STATE OF OREGON, Respondent on Review, v. MATTHEW RYAN WILTSE, Petitioner on Review.
CC 20CR28544; CA A175287; SC S070253
In the Supreme Court of the State of Oregon
Argued and submitted January 11, 2024
373 Or 1 (2024)
DUNCAN, J.
En Banc. On review from the Court of Appeals. Appeal from Curry County Circuit Court, Cynthia L. Beaman, Judge. 325 Or App 527, 529 P3d 288 (2023).
Doug Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
DUNCAN, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
In this criminal case, defendant appealed the trial court‘s judgment convicting him of third-degree assault under
The special jury instruction at issue concerned the meaning of “serious physical injury,” an element of third-degree assault under
The Court of Appeals agreed with defendant that the “protracted disfigurement” instruction was a comment on the evidence and, as such, violated
As we explain below, that premise is incorrect. Trial courts have certain duties when it comes to jury instructions. Under
Although Brown and Lotches involved
We emphasize, however, that our holding does not mean that defendant is entitled to a reversal. A plain error
HISTORICAL AND PROCEDURAL FACTS
On the day of the incident that gave rise to this criminal case, defendant was sitting at a picnic table in front of a church, fashioning a handle for a knife. Across the street, RR and her boyfriend were arguing in a public park. They yelled and screamed at each other for half of an hour. Defendant ridiculed RR for her role in the argument. In response, RR drove her car across the street to confront defendant. She got out of her car and picked up a metal pole, which was more than five feet long. RR screamed at defendant, approached him while carrying the pole, and came within three feet of him. Exactly what happened next was disputed at trial, but RR was injured and taken to a hospital, where a doctor determined that RR had suffered the kind of injury that could cause brain damage and even death. The doctor ordered a CT scan, which showed that RR‘s eye socket had multiple fractures. The doctor also treated a two-centimeter-long laceration near RR‘s left eye that required two layers of sutures.
A grand jury indicted defendant with several crimes, including three alternative counts of assault: one first degree, one second degree, and one third degree. The charges alleged different culpable mental states and injuries. The first-degree count alleged that defendant had intentionally caused RR serious physical injury by means of a dangerous weapon,
Prior to trial, thе parties submitted proposed jury instructions. The state requested Uniform Criminal Jury Instruction 1044A, which defines “serious physical injury” as follows:
“The term serious physical injury means a physical injury that (1) creates a substantial risk of death, (2) causes serious and protracted disfigurement, (3) causes protracted impairment of health, or (4) causes protracted loss or impairment of the function of any bodily organ.”
(First emphasis in original; second emphasis added.) See
“A scar on the scalp, visible five months after the injury, qualifies as ‘protracted disfigurement.‘”2
At the close of the evidence, the trial court had the parties come into chambers to “go over the jury instructions.” The record does not reflect what occurred during that discussion. The discussion was not recorded and neither the court nor the parties summarized it when they returned to the courtroom.
Thereafter, the trial court instructed the jury on the record. The instructions included the uniform jury instruction on “serious рhysical injury,” as well as the state‘s
The record does not reflect that the trial court asked the parties for their positions on the instructions that it gave. Nor does it contain any agreement or objection to the instructions by either party.
During closing argument, the state argued that it had presented sufficient evidence to prove that RR had suffered “serious physical injury.” The prosecutor contended, among other things, that RR‘s scar constituted “protracted disfigurement.” In support of that contention, the prosecutor directed the jury‘s attention to the state‘s special instruction:
“If you go to the top of the next page, protracted disfigurement, a scar on the scalp visible * * * five months after the injury qualifies as protracted disfigurement. So we have a scar that‘s visible on her scalp, on her face six months later, so that would count as protracted disfigurement.”
The jury found defendant not guilty on the first-degree assault count, did not reach a verdict on the second-degree count, and found defendant guilty on the third-degree count for recklessly causing serious physical injury to RR by means of a dangerous weapon. The trial court entered a judgment convicting defendant of third-degree assault and sentencing him to 28 months in prison, to be followed by 24 months of post-prison supervision. At the state‘s request, the trial court dismissed the second-degree assault count.
