State v. Roe ( 2022 )

609
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted May 9, affirmed June 29, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
FREDERIC ALAN ROE,
Defendant-Appellant.
Lane County Circuit Court
19CR41181; A172626
Bradley A. Cascagnette, Judge.
Bear Wilner-Nugent filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
LAGESEN, C. J.
Affirmed.
610 State v. Roe
LAGESEN, C. J.
Defendant went grocery shopping while intoxicated
and got into an argument with another customer, who was
behind him in the checkout line. A few minutes later, the
argument resurged in the parking lot. Defendant followed
up by driving directly toward the other customer at a high
speed, hitting him, knocking him down, and injuring him.
The whole of the interaction was captured on video by the
store’s security cameras.
For that conduct, a jury found defendant guilty of
assault in the second degree, ORS 163.175 (Count 1),1 fail-
ure to perform duties of driver to injured persons, ORS
811.705(3)(b)2 (Count 2), and driving under the influence
of intoxicants, ORS 813.010(4) (Count 3). In so doing, the
jury rejected defendant’s contention that he acted in self-
defense. On appeal, defendant contends that the trial court
plainly erred by giving the jury conflicting instructions
for self-defense and, in particular, by instructing the jury
that self-defense is an affirmative defense which defendant
had the burden of proving by a preponderance of evidence.
Reviewing for legal error, State v. Payne, 366 Or 588, 603,
607, 468 P3d 445 (2020), we conclude that the trial court
plainly erred. We affirm nonetheless because the error was
invited and because we decline to exercise our discretion to
correct it.
The relevant facts are procedural. Before trial,
defendant gave notice of his intent to raise the defense of
self-defense. Then, in his requested jury instructions, defen-
dant requested the UCrJI 1010, regarding a defendant’s
burden of proof on an affirmative defense, as well as UCrJI
1
Defendant was charged with first-degree assault, but the jury found him
guilty of the lesser-included offense of second-degree assault.
2
We note that the record reflects that defendant was charged and convicted
under ORS 811.705(2)(b). ORS 811.705 was amended by House Bill 4055 (2018),
which renumbered ORS 811.705(2)(b) to 811.705(3)(b), effective January 1, 2018.
See Or Laws 2018, ch 22, § 2. Under former ORS 811.705(2)(b) (2017), renumbered
as ORS 811.705(3)(b) (2018), conduct that constituted failure to perform duties of
driver to injured person where the victim suffered serious physical injury was
elevated from a Class C to a Class B felony. In this case, defendant’s charge for
failure to perform duties of driver to injured persons was a Class B felony due
to the serious injury incurred by the victim and the statute should have been
updated to ORS 811.705(3)(b) (2018).
Nonprecedential Memo Op: 320 Or App 609 (2022) 611
1107, regarding self-defense. The trial court delivered both
of defendant’s requested instructions. In accordance with
UCrJI 1010, the court instructed:
“The defendant has raised the affirmative defense of
self-defense to the charge of Assault in the First Degree.
If the defendant proves this affirmative defense, then * * *
defendant is not guilty of the charge Assault in the First
Degree.
“To establish the affirmative defense of self-defense, the
defendant must prove [the defense] by a preponderance of
the evidence.”
Then, in accordance with UCrJI 1107, the court instructed:
“The defense of self-defense has been raised. * * *
“The burden of proof is on the State to prove beyond a
reasonable doubt that the defense does not apply.”
The court gave the jury written copies of the instructions to
guide the deliberations.
After the jury started to deliberate, defendant
observed that the instructions were erroneous because he
intended to raise the defense of self-defense with respect
to all charges, not just the assault charge. To remedy the
error, the court suggested recalling the jury, correcting
the error, then otherwise repeating the same instructions
for the defense of self-defense. After reading to counsel the
instructions it intended to repeat to the jury, including both
defendant’s and the state’s burden of proof, the court asked
counsel, “Is that acceptable to the two of you?” Both parties
agreed. After giving the additional instruction to the jury,
the court asked defendant if his concerns were alleviated.
He said they were.
On appeal, defendant contends that the trial court
plainly erred by instructing the jury both that defendant
bore the burden of proving self-defense by a preponderance
of the evidence and, to the contrary and correctly, that the
state bore the burden of negating the defense beyond a rea-
sonable doubt. Defendant argues that we should exercise
our discretion to correct that error.
612 State v. Roe
The trial court’s conflicting instructions were erro-
neous. We recently confronted the identical instructional
error in State v. Pitcher, 317 Or App 269, 271, 504 P3d 701
(2022). There, as here, the trial court instructed the jury
incorrectly that self-defense was an affirmative defense
on which the defendant had the burden of proof, and also
instructed the jury correctly that the state had the bur-
den of disproving self-defense beyond a reasonable doubt.
We explained that “the court erred when it instructed the
jury that self-defense was an affirmative defense on which
defendant had a burden of proof.” Id. That is because, “[s]elf-
defense is an ‘ordinary defense.’ Once it is raised, the state
has the burden of disproving it beyond a reasonable doubt.
ORS 161.055(1).” State v. Boyce, 120 Or App 299, 305-06, 852
P2d 276 (1993) (internal citation omitted).
The trial court’s error, however, is not a reversible
one for two reasons. First, the invited-error doctrine pre-
cludes reversal. Under that doctrine, we will not reverse
based on an error by the trial court when the appealing
party was actively instrumental in bringing about the
alleged error. State v. Kammeyer, 226 Or App 210, 214, 203
P3d 274, rev den, 346 Or 590 (2009). Here, defendant invited
the error by requesting the erroneous jury instruction in the
first place and then re-approving its delivery when the jury
was instructed the second time. See, e.g., State v. Saunders,
221 Or App 116, 122, 188 P3d 449, rev den, 345 Or 416 (2008)
(defense counsel’s statement that he could not “think of a
better way” to instruct the jury invited any error pertaining
to the trial court’s subsequent jury instruction).
Second, even if the invited-error doctrine did not
apply and we were reviewing for plain error, we would not
exercise our discretion to correct the unpreserved instruc-
tional error in this case. In considering whether to exercise
our discretion to correct an unpreserved error, we consider,
among other things, a defendant’s role in bringing about the
error as well as what “the ends of justice” require in a par-
ticular case. State v. Roy, 275 Or App 107, 113, 364 P3d 1003
(2015), rev den, 359 Or 525 (2016) (quotation marks omitted).
Here, as noted, defendant himself was the cause of the error.
Beyond that, we are not persuaded that the ends of justice
require us to correct the error. That is because the video
Nonprecedential Memo Op: 320 Or App 609 (2022) 613
evidence of defendant’s act of running down the victim with
his car effectively negates any claim of self-defense, making
it unlikely that defendant could prevail on that defense with
a properly instructed jury. Under those circumstances, the
ends of justice do not weigh in favor of reversal.
Affirmed.