787
Argued and submitted September 28, 2018, resubmitted en banc March 7;
reversed and remanded with instructions to reinstate the judgment
October 9, 2019
STATE OF OREGON,
Plaintiff-Appellant,
v.
TALON DUANE RAMOZ,
Defendant-Respondent.
Jackson County Circuit Court
15CR47950; A163802
451 P3d 1032
The state appeals from an order granting defendant a new trial under ORCP
64 B. Defendant was convicted at a jury trial of two counts of rape in the first
degree and two counts of unlawful sexual penetration in the first degree. After
the judgment of conviction was entered, defendant moved for a new trial under
ORCP 64 B(1) on the basis that the jury instructions had omitted an element
of the crime. During trial, defendant had stipulated to two of the four instructions he now claims as error and had not objected to any. The trial court granted
defendant’s motion for a new trial under ORCP 64 B(1), concluding that the
instructional error was an irregularity in the proceeding of the court. The state
appealed. Held: The trial court erred in granting defendant a new trial. A trial
court’s failure to instruct the jury properly, under the circumstances presented
here, is not an irregularity in the proceedings of the court under ORCP 64 B(1).
Reversed and remanded with instructions to reinstate the judgment.
En Banc
Timothy Barnack, Judge.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for appellant. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Anne Fujita Munsey, Deputy Public Defender, argued
the cause for respondent. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock,
DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, and
Powers, Judges, and Landau, Senior Judge.
788 State v. Ramoz
SHORR, J.
Reversed and remanded with instructions to reinstate the
judgment.
Armstrong, J., dissenting.
Cite as 299 Or App 787 (2019) 789
SHORR, J.
The state appeals the trial court’s order granting
defendant a new trial under ORCP 64. The issue in this
case is whether a defendant is entitled to a new trial under
ORCP 64 B when the defendant initially consents to the
trial court’s jury instructions, but, after the verdict, the trial
court concludes that the same instructions were incorrectly
given.1 ORCP 64 B(6) provides that a party may obtain a
new trial where there has been an “error in law” affecting the
party’s substantial rights, but that rule requires that the
party object or except to the claimed error. Defendant did
not object or except to the claimed error here. Indeed, as to
two of the four contested jury instructions, defendant stipulated to the very instructions that he now claims were given
in error, and he did not object or except to any of them after
they were read in open court. Under these circumstances,
defendant was not entitled to a new trial under ORCP 64
B(6).
Defendant nevertheless contends that he is entitled to a new trial under ORCP 64 B(1) because the claimed
instructional error is an “irregularity in the proceedings of
the court.” ORCP 64 B(1) does not require a party to object or
except to the “irregularity” before seeking a new trial. As we
discuss below in greater detail, that argument is unavailing.
A trial court’s failure to instruct the jury properly, although
error, is not an “irregularity in the proceedings of the court.”
To conclude otherwise in these circumstances would permit
a party to either stipulate or fail to object to instructional
error and nevertheless obtain a new trial as an “irregularity” under ORCP 64 B(1). That would render meaningless
the requirement that a party object to legal error to obtain
a new trial under ORCP 64 B(6). Even assuming that there
may be instances in which a trial court’s conduct can be
both legal error and “an irregularity in the proceedings of
the court,” there is nothing in this record that demonstrates
1
Because this case may arise before us again on defendant’s appeal, we do
not prejudge that appeal or decide whether the trial court, in fact, erred in giving
the jury instructions at issue here. Rather, we address whether a trial court, in
the first instance, can grant a motion for new trial based on a claim of instructional error—instructions to which the parties initially stipulated and did not
object.
790 State v. Ramoz
that the claimed error here is an irregularity in the proceedings. Instructional error, although unfortunate, can occur
as part of the regular proceedings of any trial and occasionally does. That type of error is subject to correction through
a direct appeal. If the instructional error is not objected or
excepted to, it is subject to plain-error review. State v. Gray,
261 Or App 121, 129,
322 P3d 1094 (2014). When a claimed
instructional error is not objected to or excepted to, however,
it is not a proper subject of a motion for new trial under
ORCP 64 B(1).
We therefore conclude that the trial court erred in
granting defendant a new trial. We reverse and remand
with instructions to reinstate the judgment.
I. THE PROCEDURAL AND FACTUAL
BACKGROUND TO THE STATE’S APPEAL
A. The Historical Facts
The state alleged that defendant raped the victim
and put his fingers into her vagina when the victim was
unconscious and under the influence of a pharmaceutical sedative and alcohol. Defendant was charged with two
counts of rape in the first degree, ORS 163.375, and two
counts of unlawful sexual penetration in the first degree,
ORS 163.411. Defendant was tried before a jury. Defendant
contested the charges and argued that the victim was
awake, competent, and had consented to the sexual activity.
The jury found defendant guilty on all charges.
Nearly three months after the jury verdict, defendant moved
for a new trial under ORCP 64 B(1), arguing that the trial
court had failed to instruct the jury that defendant had to
have a specific mental state—knowingly—to be guilty of the
charged crimes.2 The court granted that motion because it
had mistakenly omitted the mental state element from the
instructions given to the jury. The state assigns error to that
ruling, contending that the court had no basis under ORCP
2
Defendant also invoked ORCP 64 B(5) as a basis for granting him a new
trial, arguing that the evidence was insufficient to justify a jury verdict. The
trial court, however, explicitly declined to grant a new trial on that ground, and
defendant does not pursue that argument in this court.
Cite as 299 Or App 787 (2019) 791
64 B to invalidate the jury verdict and grant defendant a
new trial.
B. The Jury Instructions
As noted, the issue in this case arises out of the
court’s instructions to the jury and the possible error therein.
We spend some time discussing what we know and do not
know about how that error occurred.
