lack instruction in Oregon

2024Worsham, 332 Or App at 165 .

2024Worsham, 332 Or App at 165 .

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023That change in the law led the Supreme Court to vacate and remand Morales for reconsideration in light of State v. Shedrick, 370 Or 255 , 518 P3d 559 (2022), and, on remand, we held that a culpable mental state is required for the value element of first-degree criminal mischief.

2023That change in the law led the Supreme Court to vacate and remand Morales for reconsideration in light of State v. Shedrick, 370 Or 255 , 518 P3d 559 (2022), and, on remand, we held that a culpable mental state is required for the value element of first-degree criminal mischief.

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2023See, e.g., State v. McKinney/Shiffer, 369 Or 325 , 505 P3d 946 (2022) (conducting plain-error review of the lack of an instruction on the culpable mental state for the physical-injury element of assault, where the controlling law at the time of trial was State v. Barnes, 329 Or 327 , 986 P2d 1160 (1999), which was overruled on that issue by State v. Owen, 369 Or 288 , 505 P3d 953 (2022), during the pendency of the appeal); State v. Ulery, 366 Or 500 , 464 P3d 1123 (2020) (conducting plain- error review of jury instruction allowing nonunanimous guilty verdicts, where the controlling law at the

2024Having reviewed the entire record, we conclude that there is more than a lit- tle likelihood that the lack of instruction on the meaning of “initial aggressor” affected the verdict.6 State v. Davis, 336 Or 19, 32 , 77 P3d 1111 (2003) (an error is harmless if “there was little likelihood that the error affected the jury’s verdict”).

2024Having reviewed the entire record, we conclude that there is more than a lit- tle likelihood that the lack of instruction on the meaning of “initial aggressor” affected the verdict.6 State v. Davis, 336 Or 19, 32 , 77 P3d 1111 (2003) (an error is harmless if “there was little likelihood that the error affected the jury’s verdict”).

2023When determining whether the lack of a concurrence instruction was harmless, this court views the lack of an instruction “in the context of the evidence and record at trial, including the parties’ theories of the case with respect to the various charges and defenses at issue.” State v. Ashkins, 357 Or 642, 660 , 357 P3d 490 (2015).

2023When determining whether the lack of a concurrence instruction was harmless, this court views the lack of an instruction “in the context of the evidence and record at trial, including the parties’ theories of the case with respect to the various charges and defenses at issue.” State v. Ashkins, 357 Or 642, 660 , 357 P3d 490 (2015).

2023For its part, the state, while acknowledging that a trial court commits plain error if it fails to instruct the jury Cite as 327 Or App 592 (2023) 597 on the material elements of the crime and that the state bears the burden of disproving self-defense, argues that is not obvious that a court commits plain error by failing to instruct the jury on limitations to self-defense.

2020Cite as 366 Or 176 (2020) 181 facts that constitute the tenant’s counterclaim.” See ORS 90.370(2) (making the requirements of paragraph (1)(a) applicable when a tenant asserts a counterclaim in a land- lord’s action for rent).

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2020See Cervantes v. Dept. of Human Services, 295 Or App 691, 693 , 435 P3d 831 (2019) (stating that we are not bound to accept a respondent’s con- cession on a legal issue and must decide whether to do so); State v. Nix, 236 Or App 32, 42-45 , 43 n 7, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 1 I agree with the majority on the supplemental assignment of error, regard- ing the nonunanimous verdict jury instruction. 2 See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001) (regarding alternative bases to affirm that were not argued i

2018Given the lack of warnings about both the consequences of the waiver of the right to counsel and the consequences of the defendant's conduct, it made sense for the Court of Appeals to rule that a "trial court cannot proceed in the defendant's absence unless and until [it] has either secured the defendant's waiver of his or her right to representation at trial or has taken some other course of action that protects the defendant's right to representation ***." Menefee , 268 Or.

2018App. at 185 , 341 P.3d 229 .

2017A trial court’s error is “plain” if: “(1) the error is one of law, (2) the error is obvious, not reasonably in dispute, and (3) the error appears on the face of the record, so that we need not go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable.” State v. Corkill, 262 Or App 543, 551 , 325 P3d 796 , rev den, 355 Or 751 (2014) (internal quotation marks and citation omitted).

2017A trial court’s error is “plain” if: “(1) the error is one of law, (2) the error is obvious, not reasonably in dispute, and (3) the error appears on the face of the record, so that we need not go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable.” State v. Corkill, 262 Or App 543, 551 , 325 P3d 796 , rev den, 355 Or 751 (2014) (internal quotation marks and citation omitted).

2016In the context of the trial court’s failure to give a jury instruction, we consider whether the lack of the instruction “probably created an erroneous impression of the law in the minds of the jur[ors] which affected the outcome of the case.” State v. Pine, 336 Or 194, 210 , 82 P3d 130 (2003) (internal quotation marks omitted; brackets in original).

2016In the context of the trial court’s failure to give a jury instruction, we consider whether the lack of the instruction “probably created an erroneous impression of the law in the minds of the jur[ors] which affected the outcome of the case.” State v. Pine, 336 Or 194, 210 , 82 P3d 130 (2003) (internal quotation marks omitted; brackets in original).

2008First, because petitioner does not challenge his underlying convictions or imprisonment, he must show that placement in IMU is a further restraint on his liberty that *104 “imposes atypical and significant hardships in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 US 472, 484 , 115 S Ct 2293 , 132 L Ed 2d 418 (1995).

2008First, because petitioner does not challenge his underlying convictions or imprisonment, he must show that placement in IMU is a further restraint on his liberty that *104 “imposes atypical and significant hardships in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 US 472, 484 , 115 S Ct 2293 , 132 L Ed 2d 418 (1995).

2007He concedes that the argument is not preserved, but argues that the lack of such an instruction was plain error under State v. Boots, 308 Or 371 , 780 P2d 725 (1989), cert den, 510 US 1013 (1993).