CC 01FE0371AB; CAA123223; SC 8055516)
208P3d 936

188 	State v. Link
On review from the Court of Appeals.*
Susan F. Drake, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With her
on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services, Legal Services Division.
Timothy 	A. 	Sylwester, 	Assistant 	Attorney 	General,
Salem, argued the cause and filed the brief for respondent on
review. With him on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.
WALTERS,J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
* Appeal from Deschutes County Circuit Court, Alta J. Brady, Judge. 214 Or
App 100, 162 P3d 1038 (2007).

Cite as 346 Or 187 (2009) 	189
WALTERS,J.
Defendant was a teenager when he and four friends
stole a car belonging to one friend's mother, killed her to con-
ceal the robbery, and drove to Canada. Although defendant
took part in the preparations to commit the murder and
encouraged and directed the others to shoot the victim, he
was not physically present when, after three of his friends
either refused or were unable to shoot her, the fourth fired
the fatal shot. Defendant was charged with five counts of
aggravated murder. Counts 1 through 3 charged defendant
with aggravated felony murder-specifically, that defendant
had committed first-degree robbery by three different means
and that, in the course of committing each of those felonies,
he had committed the murder of the victim "personally and
intentionally." See ORS 163.095(2)(d) (1999) (defining felony
murder under those circumstances as aggravated murder). 1
Counts 4 and 5 charged that defendant had killed the victim
to conceal the commission of other crimes (Count 4) and the
identity of the perpetrators of those crimes (Count 5). See
ORS 163.095(2)(e) (defining murder under those circum-
stances as aggravated murder). After a bench trial, the trial
court convicted defendant of aggravated murder on all five
counts.
On appeal to the Court of Appeals, defendant chal-
lenged his convictions on Counts 1 through 3, contending
that the evidence adduced at trial was insufficient to estab-
lish that he had committed th~~ murder "personally" and that
the trial court therefore had erred in denying his motion for
judgment of acquittal on those three counts. Defendant did
not challenge his aggravated murder convictions on Counts 4
or 5. The Court of Appeals concluded that defendant would
stand convicted of aggravated murder and receive the same
sentence regardless of whether his convictions on Counts 1
through 3 were reversed. The court therefore declined to
reach the issue of the sufficiency of the evidence on those
counts. State v. Link, 214 Or App 100, 162 P3d 1038 (2007).
1 Unless otherwise noted, all references to the Oregon Revised Statutes are to
the 1999 version in effect when the crimes were committed. ORS 163.095 has since
been amended. Or Laws 2005, ch 264, § 17.

State v. Link
We allowed defendant's petition for review and now
hold that (1) the Court of Appeals should have reached the
merits of defendant's challenge to the sufficiency of the evi-
dence on Counts 1 through 3; and (2) the trial court erred in
denying defendant's motion for judgment of acquittal on
Counts 1 through 3.
FACTS AND PROCEDURAL BACKGROUND
Because the parties do not contest the accuracy of
the statement of facts by the Court of Appeals, we take the
facts from its opinion.
"In March 2001, defendant and his friend* * *Thomas, the
son of the victim in this case, were living in a motel in
Deschutes County. Thomas had recently moved out of his
mother's house because he was not getting along with her,
due in part to her antipathy toward defendant. At some
time during the morning of March 26, 2001, defendant,
then 17 years old, along with Thomas and three other
friends-Summers, age 15; Koch, age 15; and Karle, age
16-entered the victim's house while she was at work. The
five friends had decided to drive Koch's mother's Cadillac
(which Koch had taken from her and not returned) to
Canada, and they had stopped at the victim's house to
shower, get food, and steal valuables.
"Shortly after they arrived, defendant and two of his
friends decided to make a trip to the store to buy cigarettes.
As they were about to leave, defendant handed another one
of his friends, Karle, a .308 rifle-stolen earlier from a shop
owned by Thomas's father and later used to kill the vic-
tim-and told her to shoot anybody who might arrive dur-
ing the errand. When Karle asked who that might be,
defendant named the victim. However, the errand never
took place; nobody could find the keys to the Cadillac in
which the friends had arrived. At defendant's suggestion,
they ransacked the house looking for the keys, but to no
avail. At that point, they decided to wait for the victim to
return, knock her out, and go to Canada in her other car.
"Defendant, however, told the others that merely knock-
ing the victim unconscious and tying her up would not be
sufficient; rather, they had to kill her so that she could not
have them apprehended. As the discussion continued, the
five friends suggested various ways to accomplish the mur-
der: beating the victim to death with empty wine bottles,

Cite as 346 Or 187
injecting her with bleach, setting the house on fire with her
inside, and electrocuting her by immersing her in the bath-
tub and then also immersing plugged-in appliances. Defen-
dant told them, however, that, if all else failed, they should
shoot her.
"As the late morning and afternoon passed, defendant
instructed his friends how they should go about setting up
the house for the planned murder. Wine bottles were emp-
tied; a hypodermic needle was filled with bleach; the bath-
tub was filled and electrical cords brought into the bath-
room and connected to a hair dryer and radio. Shortly
before the victim's expected return, two of the codefendants
stationed themselves as lookouts so they could alert the
others to the victim's approach; two stationed themselves
where they could hit her when she entered; and defendant,
telling the others that he could not be seen in the house, sta-
tioned himself outside, where he stayed in contact with the
others by cellphone. At one point, he telephoned Koch and
delivered what Koch later described as a 'pep talk,' encour-
aging him to carry out their plans.
"When the victim arrived, Thomas and Koch hit her
between four and six times with the empty wine bottles
and, when she fell to the ground, kicked her. Despite the
attack, however, she was able to stand and get to the back
porch. From his vantage point outside, defendant saw her,
and asked Thomas and Koch, who by now were also on the
porch, 'Why isn't she dead yet? Get her back in the house.
Shoot her. Get the gun.' As Koch went to retrieve the rifle,
defendant told Thomas that the victim looked 'really bad'
and that they should put her out of her misery. After
Thomas, Summers, and Karle either refused or were una-
ble to shoot the victim, Koch did so himself. Defendant
remained outside.
"After the murder, the five young people took a cordless
phone, alcohol, guns, jewelry, and money from the resi-
dence, transferred their belongings from the Cadillac to the
victim's Honda, and drove away."
214 Or App at 102-04.
Defendant and his cohorts were captured as they
attempted to enter Canada. They were each indicted on
22 criminal counts, including the five counts of aggravated

