This is an automatic and direct appeal from defendant's convictions and sentence of death on 14 counts of aggravated murder in the death of Larry Rockenbrant. The trial court erred when it admitted evidence of the murder of another person for the purpose of using some similarities between the two homicides to identify defendant as the killer of Larry Rockenbrant. Admission of that evidence was not harmless error. Accordingly, we reverse defendant's convictions for aggravated murder and remand this case to the circuit court for a new trial.

This opinion addresses only the evidentiary issue requiring reversal and defendant's claim of error relating to the penal statutes on which the indictment was based, i.e., issues that will arise on a new trial.

From this court's recent examinations of the issue of "other crimes" evidence in State v. Johnson, 313 Or 189, 832 P2d 443 (1992); State v. Pinnell, 311 Or 98, 806 P2d 110 (1991); State v. Pratt, 309 Or 205, 785 P2d 350 (1990); and State v. Johns, 301 Or 535, 725 P2d 312 (1986), a clear methodological approach has emerged. Evidence of other crimes is not admissible as circumstantial evidence of a defendant's criminal character. OEC 404(3).^*fn1 But it may be admitted if it is introduced for some other relevant purpose, such as to prove a defendant's identity by modus operandi as the perpetrator of the crime for which he or she is on trial. OEC 404(3). The sole purpose for which the trial Judge admitted evidence in this case relating to the Gray homicide was to establish identity of defendant as Rockenbrant's killer. The jury instructions permitted the jury to consider the evidence for that purpose only. As State v. Johnson, supra, puts it, what is required is "a very high degree of similarity between the prior and charged misconduct or a methodology that is so distinctive so as to earmark the crimes as the handiwork of one criminal." 313 Or at 200. A three-part test

[314 Or Page 514]

governs the admissibility of "other crimes" evidence under OEC 404(3):

"(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, for establishing identity by modus operandi ]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3)." State v. Johnson, supra, 313 Or at 195 (footnote omitted).

It is the first part of that three-part test that concerns us here.

To establish identity by " modus operandi," the prosecutor must establish by a preponderance of the evidence that there is:

"(1) [A] very high degree of similarity between the prior and charged misconduct, and (2) a distinctive nature of the methodology of prior and charged misdeeds * * *." State v. Johnson, supra, 313 Or at 197 (emphasis in original).

This court has spelled out a test for determining whether similarity requirement has been met.

"In deciding * * * whether there is a very high degree of similarity between the charged and uncharged crimes, three factors are relevant: (1) the time lapse between the two crimes; (2) the geographic distance between the two crimes; and (3) the resemblances between the methodologies of the two crimes. Imwinkielreid, [Uncharged Misconduct Evidence (1984)] at 23-24, § 3.11. The three factors are just that -- merely factors in the trial court's * * * determination of the degree of similarity. Id. at 24. '[S]imilarities cannot be considered in a vacuum. The circumstances of each crime as a whole must be compared. * * * [D]issimilarities [also] must be as fully considered as the similarities * * *.' State v. Pratt, supra, 309 Or at 214. Determining what constitutes a very high degree of similarity is a matter to be decided on a case-by-case basis. Id." State v. Pinnell, supra, 311 Or at 110.

The resemblances between the methodologies of the two crimes is the most important factor. Ibid.

[314 Or Page 515]

The record in this case does not support a Conclusion that the Gray and Rockenbrant murders are sufficiently similar and distinctive to warrant admission of evidence of the Gray murder to establish identity of the murderer of Rockenbrant based on modus operandi.^*fn2 Our decision is based on the facts of this case, but also is informed by the direction taken from recent decisions of this court that a very high degree of similarity is required to justify the admission of other crimes evidence to establish identity based on modus operandi. Compare State v. Johnson, supra (reversing conviction) and State v. Pratt, supra (same) with State v. Pinnell, supra (affirming conviction based on a very high degree of similarity and a very distinctive methodology).^*fn3

The facts necessary to decide this appeal are, for its purposes, not disputed. Rockenbrant was acquainted with defendant through drug deals. Defendant asked his girlfriend, Sacha Thayer, to get him sedatives to "knock out" Rockenbrant so that he could "take it all" in one last deal. That did not work out. Later, defendant said that he was still going to go through with it, taking Thayer's baseball bat with him as he went to meet Rockenbrant again. He met Rockenbrant in the early evening on April 13, 1988, and arranged a drug deal for 1:30 a.m. on the 14th. Rockenbrant received a telephone call between 1:00 and 1:30 a.m. on April 14 and left in his Pontiac Firebird, saying he was going to meet defendant and others. Rockenbrant was never seen alive again.

