State v. Moore

PER CURIAM.

We allowed review of this case to consider with State v. Charles, decided this date, the issue of whether, under Oregon law, a defendant who is confronted by an assailant using deadly physical force, having an opportunity to retreat in safety, has a duty to retreat, or may stand his ground and use deadly physical force against the assailant.

Defendant was convicted of attempted murder. He had requested, and the court refused to give, the following instruction on self-defense:

“A person claiming the right of self-defense is not required to retreat or to consider whether he could safely retreat. If he is honestly and reasonably in fear of death or serious bodily harm he may stand his ground and use whatever force is reasonably necessary under the circumstances, even to the extent of taking the life of the attacker.”

Defendant claims that, based on State v. Radar, 94 Or 432, 186 P 79 (1919) it was error for the trial court to refuse to give the requested instruction. We held in State v. Charles, (slip opinion June 29, 1982) that it was not error for the trial court to refuse to give an identical instruction. Charles controls.

Affirmed.