State v. Brown

                                       592

   Submitted May 25, conviction for first-degree manslaughter reversed and
  remanded, remanded for resentencing, otherwise affirmed August 23, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                      DUSTIN ALLEN BROWN,
                        Defendant-Appellant.
                     Yamhill County Circuit Court
                        19CR42871; A177027
                                   

     Defendant appeals from a judgment of conviction for first-degree manslaughter and felon in possession of a firearm. On appeal, defendant challenges only
his conviction for manslaughter, arguing that the trial court plainly erred by
failing to instruct the jury on the “initial aggressor” limitation on the defense of
self-defense. Held: The trial court plainly erred when it failed to instruct the jury
on the initial aggressor limitation to self-defense when the state intended to rely
on that limitation. Because it was the state’s obligation to disprove self-defense
and to ask for an instruction on the limitation to that defense, and because a jury
must be instructed on all matters of law necessary for its verdict, the prosecutor
who invoked the limitation was required to concomitantly seek the corresponding
jury instruction.
     Conviction for first-degree manslaughter reversed and remanded; remanded
for resentencing; otherwise affirmed.



    Ladd J. Wiles, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
    JOYCE, J.
Conviction for first-degree manslaughter reversed and
remanded; remanded for resentencing; otherwise affirmed.
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           JOYCE, J.
          Defendant appeals from a judgment of conviction
for first-degree manslaughter and felon in possession of a
firearm. On appeal, defendant challenges only his conviction for manslaughter, arguing that the trial court plainly
erred by failing to instruct the jury on the “initial aggressor”
limitation to a claim of self-defense. See ORS 161.215(1)(b)
(describing defense and its limitations). We agree with
defendant that the trial court plainly erred and, cognizant
of the fact that we must exercise our discretion with “utmost
caution,” see State v. McKinney/Shiffer, 

, 

 (2022), we do so here and reverse.1
         We review the facts “in the light most favorable
to the establishment of the facts necessary to require the
instruction.” Ossanna v. Nike, Inc., 

, 

 (2019). Defendant was walking his bike on a wooded
path in McMinnville, Oregon, where he encountered the victim. Defendant and the victim had a brief interaction, which
culminated in defendant shooting and killing the victim. A
house doorbell camera from a residence across the street
from the wooded area captured some (largely indiscernible)
audio evidence of the interaction between defendant and the
victim while in the woods. Although largely indiscernible,
that recording reflects that a verbal interaction between
defendant and the victim lasted only a few minutes before
two shots could be heard, about 11 seconds apart. The victim could be heard yelling at defendant to “get the fuck out
of here.” Video from the doorbell camera then shows defendant backing out of the woods towards the street, followed
by the victim. Defendant then fired a third shot that struck
the victim in the torso, leading to his death. Defendant fled
the area. Police arrested him shortly thereafter.
         After his arrest, defendant admitted to police during
an interview that he shot the victim and explained that he
did so because the victim was acting aggressively and erratically. Defendant told police that, after he first noticed the
victim on the path and began to walk away, the victim stood
up and “stomped” towards defendant, yelling and hitting
   1
     Our resolution of defendant’s first assignment of error obviates the need to
address the second, which he makes in the alternative to the first.
594                                            State v. Brown