v. Link
murder previously described and five counts of conspiracy to
commit aggravated murder. 2
Defendant was tried separately from the others and
waived his right to a jury trial. At the close of the state's evi-
dence, defendant moved for a judgment of acquittal on all
counts. As to Counts 1 through 3, the three counts charging
aggravated felony murder, defendant contended that there
was no evidence from which a rational factfinder could con-
clude that he had "personally * * * committed" the murder,
as is required by ORS 163.095(2)(d) (felony murder is aggra-
vated murder if defendant "personally and intentionally com-
mitted the homicide"). 3 Defendant asserted that, under that
subsection of the statute, only the person who fired the fatal
shot could be convicted.
The state disagreed. It contended that, under State
v. Nefstad, 309 Or 523, 789 P2d 1326 (1990), the requirement
2 The five counts of aggravated murder alleged:
Count 1: that defendants committed the crime of Robbery in the First Degree
as defined in ORS 164.415(1)(a) while armed with a deadly weapon (a firearm), and
in the course of and in furtherance of that crime, defendants personally and inten-
tionally caused the death of the victim.
Count 2: that defendants committed the crime of Robbery in the First Degree
as defined in ORS 164.415(1)(b) by use ofa dangerous weapon (a bottle), andin the
course of and in furtherance of that crime, defendants personally and intentionally
caused the death of the victim.
Count 3: that defendants committed the crime of Robbery in the First Degree
as defined in ORS 164.415(1)(c) and caused serious physical injury to the victim,
and in the course of and in furtherance of that crime, defendants personally and
intentionally caused the death of the victim.
Count 4: that defendants intentionally caused the death of the victim to con-
ceal the crimes of theft, criminal mischief, assault, robbery, and unauthorized use
of a vehicle.
Count 5: that defendants intentionally caused the death of the victim to con-
ceal the identity of a perpetrator of the crimes of theft, criminal mischief, assault,
robbery, and unauthorized use of a vehicle.
ORS 163.095 provides, in part:
"As used in ORS 163.105 and this section, 'aggravated murder' means
murder as defined in ORS 163.115 which is committed under, or accompanied
by, any of the following circumstances:
H* * * * *
"{2) * *
"(d) 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) [the felony murder statute]."

Cite as 346 Or 187 	193
that a defendant act "personally" could be met by other active
involvement in the murder. The evidence, the state argued,
was sufficient to permit a factfinder to conclude that defen-
dant's actions constituted active involvement in the victim's
murder.
The trial court agreed with the state, denied the
motion for judgment of acquittal, and convicted defendant on
all 22 counts. 4 Conviction of aggravated murder requires one
of three sentences: death, life imprisonment without the pos-
sibility of release or parole, or life imprisonment. 	ORS
163.105(1)(a). Defendant was not eligible for the death pen-
alty by virtue of ORS 137. 707(2) (prohibiting death penalty
for defendant who was under 18 years of age when crime was
committed). The trial court sentenced him to life imprison-
ment without the possibility of release or parole.
During the sentencing phase of the trial, defendant
argued that the five aggravated murder counts (plus other
counts) should be merged into a single conviction for aggra-
vated murder. Defendant relied on this court's decision in
State u. Barrett, 331Or27, 10 P3d 901 (2000). The state did
not argue to the contrary. In fact, the state specifically
"agree[d] that all five counts of Aggravated Murder [should]
merge for sentencing purposes."
Because the exact nature of the "merger" that the
law requires is relevant to our disposition here, we pause to
consider Barrett and its application of the "anti-merger stat-
ute" in some detail. That statute, currently codified as ORS
161.067(1), but discussed in Barrett as also codified informer
ORS 161.062(1) (1997), provides:
"When the same conduct or criminal episode violates
two or more 	statutory provisions and each provision
requires proof of an element that the others do not, there
are as many separately punishable offenses as there are
separate statutory violations." 5
4 In announcing its decision finding defendant guilty of aggravat~d murder,
the trial court concluded that defendant was not "the ringleader, controlling and
dictating [to] the other four. I think more likely it was a situation of pack mentality
at its worst."
5 The first sentence of former ORS 161.062(1) (1997) was identical to
ORS 167 .067(1); the statutes were adopted in 1985 and 1986, respectively. Former

