155
Submitted June 4, reversed and remanded July 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEREMY JAMES LARSON,
Defendant-Appellant.
Washington County Circuit Court
19CR29132; A172911
Andrew Erwin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joseph Callahan, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Reversed and remanded.
156 State v. Larson
PER CURIAM
Defendant appeals his convictions for fourth-degree
assault, ORS 163.160, and unlawful use of mace, ORS
163.212, arguing that the trial court gave an erroneous
jury instruction. The case concerned a fight between a
homeowner and defendant, who had been picking through
the homeowner’s trash. At trial, defendant raised a self-defense theory, and the trial court instructed the jury on
self-defense. The trial court also gave, at the state’s request,
a jury instruction to the effect that a property owner is justified in using physical force to the extent that the property
owner reasonably believes it necessary to prevent or terminate the commission of a theft. As the state now concedes,
that instruction was erroneous. See State v. Oliphant,
(2009) (in resisting arrest case raising self-defense, court erred in instructing jury on circumstances in which police may use physical force on arrestee,
because “a person’s right to use force in self-defense depends
on the person’s own reasonable belief in the necessity for
such action, and not on whether the force used or about to
be used on him actually was unlawful”); State v. Carlon,
(2014) (in assault case raising self-defense, court erred in instructing jury about circumstances in which victim had right to use physical force
in defending premises).
The state agrees that Oliphant and Carlon are dispositive here and concedes that the trial court erroneously
instructed the jury on defense of premises. We agree, accept
the state’s concession, and conclude that the instructional
error is not harmless.
Reversed and remanded.
