State v. Phillips , 5 Or. App. 60 ( 1971 )

481 P.2d 381 (1971)

STATE of Oregon, Respondent,
v.
Tom Leo PHILLIPS, Appellant.

Court of Appeals of Oregon, Department 2.

Submitted on Briefs February 5, 1971. Decided February 25, 1971. Rehearing Denied March 23, 1971. Review Denied April 13, 1971.

Robert E. Thompson, Jon B. Lund, and Thompson & Adams, Beaverton, for appellant.

Lee Johnson, Atty. Gen., Jacob B. Tanzer, Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem, for respondent.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

The defendant was charged with the crime of assault with intent to commit first-degree murder in violation of ORS 163.280. The charge arose out of an altercation in which defendant shot one Duane Shelton twice with a revolver. The defendant entered a plea of not guilty and was found guilty upon trial by jury of assault with a dangerous weapon. He was thereupon sentenced to a term of not to exceed five years' imprisonment. Contemporaneously with the sentencing on the assault conviction, his probation for the crime of burglary not in a dwelling was revoked and he was given a five-year sentence to run concurrently with the assault sentence.

The defendant appeals from the judgment of conviction and from the order revoking probation and imposing sentence. The principal assignment of error with any substance is that the court erred in its instruction on self-defense which defendant contends did not meet the requirements set forth in State v. Hansen, Or. App., 91 Adv.Sh. 183, 474 P.2d 17 (1970). We do not reach that question, because the defendant took no exception to the instruction given. Questions not raised and preserved in the trial court will not be considered on appeal in the absence of exceptional circumstances. See, e.g., State v. Charles, Or. App., 90 Adv.Sh. 1413, 469 P.2d 792, Sup.Ct. review denied (1970).

The fact that this court clarified the law of self-defense in State v. Hansen, supra, which was decided subsequent to the defendant's trial in the case at hand, is not an exceptional circumstance justifying an exception to the general rule. In State v. Brown, Or. App., 91 Adv.Sh. 725, 727-728, 475 P.2d 973 (1970), this court refused to consider a similar challenge to a similar instruction which was made for the first time on appeal. In support of his contention that he is entitled to raise this question on appeal, defendant relies on State v. Clifton, 240 Or. 378, 401 P.2d 697 (1965). Clifton does not support his position — it holds that one "exceptional circumstance" justifying consideration of matters for the first time on appeal is the subsequent pronouncement of new principles of constitutional law. This exception does not apply to mere subsequent explanation or clarification of the substantive criminal law.

Defendant contends that the trial judge should have instructed the jury that a unanimous verdict was required. This assignment has been disposed of by State v. Gann, 254 Or. 549, 463 P.2d 570 (1969).

Since we find no reversible error in connection with the assault conviction, the defendant's remaining assignment of error, predicated on the theory that the revocation was based on an erroneous conviction, is moot. State v. Hall, Or. App., 91 Adv. Sh. 825, 476 P.2d 930 (1970).

Affirmed.