Both sides proposed jury instructions on the elements of first-degree rape (Counts 1 and 2) and first-degree
unlawful sexual penetration (Counts 3 and 4). Defendant
proposed jury instructions that merely identified the
instructions by the Uniform Criminal Jury Instruction
(UCrJI) number and title, namely UCrJI 1603 (listing the
elements of rape in the first degree)3 and UCrJI 1609 (listing the elements of unlawful sexual penetration in the first
degree). The state proposed the same uniform instructions
but submitted the full text of those instructions.
Unfortunately, although the state’s proposed written instructions on the first-degree rape charges matched
the elements of UCrJI 1603, its proposed written instructions
on the first-degree unlawful sexual penetration charges did
not match the elements of UCrJI 1609. The state’s proposed
instruction for the first-degree rape charge appropriately
contained the “knowingly” element in both the general
description of the law of rape in the first degree and the
specific instruction of what the state had to prove as to the
particular acts alleged against defendant in this case. The
state’s proposed instructions for the unlawful sexual penetration charges included the “knowingly” mental state element when they generally defined an element of the charge
(e.g., defining an element of unlawful sexual penetration in
the first degree as “knowingly penetrat[ing] the vagina of
another person with any object other than the penis or the
mouth of the person”), but, significantly, omitted the term
“knowingly” when they specifically described what the state
was required to prove as to defendant’s conduct toward the
3
The state presented two theories of first-degree rape based on the victim’s
lack of consent due to her (1) physical helplessness and (2) mental incapacitation.
For the same reasons, the state also presented two theories of unlawful sexual
penetration.
792 State v. Ramoz
victim (e.g., instructing that the state must prove beyond a
reasonable doubt that defendant “Talon Ramoz penetrated
the vagina of [the victim] with an object other than his
penis or mouth”). In other words, as to the sexual penetration charges, the instructions failed to instruct specifically
on the mental element that defendant had to have when he
penetrated the victim.
At the close of the state’s evidence, the trial court
and the parties took a break to finalize the jury instructions
in a conversation that occurred off the record. Unfortunately,
we do not know precisely what happened during that recess.
When the parties later litigated defendant’s motion for a new
trial, defendant’s counsel acknowledged that he had “stipulated to [the state’s] jury instruction.” Defendant’s counsel
also represented, incorrectly, that those instructions “complied with the uniform criminal jury instructions.” In fact,
the state’s instructions, as set out above, did follow the uniform criminal jury instructions as to the first-degree rape
charge, but did not follow the uniform criminal jury instructions with respect to the first-degree sexual penetration
charge.
At the close of trial, the court orally instructed the
jury and provided them with written instructions. As noted,
the state’s proposed written instructions, which defendant
stipulated to, had included a specific mens rea element as
to the rape charges, but not as to the unlawful sexual penetration charges. For some reason that is not clear from the
record, the court left out the specific mens rea element in the
final oral and written instructions on all four counts of rape
and sexual penetration. The court consistently included the
element “knowingly” in the general description of the law,
but consistently omitted the term “knowingly” whenever it
described what the state had to prove as it applied to the
particular acts for which defendant was charged. For example, the court’s instruction on Count 1 stated as follows:
“Oregon law provides that a person commits the crime
of rape in the first degree if the person knowingly has sexual intercourse with another person [who] is incapable of
consent by reason of physical helplessness. In this case, to
establish the crime of rape in the first degree (count 1), the
Cite as 299 Or App 787 (2019) 793
state must prove beyond a reasonable doubt the following
elements:
“(1) The act occurred on or about October 24, 2015[;]
“(2) Talon Duane Ramoz had sexual intercourse with
[the victim]; and
“(3) [The victim] was incapable of consent by reason of
physical helplessness.”
(Emphasis added.) The court read those instructions to the
jury aloud in court, and neither the state nor defendant
objected to them. After the court read the instructions for
all four counts to the jury, the jury was sent to deliberate,
and the court asked the attorneys if they had any exceptions
to the jury instructions. Both attorneys said no. There is no
record of any objection to the final written instructions. The
jury ultimately returned a verdict of guilty on all counts.
C. Defendant’s Motion for New Trial
Nearly three months after the jury reached its verdict, defendant filed a motion for a new trial. In support of
his motion, defendant cited ORCP 64 B(1), which provides
that a trial court may grant a new trial if there has been
an “[i]rregularity in the proceedings of the court, jury or
adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair
trial.” In an affidavit in support of his motion, defendant’s
counsel stated that the state’s proposed instructions for all
four counts “included the appropriate mental state, to which
I stipulated,” but that, “due to a typographical clerk error,
the final version of the jury instructions did not include
the mental state.” (Emphasis in original.) Defendant now
acknowledges on appeal that, for the two first-degree sexual penetration counts (Counts 3 and 4), the omission of the
mental state element originated in the parties’ stipulated
jury instructions, and that that omission “may account for
the error in the court’s final instruction” for the first-degree
rape charges (Counts 1 and 2).
At a hearing on defendant’s motion for new trial,
defendant argued that the “clerical error” in omitting the
relevant mental state from the instructions denied him a
fair trial. Defendant also argued that the omission was
794 State v. Ramoz
“plain error” such that his conviction would ultimately be
reversed on appeal. Defendant argued that, by granting him
a new trial, the trial court could expeditiously resolve the
error and avoid appellate review, stating, “We’re doing this
a little bit differently; maybe a little bit more actively. We’re
trying to take care of this before it has to head up to the
Court of Appeals.”
Initially, the trial court stated that the issue was
one that “should go to the Appellate Court for a decision.”
