dissenting.
I dissent from the majoritys analysis and conclusion respecting the accomplice-witness instruction that the trial court gave to the jury.
A statute, ORS 10.095(4), requires a trial court, “on all proper occasions,” to give an instruction that requires the jury to “view[ ] with distrust” the testimony of an accomplice.1 ORS 10.095 provides, in part:
“The jury, subject to the control of the court, in the cases specified by statute, are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:
"* * * * *
“(4) That the testimony of an accomplice ought to be viewed with distrust * * *[.]”
*298This court has admonished trial courts to refrain from giving an instruction under ORS 10.095(4) “unless requested by the defendant.” State v. Simson, 308 Or 102, 110 n 10, 775 P2d 837 (1989). The trial court, in contradiction to the general rule set out in Simson, chose to deliver the instruction set out in ORS 10.095(4), despite defendant’s objection. The problem here arises because the trial court also chose to convey to the jury an additional factual characterization of the witness — the identification of Johnston as an accomplice witness as a matter of law — that ORS 10.095(4) does not require. As I discuss below, that instruction interfered with the jury’s role as factfinder and undermined the policy embodied in ORS 10.095(4).
In State v. Gibson, 252 Or 241, 243-44, 448 P2d 534 (1969), this court recognized the distinction between the statutorily required accomplice-witness instruction and an additional jury instruction that explicitly identifies a witness to the jury as an “accomplice,” and referred to the latter as an “addendum” to the statutory instruction.2 In this opinion, I too will use the term “addendum” to refer to the extra-statutory portion of the court’s jury instruction in this case that identified Johnston as an accomplice witness as a matter of law.
As the parties agree, and as the majority observes, the record of the guilt phase in defendant’s trial presents a sharp factual dispute about Johnston’s role in the victim’s murder. The state introduced evidence that, if believed, *299would establish that Johnston and defendant had acted together in killing the victim. Defendant introduced evidence that, if believed, would establish that Johnston had acted alone in killing the victim.
When the parties rested, the court delivered the following jury instructions that related to the testimony of an accomplice:
“You are instructed that as a matter of law, Willford Nathaniel Johnston, the 3rd, is an accomplice witness in the commission of the crimes charged in this indictment. You should view an accomplice witness’s testimony with distrust. The testimony of an accomplice in and of itself is not sufficient to support a conviction. There must be, in addition, some other evidence, however slight or circumstantial, other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime. This other evidence or corroboration need not be sufficient by itself to support a conviction, but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime.”
(Emphasis added.)
Defendant objected to the addendum embodied in the first sentence of those instructions, emphasized above, asserting that that instruction “cut the heart out of the defense” by defeating the defense theory that “Mr. Johnston did this crime alone and so he [Johnston] would not have been Mr. Oatney’s accomplice.” It is clear that the challenged instruction identified Johnston, as a matter of law, as an accomplice witness in the commission of the crimes charged in the indictment against defendant. Defendant argued that the instruction “assisted the State in proving that Mr. Oatney was, in fact, at the scene of the crime and helping out.”
At the outset, I wish to note that I agree with the majority’s stated view that a witness qualifies as an “accomplice,” as ORS 10.095(4) uses that term, if the evidence is sufficient to indict the witness for the crimes charged against the defendant. As the following discussion demonstrates, my concern centers on the fact that the court’s instruction failed *300to convey that distinctive legal meaning of “accomplice” to the jury and, thus, required the jury to rely on the materially different common meaning of that term. I also join the majority’s suggestion that trial courts can avoid the problem that arises from using the word “accomplice” in a jury instruction simply by informing the jury that the law requires the jury to view the witness’s testimony with distrust and that other evidence must corroborate the witness’s testimony. 335 Or at 290 n 13.
This court’s cases demonstrate that an accomplice-witness instruction can interfere with the jury’s responsibility to determine the pertinent facts relating to guilt or innocence. That is so because an accomplice-witness instruction can permit or require the jury to draw multiple inferences about the state’s evidence, one or some of which assist the state in establishing the defendant’s guilt. For example, in Simson, the defendant, a truck driver, was charged with theft when several people stole his truck. Three of the thieves testified at the defendant’s trial, but did not implicate the defendant in the crime. The trial court gave an accomplice instruction over the defendant’s objection. This court held that giving the accomplice instruction was a legal error:
“By instructing the jury that the witnesses were accomplices in the crime as a matter of law, the trial court effectively instructed the jury that the crime was in fact committed. This deprived defendant of his right to a jury trial on all elements of the charge. Normally, the accomplice-as-a-matter-of-law instruction presents no problem, because the instruction is requested by the defendant. A defendant will risk the implication that a crime was committed in order to cast doubt on the veracity of his accusers. But, in this case, it could serve to cast doubt only on the veracity of those whose testimony favored him. Defendant received no trade-off.10
308 Or at 109-10.
*301In Simson, this court interpreted the accomplice instruction in a commonsense fashion. Although the instruction did not state literally that the crime in fact had been committed, the court had no difficulty drawing that reasonable inference from the statement in the instruction that the witnesses were accomplices in the crime. Simson teaches that, when considering the propriety of accomplice instructions, the court takes into account not only the words of the instructions but also the reasonable inferences that the words convey.
