State v. McClain

                                402

         Submitted February 9, 2021, affirmed March 16, 2022


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
              DOUGLAS GERALD McCLAIN,
                  Defendant-Appellant.
                Lane County Circuit Court
                  19CR03061; A171757
                            

  Debra E. Velure, 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 Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
  Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2022)                               403

         PER CURIAM
        Defendant punched a man. For that conduct, a jury
convicted him of fourth-degree assault, ORS 163.160, rejecting defendant’s claim of self-defense. On the state’s request,
and over defendant’s objection, the trial court instructed the
jury on the provocation limitation of self-defense contained
in Uniform Criminal Jury Instruction (UCrJI) 1109: “The
defendant is not justified in using physical force on another
person if he provoked the use of unlawful physical force by
that other person with the intent to cause physical injury or
death to the other person.”
         On appeal, defendant assigns error to the delivery
of that instruction. He contends that there was no evidence
to support it, pointing out that there was no evidence that
defendant provoked the victim. In response, the state does
not defend the delivery of the instruction. Instead, it contends that any error was harmless on this record. In support of that argument, it points to our decision in State v.
Longoria, 

, 

 (2019), rev’d on other
grounds, 

, 

 (2020), in which we concluded that the delivery of UCrJI 1109 under similar circumstances was erroneous but harmless. Id. at 499-503.
         Having considered the record, we conclude that the
trial court erred in delivering the instruction because there
is no evidence to support it. We nonetheless conclude that
the error was harmless for reasons similar to those stated in
Longoria. The instruction correctly stated the law, so it did
not mislead the jury as to the law; it simply gave an “unnecessarily complete” statement of the law of self-defense. Id.
at 502 (emphasis in original). As was the case in Longoria,
there was no evidence presented that would tend to make
the jury think that the instruction applied to the facts before
it; neither party’s version of events involved a provocative
use of force by defendant, so there is little likelihood that the
jury would have perceived one, or viewed the self-defense
limitation described in UCrJI 1109 as applicable. The state’s
version of events was, in essence, that defendant punched
the victim out of the blue. Defendant’s version of events was,
in essence, that the victim was acting aggressively toward
him and came at him. Provocation by defendant was not a
404                                           State v. McClain

part of either narrative. In addition, the instruction played
no role in either party’s theory of the case, as presented to
the jury in closing arguments, and the jury was not asked
to apply the instruction or given any reason to think that it
would apply absent a version of events involving provocation
by defendant. Under those circumstances, as in Longoria,
there is little likelihood that the trial court’s delivery of the
legally correct, but factually irrelevant, instruction on provocation had any likelihood of affecting the jury’s rejection of
defendant’s claim of self-defense.
         Affirmed.