State v. Stewart, 502 P.3d 241

In August 2019 Stewart, who has bipolar disorder, struggled with his wife K over car keys; during the struggle K reported Stewart slapped her and later had a bruise on her cheek.
Police interviewed K; her recorded statement and photographs of her bruise were admitted at trial.
Stewart was charged with attempted fourth-degree assault (domestic violence) and harassment under ORS 166.065.
At trial Stewart admitted the contact but claimed it was not intentional; K gave mixed testimony about whether it was a slap.
The trial court gave a special jury instruction defining “offensive physical contact” to include “striking, slapping, shoving, kicking, grabbing, and similar acts.” Stewart objected.
Jury convicted on both counts; trial court ordered Stewart to pay $400 in court‑appointed attorney fees. Stewart appealed.

Issue	State's Argument	Stewart's Argument	Held
Whether the jury instruction that “offensive physical contact” includes slapping was an impermissible comment on the evidence	The instruction merely gave examples; slapping is an example and instruction consistent with law; any error harmless because the jury found intentional assault and bruising	Instruction improperly comments on evidence and effectively makes slapping per se offensive contact, usurping factfinder	Court: Instruction was an impermissible comment on the evidence but the error was harmless given the facts and other instructions (affirmed)
Whether imposing $400 in court‑appointed attorney fees without inquiry into ability to pay was plain error	State conceded the court erred by imposing fees without adequate inquiry	Court must assess defendant’s financial resources before imposing fees; absence of record requires correction	Court: Plain error; fee portion reversed

State v. Keller, 40 Or. App. 143 (1979) (striking/slapping not automatically "offensive physical contact"—fact question for jury)
State v. Hayward, 327 Or. 397 (1998) (trial court impermissibly comments when instruction tells jury how evidence relates to legal issues or shifts burden)
State v. Lopez-Minjarez, 350 Or. 576 (2011) (prejudice/harmful-error analysis for infirm instructions)
State v. Morales, 307 Or. App. 280 (2020) (cautions against drafting jury instructions from opinion language describing sufficiency of evidence)
Rogers v. Meridian Park Hospital, 307 Or. 612 (1989) (warning about using opinion wording as jury instructions)
State v. Meyer, 313 Or. App. 611 (2021) (ordering correction where fees imposed without adequate financial inquiry)
State v. Vanornum, 354 Or. 614 (2013) (describes plain error doctrine)