However, after hearing arguments from both parties, the
court granted defendant’s motion “based on procedural
grounds.” The court agreed with defendant that the omission was “plain error” and “not consistent with what the law
is.” The court then explained that its decision was grounded
in a concern for judicial efficiency, given that the court
believed that the Court of Appeals would ultimately reverse
defendant’s conviction due to the erroneous instruction:
“I tend to agree with [the state] to some extent … whether
this is appropriate for the Appellate Court to decide or
myself.
“In my situation, to me looking at this[,] it’s plain error.
And it [would] almost be like setting something up for [the
Court of Appeals] to send it right back down. And the whole
time that’s occurring that would take three to four years to
do.
“…
“But in this case, I know I made a mistake. Period. I
don’t need the Court of Appeals to tell me I made a mistake. I’m owning this one. This is on me.
“…
“I don’t know … if it’s any irregularity or not. It—it
certainly [was] a mistake on my part. And I don’t know
whether the Court of Appeals—I—I do know that they
would send it back to me.”
The court explained that, by giving the jury a general
instruction on Oregon law that included the “knowingly” element and then omitting “knowingly” from the more specific
instructions, which applied the law to defendant’s case, the
court had essentially told the jury that “[t]his is the law but
Cite as 299 Or App 787 (2019) 795
you don’t have to consider it.” The court granted defendant’s
motion and vacated the judgment of conviction. Although
the court did not identify ORCP 64 B(1) in its ruling—and,
as noted above, stated it was unsure if there was an “irregularity” as opposed to a mistake, we understand the court’s
decision to be implicitly based on that provision because the
court granted the new-trial motion and expressly rejected
defendant’s alternative basis for relief under ORCP 64 B(5).
II. ANALYSIS
We now turn to the sole legal issue before us—
whether a trial court may grant a motion for new trial under
ORCP 64 B(1) if the court provided jury instructions to which
the parties stipulated and did not object, but the trial court
later concludes, post-verdict, that the instructions mistakenly stated the law. We review the grant of a motion for new
trial for abuse of discretion, but, to the extent that the decision, as here, is based on an interpretation of law, we review
for legal error. State v. Woodman, 195 Or App 385, 387,
97
P3d 1263 (2004), aff’d,
341 Or 105,
138 P3d 1 (2006).
On appeal, the state argues that the trial court had
no legal basis under ORCP 64 B to grant a new trial for an
erroneous jury instruction when defendant failed to object to
the instructions. Defendant argues that the jury instruction
error was an “irregularity in the proceedings” under ORCP
64 B(1) because he was unaware of the error when the jury
instructions were given, and because the error prevented
him from having a fair trial. Therefore, we address whether
the omission of the “knowingly” element in the special jury
instructions was an “irregularity in the proceedings” under
ORCP 64 B(1). For the reasons stated below, we conclude
that it was not.
We begin with the unexceptional premise that when
a trial court incorrectly instructs a jury, that is legal error.
See State v. Harper, 296 Or App 125, 126,
436 P3d 44 (2019)
(stating that we review the trial court’s jury instructions
for legal error); State v. Sparks,
267 Or App 181, 195,
340
P3d 688 (2014), rev den,
357 Or 325 (2015) (stating same).
Therefore, if there was an erroneous instruction here, that
error would be a legal error. We are aware of no Oregon law
796 State v. Ramoz
that treats an erroneous jury instruction as anything other
than a legal error.
As noted, a party may move for a new trial under
ORCP 64 B based on legal error. However, ORCP 64 B limits
the instances when a court may grant such a motion. ORCP
64 B(6) provides that a new trial may be granted following
a jury trial where the party’s substantial rights were materially affected by “[e]rror in law occurring at the trial and
objected to or excepted to by the party making the application.” (Emphasis added.)
Here, the trial court could not have granted a new
trial under ORCP 64 B(6) because, as discussed above, defendant did not “object to” or “except to” any of the instructions
when they were read aloud in court and provided to the jury.
Indeed, defendant affirmatively stipulated to two of the
instructions on the unlawful penetration charges that were
ultimately given to the jury using the same text that defendant stipulated to, namely, without the “knowingly” for both
the general and specific part of the instruction. Defendant
stipulated to the instructions for Counts 3 and 4 despite the
fact that those instructions never included the specific mens
rea elements that defendant now claims should have been
part of the instructions given. Under those circumstances,
defendant would not be entitled to a new trial under ORCP
64 B(6). See Maulding v. Clackamas County, 278 Or 359, 366,
563 P2d 731 (1977) (applying former ORS 17.610(7) (1977),
the statutory predecessor to ORCP 64 B(6), and holding that
the defendant could not obtain a new trial based on an erroneous jury instruction when the defendant had not objected
to or excepted to the instruction when given).
Defendant—as well as the dissent—essentially contends that the analysis under ORCP 64 B(6) is irrelevant
because a legal error can also be an “[i]rregularity in the
proceedings of the court … by which [the aggrieved] party
was prevented from having fair trial” under ORCP 64 B(1).
We examine the full text of that subsection below. We pause
to note that, at least in this circumstance where the party
stipulated to some of the instructions and further failed
to object or except to all of the instructions, it would render ORCP 64 B(6) meaningless to treat that type of error
Cite as 299 Or App 787 (2019) 797
as an irregularity in the proceeding under ORCP 64 B(1).
Defendant could, as he did here, stipulate and not object to
instructions, as required by ORCP 64 B(6), but ultimately
still obtain a new trial after a jury verdict because he contends that the agreed-to instructions were in error. We
assume, without deciding, that there may be other circumstances where a claimed legal error may also be “an irregularity in the proceeding” and that both subsections can
coexist in such circumstances without rendering meaningless the requirement in ORCP 64 B(6) that parties object
to or except to legal error. But that is not possible in this
circumstance where the claimed error was an incorrect
instruction read and provided to the jury openly in court
without objection or exception by defendant.