194 	State v. Link
In Barrett, the defendant had been convicted of three counts
of aggravated murder (among other crimes) for killing a sin-
gle victim. This court concluded that a defendant's murder of
one victim, even though attended by multiple aggravating
circumstances, does not violate two or more statutory provi-
sions as required to constitute two or more separately pun-
ishable offenses under former ORS 161.062 (1997); therefore,
the trial court had erred in imposing separate sentences for
each aggravated murder conviction. 331 Or at 29-31.
The court in Barrett nevertheless concluded that the
judgment needed to reflect the full extent of the defendant's
crime:
"Each of the three theories of aggravated murder at
issue here is one on which the jury had to agree unani-
mously. If the trial court were to enter a conviction on only
one count, and dismiss the other two, it always would be
possible that an appeal would result in a reversal, for insuf-
ficient evidence, of the count that was selected to serve as
the basis for conviction. With the other two counts dis-
missed, defendant would be able to argue that he was enti-
tled to a judgment of acquittal on the charge of aggravated
murder. Such an outcome would be inappropriate, if there
were evidence to sustain defendant's guilt under either of
the other two counts, but there is no obvious mechanism for
'reviving' counts that have been dismissed."
Id. at 36-37 (citation omitted). To address that possibility, the
court concluded that the "appropriate procedure" is "to enter
one judgment of conviction reflecting the defendant's guilt on
the charge of aggravated murder, which judgment separately
would enumerate each of the existing aggravating factors."
Id. at 37 (footnote omitted).
Here, the trial court did not follow precisely the pro-
cedure described in Barrett. In the trial court's judgment of
conviction and sentence, the court sentenced defendant to life
without the possibility of parole on the first aggravated mur-
der count, Count 1. The court then separately listed convic-
tions on each of the four remaining aggravated felony murder
ORS 161.062(1) (1997) was repealed by Oregon Laws 1999, chapter 136, section 1.
ORS 167.067(1) remains unchanged. See State v. Crotsley, 308 Or 272, 276 n 3, 779
P2d 600 (1989) (discussing history of adoption of both statutes).

Cite as 346 Or
convictions, Counts 2 through 5, noting for each one that
those 	counts 	"merge 	into 	COUNT 	[1] 	for 	sentencing
purposes."6
On appeal, defendant presented two issues perti-
nent to the disposition of this case. First, defendant argued
that the trial court had erred when it denied defendant's
motion for judgment of acquittal on the three aggravated fel-
ony murder counts, Counts 1 through 3. Defendant renewed
his assertion that there was no evidence from which a
rational trier of fact could have found that he "personally
* * * 	committed" 	the 	murder, 	as 	required 	by 	ORS
163.095(2)(d). Second, defendant maintained that the trial
court had erred by not merging the aggravated murder con-
victions. Under Barrett, defendant argued, the trial court
should have entered a single judgment of conviction for
aggravated murder, then listed the aggravating factors found
in the five aggravated murder counts.
The state disagreed with defendant concerning the
trial court's ruling on the motion for judgment of acquittal as
to Counts 1 through 3, but it concurred with defendant
regarding the merger issue. The trial court, the state agreed,
should have merged the five aggravated murder counts by
entering a single judgment of conviction for aggravated mur-
der that listed each aggravating factor.
After the Court of Appeals took the case under
advisement, that court asked the parties to address whether
merger of Counts 1 through 5 would mean that any error in
denying the motion for judgment of acquittal as to Counts 1
through 3 was harmless-specifically, whether merger would
mean that any error did not affect a substantial right of the
parties, as is required to serve as a basis for reversal under
ORS 138.230 and Article VII (Amended), section 3, of the
Oregon Constitution. The parties agreed that any error was
not harmless.
In its opinion, the Court of Appeals concluded that
the trial court should have merged the aggravated murder
counts, Counts 1 through 5, into a single conviction that
6 The trial court merged other counts similarly, but the details of those merg-
ers are not relevant to the issues on review.

196 	State v. Link
listed the different aggravating factors for all five counts.
Link, 214 Or App at 110 (relying on this court's decision in
Barrett). The Court of Appeals held, however, that, the agree-
ment of the parties notwithstanding, merger rendered harm-
less any error by the trial court in denying defendant's
motion for judgment of acquittal:
"[D]efendant explicitly does not assign error to his convic-
tions on Counts 4 and 5, aggravated murder based on the
attempt to conceal the crimes or the identity of the perpe-
trator. Thus, even if defendant is correct that the court
erred in not acquitting him on Counts 1through3, he would
still stand convicted on Counts 4 and 5. Because all of the
counts merge into a single conviction, resulting in a single
sentence, acquittal on Counts 1 through 3 would not affect
a substantial right of defendant. We therefore could not
reverse his conviction for aggravated murder. ORS 138.230
(directing court to disregard defects that do not affect
party's substantial rights); see also Or Const, Art VII
(Amended), § 3 (Supreme Court must affirm notwithstand-
ing harmless error); State v. Culver, 198 Or App 267, 271,
108 P3d 104 (2005) (applying constitutional harmless error
rule to Court of Appeals decisions)."
Link, 214 Or App at 111 (emphasis in original).
In their arguments to the Court of Appeals, the par-
ties had suggested that acquittal on Counts 1 through 3
would 	affect 	a 	substantial 	right 	of defendant because,
"should [defendant] ultimately succeed in a post-conviction
proceeding in obtaining a reversal on Counts 4 and 5, then
his convictions on Counts 1, 2, [or] 3 ***would prevent his
complete vindication as to the aggravated murder convic-
tions." Id. The Court of Appeals rejected that argument,
because it concluded that defendant would not be able to
obtain post-conviction relief as to the aggravated murder
charges on Counts 4 and 5. The court stated:
"Defendant * * * did not appeal his convictions on the
grounds that he was wrongly found guilty on Counts 4 or 5.
He is therefore barred from seeking post-conviction relief
on those grounds. [ORS 138.550]; Palmer v. State of Oregon,
318 Or 352, 867 P2d 1368 (1994). Further, because the trial
court found as fact that defendant committed the murders
in order to prevent the victim from revealing the perpetra-
tors of the robbery and other crimes, and that finding is