In Gibson, as already noted, this court examined whether the trial, court erred in instructing the jury that defendant’s associate, Wright, “ ‘is an accomplice of the defendant Monte Gibson [ ]’” in Gibson’s trial for robbery. 252 Or at 244. Gibson had admitted that he and Wright had been accomplices in the lesser crime of assault and battery, and that he was. guilty of that crime. This court concluded that the addendum instruction, identifying Wright as Gibson’s accomplice, “was erroneous, but that the error was harmless.” Id. at 245. The Gibson court did not explain why, under the circumstances, the error was harmless. I discuss the harmless error conclusion in Gibson later in this opinion.
The problem created by the addendum instruction in this case more closely resembles the problem addressed in Gibson than that in Simson. Unlike the facts in Simson, defendant conceded that a crime had occurred and, consequently, the accomplice-witness instruction gave the state no undue assistance in proving that aspect of its case.
Gibson lends support to defendant’s argument that, under the facts of this case, delivery of an addendum instruction identifying a purported accomplice witness as a matter of law constitutes legal error. As in Gibson, the instruction here bound the jury to accept that the state’s witness was an “accomplice” in the crime charged against defendant. The word “accomplice” has the following commonly understood definition that, we must assume, the jurors applied:
“[0]ne associated with another in wrongdoing : one that participates with another in a crime either as principal or accessory * *
*302Webster’s Third New Int’l Dictionary 12 (unabridged ed 1993). The factual inference that the addenda in Gibson and this case reasonably conveyed, in the context of the evidentiary record, was that the witness had participated in the crime with another actor and that the other joint actor had been the named defendant.
The majority attempts to distinguish Gibson by pointing out that, in Gibson, the challenged instruction expressly described Wright as an accomplice and linked Wright with the defendant Gibson by name, whereas the instruction here stated that Johnston was an accomplice witness and did not mention defendant by name.3 The majority’s argument is unavailing, in my view, because it fails to acknowledge fully the reasonable inferences that arise from the instructions’ words. There is nothing magical about the phrase “accomplice witness.” It does not appear in ORS 10.095(4), and the trial court gave the jury no special definition for it. The word “witness” in the phrase “accomplice witness” does nothing to alter the phrase’s reasonable inference that Johnston was a witness who had participated with another actor in committing the crimes charged in the indictment. Moreover, the fact that the addendum instruction here did not mention defendant by name is not significant. On this record, only one person possibly could have associated with Johnston in killing the victim: defendant. Only one person is named in the “crimes charged in this indictment! ],” to which the instruction referred: defendant. Thus, although some of the words of the addendum here differ from those in the addendum in Gibson, the factual message in each is indistinguishable.
The majority’s failure to acknowledge the full effect of labeling Johnston as an accomplice in this case operates to defeat rather than support the legislature’s purpose in enacting ORS 10.095(4).4 ORS 10.095(4) embodies a legislative policy determination that a jury ought to view with distrust “the *303testimony” — that is, all the testimony — of an accomplice. On this record, that policy choice means that, if Johnston had been involved in the murder, then the court must not undermine the jury’s responsibility to view with distrust all of Johnston’s testimony, including his claim that he and defendant had acted together in killing the victim. The addendum instruction here required the jury to accept the court’s factual determination, in contradiction to defendant’s testimony, that the witness was an accomplice and, consequently, had not acted alone.
The majority states several reasons for concluding that the delivery of the addendum instruction in this case was not an error. With respect, I do not accept those reasons. The majority acknowledges that the instruction, “viewed alone and as an abstract proposition, would allow a juror to conclude, from the description of Johnston’s status as an ‘accomplice witness,’ that the trial court was stating that another person necessarily had committed the crimes with Johnston.” 335 Or at 290 (emphasis added). The majority asserts, however, that other instructions told the jury about the state’s burden of proof, the jury’s role as factfinder, and the like. Id. at 290-91. The majority also points to the fact that the addendum instruction was just four lines in the transcript. Finally, the majority asserts that the addendum “told the jury only that Johnston was the kind of witness who was to be viewed with distrust and whose testimony must be corroborated. It did not tell the jury that the jury must conclude that Johnston and defendant had acted together.” Id. at 291 (emphasis in original).