Defendant appealed the trial court‘s judgment, assigning error to the trial court‘s giving of the state‘s special instruction regarding “protracted disfigurement.” Defendant asserted that the instruction was a comment on the evidence, prohibited by
The Court of Appeals first considered whether the state‘s special instruction on “protracted disfigurement” was a comment on the evidence and held that it was. Wiltse, 325 Or App at 534-35. The court explained:
“Under
ORCP 59 E , applicable to criminal cases underORS 136.330 , a trial court may not instruct the jury ‘with respect to matters of fact, nor comment thereon.’ A trial court impermissibly comments on the evidence ‘when it gives a jury instruction that tells the jury how specific evidence relates to a particular legal issue.’ State v. Hayward, 327 Or 397, 410-11, 963 P2d 667 (1998). * * * [An] instruction may not direct the jury to draw any particular inference from a given factual finding, let alone instruct the jury that such evidence is dispositive of the element.”
Wiltse, 325 Or App at 534. Applying that law, the court concluded that,
“[w]hen the trial court instructed the jury that, ‘[a] scar on the scalp visible five months after the injury qualifies as protracted disfigurement,’ it impermissibly drew the jury‘s attention to the scar and the inference of protracted disfigurement, essentially disposing of the state‘s burden to prove the serious physical injury element. In other words, it commented on the evidence.”
Id. at 535 (second brackets in Wiltse). Although RR‘s scar was located on her face and not her scalp, the Court of Appeals concluded that “the jury likely thought that the * * * instruction was informing them that the scar in this case constituted protracted disfigurement.” Id. at 536. Therefore, the court concluded, the instruction “impermissibly directed the jury on the inference to be drawn.” Id.
The Court of Appeals then considered whether the instruction “qualified for plain-error review.” Id. The court observed that, “[t]o constitute error, an alleged error must
Defendant petitioned for review of the Court of Appeals’ decision, and we granted reviеw of his petition to address that court‘s plain-error analysis.
ANALYSIS
The issue on review is whether the Court of Appeals erred in holding that the trial court‘s comment on the evidence did not constitute a plain error. As just recounted, the Court of Appeals reasoned that the trial court‘s comment on the evidence did not satisfy the third plain-error requirement—viz., that the error must “appear on the record“—because it was possible that defendant had agreed to the instruction or had made a strategic choice not to object to the instruction. Wiltse, 325 Or App at 536 (internal quotation marks omitted). As we understand it, the court‘s reasoning was based on the premise that, although
Before turning to those cases, we begin with the principles of preservation and plain error review. “Generally, before an appellate court may address whether a trial court committed an error * * *, the adversely affected party must have preserved the alleged error in the trial court and raised the issue on appeal by an assignment of error in its opening brief.” Ailes, 312 Or at 380. But an appellate court may consider errors that were not properly preserved or raised if they constitute “plain error.” See Peeples, 345 Or at 219 (“The principal excеption to preservation requirements is for so-called ‘plain error[.]‘“);
When determining whether to remedy an alleged plain error, appellate courts employ a two-step analysis. Ailes, 312 Or at 381-82. The first step is to determine if the error constitutes a plain error. Id. (citing Brown, 310 Or at 355-56). To constitute a plain error, an error must be (1) an error of law; (2) “obvious, not reasonably in dispute“; and (3) apparent on the record, meaning that the appellate court “must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” Id. (citing Brown, 310 Or at 355-56). Whether an error constitutes a plain error is a question of law, which this court reviews for errors of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006) (“First, this court considers whether the Court of Appeals committed an error of law in determining that the three elements under the first step of the plain error anаlysis had been satisfied.“).
If an error constitutes a plain error, then, at the second step of the plain-error analysis, an appellate court determines whether to exercise its discretion to reverse based on the error. Ailes, 312 Or at 382 (citing Brown, 310 Or at 355-56). In Ailes, this court set out a nonexclusive list of factors that a court may consider when determining whether to exercise its discretion to reverse based on a plain error:
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court‘s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Id. at 382 n 6. Additional factors can include whether the party alleging a plain error enсouraged the error or made a strategic choice not to object to it, State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007),3 and whether the opposing party played a role in causing the error, State v. Chitwood, 370 Or 305, 326-27, 518 P3d 903 (2022). When reviewing a Court of Appeals decision regarding whether to reverse based on a plain error, we apply an “abuse of discretion” standard of review. Gornick, 340 Or at 167.4
In this case, defendant assigned error to the trial court‘s giving of the state‘s requested jury instruction regarding “protracted disfigurement.” As mentioned, trial courts have certain legal obligations when they give jury instructions. A trial court must “state to the jury all matters of law necessary for its information in giving its verdict.”
At the same time, a trial court “shall not instruct with respect to matters of fact, nor comment thereon.”