Cite as 	197
supported by evidence in the record, the possibility of actu-
ally achieving meaningful post-conviction relief, even if it
were possible to pursue it, would be so remote as to be
essentially nonexistent."
Link, 214 Or App at 112 (emphasis in original).
This court allowed defendant's petition for review,
limited to two of the questions presented by defendant:
(1) whether a challenge to a conviction becomes moot if the
conviction merges with other counts that have not been spe-
cifically challenged; and (2) what level of participation in a
felony murder constitutes having "personally and intention-
ally committed the homicide" for purposes of aggravated fel-
ony murder under ORS 163.095(2)(d). 7 We must begin, then,
by considering whether we can reach the issue regarding
the interpretation of "personally and intentionally" in ORS
163.095(2)(d).
In that regard, the first issue that defendant pres-
ents challenges a holding that the Court of Appeals never
made. Defendant contends that the Court of Appeals erred in
holding that the matter was moot, and defendant's briefing
attempts to refute that proposition. The Court of Appeals,
however, did not hold that the matter was moot. Rather, the
Court of Appeals concluded that any error was harmless.
Link, 214 Or App at 111. We begin our analysis with that rul-
ing. We then consider whether, in all events, the matter is
moot.
HARMLESS ERROR AND MOOTNESS
As the Court of Appeals correctly noted, the harm-
less error doctrine is prescribed by two authorities, one stat-
utory and one constitutional. 8 The statutory authority for
harmless error is ORS 138.230, which provides, in part:
'1 Because this court limited the questions on review, we express no opinion on
the other issues addressed by the Court of Appeals. We also note that, on review,
defendant makes no argument regarding the five counts of conspiracy to commit
aggravated murder. Accordingly, we do not discuss those five counts.
8 The term "harmless error" can be somewhat problematic. In State v. Davis,
336 Or 19, 77 P3d 1111 (2003), this court explained that the term "harmless error"
was simply "a shorthand reference to a legal standard" and that it was not "an
entirely accurate descriptor of the legal analysis that the constitution requires." Id.
at 27.

State v. Link
"After hearing the appeal, the court shall give judg-
ment, without regard to * * * technical errors, defects or
exceptions which do not affect the substantial rights of the
parties."
The Court of Appeals concluded that any error by
the trial court in denying defendant's motion for judgment of
acquittal did not affect defendant's substantial rights (as that
term is used in ORS 138.230) because defendant presently
has (or should have) one merged conviction for aggravated
murder and his success on appeal would not change that
result or the sentence imposed. In other words, even if the
convictions on Counts 1 through 3 were set aside, defendant
would still have one merged conviction for aggravated mur-
der based on Counts 4 and 5, and he would still serve the
same sentence.
As noted, the Court of Appeals based its conclusion in
part on the view that defendant would not be able to obtain
relief from his convictions on Counts 4 and 5. Link, 214 Or
App at 112. The Court of Appeals correctly observed that
defendant had not assigned error with respect to his convic-
tions on Counts 4 and 5 and thus was barred from challeng-
ing 	those 	convictions 	in 	post-conviction 	proceedings 	on
grounds that he reasonably could have asserted, but did not
assert, on direct appeal. Id. at 112 (citing ORS 138.550 and
Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994)).
Conversely, however, defendant was entitled to raise issues
on post-conviction that he reasonably could not have raised
on direct appeal. See ORS 138.550(2) (post-conviction relief
available only if ground for relief "was not asserted and could
not reasonably have been asserted in the direct appellate
review proceeding"). Palmer identifies a number of circum-
stances in which that might occur. See 318 Or at 357-58 (rec-
ognizing that post-conviction court could consider arguments
not made at trial where "counsel was incompetent or guilty of
bad faith"; 	where "the right subsequently sought to be
asserted was not generally recognized to be in existence at
the time of trial; where counsel was excusably unaware of
facts which would have disclosed a basis for the assertion of
the right; and where duress or coercion prevented assertion
of the right" (internal quotation marks and citation omitted)).

Cite as 346 Or 187 	199
The Court of Appeals acknowledged that there was,
therefore, 	a 	procedural possibility that defendant could
obtain post-conviction relief from his convictions on Counts 4
and 5. However, based on the court's assessment that the
likelihood of success was remote, the court deemed that relief
to be a practical impossibility. Link, 214 Or App at 112. The
court erred in relying on that conclusion as a basis for its
determination that the alleged trial court error did not affect
defendant's substantial rights. The court had no way to know
the grounds that defendant might assert as the basis for a
claim of post-conviction relief, and therefore it had no means
of assessing the merits of defendant's potential claims. See,
e.g., Lichau v. Baldwin, 333 Or 350, 39 P3d 851 (2002) (peti-
tioner was entitled to post-conviction relief due to inadequate
assistance of counsel who unreasonably had withdrawn peti-
tioner's alibi defense).
The Court of Appeals also erred analytically by
working 	backward 	from 	its 	conclusion-that 	defendant
would stand convicted of aggravated murder and serve the
same sentence, regardless of the strength of his position on
appeal-instead of beginning with the significance of the
relief that defendant seeks on appeal-acquittal of three of
the charges against him. In Counts 1 through 3, the state
charged defendant with committing the murder of the victim
"personally and intentionally." The trial court's verdict as to
each of those three charges was "guilty," and the trial court
consequently convicted defendant of all three charges. On
appeal, defendant seeks a ruling that the trial court erred in
entering those verdicts and convictions.
When the state charges a defendant with illegal acts,
the public is entitled to measure the truth of those charges
not by the defendant's protests of innocence, but by the final
judgment of the court. If the state does not produce facts nec-
essary to sustain a verdict of guilty, then the defendant is
entitled to a judgment of acquittal and to have the public rec-
ord of his case reflect that judgment. Here, defendant was
denied 	that 	opportunity 	because 	the 	Court 	of Appeals
merged his convictions and then used the merger as a reason
not to assess the sufficiency of the evidence to support their
initial entry.