At 3:30 a.m., Thayer heard defendant return the Toyota that they shared and drop off the keys, and she saw him leaving. Defendant returned to the state hospital where he was living (at the time of Rockenbrant's murder, he was an inmate in the state hospital's Mentally and Emotionally Disturbed Program) at 4:15 a.m., showed a counselor the keys to a 1982 Firebird, and explained that a friend, who had to return to jail, had given him the car provided that he make

[314 Or Page 516]

the payments. When Rockenbrant's family called at about 7:00 that morning to inquire about his whereabouts, defendant told them that Rockenbrant was headed for Portland.

Earlier, on the afternoon of April 12, defendant had begun to dig what was supposed to be a "cactus" garden near a hedge in back of his hospital cottage. The hole was six feet, eight inches long; three feet, eight inches wide; and three feet deep. It was covered by a plywood board. By 8:30 on the morning of the 14th the hole had been filled in and a note on it stated "Cottage 18 garden plot. Please leave alone. Thank you." State hospital employees were investigating the "garden plot" that morning, when defendant appeared. Defendant fled in the Pontiac after he was asked to stay.

Rockenbrant's body was then unearthed from the "garden plot." He had been bludgeoned to death by at least ten blows to the head from a blunt instrument which could have been a baseball bat. His body was clothed; his ankles and wrists were bound by ligatures made from torn cloth; and his head was covered with clothes, a backpack, and a cloth. There was a bloody trail leading from the cottage garage to the grave site, and blood and hair consistent with Rockenbrant's were found in the trunk of the Toyota. On April 14, defendant sold some items to a second-hand store in Newport, including a radar detector that matched one removed from the Firebird and a ring similar to one that Rockenbrant had worn but was not found on his body.

The murder of Anne Gray occurred four months earlier, in December 1987. Gray was a neighbor of Thayer. Defendant concocted an elaborate story, both before and after Gray's murder, to assert that Gray had decided to leave her life in Salem behind, that she had contracted with defendant to sell her belongings, and that she had left for Portland (leaving a note on her door to that effect). Defendant had Thayer come to Gray's apartment at 7:30 on the morning of December 10, 1987, to "witness" the contract that he had drawn with Gray to sell the goods that Gray was supposedly leaving behind. When Thayer arrived, Gray was not in the front room. However, Thayer heard water running in the bathroom, assumed the noise was being made by Gray, signed the contract, and left. No one saw Gray alive thereafter.

[314 Or Page 517]

Later that evening, defendant carried a heavy bundle wrapped in blankets from Gray's apartment to Thayer's station wagon. He placed the load in the back and told Thayer to drive to the house where his aunt and cousin lived. There, he unloaded the bundle, told Thayer to leave and return in 20 minutes, and carried the bundle around the side of the house. When Thayer returned, defendant, who was muddy and wet, said that he had fallen. Defendant put the muddy blankets in the car. Defendant thereafter set about trying to sell Gray's property, including her car. He tried selling her furniture to a buyer and sold other items to acquaintances.

When defendant's cousin heard of the Rockenbrant murder in April of 1988, she contacted police about a hole that defendant had dug in her backyard, near a hedge. Defendant had come into his aunt's home at 11:15 p.m. on a night in early winter of 1987 and told his cousin that he had dug a hole for a television antenna. He had placed a board over the hole.

Police unearthed Gray's body from the hole in defendant's aunt's backyard. Gray had died by asphyxiation or ligature strangulation. Her body was found in a grave five feet, five inches long; two feet, six inches wide; and two feet, three inches deep. Her body was clothed, tied by ligatures of duct tape and Gray's own climbing rope, bound in the fetal position, white tape covered her mouth, and her head was wrapped with duct tape.

