State v. Wiltse, 529 P.3d 288

In May 2020 defendant struck the victim with a metal pole, fracturing facial bones and causing a deep cut requiring stitches; ambulance and trauma care were provided.
Trial occurred ~6 months later; evidence and photos at trial showed a scar still visible at trial and ongoing pain and impairment.
Defendant was charged with, and convicted of, third-degree assault (recklessly causing serious physical injury by a dangerous weapon); acquitted of first-degree assault; other counts dismissed or pleaded separately.
After an off-the-record chambers discussion of jury instructions (not transcribed), the court instructed the statutory definition of “serious physical injury” and, at the State’s request, added: “A scar on the scalp visible five months after the injury qualifies as protracted disfigurement.”
Defense did not object at trial; the jury convicted. On appeal the court concluded the special instruction improperly commented on the evidence but declined plain-error relief because the record did not refute plausible inferences that defense counsel agreed or made a strategic choice not to object.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the special instruction was an impermissible comment on the evidence (ORCP 59 E)	The State argued the instruction accurately restated State v. Alvarez and properly guided the jury on what can constitute protracted disfigurement	Wiltse argued the instruction told jurors what inference to draw from the scar and thus improperly commented on the evidence and relieved the State of proving an element	Court held the instruction was an impermissible comment on the evidence (it directed an inference)
Whether any instructional error was "plain" and warrants appellate correction	The State argued any error was not plain because the off-the-record record could show defendant agreed or strategically declined to object; even if plain, other undisputed evidence supported the serious-injury element	Wiltse argued the error was plain and not harmless and sought correction under the plain-error doctrine	Court held the error was not plain because resolving it would require choosing among competing, plausible inferences about the off-record discussion; appellate correction was denied

State v. Alvarez, 240 Or App 167 (holding a scalp scar visible five months after injury can qualify as protracted disfigurement)
State v. Hayward, 327 Or 397 (trial court may not instruct jury how specific evidence relates to an issue; impermissible comment on evidence)
Ailes v. Portland Meadows, Inc., 312 Or 376 (plain-error review requires the error to appear on the record without choosing between competing inferences)
State v. Gornick, 340 Or 160 (where competing inferences about counsel’s conduct exist, error may not be plain)
State v. Maciel-Cortes, 231 Or App 302 (example of jury instruction that improperly commented on evidence)
State v. Ramoz, 367 Or 670 (standard for when an instructional error is not harmless)
State v. Belen, 277 Or App 47 (competing inferences must be plausible to defeat plain-error review)