200 	State v. Link
The statute setting out the requirements for judg-
ments in criminal cases, ORS 137.071, recognizes a defen-
dant's interest in having the criminal record correctly reflect
the court's resolution of each charge that the state makes.
That statute specifically requires that the judgment "must
specify clearly the court's determination for each charge in
the information, indictment or complaint." Former ORS
137 .071(7) (1999). 9 If defendant in this case is correct that the
trial court should have granted his motion for acquittal, then
the judgment that the trial court entered did not reflect the
correct determination for each charge in the indictment. The
result in Barrett is consistent with ORS 137 .071. In Barrett,
the court required that the judgment of conviction specifi-
cally record each aggravating factor of which the defendant
was found guilty, although the court concluded that only one
conviction for aggravated murder could be entered. 331 Or at
36-37.
The state acknowledges that, in the past, a valid con-
viction on one count of aggravated murder has not deterred
this court from reaching the issue of the validity of convic-
tions on other counts of aggravated murder, or the accuracy
of the judgment, even where the issue that the court reached
had no impact on the sentence imposed. See, e.g., State v.
Zweigart, 344 Or 619, 622, 188 P3d 242 (2008), cert den,
···~- US 	(2009) (affirming conviction on two counts of
aggravated murder and sentence of death, but reversing one
count of aggravated murder); State v. Tiner, 340 Or 551,
566-67, 135 P3d 305 (2006), cert den, 549 US 1169 (2007)
(reaching unpreserved claims of error in form of judgment
despite argument that death sentence would render issue
moot); State v. Hale, 335 Or 612, 632, 75 P3d 448 (2003),
cert den, 541 US 942 (2004) (affirming convictions on seven
counts of aggravated murder and associated sentences of
death, but reversing convictions on six counts of aggravated
murder and associated sentences of death); State v. Langley,
314 Or 247, 252, 269, 839 P2d 692 (1992), adh'd to on
recons, 318 Or 28, 861 P2d 1012 (1993) (affirming convic-
tions on 15 counts of aggravated murder, but reversing
9 A 2003 amendment renumbered that requirement; it is now found at ORS
137.071(2)(0. Or Laws 2003, ch 576, § 162.

Cite as 346 Or 187 	201
conviction on one count of aggravated murder and vacating
sentence of death for error in penalty phase). The state
argues, however, that those prior decisions are not persua-
sive because none of them specifically addressed the review-
ability issues that this case raises. In that regard, the state
suggests that we focus our attention instead on State u. Pratt,
316 Or 561, 853 P2d 827, cert den, 510 US 969 (1993).
In Pratt, the defendant had been convicted on two
counts of aggravated murder and sentenced to death. 316 Or
at 564. During trial, the defendant had moved for a judgment
of acquittal on one of the two aggravated murder counts, but
the trial court had denied the motion. Id. at 575. On auto-
matic and direct review, this court declined to decide whether
the trial court had erred. The court explained its reasoning
this way:
"We need not decide that issue, * * * because, even if
defendant were correct, the insufficiency of the evidence as
to count two did not affect his conviction on count one or the
resulting sentence of death. See State v. Langley, supra, 314
Or at 269 (trial court's error in denying defendant's motion
for acquittal held to be reversible error; however, remaining
aggravated murder convictions affirmed). Indeed, defen-
dant does not suggest any manner in which the submission
of count two to the jury might have affected adversely his
conviction or sentence on [count one], and no such adverse
effect is apparent to this court. Even if this court were to
reverse defendant's conviction on count two, he still would
stand convicted of one count of aggravated murder, and the
sentence of death would remain. Accordingly, we decline to
address the sufficiency issue further."
316 Or at 575.
The court's decision in Pratt not to exercise its dis-
cretion to consider the merits of the defendant's claim on
appeal does not control the legal question with which we are
presented here. In this case, the issue arises in a different
context than that which existed in Pratt. Here, defendant has
done what the defendant in Pratt did not do-he has identi-
fied the way in which his rights were affected by the trial
court's denial of his motion for acquittal. In that regard, we
have the benefit of the court's decision in Barrett. In Barrett,
this court held that a conviction for aggravated murder must

202 	State v. Link
specify each aggravating factor supporting the conviction.
331 Or at 36-37; see also Tiner, 340 Or at 566-67 (valid sen-
tence of death did not render moot defendant's argument that
judgment 	entered 	against 	him 	must 	accurately 	reflect
merged convictions). To give effect to those cases and to the
requirement of ORS 137.071(7) that a judgment be an accu-
rate record of the court's determination on each charge, we
must be able to review defendant's challenges to the guilty
verdicts on Counts 1 through 3 of the indictment.
Although a ruling in defendant's favor on direct
appeal would not, in itself, result in a reversal of his convic-
tions on all five counts of aggravated murder, such a ruling
would reverse the guilty verdicts entered on three of the five
aggravated murder counts. Ifwe were to adopt the position of
the Court of Appeals, the guilty verdicts entered against
defendant on Counts 1 through 3 would stand, not because
the state proved those charges, but because the state proved
that defendant was guilty of other, separate charges-those
set forth in Counts 4 and 5. Merger of charges based on insuf-
ficient evidence would bar defendant from obtaining acquit-
tal on those charges. That inverts the proper analytical
sequence. The question whether a person is guilty as charged
has an independent significance that cannot be foreclosed by
later merger. Merger presumes the validity of the convictions
being merged; acquittals do not merge with convictions.
We conclude that the ruling that defendant seeks
would affect his substantial right, if the evidence were insuf-
ficient, to acquittal of the charges of aggravated felony mur-
der. Therefore, the error, if any, was not harmless error
under ORS 138.230.
We also conclude that the constitutional standard for
harmless error under Article VII (Amended), section 3, of the
Oregon Constitution has not been met here. That constitu-
tional provision provides, in part:
"If the supreme court shall be of opinion, after considera-
tion of all the matters thus submitted, that the judgment of
the court appealed from was such as should have been ren-
dered in the case, such judgment shall be affirmed, notwith-
standing any error committed during the trial***."