The state relies primarily on the allegedly distinctive manner of handling and burying the victims and the use of false stories to explain the victims' disappearances and to get their property, to establish both the requisite very high degree of similarity between the crimes and the distinctiveness of the methodology. The state acknowledges that the victims died in completely different manners.

The methods of death for Rockenbrant and the other victim are totally different. Rockenbrant was bludgeoned. The other victim died from being deprived of air to breath. Neither method was particularly distinctive. Each victim was bound, but by different materials and in very different positions. Burial in a comparatively shallow grave is not a particularly distinctive method of disposing of a homicide victim, and the general similarity of the two different sites involved

[314 Or Page 518]

in the state's proof here (in a yard near a hedge) is not highly distinctive. A "signature crime" is not established by this level of similarity.

Other aspects of the two homicides, as related to defendant, contain general similarities as the state contends, but they are interwoven with a number of dissimilarities. Defendant took elaborate precautions to create a story for Gray's disappearance both before and after her death. He did not do so for Rockenbrant. He told Thayer that his plan for Rockenbrant was "going to come down tonight," took a bat with him, made no particular secret of the deadly 1:30 a.m. meeting, and used Rockenbrant's car publicly as his own, while contradictorily telling Rockenbrant's mother that Rockenbrant was off to Portland. Although the fact that defendant took and sold some of his victims' property is a similarity, the methods of acquiring and selling the property differed completely.

The differences between these two murders are numerous and quite significant, while the similarities are few and not of a kind to distinguish these cases from some other homicides. Accordingly, the methodologies are not distinctive. The evidence of the Gray murder was not admissible in this case to establish the identity of defendant as Rockenbrant's murderer.

We consider briefly the state's contention that, if there was error in admitting evidence of the Gray homicide, then it was harmless error. The state acknowledges that it "presented all or virtually all of its case regarding Gray's murder during the guilt phase of [the Rockenbrant murder] trial" and that "a large part of the guilt phase of this case was devoted to evidence regarding Gray's murder." Even though there was substantial and convincing evidence on which a reasonable jury could have found defendant guilty of the Rockenbrant murder without the evidence of the Gray murder, we cannot say that there was little likelihood that the error in admitting other crime's evidence, so pervasive in this trial, affected the verdict. See State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987) (stating the standard for harmless error). The extensive reliance by the state on the Gray murder in this trial could have affected the verdict and, therefore, was not harmless. Reversal is required.

[314 Or Page 519]

Because an issue concerning the indictment will arise on retrial, we address it here. Defendant demurred to the count of the indictment that charged him with aggravated murder under ORS 163.095(2)(b), which makes murder a capital offense if "[t]he defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred." Defendant asserts that the term "otherwise in custody" is unconstitutionally vague, in violation of several state and federal constitutional provisions.^*fn4

A person does not have a valid claim that a statute is unconstitutionally vague merely because it may be difficult to discern the margins of the scope of the statute's reach when, applying the statute to the case at hand, the person's acts clearly fall within the undeniable reach of the statute. State v. Farrar, 309 Or 132, 183, 786 P2d 161 (1990); State v. Robertson, 293 Or 402, 411 n 8, 649 P2d 569 (1982); Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S Ct 1186, 71 L Ed 2d 362 (1982). In this case, defendant indisputably was "in custody" in April 1988, when Rockenbrant was killed. Defendant had voluntarily transferred from imprisonment at the state penitentiary to confinement at the state hospital during the term of his imprisonment. He had not yet reached his parole release date. During closing argument in the guilt phase of the trial, defendant's own counsel stated that defendant was an "inmate" and was "in custody."

Defendant's conduct falls clearly within the statutory reach of ORS 163.095(2)(b), which aggravates a murder committed while confined or "otherwise in custody." See State v. Langley, 314 Or 247, 256, 839 P2d 692 (1992) (a defendant who is in custody of a correctional facility but who

[314 Or Page 520]

is not physically confined there is "otherwise in custody"). He cannot, accordingly, succeed in his assertion that the prohibitions of the statute are unconstitutionally vague as to some other defendant in some other case. There was no error as argued.

Admission of the evidence of the Anne Gray murder to prove defendant's identity as the murderer of Larry Rockenbrant was reversible error.

The judgments of conviction for aggravated murder are reversed, and the case is remanded to the circuit court for a new trial.

