State v. Worsham ( 2024 )

154 April 24, 2024 No. 258
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTHONY ALAN WORSHAM,
Defendant-Appellant.
Douglas County Circuit Court
21CR46056; A178554
Ann Marie Simmons, Judge.
Argued and submitted February 7, 2024.
Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Patricia G. Rincon, Assistant Attorney General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
AOYAGI, P. J.
Reversed and remanded.
Cite as 332 Or App 154 (2024) 155
156 State v. Worsham
AOYAGI, P. J.
Defendant was convicted of second-degree assault
based on an incident in which he stabbed C with a pocket-
knife. The issue on appeal pertains to the “initial aggres-
sor” limitation on self-defense. After defendant raised the
defense of self-defense, the state sought to disprove self-
defense, including by arguing that defendant was the initial
aggressor. See ORS 161.215(1)(b) (“[A] person is not justi-
fied in using physical force upon another person if * * * [t]he
person is the initial aggressor[.]”).1 The jury ultimately
rejected the defense and found defendant guilty. On appeal,
in an unpreserved claim of error, defendant argues that the
trial court plainly erred by failing to instruct the jury on the
meaning of “initial aggressor.” For the reasons discussed
below, we agree that it was plain error in this case not to
instruct on the meaning of “initial aggressor,” that the error
was not harmless, and that the circumstances merit the
exercise of our discretion to correct the error. Accordingly,
we reverse and remand for a new trial.2
FACTS
We describe the evidence “in the light most favor-
able to the establishment of the facts necessary to require
the instruction.” Ossanna v. Nike, Inc., 365 Or 196, 199,
445 P3d 281 (2019). That is, we describe it in the light most
favorable to defendant having acted in self-defense and hav-
ing not been the initial aggressor.
On August 31, 2021, defendant was living in a tent
in a park in Roseburg. The complainant, C, and his girl-
friend, B, were living in a parked vehicle in the area. C and
B had been arguing loudly for days. Around midnight, B left
the vehicle and walked to the park to purchase drugs, and
C, who had used methamphetamine that evening, followed
her. When C caught up to B in the park, the two yelled “bad
1
An exception to the initial-aggressor limitation applies when the initial
aggressor “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.” ORS 161.215(1)(b). That exception
is not at issue on appeal and is not relevant to our analysis, so we do not discuss it.
2
Given our disposition, we do not discuss defendant’s second assignment of
error.
Cite as 332 Or App 154 (2024) 157
words” at each other for “a good 15 minutes,” and B ended up
on the ground.3
From inside his tent, defendant heard C and B pass
by, their arguing, a big slap, then B yelling for someone to
help her and for C to get off her. Defendant decided to “step
in and go help.” Having been assaulted by people in the past,
he took his pocketknife (which had a three-inch blade) for
protection and held it near his thigh, open and pointing out-
ward, as he walked. When defendant was approximately
20 to 30 feet from C and B’s perceived location, defendant
yelled at C to stop beating on a woman. C walked toward
defendant. In the “pitch black” darkness, they did not see
each other until they were practically face to face and
bumped into one another on the trail. C—who did not real-
ize that defendant was holding a knife—swung four times
at defendant (making contact once), then charged at defen-
dant’s waist as if to wrestle him to the ground. Defendant
braced in response, and, when C charged, C impaled himself
on the knife, although neither man immediately realized it.
C backed up and kicked defendant in the ribs. C then touched
his shirt, realized he was bleeding, and said, “[Y]ou fucking
stabbed me.”
Defendant returned to his tent and called 9-1-1.
Defendant told the 9-1-1 operator that someone had run into
his knife while attacking him. In an interview at the hospi-
tal, C told the police that the fight was prompted by defen-
dant saying something like “you shouldn’t hit a woman.”
Defendant was interviewed at the police station over a nine-
hour period; he maintained that he never intended to stab
C, that he carried the knife only for protection, and that
C had impaled himself while trying to assault defendant.
Defendant was charged with first-degree assault,
ORS 163.185, and unlawful use of a weapon, ORS 166.220.