himself in the head. Defendant said that he backed up out of
the wooded area and told the victim to stop. The victim did
not, and continued to walk towards defendant with clenched
fists, yelling “What the fuck did you say?” and “Get the fuck
out of here.” Defendant explained to police that he asked
the victim “what’s going on” several times and pleaded with
the victim to stop advancing; when he did not, defendant
drew his gun. The victim continued towards defendant.
According to defendant, he then grabbed his bike, and the
victim continued to move towards him. He told the victim
to stop, and, when the victim was about 16 feet away from
defendant, defendant fired his gun to the right of the victim.
The victim again continued towards defendant, and defendant fired a second time, again to the right of the victim.
Again, the victim walked further towards defendant, and
defendant fired a third shot, which hit the victim and ultimately killed him. Defendant admitted that he was high on
methamphetamine during this altercation.
         The state charged defendant with, among other
crimes, murder and felon in possession of a firearm. Before
trial, defendant gave notice of his intent to rely on ORS
161.209, which provides that a person is justified in using
physical force against another person for self-defense
against “[w]hat the person reasonably believes to be the use
or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably
believes to be necessary for the purpose.” ORS 161.209.
         The state submitted its proposed jury instructions,
including a uniform jury instruction about the defense of
self-defense. It also included an instruction on one limitation
on the use of deadly physical force, namely, that a defendant
cannot use deadly physical force on another unless they reasonably believe that the other person was using or was about
to use unlawful deadly physical force against the defendant
or was committing or attempting to commit a felony involving the use or threatened imminent use of physical force
against the defendant. See ORS 161.219 (so providing).
        At the close of the state’s evidence, the court reviewed
the proposed instructions. For the first time in the trial, the
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prosecutor indicated that she intended to argue that the
defendant was the initial aggressor in the confrontation:
       “Lastly, Your Honor, in my closing I plan to touch on
   principles of the initial aggressor concept, and also what
   in an altercation would constitute a misdemeanor or felony.
   Just putting defense on notice in case he requested additional instructions.
       “For example, I plan to make the statement that yelling
   at somebody to leave is no crime, causing somebody physical injury with a weapon is a felony, so that the jury, when
   reading the limitations of self-defense has some understanding of the difference between felonious conduct and
   other conduct.”
        The prosecutor’s reference to “initial aggressor”
was a reference to ORS 161.215. That statute provides that
a person is not justified in using physical force on another
person if the person is
       “the initial aggressor, except that the use of physical
   force upon another person under such circumstances is
   justifiable if the person withdraws from the encounter and
   effectively communicates to the other person the intent to
   do so, but the latter nevertheless continues or threatens to
   continue the use of unlawful physical force.”
ORS 161.215(1)(b).
         After the prosecutor indicated her intent to rely on
the initial aggressor limitation to self-defense, defense counsel did not object or request any additional instructions.
         In advance of closing arguments, the court
instructed the jury on self-defense and on the limitation on
the use of deadly physical force. It did not instruct the jury
on the initial aggressor limitation to self-defense.
         In accordance with her stated intentions, during the
state’s closing argument, the prosecutor told the jury that
a person is justified in using physical force upon another
person to defend himself but that that principle has a
“[c]aveat,” namely, that “[t]he person who starts the fight
can’t use self-defense to justify further escalation of the
fight. Because who had the right to self-defense in that situation? The person who didn’t start the fight.” She continued:
596                                              State v. Brown

“[F]rom the evidence that’s produced, who do you find is the
initial aggressor? Because the initial aggressor can’t claim
self-defense. The other person can.” She summarized:
      “So, what it boils down to is this: If [defendant] is not
   the initial aggressor and he had a claim of self-defense to
   make or, therefore, had a valid self-defense claim, did he
   do so in response to [the victim’s] commission or attempted
   commission of a felony?
      “…
      “So I submit to you that there is strong evidence that
   [defendant] is the initial aggressor and, therefore, had no
   reason to brandish his firearm, no reason to shoot [the victim], and self-defense fails.”
         In his closing argument, defense counsel asserted
that there was no evidence that defendant was the initial
aggressor. He told the jury that the state had the burden
of proving “that [defendant] was the aggressor, and that’s
one of the steps they’re addressing of self-defense, and they
haven’t proven that.” The jury acquitted defendant of murder but found him guilty of the lesser-included offense of
first-degree manslaughter, as well as felon in possession of
a firearm.
         On appeal, defendant challenges his conviction for
first-degree manslaughter. Defendant contends that the
failure to provide a jury instruction on the initial aggressor
limitation is plain error and asks us to exercise our discretion to correct the error. To qualify for plain error review,
the error must be one of law, it must be obvious and not
reasonably in dispute, and it must be apparent on the record
and not require us to choose between competing inferences.
State v. Vanornum, 

, 

 (2013). The
parties do not dispute, and we conclude, that the error is
one of law and is apparent on the face of the record. Thus,
whether the lack of an instruction on the limitation on self-defense amounts to plain error depends upon whether we
can say that the legal point is obvious and not reasonably in
dispute.
         For its part, the state, while acknowledging that a
trial court commits plain error if it fails to instruct the jury
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on the material elements of the crime and that the state
bears the burden of disproving self-defense, argues that is
not obvious that a court commits plain error by failing to
instruct the jury on limitations to self-defense. For his part,
defendant points to several statutes and cases that, in his
view, establish that the legal point is not reasonably in dispute. We begin with those.
         ORCP 59 B requires a court to “state to the jury
all matters of law necessary for its information in giving
its verdict.” ORCP 59 B; see also ORS 136.330(1) (applying
ORCP 59 B to criminal cases). We have thus held that it is
error when the jury instructions “give the jury an incomplete and thus inaccurate legal rule to apply to the facts[.]”
State v. Abram, 

, 

 (2015).
We have also held that a trial court commits plain error
when it fails to instruct the jury on all material elements of
a crime. State v. Gray, 

, 

(2014). Additionally, when a defense—like self-defense—is
“raised,” a trial court errs in failing to instruct the jury that
the state bears the burden to disprove the defense where
defendant puts it at issue. See Abram, 