Cite as 346Or187
Under that section, this court must consider whether "the
judgment of the court appealed from was such as should have
been rendered in the case." In State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003), this court explained the appropriate test
under that provision:
"* * * Oregon's constitutional test for affirmance despite
error consists of a single inquiry: Is there little likelihood
that the particular error affected the verdict? The correct
focus of the inquiry regarding affirmance despite error is on
the possible influence of the error on the verdict rendered,
not whether this court, sitting as a factfinder, would regard
the evidence of guilt as substantial and compelling."
The error that defendant alleges in this case is not
harmless under the test articulated in Davis. If defendant is
correct, then the trial court should not have entered a verdict
of guilty on Counts 1 through 3. By definition, the court's
error affected the verdict.
Our determination that the error that defendant
claims affects his substantial rights also resolves the state's
contention that this case is moot. If defendant is successful on
his claim that the trial court erred in denying his motion for
judgment of acquittal on Counts 1 through 3, then that ruling
will have a "practical effect" on his rights in the same way
that it affected his substantial rights for harmless error pur-
poses: Defendant's judgment of conviction will be modified to
reflect acquittals on the charge set forth in Counts 1 through
3. See Brumnett v. PSRB, 315 Or 402, 406, 848 P2d 1194
(1993) (stating that case is moot if decision will no longer
have a practical effect on or concerning rights of parties). The
matter, therefore, is not moot.
SUFFICIENCY OF THE EVIDENCE
Defendant contends that the trial court erred in
denying his motion for judgment of acquittal because the
state did not adduce evidence from which a reasonable trier
of fact could conclude that he had "personally and intention-
ally committed the homicide." ORS 163.095(2)(d). Defendant
does not assert any issue as to the "intentionally" require-
ment; rather, the dispute surrounds whether defendant's
conduct would permit a factfinder to conclude that he "per-
sonally * * * committed" the murder. Defendant contends

204 	State v. Link
that one does not "personally" commit aggravated felony
murder under ORS 163.095(2)(d) simply by aiding in the
commission of a murder. To have "personally*** commit-
ted" the murder, defendant argues, he "must have physically
participated in the actual conduct that caused the victim's
death." (Emphasis added.)
For its part, the state contends that "personally"
reaches a much broader spectrum of conduct:
"Any conduct, either physical or verbal, that personally con-
nects the defendant with the murder of the victim in a way
that constitutes having an 'actual role in causing the death'
is sufficient to prove aggravated felony murder."
The state contends that that definition is met here. Although
the evidence would not support a finding that defendant shot
the victim, the state asserts that the evidence would support
a finding that defendant had a role in the shooting because he
helped the others prepare for it and because he encouraged
and even ordered them to kill the victim.
To determine the meaning of "personally" as it is
used 	to 	define 	aggravated 	felony 	murder 	in 	ORS
163.095(2)(d), we must interpret that statute. In doing so, we
first must understand how aggravated felony murder fits
into the general framework of the murder statutes.
When a person causes or participates in the death of
another, he or she may be convicted of various crimes ranging
from criminal homicide to aggravated murder.
ORS 163.005 provides that a person commits crimi-
nal homicide
"if, without justification or excuse, the person intentionally,
knowingly, recklessly or with criminal negligence causes
the death of another human being."
(Emphasis added.)
ORS 163.115(1)(b) provides that criminal homicide
constitutes felony murder
"[w]hen it is committed by a person, acting*** with one or
more persons, who commits or attempts to commit [certain
felony] crimes and in the course of and in furtherance of the

Cite as 346 Or 	205
crime the person is committing or attempting to commit, or
during the immediate flight therefrom, the person, or
another participant * * *, causes the death of a person other
than one of the participants[.]"
(Emphasis added.) Thus, a defendant may be convicted of fel-
ony murder when, in the course of committing a felony,
another participant in the felony causes a death. In that cir-
cumstance, the defendant may be convicted of felony murder
even though the defendant did not participate in the murder,
cause the death, or intend that the death occur. For example,
a person who participates in a robbery may be guilty offelony
murder if one of his or her companions kills the victim in the
course of the robbery, even if the robber had no idea that the
companion would strike the victim and did not intend that
the companion kill the victim. See State v. Williams, 131 Or
App 85, 87, 883 P2d 918 (1994), adh'd to on recons, 133 Or
App 191, 891 P2d 3, rev den, 321 Or 512 (1995) (defendant
convicted of felony murder when defendant and two compan-
ions robbed victim; one companion struck victim repeatedly
with pipe and killed him). 10
Criminal homicide constitutes intentional murder
when the person who causes the death does so intentionally.
ORS 163.115(1)(a).11 That statute includes within its reach
persons who commit a felony and, in the course of doing so,
intentionally cause the death of a victim. Thus, if a partici-
pant in a felony also participates in and causes a murder, and
does so intentionally, then the participant commits inten-
tional murder, as well as felony murder. In the previous
example, ifthe participant in the robbery also participated in
and caused the murder by providing the pipe to his or her
companion and intended that the companion kill the victim,
the participant could be convicted of both intentional murder
10 Oregon law provides an affirmative defense to felony murder if a participant
in the felony (among other things) had no reasonable ground to believe that any
other participant was armed with a deadly weapon and that any other participant
intended to engage in conduct likely to result in death. See ORS 163.115(3) (listing
elements of defense).
11 ORS 163.115(1)(a) provides, in part:
"Except as provided in ORS 163.118 and 163.125, criminal homicide con-
stitutes murder:
"(a) When it is committed intentionally***."