In cases like this one, where a party has argued that a trial court plainly erred by giving a jury instruction that failed to comply with the rules that govern jury instructions, this court has determined whether the court erred by examining the instruction itself. Brown is illustrative.
In Brown, the defendant was charged with aggravated murder under
When the case was on review in this court, the defendant did not assign error to the instruction. Id. But, demonstrating “the highest ethical standards of our profession,” the state pointed out that the instruction failed to include the causation element. Id.
This court explained that, ordinarily, to obtain appellate relief based on the giving of an erroneous jury instruction, a party must have excepted to the instruction in the trial court and assigned error to it in the appellate court. Id. But, we further explained, under
First, this court held that the error was an error of law because a trial court has a legal duty to instruct the jury on all the law necessary for its verdict, and whether a trial court has performed that duty is a question of law. Id. We explained that
Second, this court held that the error was “obvious.” Id. We based that holding on our determination that it was “not reasonably in dispute” that a court generally must instruct on all the elements of a charged crime. Id.
Third, and finally, this court held that the error appeared “on the face of the record.” Id. Wе explained that we did not need to “go outside the record or choose between competing inferences to find it” and that “the facts that comprise the error are irrefutable.” Id. Thus, we were able to determine whether the trial court‘s instruction violated
After determining that the error qualified as a plain error, we considered whether to exercise our discretion to reverse the defendant‘s aggravated murder conviction based on the error. Id. at 355-56. In doing so, we noted, among other things, the effect that the error could have had on the verdict, the consequences of the verdict for the defendant, and the extent to which the purposes of the preservation requirement were served. Id. Based on those case-specific considerations, we chose to reverse the defendant‘s conviction and remand the case to the trial court for further proceedings. Id. at 356, 375.
Brown was consistent with precedent. In Kuhnhausen v. Stadelman, 174 Or 290, 148 P2d 239, reh‘g den, 174 Or 314, 149 P2d 168 (1944), this court held that a jury instruction that misstated the law constituted an error “appearing on the face of the record,” and, therefore, we could “take notice of” it, even though the defendant had not objected to it. Id. at 311 (applying the predecessor to
Brown has been followed in other cases, including Lotches, an aggravated murder case. In Lotches, one of the issues on review was whether the trial court had plainly erred by failing to instruct the jury in a manner that would ensure that the jurors unanimously agreed that the state had proved the aggravating factors it had alleged, as required by Boots. Lotches, 331 Or at 468-69 (“[T]he unanimity rule requires that the jury agree as to just what defendant did to bring himself within the purview of the particular subsection of the aggravated murder statute under which he was charged.” (Internal quotation marks omitted.)); State v.
To resolve that issue, this court first determined that the three aggravated murder instructions werе erroneous. Lotches, 331 Or at 466. We explained that, although the aggravated murder counts were based on underlying felonies, the instructions did not identify “the victim or attendant circumstances applicable to each of those underlying felonies or in any other way ensure jury unanimity concerning those issues.” Id. We further explained that, “because the aggravated murder instructions that were given did not either limit the jury‘s consideration to a specified underlying felony or require jury unanimity concerning a choice among alternative felonies, each instruction carried the same danger that this court had condemned in Boots.” Id. at 469. We acknowledged that Boots was “distinguishable factually” because, in Boots, the trial court had expressly instructed the jurors that they did not have to unanimously agree on the aggravating factors, but we held that there was “no reasonable basis for refusing to apply the rule of Boots to the present case.” Id.
After determining that the instructions were erroneous, we considered whether there was “a substantial likelihood of jury confusion as to the underlying felony that was applicable to each count.” Id. at 470-71. We concluded that, for two of the instructions, there was such a likelihood. Id. at 471.