Before trial, he gave notice that he claimed self-defense,
thus triggering the state’s burden to disprove self-defense.
At trial, the state sought to disprove self-defense by, among
3
According to B, she threw herself to the ground (testimony on direct) or
defendant pushed her to the ground (testimony on cross). According to C, he
“hugged” B, causing them both “to lie down and look at the stars” to try to “calm
down.”
158 State v. Worsham
other things, proving that defendant was the initial aggres-
sor. (The state also made arguments about provocation and
mutual combat.)
After both parties rested, and before closing argu-
ments, the court instructed the jury. As relevant here, the
court gave instructions on the elements of assault, the defense
of self-defense, and limitations on self-defense, including
that the defense is not available to the “initial aggressor.”
The court gave no instructions as to what it means to be the
“initial aggressor.”
In closing argument, the prosecutor addressed the
initial-aggressor limitation on self-defense, arguing that it
did not necessarily require “physical” aggression and that it
was up to the jury to decide what an “aggressor” is:
“Well, then you have to look who is the initial aggressor.
And it doesn’t have to be one or the other but who is the
initial aggressor in this, right? And look in here. It doesn’t
say physically aggressive. It’s aggressor. It’s open. It’s open
to your determination.
“A person is not justified in using physical force on
another person if he was the initial aggressor. What did
[the complainant] say to [defendant]? What did [the com-
plainant] know about [defendant] at that moment? Nothing.
He had no idea he was even there.”
A moment later, while transitioning into the separate issue
of deadly force, the prosecutor reiterated his broad view of
what an “initial aggressor” is, stating, “Then we move to
limitations on the use of deadly physical force. Let’s say you
get there and you say oh, no. [Defendant], he wasn’t the ini-
tial aggressor. He didn’t provoke anything. He’s just mind-
ing his own business and look what happens, right.”
In the defense’s closing argument, defense counsel
disputed that defendant was the initial aggressor. He
argued that C brought the force to defendant by charging
defendant, which resulted in an injury because defendant
was carrying a knife for protection at the time.
In rebuttal, the prosecutor focused on the limita-
tions on self-defense. He argued that, although “[t]here are
situations where you could walk up to something [sic] and
Cite as 332 Or App 154 (2024) 159
say something in a certain manner and it might not be
provocation or you may not be the initial aggressor,” here
defendant walked up “yelling in [C’s] face stop beating on
women.” The prosecutor continued, “In this, in this situation
one thing is gonna happen. And everyone in this courtroom
knows it, including [defendant]. But he did that. He walked
into that. He created the situation. He was the one in con-
trol.” The prosecutor continued on the theme of control, then
concluded by stating, “He has a duty, injecting himself, not
to provoke or be the initial aggressor which he clearly does.
That removes his ability for self-defense.” The prosecutor
asked the jury to find defendant guilty.
The jury found defendant guilty of second-degree
assault, as a lesser included offense of first-degree assault,
and unlawful use of a weapon. The two verdicts merged into
a single conviction for second-degree assault.
ANALYSIS
Defendant contends that the trial court erred by fail-
ing to instruct the jury on the meaning of “initial aggressor”
as relevant to self-defense. He acknowledges that he did not
preserve his claim of error and that we are therefore limited
to plain-error review. See State v. Wyatt, 331 Or 335, 341,
15 P3d 22 (2000) (“Generally, an issue not preserved in the
trial court will not be considered on appeal.”); ORAP 5.45(1)
(allowing discretionary review of “plain” errors). An error
is “plain” when it is an error of law, the legal point is obvi-
ous and not reasonably in dispute, and the error is apparent
on the record without having to choose among competing
inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889
(2013). It is a matter of discretion whether we will correct
a plain error. State v. Gornick, 340 Or 160, 166, 130 P3d
780 (2006). We must use “utmost caution” in exercising that
discretion, given the strong policy reasons favoring preser-
vation. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823
P2d 956 (1991).
“Initial aggressor” is a legal term of art. State v.