206 	State v. Link
and felony murder. See State v. Gee, 224 Or App 635, 637, 198
P3d 950 (2008) (defendant convicted of attempted intentional
murder where, in drive-by shooting, defendant identified
intended victim to companion and encouraged companion to
shoot).
The aggravated felony murder statute imposes even
more stringent criteria than does the intentional murder
statute. See State v. Ventris, 337 Or 283, 292, 96 P3d 815
(2004) ("The murder statutes distinguish between 'ordinary'
murder and murder that is accompanied by specified aggra-
vating circumstances."). The statute defining aggravated
murder, ORS 163.095, provides, in part:
"As used in ORS 163.105 and this section, 'aggravated
murder' means murder as defined in ORS 163.115 which is
committed under, or accompanied by, any of the following
circumstances:
"* * * * *
"(2) 	* * *
"(d) 	Notwithstanding ORS 163.115(1)(b), the defen-
dant personally and intentionally committed the homicide
under the circumstances set forth in ORS 163.115(1)(b)
[defining felony murder]."
Aggravated felony murder thus requires not only that the
defendant be a participant in a felony (as required for felony
murder) and that the defendant, with the intent to kill, par-
ticipate in and cause the murder (as required for intentional
murder), but also that the murder be accompanied by the
aggravating circumstance that the defendant both commit-
ted the homicide and did so personally.
Both 	intentional murder and aggravated felony
murder require that a defendant intend the death of the vic-
tim and participate in the homicide. The distinction between
the crimes is the nature of the defendant's participation in
the homicide. And that distinction carries with it a difference
of real significance. Only a defendant convicted of aggravated
felony murder is subject to the death penalty. See ORS
163.105(1)(a) (sentencing options for aggravated murder
include death); compare ORS 163.115(5)(b) (sentence for

Cite as 346 Or
ordinary murder is life in prison with mandatory minimum
of25 years).
The meaning of the term "personally," one of the
terms that distinguishes the crimes of aggravated felony
murder and intentional murder, was the subject of this
court's decision in State v. Nefstad, 309 Or 523, 789 P2d 1326
(1990). In that case, the state had accused the defendant and
his companion of killing the victim by repeatedly stabbing
him in the chest. The defendant had denied that he had
inflicted the fatal wound and, in that regard, raised two
issues on appeal: (1) whether, if the state did not prove that
the defendant had inflicted the fatal wound, there was suffi-
cient evidence to convict him of aggravated murder; and
(2) whether the trial court had erred in its instructions to the
jury. As to the first issue, the defendant suggested that, "as a
matter oflaw, stabbing a victim without delivering the death
blow[,] or pinioning the victim so that the death blow can be
struck, does not constitute personally committing a homi-
cide." Id. at 543. This court rejected that argument:
Id.
"To state this contention is to refute it. Joining in the
stabbing of a dying victim or restraining the victim so that
he cannot avoid the fatal knife thrusts constitutes 'person-
ally' committing the homicide. Thus, in the instant case,
even if defendant choked and restrained the victim but did
not also stab him, nonetheless defendant 'personally' com-
mitted this homicide and he is directly responsible for it."
As to the second issue, the defendant argued that the
trial court had erred in giving the following instruction:
"Personally in the context of aggravated murder means
that[,] to be guilty of that crime[,] the Defendant must have
had an actual role in causing the death and not merely a
role in the felony during which the death occurred."
Id. at 541 (internal quotation marks omitted). The defendant
did not object or except to that instruction on the basis that it
failed to inform the jury that, to convict a defendant of aggra-
vated felony murder, the state must prove that the defendant
inflicted the fatal wound himself. The defendant's only excep-
tion was that "personally" was a word of common meaning

State v. Link
and that no jury instruction to define it was necessary. Id. at
541n10. In addressing that argument on review, this court
explained that the 	term 	"personally" is 	not 	statutorily
defined and that "[n]othing in either the legislative history of
the aggravated murder statute or in its judicial interpreta-
tion suggests that 'personally' has any statutory meaning
that departs from the common understanding of the word."
Id. at 540. The court therefore agreed with the defendant
that the term "personally" was understandable to the jurors
without elaboration by the trial court. Id. at 539-41. The
court then went on to state that, although the instruction was
unnecessary, that did not mean that the trial court had erred
in giving it. Id. at 541. The court concluded that the instruc-
tion was correct in the context of the limited nature of the
defendant's exception. See id. at 541-42 (explaining why
instruction was correct); id. at 541n10 (noting narrow excep-
tion by defendant).
Nefstad thus stands for two propositions: (1) to con-
vict a defendant of aggravated felony murder, the state must
prove that the defendant participated in the murder itself,
not only in the underlying felony; and (2) evidence that a
defendant physically acts to restrain the victim so that the
victim "cannot avoid" the fatal blow is sufficient to establish
that defendant "commit[s]" the homicide "personally." We
have no quarrel with either conclusion, but neither answers
the question that we face in this case: given that defendant
did not perform the act of homicide himself, nor physically act
to restrain the victim so that she could not avoid being shot,
was his participation in the murder sufficient to establish
that he committed the murder personally?
The state's first argument is that defendant's partic-
ipation suffices because a defendant commits a murder per-
sonally any time the defendant has an "actual role in causing
the death." For the reasons explained below, we reject that
argument.
First, although the state bases its argument on the
jury instruction in Nefstad, the court in that case did not
decide whether any conduct other than physical conduct that
restrains the victim to permit the fatal blow is sufficient to