Turning our focus to ORCP 64 B(1), it provides:
“A former judgment may be set aside and a new trial
granted in an action where there has been a trial by jury on
the motion of the party aggrieved for any of the following
causes materially affecting the substantial rights of such
party:
“(1) Irregularity in the proceedings of the court, jury
or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having
fair trial.”
There are, therefore, three grounds for relief under this subsection: (1) an irregularity in the proceedings of the court,
jury, or adverse party that prevented the movant from having a fair trial; (2) an order of the court that prevented the
movant from having a fair trial; or (3) abuse of discretion that
prevented the movant from having a fair trial. Defendant
contends that the omission of the “knowingly” element in
the special jury instructions was an “irregularity in the proceedings of the court” that prevented defendant from having
a fair trial.
We must, therefore, determine the meaning of the
phrase “irregularity in the proceedings of the court” in
ORCP 64 B(1). When construing the ORCPs, we use the
same analytical framework as when we construe a statute.
Waddill v. Anchor Hocking, Inc., 330 Or 376, 381,
8 P3d 200
(2000), adh’d to on recons,
331 Or 595,
18 P3d 1096 (2001).
798 State v. Ramoz
We first consider the rule’s text and context, then consider
any pertinent legislative history, all in furtherance of the
overarching goal to effectuate the intent of those who promulgated the rule. See State v. Gaines,
346 Or 160, 171-72,
206 P3d 1042 (2009).
Here, neither the legislature nor the Council on
Court Procedures, which initially promulgated the Oregon
Rules of Civil Procedure in 1978, has defined the term
“irregularity” or explained what is meant by the phrase
“irregularity of the proceedings of the court.” As we have
previously explained, the latter phrase remains unchanged
from its 1862 enactment in the Deady Code. See McCollum
v. Kmart Corporation, 228 Or App 101, 110,
207 P3d 1200
(2009), vac’d on other grounds,
347 Or 707,
226 P3d 703
(2010) (“Those provisions, perhaps surprisingly, are derived
from the Deady Code and are remarkably similar to analogous provisions as originally enacted in 1862[.]”).4 At that
time, an “ ‘irregularity’ meant a ‘[d]eviation from … any
common or established rule’ or ‘deviation from method or
order; as the irregularity of proceedings.’ Noah Webster,
1 An American Dictionary of the English Language (unpaginated) (1828) (emphasis in original; boldface added).” Id. at
113. An irregularity in the proceedings occurs within the
meaning of ORCP 64 B(1), then, when there is a “deviation
from an established rule or a usual practice or method.”
Silberman-Doney v. Gargan,
256 Or App 263, 270,
303 P3d
333 (2013).
We have not yet considered the precise issue presented by this case, namely whether an instructional error
can be an irregularity in the proceedings of the court under
ORCP 64 B. However, a brief review of our previous cases
4
Indeed, the phrase predates the Deady Code, appearing for the first time
in the civil code enacted by the 1853 territorial legislature. Revised Statutes of
Territory of Oregon, An Act to Regulate Proceedings in Actions at Law in the
Supreme and District Courts, ch II, title VII, § 36, 96 (1853). A review of the
report of the elected commissioners who drafted the 1853 code did not reveal any
additional information regarding the drafters’ intent regarding the meaning of
the phrase “irregularity in the proceeding.” See Kelly, James, et al., Report of the
Commissioners Elected to Prepare a Code of Laws for Territory of Oregon, 1 (1853)
(explaining in a letter to the legislative assembly that, for the sake of efficiency,
the commissioners “submit the code which we have prepared without making any
further remarks upon it”).
Cite as 299 Or App 787 (2019) 799
helps to illuminate the principle that “a trial court’s arguably
questionable ruling does not render proceedings that are
proper procedurally ‘irregular’ for purposes of ORCP 64 B.”
Id. at 270.
In Silberman-Doney, for instance, we held that
no irregularity occurred when the trial court incorrectly
warned the parties that the defendants would be entitled to
attorney fees if the defendants prevailed at trial. The court’s
warning prompted the parties to settle. Two days later, the
court notified the parties that it had made a mistake in
stating that the defendants would be entitled to attorney
fees. Thereafter, plaintiff moved for a new trial claiming
an irregularity under ORCP 64 B(1). The court granted the
plaintiff’s motion. The defendant appealed and we held that
the court’s warning was not an irregularity in the proceedings because, notwithstanding the trial court’s error, “[s]uch
rulings on legal issues bearing on a trial are to be expected
and, of course, occur regularly,” and, as is the case here, neither party registered an objection. Id. at 271. We further
noted that the trial court’s regret that it believed it had committed legal error did not render aspects of the proceeding
irregular under ORCP 64 B(1). Id. at 273. That is equally
true here; a trial court’s jury instructions are to be expected
and occur regularly in every jury trial. They are also subject
to objection and exception.
Similarly, we have held that the trial court’s denial
of a request for an in camera inspection and a grant of a
motion in limine were not irregularities in the proceedings under ORCP 64 B(1), even though the court may have
wished in hindsight that it had ruled differently in the first
instance, when “the submission and consideration of those
matters conformed to well-established practice.” McCollum,
228 Or App at 113.
If a court provides an incorrect jury instruction,
even one that it did not intend, it is not deviating from an
established rule, practice, or method in the “proceedings of
the court.” It is, as in the cases above, resolving a legal issue
and then instructing the jury on the law. On this record,
there was nothing in the court’s reading of the instruction
that deviated from the standard practice.
800 State v. Ramoz
Defendant contends that the instruction itself was
an error that caused an unfair trial and, therefore, was
an irregularity in the proceedings of the court.5 But legal
errors by trial courts, although unfortunate, happen and
are subject to assignment of error on appeal after judgment.
