State v. Moles
State v. Moles
Opinion of the Court
*2On appeal from a judgment of conviction for harassment, ORS 166.065, and fourth-degree assault, ORS 163.160, defendant assigns error to one of the instructions given to the jury by the trial court. Because the claimed error was not preserved before the trial court, we do not address it on the merits and, therefore, affirm.
This case involves a series of events that occurred outside of a bar in Corvallis, and involved a bartender and bouncers from the bar along with defendant and his friends, who had been drinking at the bar. In particular, the charges against defendant stemmed from allegations that he had hit a bartender who was taking a break outside the bar and had bitten the finger of a bouncer who restrained him.
Before the trial court, defendant requested, and was granted, a self-defense instruction. See ORS 161.209.
"The defendant is not justified in using physical force on another person if he provoked the use of unlawful physical force by that other person with the intent to cause physical injury or death to the other person."
*3On appeal, defendant asserts that the evidence did not support the giving of that instruction and, therefore, the trial court erred. The state, for its part, responds that we should not address defendant's contention because defendant failed to preserve his argument in the trial court. We agree with the state.
Before the trial court, defendant objected to the giving of the provocation-limitation instruction as follows: "The defense takes exception to the introduction of the instruction regarding the defense use of physical force and defense of person for provocation." Defendant did not elaborate or present the court with any argument regarding why the proposed instruction was inappropriate.
Generally, to be considered on appeal, a claim of error must first have been raised before the trial court. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief * * *, provided that the appellate court may, in its discretion, consider a plain error."); State v. Vanornum ,
The state identifies a number of reasons that a party may oppose a requested jury instruction, many of which involve distinct analyses:
"(1) the instruction misstates the law; (2) the instruction does not serve the requesting party's theory of the case; (3) the instruction is unsupported by the evidence; (4) the instruction is irrelevant; (5) the instruction risks confusing the jury; (6) the instruction contains a legally-significant typographical error."
*4See, e.g. , State v. Lopez-Minjarez ,
In the circumstances of this case, defendant's objection failed to serve the purposes of preservation and, therefore, did not preserve his contention for purposes of appeal. See State v. Parkins ,
Affirmed.
ORS 161.209 provides:
"Except as provided in ORS 161.215 and 161.219, a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose."
ORS 161.215 provides:
"Notwithstanding ORS 161.209, a person is not justified in using physical force upon another if:
"(1) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person; or
"(2) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force; or
"(3) The physical force involved is the product of a combat by agreement not specifically authorized by law."
Defendant does not request that we review the asserted error as plain error. See ORAP 5.45(1).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.