Phillips, 313 Or App 1, 5, 493 P3d 548, rev den, 368 Or 788(2021) (“The term ‘aggressor’ has long been a legal term of art
used within the criminal defense of self-defense.”). Although
160 State v. Worsham
the term is not statutorily defined, it is well-established that
“provocation by mere words, if unaccompanied by any overt
act of hostility,” does not make a person the initial aggressor.
Penn v. Henderson, 174 Or 1, 14, 146 P2d 760 (1944); see also
Phillips, 313 Or App at 6 (same). Overt acts of hostility may
include, for example, slapping or striking a person, Silfast v.
Matheny, 171 Or 1, 10, 136 P2d 260 (1943), or spitting in a
person’s face, Phillips, 313 Or App at 7.
The legal meaning of “initial aggressor” is thus
narrower than the common definition. See, e.g., Webster’s
Third New Int’l Dictionary 41 (unabridged ed 2002) (defin-
ing “aggression” as “an offensive action or procedure,” espe-
cially—but not only—“a culpable unprovoked overt hostile
attack”); Merriam-Webster Unabridged Dictionary, https://
www.merriam-webster.com/dictionary/aggression (accessed
on Apr 8, 2024) (defining “aggression” as “a forceful action or
procedure (such as an unprovoked attack) especially when
intended to dominate or master”). It is also significantly
narrower than modern common usage. See, e.g., Wikipedia,
https://en.wikipedia.org/wiki/Aggression (accessed on Apr 8,
2024) (“Aggression is a behavior aimed at opposing or attack-
ing something or someone. * * * In definitions commonly used
in the social sciences and behavioral sciences, aggression is
an action or response by an individual that delivers some-
thing unpleasant to another person. * * * Aggression can take
a variety of forms, which may be expressed physically, or
communicated verbally or non-verbally[.]”); Dictionary.com,
https://www.dictionary.com/browse/aggression (accessed on
Apr 8, 2024) (defining “aggression” as “any offensive action,
attack, or procedure”).
Relying on Penn and Phillips, defendant contends
that, for self-defense purposes, the “initial aggressor” in an
altercation is the person who first employs hostile physical
force or threatens to imminently do so, that mere words are
insufficient without an accompanying overt act of hostility,
and that it was plain error not to instruct the jury on the
meaning of “initial aggressor.” In response, the state concurs
that “mere words” do not make someone the initial aggres-
sor, but argues that physical “force” is not required (pointing
to Phillips, 313 Or App at 5-6, as involving spitting, an “act
Cite as 332 Or App 154 (2024) 161
of hostility * * * that also involves physical contact,” even if
not “force”), and asserts that it is not obvious and is reason-
ably in dispute that the jury needed an instruction on the
meaning of “initial aggressor.” In the state’s view, “[e]ven
assuming that the term ‘initial aggressor’ was an essential
term, jurors likely had a common understanding about what
it means to be an ‘initial aggressor’ that was sufficient to
permit the jury to reach a lawful verdict.”
As an initial matter, we note that, to the extent that
the jury needed to be instructed on the meaning of “initial
aggressor,” it was the state that should have requested the
instruction, as the party bearing the burden of proof. See
State v. Brown, 327 Or App 592, 598-99, 536 P3d 1069 (2023)
(“[B]ecause it is the state’s obligation—not a defendant’s—
to disprove self-defense and to ask for an instruction on
the limitation to self-defense, and because a jury must be
instructed on all matters of law necessary for its verdict,
a prosecutor who invokes the exception must concomitantly
seek the corresponding jury instruction.”); State v. Freeman,
109 Or App 472, 476, 820 P2d 37 (1991) (“A defendant has
no burden to disprove the limitations [to self-defense] and,
consequently, no burden to submit instructions on them.”).
The state’s arguments faulting defendant for not request-
ing an instruction and seeking to put the onus on him to
come up with the exact words for an instruction are there-
fore misplaced. Defendant’s failure to object at trial means
that our review is limited to plain error. However, it was
the state, not defendant, that was actually responsible for
requesting any necessary instructions on the limitations on
self-defense.