Incorrect jury instructions are not “irregularities in the proceedings of the court.”
As noted, we do not know precisely what happened
off the record that led to the omission of the mental element
from the instructions. We know that the parties stipulated
to two instructions that were given as they had been stipulated to and that two others that, likely due to a clerical mistake and a mistaken combination of the four instructions,
were ultimately given in a form to which the parties did not
stipulate.6 Defendant, however, did not object to any of the
instructions after the court openly read them and later provided them in writing to the jury. It is undeniable that there
was a mistake in the drafting process of the jury instructions that led to a claimed legal error by the court, but that
was not an irregularity in the proceedings of the court.
Parties exchange proposed jury instructions in every trial.
Parties also regularly provide proposed instructions for the
court to deliver. Courts also sometimes decide instructions
on their own and reject the parties’ proposed instructions.
Unfortunately, in all of those instances, the instructions can
sometimes contain error. Significantly, the instructions are
not final until delivered to the jury in court with an opportunity for all parties to object or except to the instructions.
5
Defendant contends that he was unaware that the instructions did not contain the mens rea element. Defendant maintains that the trial court impliedly
found as fact that defendant was unaware of the mistake. The state essentially
contends that defendant is deemed to have been aware of the mistake as a legal
matter because defendant did not object to the instruction when it was read in
open court. This dispute has potential significance because it is “well established”
that a party waives any objection to an irregularity in the proceedings of the
court that is known to a party, but that the party fails to call to the trial court’s
attention. State v. Carrasco-Montiel, 279 Or App 64, 79,
379 P3d 529, rev den,
360 Or 568 (2016). However, we do not reach that issue because, even assuming
defendant was unaware of the mistake, the mistakenly delivered jury instruction
is potential legal error and not an irregularity in the proceedings of the court.
6
Defendant’s affidavit in support of his motion for a new trial does not identify who prepared the final instructions, but states that, “due to a typographical
clerk error, the final version of the jury instructions did not include the mental
state.”
Cite as 299 Or App 787 (2019) 801
The dissent contends that the proceedings of the
court were irregular because the trial court’s
“failure to include a culpable mental state in the instructions was a result of its inattention. It knew that a culpable
mental state is an element of the crimes on which the jury
needed to be instructed, and the uniform instructions that
the parties requested and the typed version of the instruction submitted by the state on first-degree rape included
a mental-state element, yet the court failed to notice that
the instructions that it prepared and gave omitted that
element.”
299 Or App at 805-06 (Armstrong, J., dissenting) (emphasis
in dissent). However, instructional error always arises out
of a trial court’s oversight and failure to fulfill its obligation
to instruct the jury correctly. We assume that trial courts
never intend to instruct a jury incorrectly. If that were the
test to apply to determine an irregularity in the proceedings of the court, all instructional error would amount to
an irregularity in the proceedings. The dissent’s contention
that the jury instructions given here were a “product of inattention, not intention” has no meaningful distinction in this
context. 299 Or App at 806 (Armstrong, J., dissenting). That
an error occurred in instructing the jury does not make the
proceeding irregular regardless of whether the error derived
from a clerical error, an incorrect combination of the parties’
proposed instructions, an incorrect reading of them to the
jury, or a court’s error in interpreting and then providing
the correct law within the instruction. Those are all forms
of possible legal error—all unintended and unfortunate, but
subject to a motion for new trial under ORCP 64 B(6) only if
objected or excepted to. That does not mean that defendant
or any other party does not have recourse. Ultimately, all
error is subject to appeal after judgment regardless of preservation under a plain error standard.
The dissent’s reliance on our recent opinion regarding clerical errors in the context of an ORCP 71 correction to
a general judgment is misplaced. See Yarbrough v. Viewcrest
Investments, LLC, 299 Or App 143,
449 P3d 902 (2019). The
clerical error at issue in Yarbrough was contained in a general judgment. ORCP 71 specifically permits trial courts to
correct clerical errors “arising from oversight or omission
802 State v. Ramoz
… at any time on [the court’s] own motion or on the motion
of any party[.]” ORCP 71 A. The text of ORCP 71 is distinct
from ORCP 64 B, wherein a court is authorized to set aside a
judgment entered pursuant to a jury verdict and grant a new
trial only in a specified set of circumstances. ORCP 64 B(6)
is clear that when the error is one of law, the party adversely
affected must have objected or excepted to the error. Even
assuming that the assigned error here derived from a clerical error, the error was one of law because it was an error
in instructing the jury. The instructions were read in open
court and defendant did not object or except to the instructions. ORCP 64 B does not permit a court to invalidate a
jury’s verdict and grant a new trial in such a circumstance.
We, therefore, decline to adopt a construction of
“irregularity of the proceedings” under ORCP 64 B(1) that
would have the effect of opening the door for future litigants
to seek a new trial for claimed instructional error that they
had either stipulated to or not objected or excepted to. A
proper basis for granting a new trial upon a claim of instructional error or other legal error lies within ORCP 64 B(6),
which provides that a new trial may be granted when there
has been an “[e]rror in law occurring at the trial and objected
to or excepted to by the party making the application.”
We decline to adopt a construction of ORCP 64 B(1) that
would—at least in this circumstance—essentially render
meaningless ORCP 64 B(6)’s requirement that parties must
object or except to errors of law. See ORS 174.010 (“In the
construction of a statute, … and where there are several
provisions or particulars such construction is, if possible, to
be adopted as will give effect to all.”). For instructional error
that has not been objected or excepted to at trial, aggrieved
parties should seek relief not by moving for a new trial that
invalidates a jury verdict but by filing a direct appeal that
seeks plain-error review or perhaps, if later necessary in
criminal cases, through post-conviction relief.