We then turned to the question of whether those two instructions qualified as plain errors. Id. at 472. To do so, we followed Brown and applied the elements of plain error. Lotches, 331 Or at 472 (citing Brown, 310 Or at 355). We held that the errors were “errors of law” because “the question of what must be included in a jury instruction is a question of law.” Id. We further held that the errors were “obvious” because, under Boots, it was “clear * * * that a jury must be instructed concerning the necessity of agreement on all material elements of a charge in order to convict,” and, therefore, the trial court should have known what its “duties respecting jury instructions” were. Id. And, of
Since Lotches, this court has continued to hold, at the first step of the plain-error analysis, that jury instructions that do not comply with the law constitute plain errors. See, e.g., State v. McKinney/Shiffer, 369 Or 325, 333-34, 505 P3d 946 (2022) (holding, in consolidated cases, that trial courts’ failures to instruct on a required mental state element constituted plain errors because they were errors of law, not reasonably in dispute, and apparent on the record); State v. Vanornum, 354 Or 614, 629-30, 317 P3d 889 (2013) (holding that an instruction that misstated the law regarding self-defense was an error apparent on the record); State v. Hale, 335 Or 612, 629-30, 75 P3d 448 (2003), cert den, 541 US 942 (2004) (following Lotches and holding that a trial court‘s failure to instruct a jury in a manner that ensured juror unanimity constituted a plain error).7
The reasoning underlying Brown, Lotches, and our other plain-error jury-instruction cases is sound. Whether a jury instruction fails to comply with the law can be determined by looking at the instruction itself. As discussed, under
Applying our precedent to this case, we first turn to the question of whether the trial court erred in giving the state‘s rеquested “protracted disfigurement” instruction. The Court of Appeals held that it did, and we agree. As discussed,
A trial court cannot intrude on the jury‘s role by commenting on the evidence in violation of
The question then becomes whether giving the instruction qualifies as a plain error. As discussed, the Court of Appeals held that it did not because it did not “appear on the record.” Id. at 536-37 (internal quotation marks omitted). The court reasoned that, because it was possible that defendant might have agreed to the instruction off the record, it could not tell whether giving thе instruction was an error at all. Id. We disagree. As Brown, Lotches, and the other cases discussed above show, an appellate court can determine whether a jury instruction violates the rules that govern jury instructions based on the content of the instruction itself.
Taking that approach, and mirroring Lotches, we hold that giving the “protracted disfigurement” instruction was an error of law because the question of whether an instruction violates
In arguing otherwise, the state relies on Gornick and State v. Perez, 340 Or 310, 317-18, 131 P3d 168 (2006). In each of those cases, the trial court imposed sentences based on aggravating facts that the court found itself. Each defendant‘s sentencing hearing occurred before the Supreme Court‘s decision in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), in which the Court held that a judge exceeds their “‘proper authority’ by inflicting additional punishment based upon facts that the jury did not find beyond a reasonable doubt and that defendant did not admit.” Gornick, 340 Or at 167 (quoting Blakely, 542 US at 303-04). Based on Blakely, the defendants in Gornick and Perez argued that their trial courts had plainly erred by finding the aggravating facts themselves. This court rejected those arguments.
In Gornick, this court explained that a trial court does not legally err by finding aggravating facts during sentencing if thе defendant chose not to exercise their right to have a jury find the aggravating facts. Id. at 168.
Similarly, in Perez, the defendant did not оbject when the trial court found several aggravating facts and imposed a departure sentence based on those facts. Prior to the trial court engaging in its factfinding, the defendant had signed a jury waiver form stating that he “elects to waive trial by jury and consents to be tried by a [j]udge“; he also signed a form stating that he “fully understand[s] that the actual sentence is up to the court.” 340 Or at 317. As in Gornick, the court determined that the defendant could have chosen to have the trial court, instead of a jury, find the aggravating facts, in which case the trial court would not have legally erred. Id. at 318. The court concluded that that inference was one of “several competing inferences,” so the record did not clearly show that the trial court erred and, therefore, the defendant‘s plain-error claim failed at the first step of the Ailes analysis. Id.
Gornick and Perez dealt with different types of alleged errors than the instructional error at issue here. In each of those cases, the defendants could hаve taken steps to authorize the trial court‘s actions: they could have agreed to have the trial court find the aggravating facts. (And, in both cases, there is evidence suggesting that the defendants understood that the trial court would be the entity making
Because, in this case, the record shows the trial court gave an instruction that violated
Although the Court of Appeals did not reach the second step of the Ailes, we proceed to that step in the interest of providing an example of how the two steps work together.
Whether an appellate court should exercise its discretion to reverse based upon a plain error is a case-specific determination. We cannot anticipate all the facts that could be relevant to that determination in every case. But we can reiterate some general principles regarding preservation and plain error.
There are strong reasons for the preservation requirement. Among other things, it promotes fairness and judicial economy. State v. Parkins, 346 Or 333, 340-41, 211 P3d 262 (2009). It helps ensure that “parties are not taken by surprise, misled, or denied opportunities to meet аn argument.” Davis v. O‘Brien, 320 Or 729, 737, 891 P2d 1307 (1995). It also helps ensure that a court has a “chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made.” Peeples, 345 Or at 219. Consequently, “[a] court‘s decision to recognize unpreserved or unraised error * * * should be made with utmost caution. Such an action is contrary to the strong policies requiring preservation and raising of error.” Ailes, 312 Or at 382.