We now turn to whether an instruction on the
meaning of “initial aggressor” was necessary in this case.
A trial court is required to “state to the jury all mat-
ters of law necessary for its information in giving its ver-
dict.” ORCP 59 B; see ORS 136.330(1) (making ORCP 59 B
applicable to criminal cases). Moreover, “[a] party is gen-
erally entitled to have the court instruct a jury on a legal
principle if there is evidence to support it and the proposed
instruction accurately states the law.” State v. McNally,
272 Or App 201, 207, 353 P3d 1255 (2015), rev’d on other
162 State v. Worsham
grounds, 361 Or 314, 392 P3d 721 (2017). “Generally, words
of common usage need not be defined for the jury.” State v.
McDonnell, 313 Or 478, 497, 837 P2d 941 (1992). When a
term’s legal meaning differs from common usage, however,
an instruction may be necessary. Compare State v. Nichols,
236 Or 521, 535, 388 P2d 739 (1964) (holding that it was
not error to decline to instruct the jury on the meaning of
“deliberate,” where its meaning was “understandable with-
out elaboration in the context in which it was used”), with
Purdy v. Deere & Co./Norton, 311 Or App 244, 265-66, 492
P3d 99, rev den, 369 Or 110 (2021) (holding that it was
error not to give a requested instruction on the meaning of
“adequate warning,” where the legal meaning of that term
included an objective component that was “not necessarily
encompassed within the common meaning of the term”),
and State v. Roberts, 293 Or App 340, 347-48, 427 P3d 1130
(2018) (holding that it was error not to instruct the jury on
the meaning of “substantial pain,” where the legal meaning
of that term contained a durational component that was not
part of its common meaning and would not be apparent to a
juror without instruction).
Here, had the state requested an instruction on the
meaning of “initial aggressor,” or had defendant objected to
the lack of such an instruction, we would readily conclude on
this record that the court erred in failing to give an instruc-
tion. That is not the question before us though. The question
here is whether it was plain error not to instruct the jury on
the meaning of “initial aggressor,” where the state did not
ask and defendant did not object. Under the circumstances
of this case, we conclude that it was.
It is plain error to fail to instruct the jury on all
material elements of a crime. State v. Gray, 261 Or App 121,
130, 322 P3d 1094 (2014). That principle extends to import-
ant terms of art used in the elements of the crime. For
example, in State v. Chase, 263 Or App 709, 710, 328 P3d
838 (2014), we held that it was plain error not to instruct
the jury on the meaning of “enter or remain unlawfully,” a
statutorily defined term of art used in one of the elements of
the charged crime. In State v. Burris, 309 Or App 604, 609-
10, 483 P3d 1213, rev den, 368 Or 511 (2021), we held that
Cite as 332 Or App 154 (2024) 163
it was plain error not to instruct the jury on the meaning
of “sexual contact,” a statutorily defined term of art used in
one of the elements of the charged crime.
It is also plain error to fail to instruct the jury on the
elements of a defense or limitations on a defense. In Brown,
327 Or App at 599, we held that it was plain error for the
trial court not to instruct the jury on the initial-aggressor
limitation on self-defense, where the prosecutor raised that
limitation during closing argument.
In this case, the court instructed the jury that the
defense of self-defense is not available to the “initial aggres-
sor,” but it did not instruct on what “initial aggressor” means,
despite that term having a narrower legal meaning than
its common usage. It was particularly important on this
record for the jury to have a correct understanding of what
it means to be the “initial aggressor,” because the jury heard
conflicting versions of events from different witnesses, with
a spectrum of scenarios ranging from defendant merely yell-
ing at C not to beat on women, to defendant approaching
C with the intention of starting a fight, to defendant stabbing
C immediately upon seeing him. Without an instruction
from the court as to what it means to be the “initial aggres-
sor,” a juror could reasonably—but incorrectly—conclude
that defendant deciding to involve himself in the situation
and yelling at C not to beat on women qualified as an ini-
tiating act of “aggression” sufficient to defeat self-defense.4
Any doubt about the need to instruct the jury on the
meaning of “initial aggressor” ceased to exist during clos-
ing arguments. In closing argument, the prosecutor told the
jury that being the “initial aggressor” did not necessarily
require “physical” aggression and that it was for the jury to
decide what “aggressor” means. The prosecutor also inac-
curately implied that the jury could find defendant to be
the initial aggressor based on defendant “injecting” himself
into the situation, by approaching the scene of C and B’s
4
C testified to being unaware that defendant had a knife until he was
stabbed. Defendant testified that he yelled out as he was leaving his tent that
he had a knife, not knowing who he might encounter on the trail, but that no one
responded and that it was likely that no one heard him in the commotion. No
version of events was presented in which defendant brandished the knife at C or
threatened C with the knife or in which C even saw the knife.