The trial court erred when it granted defendant a
new trial because the instructional error claimed here is
not an “irregularity in the proceedings of the court” that
would justify granting a new trial under ORCP 64 B(1).
Accordingly, we reverse and remand with instructions to
reinstate the judgment.
Cite as 299 Or App 787 (2019) 803
Reversed and remanded with instructions to reinstate the judgment.
ARMSTRONG, J., dissenting.
The instructions that the trial court gave in this
criminal case did not tell the jury that it had to find that
defendant had acted with a culpable mental state when he
committed the crimes for which the jury convicted him,
viz., first-degree rape and first-degree unlawful sexual penetration. Defendant moved for a new trial based on that
omission in the court’s instructions, which the trial court
granted under ORCP 64 B(1) on the ground that its failure
to instruct the jury on an element of the crimes constituted
an irregularity in the proceedings of the court. The majority
reverses the grant of a new trial, reasoning that an error
in instructing the jury to which defendant did not object or
except is not an irregularity in the proceedings for which a
new trial can be granted. I respectfully disagree with that
conclusion and would affirm the trial court’s grant of a new
trial.
To place my disagreement in context, it’s important
to be clear about the source of the error in instructing the
jury. Both the state and defendant submitted lists of proposed jury instructions that included the uniform criminal
jury instructions for the crimes with which defendant was
charged. The applicable uniform instructions were UCrJI
1603 on first-degree rape and UCrJI 1609 on first-degree
unlawful sexual penetration, both of which include a culpable mental state as an element of the crimes. The state
also submitted typed versions of the instructions for those
crimes. The typed version of the instruction for first-degree
rape included a culpable mental state as an element of that
crime. However, the typed version of the instruction for
first-degree unlawful penetration did not include a culpable
mental state as an element of that crime.
The court and parties had an off-the-record discussion about jury instructions at which defendant stipulated
to the use of the state’s proposed instructions, which defense
counsel mistakenly understood to include culpable mental
states for both crimes. The typed versions of the instructions
804 State v. Ramoz
that the court prepared, and that the court read to the jury,
did not include culpable mental states as an element of either
crime. In other words, the instructions prepared by the court
apparently used as a template the state’s typed instruction
for first-degree unlawful sexual penetration, which did not
include a culpable mental state as an element that the state
had to prove to convict defendant of the crime. For example,
the court’s instruction on Count 1 stated as follows:
“Oregon law provides that a person commits the crime
of rape in the first degree if the person knowingly has sexual intercourse with another person [who] is incapable of
consent by reason of physical helplessness. In this case, to
establish the crime of rape in the first degree (count 1), the
state must prove beyond a reasonable doubt the following
elements:
“(1) The act occurred on or about October 24, 2015[;]
“(2) Talon Duane Ramoz had sexual intercourse with
[the victim]; and
“(3) [The victim] was incapable of consent by reason of
physical helplessness.”
Nothing in the record indicates that anyone noticed
the omission in the instructions of a culpable mental state
that the state had to prove to convict defendant, and no
one objected or took exception to the omission. The jury
convicted defendant of the charged crimes, and the court
entered judgments on the convictions.
Roughly three months after the jury returned its
verdict, defendant moved under ORCP 64 for a new trial,
invoking both ORCP 64 B(1)—which authorizes a trial court
to grant a new trial to a party if there has been an “[i]rregularity in the proceedings of the court, jury or adverse party,
or any order of the court, or abuse of discretion, by which
such party was prevented from having fair trial”—and
ORCP 64 B(5)—which authorizes the grant of a new trial for
“[i]nsufficiency of the evidence to justify the verdict or other
decision, or that it is against law.” The trial court rejected
the motion for a new trial under ORCP 64 B(5) but granted
the motion under ORCP 64 B(1). The court reasoned that
it was responsible for accurately rendering the instructions
Cite as 299 Or App 787 (2019) 805
used to instruct the jury, and, through inadvertence or inattention, it had failed to do that. As it explained:
“But in this case[,] I know I made a mistake. Period. I
don’t need the Court of Appeals to tell me I made a mistake. I’m owning this one. This is on me.
“Because ultimately I’m—I’m the one [who] makes a
decision on what instructions should be read and what
instructions should not be read. And I have to review the
instructions to make those determinations.
“So, you two—you two could provide instructions completely different from what the law is but ultimately it’s my
decision. So, ultimately it’s my mistake and ultimately it’s
my error that this is—this is happening.”
The state appealed the order granting a new trial,
and the majority reverses the order. In doing so, the majority
focuses on defendant’s inattention to the trial court’s failure
to include a culpable mental state in its instructions on the
charged crimes. It notes that ORCP 64 B(6) provides authority for a court to grant a new trial for legal error “occurring
at the trial and objected to or excepted to by the party making the [new trial] application” and reasons that a construction of ORCP 64 B(1) to cover instructional error to which
a party failed to object would “essentially render meaningless ORCP 64 B(6)’s requirement that parties must object
or except to errors of law.” 299 Or App at 802. It concludes,
therefore, that instructional error is categorically excluded
from constituting an irregularity in the proceedings under
ORCP 64 B(1). Hence, the trial court erred in granting a
new trial under that provision.
The majority’s reasoning is flawed. The focus of
ORCP 64 B(1) for purposes of this case is on an “[i]rregularity in the proceedings of the court.” (Emphasis added.)