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court‘s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
312 Or at 382 n 6. Courts may also consider whether the party alleging the plain error encouraged the error or made a strategic choice not to object to it. Fults, 343 Or at 523; State ex rel Juv. Dept. v. S.P., 346 Or 592, 606, 215 P3d 847 (2009) (stating that whether a party “encouraged commission of the error in question or made a strategic choice not to object” are relevant to whether this court will “exercise its discretion” to reverse an asserted plain error); see, e.g., State v. Serrano, 355 Or 172, 188, 324 P3d 1274 (2014), cert den, 576 US 1037 (2015) (assuming that, by giving certain jury instructions, the trial court committed plain error, but declining to reverse because the defendant had made “an explicit decision to endorse” the instructions).10
Here, the gravity of the error, in the context of the case, weighs against reversal. Although the error concerns a jury instruction, the instruction related to an issue that defendant did not actively dispute: whether RR‘s injuries constituted one form of “serious physical injury,” specifically, “protracted disfigurement.” As mentioned, defendant‘s defense was that RR approached him with the pole, he grabbed it in self-defense, and he inadvertently injured RR. Defendant did not dispute the nature of RR‘s injuries. That is understandable, given defendant‘s defense and the undisputed evidence, which included a doctor‘s testimony that RR had suffered a type of injury that was potentially
To be sure, the state should not have requested the erroneous instruction and the trial court should not have given it. And, if defendant had objected to it and the court had overruled his objection, we might conclude that the error was not harmless and reverse on the ground that the instruction could have affected the jury‘s verdict. But whether an error was not harmless (and therefore reversible if there was an objectiоn) is a different question from whether an error was grave (which we consider when determining whether to reverse when there was not an objection). State v. Ortiz, 372 Or 658, 678, 554 P3d 796 (2024) (so explaining). Here, because the erroneous instruction concerned an undisputed factual issue that did not affect defendant‘s self-defense claim, we conclude that giving the instruction was not a grave error.
Relatedly, an evaluation of the competing interests of the parties weighs against reversal. Defendant had a full opportunity to try the issues in the case and he chose a self-defense theory that was largely successful. As recounted above, the state charged defendant with three alternative counts of assault, and the jury found defendant guilty of the least serious count, third-degree assault, for recklessly causing serious physical injury. Again, defendant did not dispute the nature of RR‘s injuries. If we were to reverse, the state might have to retry the case and, if so, the defendant might raise a new defense, gaining a second bite at the proverbial apple.
In addition, this is not a case where the purposes of preservation were otherwise served. The parties submitted their jury instructions to the court before trial, as required by
In light of those Ailes factors—the gravity of the error in the сontext of the case, the parties’ competing interests, and whether the purposes of preservation were otherwise served—we decline to exercise our discretion to reverse based on the instructional error.
Before closing, we highlight what today‘s decision means for trial lawyers and trial judges. Trial lawyers should understand that they should continue to object to any jury instruction that they think is objectionable for any reason. Counsel should not read today‘s opinion as creating a tactical advantage of silence. Absent an objection, an instructional error is unlikely to be the basis for a reversal in most cases. Trial judges—who often work to finalize jury instructions in a short time frame at the close of trial—should understand that, in most circumstances, giving jury instructions that have been jointly requested or requested by one party without objection is unlikely to lead to reversal on plain-error review. However, we note that all discussion of instructions is best accomplished on the record, so that appellate courts will know whether an instruction resulted from a joint proposal, an unobjected to request of one party, or was given over a party‘s objection. See State v. Lutz, 306 Or 499, 503, 760 P2d 249 (1988) (“[N]othing of importance bearing on the conduct of the trial should be ‘off the record.‘“)
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Notes
“[F]actors that may apply in this case are: (1) defendant‘s apparent encouragement of the judge‘s choice; (2) the role of the concurrent, permissible 36-month probationary sentence; (3) the possibility that defendant made a strategic choice not to object to the sentence; and (4) the interest of the judicial system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring preservation of error.”
Id. at 523.“For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences; in determining whether to exercise its discretion to consider an error that qualifies as a plain error, the court takes into account a non-exclusive list of factors, including the interests of the parties, the nature of the case, the gravity of the error, and the ends of justice in the particular case.”