164 State v. Worsham
argument and yelling at C not to beat on women, instead of
“minding his own business.” The lack of an instruction left
the jury without necessary information. The prosecutor’s
closing argument filled that void with misleading sugges-
tions about what it means to be an initial aggressor—even
if, as the state contends, the prosecutor did not mean to be
misleading—and thus exacerbated the problem.
Under the circumstances, the state should have
asked the court to instruct the jury on the meaning of “ini-
tial aggressor.” See Brown, 327 Or App at 598-99 (when the
prosecution relies on a limitation on self-defense, it is the
state’s obligation to request the necessary instructions on
that limitation). Even absent such a request, however, the
court needed to provide sufficiently complete instructions
on the defense of self-defense, and the limitations on that
defense, for defendant to receive a fair trial. Although “ini-
tial aggressor” is not statutorily defined, it is undisputed
that it is a legal term of art as used in ORS 161.215, see
Phillips, 313 Or App at 5, and the difference between the
colloquial meaning of aggression and the legal meaning for
purposes of self-defense law was directly relevant to one of
the key factual questions to be decided by the jury.
As for what instruction should have been given,
the parties disagree on the specific phrasing of a proper
instruction on the meaning of “initial aggressor.” The state
contends that defendant’s phrasing in his opening brief
is slightly too narrow, to which defendant replies that the
precise phrasing is not the point. We agree with defendant.
Again, it was the state, not defendant, that should have pro-
posed an instruction. In the end, what the court needed to
convey to the jury was that the “initial aggressor” is the
person who first engages in an overt act of hostility, and that
“mere words” do not make a person the “initial aggressor”
unless accompanied by an overt act of hostility.5
In sum, we agree with defendant that, on this
record, it is obvious that the court needed to instruct the
5
There is currently no uniform jury instruction on the meaning of “initial
aggressor,” although the comment to the uniform instruction on the initial-
aggressor limitation notes that “ ‘provocation by mere words’ does not cause a
person to become the initial aggressor unless accompanied by an ‘overt act of
hostility.’ ” Comment to UCrJI 1110 (quoting Phillips, 313 Or App at 6).
Cite as 332 Or App 154 (2024) 165
jury on the meaning of “initial aggressor,” and failing to do
so was a plain error. We also agree that the error was not
harmless. As noted, the jury was presented with different
versions of events—some that would make defendant the
initial aggressor, and some that would not. Having 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”). Finally, this is an appropriate case in which to
exercise our discretion to correct a plain error, and we are
unpersuaded by the state’s arguments to the contrary. Of
particular importance is the gravity of the error, which may
well have resulted in defendant being wrongly convicted of
a Class B felony and sentenced to 70 months in prison.
Reversed and remanded.
6
In reaching that conclusion, we do not consider relevant the fact that
the jury saw excerpts of defendant’s recorded police interview in which police
detectives asserted that defendant was the “aggressor” and could not claim self-
defense. The court instructed the jury not to consider those statements for truth
and that they could “contain inaccurate statements about the law and the facts
in this case.” We presume that the jury followed its instructions, Burns v. General
Motors Corp., 133 Or App 555, 564, 891 P2d 1354 (1995), and therefore do not
view that evidence as relevant to the harmlessness analysis.