DocketNumber: 13FE0270; A157098
Citation Numbers: 276 Or. App. 220, 366 P.3d 800
Judges: Armstrong, Egan, Hadlock
Filed Date: 1/27/2016
Status: Precedential
Modified Date: 9/9/2022
Defendant was charged by indictment with one count of first-degree assault, ORS 163.185. After a jury trial in which he relied on the defense of self-defense, defendant was convicted of the lesser-included offense of second-degree assault, ORS 163.175. He appeals that conviction, contending, among other assignments of error, that the trial court erred in refusing to give his requested special jury instruction, which provided:
“The defendant *** has introduced evidence of the character of [the alleged victim]. In determining whether the defendant reasonably believed himself to be in danger of great personal harm, you may consider whether [the alleged victim] had a violent and aggressive character.”
The state concedes that, under State v. Lunow, 131 Or App 429, 885 P2d 731 (1994), the trial court erred in denying the requested instruction and that the error requires reversal. We agree and accept the state’s concession.
In Lunow, we held that the trial court erred in refusing to give a substantively identical instruction where the defendant had relied on a theory of self-defense at trial and the record contained evidence of the alleged victim’s reputation for violence. 131 Or App at 431-33. We reasoned that the alleged victim’s violent character was relevant to the issue of whether the defendant was reasonable in believing that he was in danger of imminent harm, and the effect of the requested instruction was to limit the jury’s consideration of the evidence to that issue. Id. at 433. The circumstances here are indistinguishable. Accordingly, we conclude that the trial court erred in refusing to give defendant’s requested instruction, and we reverse and remand for a new trial.
Reversed and remanded.
That disposition obviates the need to address defendant’s other assignments of error, namely, that the court erred by (1) excluding evidence of a prior incident of violent conduct by the alleged victim and (2) instructing the jury that, “[w]hen used in the phrase ‘knowingly cause physical injury,’ knowingly or with knowledge means that the person acts with an awareness that his conduct is assaultive in nature.”