Disposition

The judgments of conviction for aggravated murder are reversed, and the case is remanded to the circuit court for a new trial.

Opinion footnotes

^*fn1 OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

^*fn2 Whether the two requirements, similarity and distinctiveness, have been established is a preliminary question of fact for the trial court under OEC 104(1). State v. Pinnell, 311 Or 98, 110, 806 P2d 110 (1991).

^*fn3 Treatises refer to "strikingly similar" and "unique behavorial pattern," Imwinkelreid, Uncharged Misconduct Evidence § 3:12, at 26 (1984); "'signature' identifying a unique defendant," 2 Weinstein and Berger, Weinstein's Evidence § 404(16)(3), at 404-100 (1975).

^*fn4 Defendant relies on the following provisions of Article I of the Oregon Constitution: section 11 (fair notice), section 16 (proportionality), section 20 (privileges or immunities), and section 21 (no ex post facto laws). Defendant also relies on the Due Process, Equal Protection, and Equal Privileges and Immunities Clauses of the United States Constitution.

Defendant also asserted at trial that the term "confined" is unconstitutionally vague, in reliance on the same provisions. Defendant was acquitted of the count of the indictment charging him with murder while confined (Count I). To the extent that defendant reiterates that argument on appeal, it is that the referent "confined" is vague and so is the alternative term "or was otherwise in custody."

We begin by setting out the relevant procedural history. Gray was reported missing in December 1987, and her body was discovered in April 1988. In November 1989, a jury convicted defendant of 16 counts of aggravated murder for Gray's death. At the time of defendant's trial, aggravated murder proceedings were governed by ORS 163.150 (1989), which recently had been amended by the 1989 Legislature and which, as relevant here, purported to apply retroactively to "trials commencing on or after July 19, 1989." ORS 163.150(4) (1989). Among other things, the 1989 amendments added true life as a sentencing option in aggravated-murder cases. Or Laws 1989, ch 720, § 2. Before the 1989 amendments, only death and life imprisonment with the possibility of parole (ordinary life) were possible sentences for aggravated murder. ORS 163.150(2) (1987).

On direct review of the remand proceeding, defendant now argues that the trial court erred by refusing to allow him to waive his ex post facto objections to the true-life sentencing option set out in former ORS 163.150(5) (1993). He primarily relies upon McDonnell, 329 Or 375, in which this court held that a trial court erred by refusing to allow a defendant to waive his ex post facto objections to retroactive application of that statute. The state responds that, for various reasons, the rule set out in McDonnell either should not or cannot apply to this case.

Under the doctrine of the law of the case,

"when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review."

State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993) (internal quotation marks omitted). Thus, the law of the case "precludes relitigation or reconsideration of a point of law decided at an earlier stage of the same case." Koch v. So. Pac. Transp. Co., 274 Or 499, 512, 547 P2d 589 (1976) (emphasis omitted).

In Langley I, the "point of law" at issue was whether retroactive application of the true-life sentencing option to defendant during his initial penalty-phase proceeding, to which defendant timely had objected, would violate constitutional ex post facto prohibitions. On reconsideration, this court concluded that it would. That point of law is not in dispute here. Rather, the question is whether defendant, on remand, was entitled to waive his constitutional protections against ex post facto laws. Because that question was not presented or decided in the earlier proceeding, the doctrine of the law of the case does not prevent us from considering it now.

Finally, the state asserts that, during the Langley I proceeding, defendant did more than merely assert his ex post facto rights; rather, he made a separate, more general argument that the true-life sentencing option should not be provided to any jury in his case. Specifically, the state argues:

We disagree. Even if defendant had made such an argument in Langley I -- a point with which we do not necessarily agree -- such an argument would have no bearing upon our present review of the remand proceeding, particularly in light of the rule announced in McDonnell, discussed below.

We now apply the rule from McDonnell to determine whether remand is appropriate in this case. The defendant in McDonnell, who committed his crime in 1984, filed a waiver of all ex post facto objections to retroactive application of the true-life sentencing option at a remand proceeding that took place in 1993. The trial court refused to provide the true-life instruction in accordance with former ORS 163.150(5) (1993) and, instead, instructed the jury as to only the two sentencing options that were in effect in 1984 -- death and ordinary life. The defendant was sentenced to death. On review, this court concluded that the trial court had erred in refusing to provide the true-life instruction, reasoning that the defendant was entitled to, and did, waive his constitutional protections against ex post facto laws. McDonnell, 329 Or at 390, 392.