;
ORS 161.055(1) (“When a ‘defense,’ other than an ‘affirmative defense’ as defined in subsection (2) of this section, is
raised at trial, the state has the burden of disproving the
defense beyond a reasonable doubt.”). A court must thus
instruct the jury on all defenses that the defendant raises.
See State v. Dahrens, 

, 

(2004) (“A defense to a criminal charge must be presented
to a jury through a jury instruction if there is any evidence
from which the jurors could infer that the required elements
of the defense are present.” (Internal quotation marks and
citation omitted.)); see also State v. Webber, 

, 

, rev den, 

 (1987) (“A criminal
defendant is entitled to instructions on all issues of law arising from the evidence[.]”).
         We have also addressed when it is error not to
instruct the jury on a limitation to a defense. In State v.
Freeman, 

, 

 (1991), the trial
court denied the defendant’s requested jury instruction on
self-defense and the defendant appealed. The state argued
598                                              State v. Brown

in part that the defendant’s requested instruction was
incomplete because it failed to include the limitations on
self-defense. 

. We began by observing that once a
claim of self-defense is raised, the state has the burden of
disproving it beyond a reasonable doubt. 

. We
explained that “[o]ne means of disproving self-defense is to
prove that one or more of the limitations in ORS 161.215
is present.” 

. Because the defendant had no burden to disprove the limitations, we concluded that he had
no burden to submit the instructions on them; if the state
believed that “there was evidence proving one or more of
the limitations in ORS 161.215, it was obliged to request an
instruction conveying that theory to the jury.” 

         We ultimately agree with defendant that ORCP 59 B,
in combination with the cases that establish that it is the
state’s burden to request instructions on self-defense—
including limitations on self-defense—establish that that
the error here is obvious and not reasonably in dispute.
From the statutes and cases just discussed, several principles are apparent:
      •   A jury must have instructions on all matters of law
          necessary for its information in giving its verdict,
          ORCP 59 B; ORS 136.330(1);
      •   It is the state’s burden to disprove a defendant’s
          claim of self-defense, Abram, 

;
          ORS 161.055(1); and
      •   If the state contends that a limitation on a claim of
          self-defense is supported by the evidence, it is obligated to request an instruction conveying that theory to the jury, Freeman, 

.
From that, we conclude that it is obvious and not reasonably
in dispute that if, as here, the state intends to rely on the initial aggressor limitation to self-defense (and if the evidence
supports that theory), the trial court must instruct the jury
on that limitation. Stated slightly differently, because it is
the state’s obligation—not a defendant’s—to disprove self-defense and to ask for an instruction on the limitation to
self-defense, and because a jury must be instructed on all
matters of law necessary for its verdict, a prosecutor who
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invokes the exception must concomitantly seek the corresponding jury instruction. The trial court therefore erred by
not giving the initial aggressor instruction when the state
intends to rely on that limitation, particularly where, as
here, the prosecutor announces their intent to rely on the
initial aggressor theory and then suggests, incorrectly, that
it is defendant’s burden to seek any additional instructions.
         Next, we must consider whether the error was
harmless and, if not, whether we will exercise our discretion
to correct it. State v. Horton, 

, 

 (2023). To assess whether error is harmless, we consider
“the instructions as a whole and in the context of the evidence and record at trial, including the parties’ theories of
the case with respect to the various charges and defenses at
issue.” State v. Ashkins, 

, 

 (2015).
Defendant argues that the error is not harmless because,
absent the necessary instruction, the jury was misinformed
about the law because the prosecutor’s description of the
initial aggressor limitation was incomplete. He observes
that the initial aggressor limitation, while generally not
permitting someone who is the initial aggressor to claim
self-defense, does allow a claim of self-defense if the person was the initial aggressor but then “withdraws from the
encounter and effectively communicates to the other person
the intent to do so, but the latter nevertheless continues or
threatens to continue the use of unlawful physical force.”
See ORS 161.215(1)(b).2 In her closing, the prosecutor noted
that defendant could not claim self-defense if he were the
initial aggressor but did not explain that self-defense would
be viable if defendant had withdrawn from the encounter:
“[T]he initial aggressor can’t claim self-defense. The other
person can.”
         We agree with defendant that that statement was
incomplete and, given the evidence in the case—particularly the evidence that defendant may have been backing
away from the victim at the time the fatal shot was fired—
we cannot say that there is little likelihood that the error
affected the verdict. State v. Davis, 

, 

 (2003). That holds particularly true given that there
   2
       The state offers no argument about whether the error was harmless.
600                                            State v. Brown

was evidence that defendant may not have been the initial
aggressor and that even if he was, he had retreated, which
could give rise to an inference that he intended to withdraw
from the encounter.
          Although we conclude that the error is not harmless,
“our assessment of where [the error] falls on the spectrum of
‘likelihood’ of having affected the verdict can be an important consideration to the exercise of discretion.” Horton, 