Hence, the proper focus is on the court’s actions and whether
they were irregular. Here, the trial court recognized that its
failure to include a culpable mental state in the instructions
was a result of its inattention. It knew that a culpable mental
state is an element of the crimes on which the jury needed to
be instructed, and the uniform instructions that the parties
requested and the typed version of the instruction submitted by the state on first-degree rape included a mental-state
806 State v. Ramoz
element, yet the court failed to notice that the instructions
that it prepared and gave omitted that element. From the
court’s perspective, the omission was an irregularity, that
is, “a ‘[d]eviation from … any common or established rule’
or ‘deviation from method or order; as the irregularity of
proceedings.’ ” McCollum v. Kmart Corporation, 228 Or App
101, 113,
207 P3d 1200 (2009), vac’d on other grounds,
347
Or 707,
226 P3d 703 (2010) (quoting Noah Webster, 1 An
American Dictionary of the English Language (unpaginated)
(1828) (emphasis in original; boldface added)).
The omission can fairly be considered to be a scrivener’s error that originated with the state’s effort to help the
court by preparing typed versions of the uniform criminal
jury instructions as applied to defendant and, in doing so,
inadvertently omitting the culpable mental state from the
instruction on first-degree unlawful sexual penetration. The
court or its staff apparently compounded the error by using
the typed instruction on first-degree unlawful sexual penetration as a template for the instruction on first-degree rape.
The parties and the court intended the jury to be instructed
in accordance with the uniform criminal jury instructions
on the charged crimes, and neither the parties nor the court
realized that the instructions that the court gave failed to
do that. Although the instructions were legally erroneous,
the error was the product of inattention, not intention.
No doubt, inattention by courts in the conduct of
proceedings occur now and again, but it is not part of the
regular work of courts. Inattention is, in fact, the antithesis
of regular work. ORCP 64 B(1) authorizes courts to grant a
new trial when an irregularity by the court in conducting
proceedings is of sufficient magnitude to deny a party a fair
trial, which is the basis on which the court granted a new
trial in this case.
Properly understood, the instructional error at issue
here is a clerical error rather than an error that is the result
of an exercise of the judicial function. We recently applied
that distinction in Yarbrough v. Viewcrest Investments, LLC,
299 Or App 143,
449 P3d 902 (2019). There, the trial court
entered a general judgment of foreclosure against a defendant in the case, Principal Holding Co., that dismissed
Cite as
299 Or App 787 (2019) 807
the plaintiff’s claims against other defendants, including
Viewcrest Investments. The court thereafter entered a limited judgment in favor of the plaintiff against Viewcrest
based on a settlement to which the plaintiff and Viewcrest
had agreed that was supposed to have been embodied in a
limited judgment entered before the court entered a general
judgment.
Both Principal and Viewcrest appealed the respective judgments, and the Appellate Commissioner entered a
show-cause order as to why he should not vacate the limited
judgment and dismiss the appeal of it on the ground that
entry of the general judgment before entry of the limited
judgment rendered the limited judgment a nullity. However,
the commissioner included in his order a suggestion that
“the designation of the respective judgments as general
and limited judgments may be correctable under ORCP 71.”
Id. at 147 (internal quotation marks omitted).
In response to the commissioner’s suggestion, the
plaintiff moved under ORCP 71 B for the trial court to correct the general judgment by redesignating it to be a limited
judgment. After a hearing, the court granted the motion,
explaining:
“Under ORCP 71 A the court may, on its own motion,
correct clerical mistakes in judgments, order, or other parts
of the record and errors therein arising from oversight or
omission ‘may be corrected by the court at any time on its
own motion or on the motion of another party’. It is clear to
the court that the submission of the general judgment by
plaintiff was done in error simply because there is no other
explanation consistent with the facts in this case. … The
court has a vested interest in making sure its order, and
judgments are correct and reflect a proper ruling of the
court. The court likewise has an interest in correcting its
own errors. Therefore the court can and does, on its own
motion, as well as plaintiff’s, correct the general judgment
to render it a limited judgment.”
Id. (internal quotation marks omitted; ellipsis in original).
After further proceedings in the trial and appellate courts,
the trial court ultimately entered corrected judgments
under ORCP 71 A that, in effect, redesignated the original
general judgment as a limited foreclosure judgment against
808 State v. Ramoz
Principal and entered a new limited judgment against
Viewcrest. Both Principal and Viewcrest appealed those
judgments.
Among the questions that we resolved on appeal
was whether the correction of the judgments constituted the
correction of clerical errors that the trial court had authority to make under ORCP 71 A. In concluding that they were,
we applied the distinction between clerical and judicial
errors that the Supreme Court had recognized in Hubbard
v. Hubbard, 213 Or 482, 487-88,
324 P2d 469 (1958):
“Clerical … covers all errors, mistakes, or omissions which
are not the result of the exercise of the judicial function. In
other words, the distinction does not depend so much upon
the person making the error as upon whether it was the
deliberate result of judicial reasoning and determination,
regardless of whether it was made by the clerk, by counsel
or by the judge.”
Yarbrough, 299 Or App at 158 (internal quotation marks
omitted; ellipsis in original). We reasoned that the entry of
the general judgment was a judicial action, but the entry of it
did not reflect a conscious decision by the trial court to enter
such a judgment, that is, a judgment that, in fact, dismissed
the claims against the defendants other than Principal
and that foreclosed the entry of a limited judgment against
Viewcrest. In other words, although the court signed and
entered a judgment that it erroneously designated to be a
general judgment, its error was an unintentional error that
did not reflect an exercise of the judicial function and, hence,
was one that the court could correct as a clerical error under
ORCP 71 A.
In reaching that conclusion, we rejected the defendants’ argument that the erroneous designation of the judgment as a general judgment was a judicial error because
it embodied a legal determination that only a judge could
make. We explained that the argument focused “too narrowly on the type of decision involved, ignoring whether that
decision was the deliberate result of the court’s reasoning
and determination.” 299 Or App at 162. We reiterated that
point in rejecting the defendants’ related argument that the
attorney who submitted the general judgment to the court
Cite as 299 Or App 787 (2019) 809
necessarily exercised legal judgment in doing that and,
hence, did not make a clerical mistake in submitting that
judgment, explaining that the “argument misses the mark;
the proper inquiry focuses on the degree of conscious and
purposeful judicial decision-making—not the identity of the
person—involved in making the error.”