The state argues, nonetheless, that this case is distinguishable from McDonnell in two ways. First, the state emphasizes that, in McDonnell, the state acquiesced in the defendant's request to apply the true-life sentencing option, whereas, in this case, the state consistently has objected to application of that option. This court rejected that same argument in Rogers, 330 Or at 291: "That the state objected to defendant's waiver in this case, whereas, in McDonnell, it did not, makes no difference to the result. As this court observed in McDonnell, the 'claim [that application of ORS 163.150(5) (1993) violated the prohibition against ex post facto laws] was defendant's to assert, and he did not do so.' 329 Or at 390. Any objection by the state to defendant's waiver of the protection of the ex post facto clauses has no effect. Because defendant did not invoke those constitutional protections in this case, he waived those protections."

(Brackets in original.) We reject the state's argument here for that same reason.

Defendant counters that, although the jury in the Langley I proceeding was instructed on the true-life sentencing option, that jury received inadequate instructions on mitigating evidence. Defendant further points out that, although the jury in his remand proceeding received adequate instructions on mitigating evidence, it was not instructed properly on the true-life option. Defendant argues that he is entitled to a penalty-phase proceeding in which the jury properly is instructed in all respects.

We agree with defendant. A properly instructed jury, that is, a jury properly instructed both on the true-life sentencing option and on mitigating evidence, could have returned a verdict supporting a sentence other than death. We reject the state's contrary argument.

Defendant further contends that the admission of the evidence at issue violated his right to privacy under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

In response, the state contends, among other things, that: (1) this court previously held in Langley I, 314 Or at 265-67, that defendant had waived his psychotherapist-patient privilege as to some of the communications at issue and, therefore, that particular evidence and other related evidence now is admissible as the law of the case; (2) much of the challenged evidence was not privileged in any event under OEC 504; and (3) defendant's constitutional privacy argument is without merit.

We begin with the challenged exhibits and the state's argument that this court's decision in Langley I controls our determination of the evidentiary issue before us now. In Langley I, this court addressed the admissibility of three of the five exhibits at issue here, all of which arose from defendant's participation in the CTP: (1) a "treatment contract" (exhibit 1140); (2) a "self-assessment" (exhibit 1141); and (3) a 13-page "life history" (exhibit 1297). 314 Or at 262. The court first determined that the psychotherapist-patient privilege set out in OEC 504(2) applied to each of those three exhibits. Id. at 263-64. The court then concluded, however, that, because exhibits 1140 and 1141 previously had been admitted during the Rockenbrant trial, defendant had waived his privilege as to those exhibits under OEC 511, which provides, in part:

We turn to exhibit 1379, which consists of the following materials relating to defendant's stay at the CTP: a face sheet summarizing defendant's medical record; a list of the reasons for defendant's admission to the CTP and his progress while in attendance; a psychological evaluation; a comprehensive list of chart notes dating from August 1987 to April 1988 that summarize defendant's off-premises passes, check-in and check-out records, interaction with staff, and weekly progress updates; a psychological diagnosis update; information concerning defendant's identified mental and emotional problems, and his treatment plan; progress records; and a security-action sheet. As with exhibits 1140, 1141, 1297, and 1104, defendant contends that exhibit 1379 consists of privileged communications under OEC 504(2) that should not have been admitted at trial. The state responds that, as with the other exhibits, defendant waived his privilege.

For seven of the eight witnesses at issue, we need not determine whether their testimony disclosed privileged communications under OEC 504 or whether that testimony fell within the scope of defendant's waiver under OEC 511 concerning the exhibits at issue in Langley I. That is so, because those seven witnesses all testified without objection during either the guilt or penalty phase of defendant's trial in Langley I. We have reviewed the records from both that proceeding and defendant's remand proceeding, and have concluded that each witness's testimony, to the extent that it arguably disclosed any privileged communications, conveyed essentially the same information in both proceedings. Accordingly, we conclude that, consistent with the analysis in Langley I, 314 Or at 264-65, 265 n 14, concerning defendant's waiver of the privilege during the Rockenbrant trial, defendant similarly waived his privilege in respect of the communications disclosed in the testimony of those seven witnesses.

