State v. Vanornum

ORTEGA, P. J. Following a jury trial, defendant was convicted of resisting arrest, ORS 162.315, and disorderly conduct in the second degree, ORS 166.025. We write to address the first and third assignments of error that he makes on appeal, rejecting his second assignment of error without discussion. First, he contends that the trial court erred by refusing to give a special jury instruction defining “unreasonable physical force” in the context of resisting arrest. Second, he argues that the trial court erred by providing an instruction on self-defense that permitted the jury to improperly consider the officer’s reasonable belief regarding the necessity of using force, instead of focusing on defendant’s belief. Because neither of those claims of error was preserved for our review under ORCP 59 H, however, we affirm. The pertinent facts are procedural. At the close of evidence, the trial court read Uniform Criminal Jury Instruction (UCrJI) 1227 — the uniform jury instruction on self-defense to a resisting-arrest charge — to the jury: “The defense of self-defense has been raised. “And a peace office[r] may use physical force on a person being arrested only when and to the extent the officer reasonably believes it is necessary to make an arrest. If a person being arrested physically opposes an arresting officer, the officer may use reasonable force to overcome the opposition. “If, however, the officer uses unreasonable physical force to arrest a person who is offering * * * no unlawful resistance, as I have defined that term for you, that person may use physical force for self-defense from what the person reasonably believes to be the use or imminent use of unlawful physical force by the officer. “In defending[,] the person may only use that * * * degree of force which he reasonably believes to be necessary.” Before reading the instructions, the trial court asked if either party had any objections to them, to which defendant replied, “No, those are fine, Your Honor.” Defendant — 695 — requested, however, that the court give the following special instruction in addition to UCrJI 1227: “DEFINITION OF ‘UNREASONABLE PHYSICAL FORCE’ “When analyzing a claim of [s]elf-[d]efense to the charge of [r]esisting [ajrrest, the jury shall find that ‘unreasonable physical force’ by the officer[s] making the arrest exists if the defendant reasonably believed that the officers’ use of force was disproportionate in the circumstances. “If the jury finds that the defendant reasonably believed that the officers’ use of force was disproportionate in the circumstances, the jury must then decide whether the defendant reasonably believed that his own use of force in response was necessary in the circumstances.” (Boldface and underscoring in original.) In support of his special instruction, defendant explained: “The basis of the special instructions, of course, is to identify a particular fact in the case that maybe needs to have its legal authority more expanded for the jury. Sometimes these general instructions are written in a very general way that appl[ies] to a large series of events at trials * * ❖ “Now, if there’s a factual basis in the particular trial, and a legal authority for the instruction attached to that factual basis, then the presumption is that the special instruction is given. “And we think that the factual basis has existed in this trial, and that the legal authority, as the Court has noted, is certainly there mentioned. As you said, in the general uniform jury instruction[,j State v. Wright, [310 Or 430,99 P2d 642 (1990)] is mentioned as authority. “And so we find that in the specific case of this case, and the unreasonable use of force by these officers, the jury would benefit if they were told in more detail rather than general nature about what the law is on that aspect of this case.” The trial judge refused to provide the special instruction, explaining that he believed that the uniform jury instruction was sufficient. Then, after the jury was instructed, defendant took exception to the trial court’s failure to give his special — 696 — instruction based on his earlier remarks.1 He did not take exception to the jury instruction that was provided by the court. After trial, but before the parties submitted their briefs on appeal, the Supreme Court decided State v. Oliphant, 347 Or 175, 218 P3d 1281 (2009), which concerned, among other issues, UCrJI 1227 — the same uniform jury instruction at issue here. The court in Oliphant held that a criminal defendant who has been charged with resisting arrest and who has asserted self-defense is entitled to a jury instruction that explains that, “[i]f [the defendant] believed, and a reasonable person in his position would have believed, that the use or imminent use of force against him exceeded the force reasonably necessary to effect the arrest, then he was entitled to defend himself from that use of force.” 347 Or at 194. The court held that in such circumstances the trial court should not give the portion of the uniform instruction that provides that an officer may use a degree of physical force that the officer reasonably believes is necessary to effectuate an arrest, explaining that that portion of the instruction “insert[s] an irrelevant issue — the arresting officers’ actual state of mind — into the jury’s deliberations concerning [the defendant’s] claim of self defense,” id., and “impermissi-bly shifts the focus of the jury’s deliberations on a defendant’s self-defense claim from what the defendant reasonably believes to what the officer believes,” id. at 198. In his first assignment of error, defendant contends that his requested jury instruction is a correct statement of the law as later announced in Oliphant and that, therefore, the trial court erred by failing to provide