defense of premises instruction in Oregon

2024Defendant denied to the police that he had used pepper spray on F, but admit- ted pushing F, hitting F with a flashlight, and throwing a container at F. According to the version of events most favorable to defendant, defendant opened the outbuilding door and yelled at F to get out, called 9-1-1 multiple times, never entered the Cite as 330 Or App 640 (2024) 643 outbuilding, never had any physical contact with F, never sprayed anything at F, yelled at F to leave when F exited the outbuilding without his belongings and tried to shake defen- dant’s hand, and threw a plastic milk crate and a flash

2024Defendant denied to the police that he had used pepper spray on F, but admit- ted pushing F, hitting F with a flashlight, and throwing a container at F. According to the version of events most favorable to defendant, defendant opened the outbuilding door and yelled at F to get out, called 9-1-1 multiple times, never entered the Cite as 330 Or App 640 (2024) 643 outbuilding, never had any physical contact with F, never sprayed anything at F, yelled at F to leave when F exited the outbuilding without his belongings and tried to shake defen- dant’s hand, and threw a plastic milk crate and a flash

2024See ORS 161.225(1) (permitting the use of physical force only “to the extent that the person reasonably believes it necessary” to terminate an act of criminal trespassing); Warren v. Baldwin, 140 Or App 318, 333 , 915 P2d 1016 , rev den, 324 Or 229 (1996) (recog- nizing that the defense-of-premises defense requires both a reasonable belief that a person is committing a qualifying crime and a reasonable belief that the degree of force used is “necessary under the circumstances”).

2024See ORS 161.225(1) (permitting the use of physical force only “to the extent that the person reasonably believes it necessary” to terminate an act of criminal trespassing); Warren v. Baldwin, 140 Or App 318, 333 , 915 P2d 1016 , rev den, 324 Or 229 (1996) (recog- nizing that the defense-of-premises defense requires both a reasonable belief that a person is committing a qualifying crime and a reasonable belief that the degree of force used is “necessary under the circumstances”).

2024We agree that such an instruction “impermissibly shifted the jury’s consideration of defendant’s perspective * * * to the [alleged] victim’s perspective.” State v. Bradford, 271 Or App 851, 852 , 352 P3d 1278 (2015) (extending State v. Oliphant, 347 Or 175 , 218 P3d 1281 (2009), to hold that a defense of premises instruction pertaining to a victim’s use of force is improper when the defendant is asserting a self-defense claim).

2024We agree that such an instruction “impermissibly shifted the jury’s consideration of defendant’s perspective * * * to the [alleged] victim’s perspective.” State v. Bradford, 271 Or App 851, 852 , 352 P3d 1278 (2015) (extending State v. Oliphant, 347 Or 175 , 218 P3d 1281 (2009), to hold that a defense of premises instruction pertaining to a victim’s use of force is improper when the defendant is asserting a self-defense claim).

2023“Jurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so.” State v. Hunt, 297 Or App 597, 605 , 442 P3d 232 (2019).

2023“Jurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so.” State v. Hunt, 297 Or App 597, 605 , 442 P3d 232 (2019).

2015In his view, giving a defense of premises instruction was error because State v. Oliphant, 347 Or 175, 194 , 218 P3d 1281 (2009), and State v. Carlon, 265 Or App 390, 397 , 335 P3d 343 (2014), together hold that instructing the jury to consider the lawfulness of the victim’s use of force in defense of premises inserts irrelevant issues into the jury’s deliberations regarding a defendant’s self-defense claim.

2015In his view, giving a defense of premises instruction was error because State v. Oliphant, 347 Or 175, 194 , 218 P3d 1281 (2009), and State v. Carlon, 265 Or App 390, 397 , 335 P3d 343 (2014), together hold that instructing the jury to consider the lawfulness of the victim’s use of force in defense of premises inserts irrelevant issues into the jury’s deliberations regarding a defendant’s self-defense claim.

2003Loew, 130 Or App at 372 .