Id.
I believe that the distinction that we applied in
Yarbrough between clerical and judicial errors applies to the
instructional error at issue in this case. Most instructional
errors are the product of deliberate judicial decision-making.
So understood, most such errors might not constitute an
irregularity in the proceedings of the court that could be
corrected under ORCP 64 B(1). Here, however, the instructional error was not the result of a conscious decision by the
court to omit from the instructions the required instructions
on a culpable mental state. As I have explained, the record
supports a finding that the parties and the court intended
to instruct the jury in accordance with the uniform criminal jury instructions on the charged crimes, which include
a culpable mental state as an element that the jury must
find to convict a defendant of the crimes. Because of inadvertence, that is, because of a process that did not reflect
a conscious decision by the court to act as it did, the court
omitted from its instructions the required instructions on
the culpable mental state. In other words, the court committed the same type of error that we treated as a clerical
rather than judicial error in Yarbrough, viz., an error that
did not reflect an exercise of the judicial function because it
was not “the deliberate result of the court’s reasoning and
determination.” Yarbrough, 299 Or App at 162.
The principle that I apply here to uphold the grant
of a new trial under ORCP 64 B(1) is consistent with our
cases in which we have applied the rule. In each case in
which we have reversed a grant of a new trial under ORCP
64 B(1), the error at issue was one that involved an exercise of the judicial function and, hence, did not represent an
irregularity of the court in conducting the proceedings.
For example, in Silberman-Doney v. Gargan, 256
Or App 263,
303 P3d 333 (2013), the trial court mistakenly
advised the parties that the defendants would be entitled to
810 State v. Ramoz
an award of attorney fees if they prevailed at trial, which
advice led the parties to settle the case. The court thereafter told the parties that it had been mistaken in asserting that the defendants could recover attorney fees, which
led the plaintiff to seek, and the court to grant, a new trial
under ORCP 64 B(1) on the ground that the court’s erroneous statement to the parties on the defendants’ potential
entitlement to attorney fees constituted an irregularity in
the proceedings. We reversed the grant of a new trial, concluding that trial court “rulings on legal issues bearing on
a trial are to be expected and, of course, occur regularly.”
Id. at 271. We properly concluded, in other words, that the
trial court had not deviated from normal trial practice by
announcing a tentative ruling on a legal question that it
later concluded was erroneous. As importantly, the court’s
error reflected an exercise of the judicial function, because
the court acted deliberately in giving the advice on attorney
fees that it did. In other words, although we did not apply
the judicial-function distinction in deciding the case, our
decision is consistent with that distinction and, in my view,
should be understood to have applied it.
Similarly, we concluded in McCollum that a trial
court denial of a request for an in camera inspection of documents and the grant of a motion in limine were not irregularities in the proceedings under ORCP 64 B(1) because “the
submission and consideration of those matters conformed to
well-established practice.” 228 Or App at 113. Here again,
although not framed this way in our decision, the trial court’s
actions represented an exercise of the judicial function and,
hence, were actions that would not qualify as irregularities
under the standard that I apply here.
The majority rejects the distinction that I draw in
this case between court errors that are clerical in nature
and subject to correction as irregularities under ORCP 64
B(1) and those that represent an exercise of the judicial
function and, hence, might not be subject to correction as
irregularities under that rule. In its view, instructional
errors by a trial court that could be subject to an objection
or exception are not errors that can be corrected through the
grant of a new trial under ORCP 64 B(1). Errors of that kind
Cite as 299 Or App 787 (2019) 811
can be corrected only under ORCP 64 B(6). According to the
majority, my construction of the rule would “essentially render meaningless ORCP 64 B(6)’s requirement that parties
must object or except to errors of law.” 299 Or App at 802.
As I have explained, the distinction that I apply would
exclude most instructional errors from correction under
ORCP 64 B(1) because most instructional errors involve
an exercise of the judicial function. Hence, the majority is
wrong to conclude that the grant of a new trial under the circumstances of this case would render meaningless ORCP 64
B(6)’s requirement that parties must object to legal errors.
Moreover, that instructional error may, in circumstances such as those here, constitute an irregularity of the
court for which a new trial may be granted under ORCP 64
B(1) does not affect the importance of ORCP 64 B(6) and the
process by which parties seek and except to jury instructions. Neither parties nor trial courts will diminish their
efforts to conduct trials according to law in the off chance
that a failure to do that might provide a basis for a court
to grant a new trial under ORCP 64 B(1). And parties who
object and except to court rulings will rely on ORCP 64 B(6)
when seeking new trials based on their objections and exceptions, as will courts in granting them. In other words, ORCP
64 B(6) will continue to play its intended role as authority
for courts to grant new trials in the circumstances in which
it applies, and it will remain the principal means by which
instructional errors can be corrected through the grant of a
new trial.
I believe that ORCP 64 B(1) is intended to give trial
courts authority to grant new trials for instructional errors
of the type at issue in this case. The majority’s construction
of the rule denies them that authority, which means that
parties affected by those errors will have to seek plain-error
review by us on appeal to correct them, with the attendant
expense and delay. I do not see the benefit in that and do not
believe that it reflects the policies that the rule is intended
to serve.
In sum, I believe that the trial court acted within
its authority under ORCP 64 B(1) to grant defendant a new
812 State v. Ramoz
trial in this case. I respectfully dissent from the majority’s
contrary conclusion.
Egan, C. J., and Ortega, DeHoog, James, and Aoyagi,
JJ., join in this dissent.