that instruction. He contends that his requested instruction would have instructed the jury to view whether the officers’ use of force was unreasonable from defendant’s perspective rather than the officers’ perspective. He also argues that, because his — 697 — requested instruction was supported by evidence in the record, the trial court was required to give it. Finally, defendant contends that, “had [his] requested instruction been given, it is possible that his requested instruction would have mitigated the damage from the erroneous instruction” given by the court — specifically, the portion of that instruction stating that “a peace office[r] may use physical force on a person being arrested only when and to the extent the officer reasonably believes it is necessary to make an arrest. If a person being arrested physically opposes an arresting officer, the officer may use reasonable force to overcome the opposition.” Although the state does not contend that defendant failed to preserve his first assignment of error, challenging the failure to give his requested instruction, we nevertheless “are enjoined, as a prudential matter, to determine independently whether [defendant] adequately raised and preserved his present contention before the trial court.” Wilson v. Walluski Western Ltd., 226 Or App 155, 162, 203 P3d 284 (2009). In order to adequately preserve instructional error, the party making the claim of error must comply with ORCP 59 H, which applies to criminal trials through ORS 136.330(2). ORCP 59 H provides: “H(l) * * * A party may not obtain review on appeal of an asserted error by a trial court in submitting or refusing to submit a statement of issues to a jury pursuant to subsection C(2) of this rule or in giving or refusing to give an instruction to a jury unless the party who seeks to appeal identified the asserted error to the trial court and made a notation of exception immediately after the court instructed the jury. “H(2) * * * A party shall state with particularity any point of exception to the trial judge. A party shall make a notation of exception either orally on the record or in a writing filed with the court.” (Emphasis added.) The requirements of ORCP 59 H are congruent with the more general directive that “a party must — 698 — provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). Preservation rules are meant to ensure “that the position of a party is presented clearly to the trial court and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.” State v. Wideman, 203 Or App 359, 364, 124 P3d 1271 (2005). Here, defendant failed to specify “with particularity” any reason why his proposed instruction would be helpful to the jury’s deliberations and otherwise a correct statement of law. Defendant merely stated that “[t]he basis of the special instructions * * * is to identify a particular fact in the case that maybe needs to have its legal authority more expanded for the jury” and that “the jury would benefit if they were told in more detail rather than general nature about what the law is on that aspect of this case.” Those generalized remarks did not adequately “identify] the asserted error to the trial court,” ORCP 59 H(l), and did not “state with particularity,” ORCP 59 H(2), the alleged error that defendant now asserts — namely, that, because the trial court refused to give the special instruction, the jury was permitted to view whether the officers’ use of force was unreasonable from the officers’ perspective rather than defendant’s perspective. In this specific circumstance, more than a cursory remark about the proposed instruction was required, not least because the instruction that was given (which defendant approved) conflicted with defendant’s proposed jury instruction.2 That is, in this circumstance, the court could not have given both instructions without running a great risk of confusing the jury. Accordingly, we decline to address the merits of defendant’s first assignment of error. — 699 — With regard to defendant’s third assignment of error, defendant concedes that he did not take exception to the self-defense instruction that was provided to the jury but argues that, in light of Oliphant, that instruction constitutes plain error that we should exercise our discretion to review. Because defendant raised no exception to the jury instruction provided by the trial court, as required by ORCP 59 H, defendant’s third assignment of error is not reviewable. Cf. State v. Guardipee, 239 Or App 44, 48, 243 P3d 149 (2010) (holding that a claim of instructional error was not subject to plain error review where the defendant did not except to the trial court’s failure to give a requested instruction and the alleged error did not fall within the limited exception to the broad preclusive sweep of ORCP 59 H); see also State v. Toth, 213 Or App 505, 162 P3d 317 (2007) (illustrating the limited exception). In short, because neither claim of instructional error was preserved for our review, as required by ORCP 59 H, the judgment of the trial court is affirmed. Affirmed. Footnotes [1] Cf. Deason v. TriMet, 241 Or App 510, 514 n 2, 251 P3d 779 (2011) (addressing circumstances in which a party’s brief post-instructional exception, which was based on her earlier objections, was sufficient to satisfy the requirements of ORCP 59 H). [2] As noted, the self-defense instruction that the trial court gave with defendant’s approval, based on UCrJI 1227, was later disapproved in Oliphant. Even if defendant’s proposed instruction is consistent with Oliphant — something about which we harbor doubt but do not decide — that instruction was not consistent with UCrJI 1227. So, again, defendant could not have alerted the trial court of his current position while approving the self-defense instruction that was provided to the jury.