Cite as 346 Or 	209
establish the "personally* **committed" element of aggra-
vated felony murder. The instruction discussed in Nefstad
used the words "actual role" to distinguish between an
"actual role in causing the death and not merely a role in the
felony during which the death occurred." Id. at 541. But
beyond that threshold, "actual role" is not helpful in describ-
ing how significant a defendant's role in the murder must be
to reach the level of personal action necessary to constitute
committing aggravated felony murder.
Second, we know from the structure of the murder
statutes set out earlier that, to be convicted of aggravated fel-
ony murder, rather than intentional murder, a person must
do more than intend the murder and have some role in caus-
ing the death of the victim. The terms "personally'' and "com-
mitted" are not used to describe the participation of the
defendant in the crimes of homicide, felony murder, or inten-
tional murder. Those terms must have a meaning beyond
simply having an "actual role in causing the death," or else
the aggravated felony murder statute would not require
greater participation in the murder than those other, lesser
offenses.
Third, the wording of the aggravated murder statute
and the meaning of its terms compel rejection of the state's
proposal. The common and ordinary meaning of "personally"
is:
"so as to be personal : in a personal manner; often : as one-
self: on or for one's own part<- I don't want to go>[.]"
Webster's Third New International Dictionary 1687 (una-
bridged ed 2002) (emphasis in original). The relevant defini-
tions of"personal" are:
"2 a : done in person without the intervention of another :
direct from one person to another <a - inquiry>[.]"
Id. at 1686. In ORS 163.095(2), the term "personally" modi-
fies the word "committed." The relevant definition of the term
"commit" is:
"DO, PERFORM <convicted of committing crimes against
the state> <-suicide> <committing an even greater folly-0.S.
Nock,[.]"

210 	State v. Link
Webster's at 457 (emphases in original). Thus, applying the
common and ordinary meaning of both terms used in ORS
163.095(2)(d), 	an individual "personally * * * commit[s]"
murder when he or she does or performs the act in question,
the act of homicide, "in a personal manner." The act of homi-
cide is committed (done or performed) "in a personal manner"
if a defendant performs it "in person without the intervention
of another," "direct from [the defendant] to [the victim]," or,
simply, himself or herself.
Fourth, the legislative history of the aggravated
murder statute also indicates that the legislature intended to
require that the defendant perform the act of homicide him-
self or herself. In discussing the legislative history of the
aggravated felony murder statute, the court in Nefstad
quoted the following testimony from Edward Sullivan, the
chairman of the Governor's Task Force on Corrections:
" 'The insertion of the word "personal[ly]" * * * was made to
get at the person who deliberately committed murder in the
course of a felony but not any of the other individuals who
may have participated in the course of the felony. (Whether
it be robbery or theft or whatever.) What is meant * * * is
that the person must have pulled the trigger or used the knife
or what have you, himself* * *.'"
309 Or at 540 n 8 (quoting Minutes, Senate Judiciary
Committee (HB 2011), May 31, 1977, at 3) (emphasis and
first alteration added; other alterations in original).
We conclude from the structure of the murder stat-
utes, and from the wording and legislative history of the
aggravated murder statute that, to prove aggravated felony
murder, the state must prove that a defendant performed the
physical act of homicide himself or herself. 12 That does not
mean that the defendant must have acted alone or that the
act of homicide need be a solitary physical act, or limited to
the final fatal act. As in Nefstad, people acting together each
may "personally* * * commit[ ]"the physical act of homicide.
12 The instruction that the court gave inNefstad did not inform the jury of that
requirement, and trial courts should not use it in the future.

Cite as 346 Or 187 (2009) 	211
And, as in Nefstad, it may take a confluence of physical acts
to effectuate the act of homicide.
To decide whether the evidence was sufficient to
support defendant's conviction in this case, we
"examin[e] the evidence in the light most favorable to the
state to determine whether a rational trier of fact, accepting
reasonable inferences and reasonable credibility choices,
could have found the essential element of the crime beyond
a reasonable doubt."
State v. Cunningham, 320 Or 4 7, 63, 880 P2d 431 (1994), cert
den, 514 US 1005 (1995) (citation omitted). Here, the act of
homicide was one act-the act of shooting-committed by one
person-Koch. Even if, as the state argues, the defendant
was the leader of the group, he remained outside the house
and was not physically present when Koch committed that
act. Defendant did not perform the shooting himself.
That conclusion does not resolve this dispute, how-
ever. As an alternative argument, the state contends that the
evidence that it adduced at trial would permit a reasonable
trier of fact to find that defendant "personally * * * commit-
ted" the act of homicide, because the shooter had been
"within his control" and he had used the shooter "as [an]
instrument[] to accomplish his purpose."
We need not decide here whether a defendant per-
sonally commits an act if the defendant exercises such com-
plete control over another that the other functions as the
defendant's instrumentality. Even if that were true as a
proposition of law-a decision that we need not and do not
make-the facts quoted earlier in this opinion, which the
state agrees accurately summarize the record, would not sup-
port such a finding. Although those facts establish that
defendant encouraged and even directed Koch to shoot the
victim, we do not think that they give rise to a reasonable
inference that Koch was so completely within defendant's
control that defendant was able to use Koch as an instrument
to accomplish defendant's purpose. 13 The facts do not dem-
onstrate, for instance, that defendant used force or threats of
1' As discussed earlier, 346 Or at 193 n 4, in rendering its verdict the trial court
also specifically found that defendant did not control the other four.

212 	State v. Link
force to compel Koch to act as defendant's instrumentality or
that Koch was acting under other duress or mental impair-
ment.14 We conclude, therefore, that a reasonable trier of fact
could not have found that defendant committed the act of
homicide personally, either individually or by controlling
Koch as his instrumentality.
CONCLUSION
In summary, we hold that the trial court erred in
denying defendant's motion for judgment of acquittal as to
Counts 1 through 3 and in finding him guilty of those
charges. That error was not harmless, and the issues that
defendant raised were not moot.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
14 We mention those facts not to indicate that they necessarily would demon-
strate a requisite degree of control, but only to indicate that the record is devoid of
such facts.