Assuming, without deciding, that CTP staff violated defendant's psychotherapist-patient privilege when they spoke to investigators and testified before the grand jury, we disagree that such facts preclude the conclusion that defendant nonetheless voluntarily waived the privilege at a later time, specifically, during the Rockenbrant trial and the Langley I proceedings. At the outset, we note the well-settled principle that a privilege pertaining to confidential communications terminates upon the holder's voluntary waiver:

Goldsborough, 314 Or at 341 (quoting Commentary to OEC 511, reprinted in Laird C. Kirkpatrick, Oregon Evidence, 282-83 (2d ed 1989)) (emphasis added).

It follows from the foregoing that a voluntary waiver can operate to terminate a privilege to confidential communications, notwithstanding that another participant in the communications might have violated the privilege at an earlier time without the holder's knowledge or consent. Accordingly, we conclude that defendant's waiver of his psychotherapist-patient privilege during the Rockenbrant trial and the Langley I proceedings as to the exhibits and testimony at issue operated to terminate that privilege, notwithstanding possible earlier violations of the privilege by CTP staff and inmate participants. Compare State v. Miller, 300 Or 203, 709 P2d 225 (1985) (state-employed psychotherapist's unauthorized disclosure of privileged communications to police deemed inadmissible in subsequent prosecution of criminal defendant; waiver not at issue).

"What suffices for waiver depends on the nature of the right at issue. '[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake.' United States v. Olano, 507 US 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson * * *, 304 US [at] 464-65 * * * (right to counsel); Brookhart v. Janis, 384 US 1, 7-8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. 'Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has -- and must have -- full authority to manage the conduct of the trial.' Taylor v. Illinois, 484 US 400 (1988). * * * Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 US 745 (1983) [and] what evidentiary objections to raise, see Henry v. Mississippi, 379 US 443, 451 (1965) * * *. Absent a demonstration of ineffectiveness, counsel's word on such matters is the last."

Defendant argues that the trial court should have instructed the jury that it could consider whether Thayer was an accomplice in Gray's murder and, if it so found, that the jury should view her testimony with distrust. In defendant's view, such instructions would have served a mitigating purpose, because, so instructed, the jury might have determined that defendant should not be sentenced to death if it thought that Thayer also was involved in Gray's murder. The state responds alternatively that: (1) as the trial court concluded, the instructions at issue are not applicable in a penalty-phase proceeding; and (2) in any event, defendant failed to present any evidence that tended to prove that Thayer had acted as an accomplice.

This court reviews a trial court's refusal to give a requested jury instruction for error as a matter of law. State v. Moore, 324 Or 396, 427, 927 P2d 1073 (1996). For the reasons explained below, we conclude that the trial court did not err in refusing to give defendant's requested accomplice instructions in the remand proceeding.

The issue of accomplice testimony generally arises under the corroboration requirement of ORS 136.440, which provides, in part:

(Emphasis added.) In light of that corroboration requirement, juries are to be instructed, "on all proper occasions," that "the testimony of an accomplice ought to be viewed with distrust." ORS 10.095(4); see also State v. Simson, 308 Or 102, 110, 775 P2d 837 (1989) (purpose of corroboration requirement and accompanying accomplice instructions is to highlight fact that "criminals may falsely accuse others of their misdeeds in order to minimize their own culpability").

The corroboration requirement for accomplice testimony in ORS 136.440(1) is a predicate for entry of a conviction. That is, if the evidence includes the testimony of an accomplice, then the court cannot enter a conviction unless the record also contains other evidence that corroborates the accomplice's testimony in the manner stated in ORS 136.440(1).

In a trial for aggravated murder, the jury addresses the issue of the defendant's guilt or innocence during the guilt phase. If the jury determines that the defendant is guilty of aggravated murder, then the trial proceeds to the penalty phase. However, the jury does not address, during the penalty phase, the question whether the defendant committed the charged crime. Instead, the jury determines the appropriate penalty for the crime for which the jury found the defendant guilty during the guilt phase.