I agree that we must examine all the jury instructions together to determine whether they accurately state the law. The addendum instruction does convey the inference, as the majority observes, that Johnston did not act alone in committing the murder. Id. at 291. However, the addendum instruction required the jury to accept that inference about Johnston “as a matter of law.” It did not merely “allow” the jury to agree with that inference, and the majority errs in asserting that the addendum was only permissive in that regard.
None of the other jury instructions to which the majority refers effectively negated the addendum instruction. The most that we can say about those other instructions *304is that they spoke generally about the subjects of the state’s burden of proof and the jury’s role as the factfinder.
The majority’s assertion that the addendum instruction took up only four lines of the transcript is beside the point. Finally, I cannot agree with the majority’s assertion that the addendum instruction did not tell the jury that it must conclude that Johnston and defendant had acted together. As noted above, if Johnston indeed had been involved in the murder, then defendant was the only possible person with whom Johnston could have acted in murdering the victim. The majority disregards both the text of the addendum and the factual record in asserting that, notwithstanding the court’s contrary instruction as a matter of law, the jury still could have accepted “defendant’s theory that Johnston had acted alone * * *." Id. at 292.
I turn to the question whether the trial court’s error harmed defendant. The court does not presume that an instructional error is harmful to the defendant. The record must demonstrate that the error may have led the jury to convict defendant due to a misstatement of law regarding the jury’s discretion to accept or reject inculpatory testimony. See State v. Rawls, 247 Or 328, 330, 429 P2d 574 (1967) (instruction on conclusive presumption regarding intent was error, because jury entitled to accept or reject all or part of a defendant’s testimony or state’s evidence).
In this case, as noted above, defendant testified that Johnston had acted alone in killing the victim. He did not concede that he took any action to aid Johnston until after Johnston had committed the murder. However, by identifying Johnston as an accomplice witness as a matter of law in the commission of the crimes charged, the addendum instruction restricted the jury’s authority to conclude, in conformance with defendant’s testimony, that Johnston had acted alone in murdering the victim. The court in Rawls acknowledged that there might he only a slight possibility of a different outcome from an instructional error that misstated the jury’s factfinding role, but nevertheless remanded for a new trial. The same result should obtain here.
In Gibson, as noted above, this court concluded that, on the facts of that case, the trial court had erred in delivering the addendum to the accomplice-witness instruction, but *305that the error was harmless. The court never disclosed its reasoning for that conclusion. However, I infer from the Gibson court’s discussion that the decisive facts were that the defendant conceded that he and Wright had been accomplices in the commission of the lesser charge of assault and battery, that the robbery had occurred during the assault and battery of the victim, that the addendum instruction had made no mention of the crime or crimes for which the defendant and Wright had been accomplices, and that the defendant had not objected to the form of the addendum instruction.
Those unique aspects of Gibson are not present here. The court’s identification of Johnston as an accomplice witness as a matter of law may have led the jury to conclude that, contrary to defendant’s testimony, Johnston did not act alone. See State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990) (lack of instruction on causation may have led jury to convict without necessary finding on motivation for murder; “[t]he prejudice to defendant is profound, because the missing element makes the difference between life and death”). Nothing else in the record demonstrates that the error was harmless.
For the foregoing reasons, I respectfully dissent.
As the majority states, ORS 136.440 also prohibits conviction on the uncorroborated testimony of an accomplice. I do not separately analyze the effect of ORS 136.440 on this case.
In Gibson, the state prosecuted Gibson for robbery after Gibson and a drinking companion, Wright, beat and kicked the victim, Landa. One or both of the aggressors also took Landa’s billfold and money. Gibson and Wright accused each other of the robbery. Addressing an assignment that the trial court had erred by adding an explicit identification of the accomplice to the statutory accomplice witness instruction, this court stated:
“Since a part of the state’s evidence against Gibson had been supplied by the testimony of Wright, the court was required to instruct that the testimony of an accomplice was to be viewed with distrust. After giving the instruction in the words of the statute, the court then added, ‘and as a matter of law, I instruct you in this case that Larry Wright is an accomplice of the defendant Monte Gibson.’
“The defendant interprets the addendum to the instruction as an instruction to the jury that if they believed that Wright was guilty of the robbery then they must also find the defendant guilty.”
252 Or at 243-44 (emphasis added).
“10 We think that, as a general rule, these instructions ought not to be given unless requested by the defendant.”
The majority asserts that Johnston met the legal definition of an accomplice and that the addendum portrayed Johnston as an accomplice witness to a crime, not as defendant’s accomplice. In Simson, this court noted that the dissenting opinion in the Court of Appeals had relied on the same distinction, but ultimately rejected that dissenting opinion. 308 Or at 107-08.
That concern arguably is more pronounced under the facts of this case than in Gibson. Here, unlike in Gibson, defendant admitted no involvement or cooperation with the state’s witness in carrying out the crimes charged in the indictment.