. The likelihood that the error affected the
outcome goes to its “gravity” and to “the ends of justice.”
Id.; see also State v. Inman, 

, 

 (2015), rev den, 

 (2016) (“[T]he error in this
case was not particularly grave, in terms of its likelihood
of affecting the verdict[.]”); State v. Pergande, 

, 

 (2015) (citing “the ends of justice
and the gravity of the error” in exercising discretion to correct a plain error that was “likely” harmful and carried a
“significant risk” that it affected the verdict).
         This is a case in which it is appropriate for us to
exercise our discretion to correct the error. As we explained
above, we cannot say that there was little likelihood that
the error affected the verdict. It was the state, and not
defendant, that raised the issue of initial aggressor, and
given the timing of it doing so (late in the trial), defendant
had limited opportunity to address the issue. And it was
the state, not defendant, who bore the burden of asking
for instructions if it chose to rely on the initial aggressor
limitation. Additionally, as we have noted in a similar circumstance, although defendant could have prevented the
problem by requesting a further instruction, which weighs
against exercising our discretion, defendant’s challenged
conviction is for serious a felony. See State v. Pervish, 

, 

 (2005), rev den, 

(2006) (holding that unpreserved instructional error was
plain and exercising our discretion to correct it, in part
because of the seriousness of the convictions); see also Gray,

 (concluding that gravity of the error
compelled exercise of discretion to correct plain instructional error, because the trial court’s failure to instruct the
jury as to culpable mental state was not harmless, and the
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defendant’s challenged convictions included “serious felonies”—convictions for first-degree rape). What is more, we
have often chosen to exercise our discretion in the interest
of judicial economy and to forestall future post-conviction
proceedings, yet another reason that guides our discretion
here. See, e.g., State v. Simkins, 

, 

 (2014) (exercising discretion to correct plain error
in the interest of judicial economy and to forestall future
post-conviction proceedings).
         In choosing to exercise our discretion, we reject the
state’s contention that defendant may have had a strategic reason for not objecting or seeking the initial aggressor instruction himself. As the Supreme Court recently
explained, where the record reflects that a defendant
“invited,” “encouraged,” or “even sought the court’s ruling”
that the defendant then claims is plain error, an appellate
court will not exercise its discretion to correct the error.
State v. Chitwood, 

, 

 (2022)
(describing the circumstances from which it is reasonable
to conclude that defense counsel acted strategically). Also
significant to the court’s decision to correct the plain error
in Chitwood was the fact that “even if defendant may have
benefited by remaining silent and failing to object,” the
defendant’s “advantage, if any, occurred at the instigation of
the prosecutor[.]” 

. In reaching that conclusion, the
court surveyed previous cases in which the record reflected
a strategic decision on a defendant’s part. 

. For
instance, in State v. Fults, 

, 

(2007), the Supreme Court declined to exercise its discretion
where the defendant acted with “apparent encouragement of
the judge’s choice” with respect to a departure sentence. And
in State v. Steen, 

, 

 (2009), the
court declined to exercise its discretion to reverse for plain
error where “defense counsel stipulated to the procedure
that the state and the trial court followed.” See also State v.
Serrano, 

, 

 (2014), cert den, 

, 

, 

 (2015) (declining to
reverse for plain error because trial court had consulted the
parties before crafting a response to jury questions and the
defendant had agreed with answers given).
602                                           State v. Brown

         Applying those precepts here, the record does not
support an inference that defendant “invited or encouraged”
the error. To the contrary, it was the prosecutor who raised
the issue (and did so in incomplete fashion). Even if, as in
Chitwood, defendant may have had a reason to remain silent
(which, as we explain below, is unlikely), the record does not
demonstrate that defendant encouraged, agreed to, stipulated to, or otherwise invited the omitted jury instruction.
        To be sure, as the state observes, the initial aggressor limitation is a limit on the ability of a defendant to
claim self-defense, and thus a defendant might not want an
instruction that highlights that fact. Yet it is equally true
that the limitation contains within it another limitation
that permits a defendant to retreat from being the initial
aggressor, which—particularly given defendant’s version
of events—could have benefitted defendant in this case.
Moreover, we can think of no strategic reason why defendant would want the jury to be instructed on one limitation on self-defense (the use of deadly physical force) and
not another (initial aggressor), particularly where, as here,
there was evidence that defendant may have been attempting to withdraw from the encounter. We therefore exercise
our discretion to correct the error.
        Conviction for first-degree manslaughter reversed
and remanded; remanded for resentencing; otherwise
affirmed.