State v. Wiltse, 559 P.3d 380

Defendant Wiltse was convicted of third-degree assault for causing serious physical injury ("protracted disfigurement") to RR during an altercation, claiming self-defense.
At trial, the state requested, and the judge gave, a jury instruction stating a visible scar five months after injury "qualifies as protracted disfigurement."
Defendant did not object to the instruction during trial; the record did not show whether he agreed or strategically chose not to object.
On appeal, Wiltse argued this instruction constituted an impermissible judicial comment on the evidence under ORCP 59 E.
The Court of Appeals agreed it was a comment on evidence but found no "plain error" because of possible off-record agreement or strategy.
The Oregon Supreme Court reviewed whether this was correct under the standards for appellate "plain error" review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a jury instruction specifying a scar as "protracted disfigurement" constitute impermissible comment on evidence?	Yes; instruction improperly directs how to view evidence.	The instruction is permissible.	Yes, it's an impermissible comment (violates ORCP 59 E).
Can an error in jury instructions be "plain error" if no party objects or the record is silent on objections?	Yes; plain error can be determined by the instruction alone.	No; agreement or lack thereof makes it not "apparent."	Yes; whether it’s error is determinable by reviewing instruction itself.
Should appellate courts reverse based on such unpreserved plain error?	Yes; error affected the trial outcome.	No; error wasn’t grave or objected to, and preservation policies were not met.	No; here, court declines to exercise discretion to reverse as error was not grave or central to defenses.
Do parties’ agreement or strategic silence alter whether an instructional error is "apparent on the record"?	No; legal error is independent of parties' actions.	Yes; possible agreement prevents error from being "apparent."	No; parties’ actions are relevant to remedy, not to the existence of error.

State v. Brown, 310 Or 347 (Or. 1990) (errors in jury instructions are plain errors if legal point is obvious and record is clear)
State v. Lotches, 331 Or 455 (Or. 2000) (plain error in jury instructions determined by examining instructions themselves)
State v. Hayward, 327 Or 397 (Or. 1998) (court violates ORCP 59 E by instructing jury how evidence relates to specific issues)
State v. Boots, 315 Or 572 (Or. 1993) (jury must decide every factual element of a charged crime)
State v. Ailes, 312 Or 376 (Or. 1991) (sets forth Oregon’s plain error review standard and factors)