State v. Shine

360                  August 14, 2024              No. 566

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
             DEREK MITCHELL SHINE,
                 Defendant-Appellant.
            Washington County Circuit Court
                 19CR42716; A178033

  Andrew Erwin, Judge.
  Argued and submitted January 24, 2024.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Reversed and remanded.
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362                                                          State v. Shine

          JACQUOT, J.
          Defendant was convicted by a jury of multiple sex
crimes against a child. In his sixth assignment of error,
defendant argues that the trial court erred by refusing to
read aloud all of the jury instructions at the end of trial.
We agree that the trial court erred in failing to read aloud
the instructions at the end of trial, and that error was not
harmless. Therefore, we reverse defendant’s convictions and
remand for a new trial.
          Defendant also raises various other assignments of
error which, having determined that we must reverse and
remand on his sixth assignment of error, we do not reach. In
the first, he argues that the trial court erred by precluding
him from impeaching a witness’s opinion statement. In the
second, third, and fourth, he argues that the court erred by
admitting certain evidence under OEC 404(4) and OEC 403.
In the fifth, he assigns error to the court’s refusal to give the
witness-false-in-part jury instruction. In the seventh, defendant argues that the trial court erred when it overruled his
objection to a statement that the prosecutor made in closing arguments that he contends constituted burden shifting,
and, finally, in the eighth assignment, defendant argues that
the court plainly erred by permitting the prosecutor to make
other statements in closing arguments that he contends misstated the jury’s function and the burden of proof.1
          In light of our disposition on the sixth assignment
of error, and the Supreme Court’s recent decision in State
v. Davis, 

, ___ P3d ___ (2024), we do not reach
assignments two, three, and four, which allows the parties
to argue under the new standard upon remand. The remaining assignments relate to events that occurred during the
trial and, because they may not reoccur on remand, we do
not reach them.
          We begin—and end—with defendant’s sixth assignment of error, challenging the trial court’s failure to reread
some jury instructions aloud before closing arguments. At
the beginning of defendant’s trial and prior to jury selection,
    1
      Defendant raised six assignments of error in his opening brief and then two
supplemental assignments in a supplemental brief filed after argument in the
case.
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the trial court informed the parties that its practice is to
provide the jury with “procedural” but not “substantive”
instructions up front, and that it provides the substantive
instructions before closing arguments. That way, the court
explained, rather than the jury listening to the court “droning on for the next hour on instructions” at the end of the
trial, during closing arguments the attorneys can simply
point to a page of the instructions when referencing the information for the jury. As procedural instructions, it identified
“from, you know, functions of the Court and jury, circumstantial evidence, proof beyond a reasonable doubt, all the
way through, you know, evaluating witnesses’ testimony.”
         After the jury was selected and before opening
statements, the court provided the jury with written copies
of those instructions and invited the jurors to read along
to themselves or just to listen, “[h]owever you process the
information.” The court then read aloud to the jury the standard preliminary instructions, including the precautionary
instructions and functions of court and jury, along with the
standard instructions on the presumption of innocence and
proof beyond a reasonable doubt, defendant’s statements,
defendant not testifying, evaluating witness testimony,
inferences, direct and circumstantial evidence, and the
definition of “knowingly and with knowledge.” The court
informed the jury that, at the conclusion of the evidence, it
would instruct the jury on the law that applied to this case.
         A week later, at the end of the trial and prior to
delivering final jury instructions and closing arguments,
the parties and court discussed the final instructions. The
court informed the parties that it would not reread the
instructions it had read to the jury at the beginning of trial,
pages one through five, but would include them in the final
written instructions because of the length of time since the
jury had received the instructions. The prosecuting attorney requested that the court review which instructions were
included in the first five pages. Defense counsel clarified
with the court that it did not plan to reread pages four and
five, which included the instructions on the presumption of
innocence and proof beyond a reasonable doubt, defendant’s
statements, defendant not testifying, evaluating witness
364                                               State v. Shine

testimony, inferences, direct and circumstantial evidence,
and the definition of “knowingly and with knowledge.”
Defense counsel began to say “I would ask that—”, but the
court interrupted, stating:
      “Nope, I’ve already read it to them. It’s already been
  done, it’s in the record, you absolute—they—I’ll give them
  a copy of it, and if you think that there’s an argument that
  you wish to make you could point out, when we started this
  trial, the judge read these instructions, but I’ve already
  read the instructions to them.”
Once the jury returned, the court invited the jurors to
reread to themselves the instructions it had provided at the
beginning of the trial and the attorneys to refer to them in
their closing arguments:
     “So you all have that second set of instructions that I
  promised you. The first pages 1 through 5, when we began
  this trial last week, I read those instructions to you. I have
  simply included those so you have a complete set of the
  instructions that I’ve given in this case.
     “I’m not going to go back and read those, but they are
  there for you to re-read and for the attorneys to argue as to
  how those apply to their case at this point. I’m beginning
  on page 6, where it says ‘Definitions.’
     “So same rules apply as I read through this second set of
  instructions. You can read along silently with yourself, you
  can just listen, however you process the information.”
The trial court then read the remaining jury instructions
aloud, beginning with definitions of sexual terms in the
offenses and the elements of the offenses themselves. The
parties made closing arguments and the jury was sent to
deliberate. Defendant was convicted on all counts.
        Defendant assigns error to the trial court’s refusal
to reread aloud the instructions on the presumption of innocence and proof beyond a reasonable doubt, defendant’s
statements, defendant not testifying, evaluating witness
testimony, inferences, direct and circumstantial evidence,
and the definition of “knowingly and with knowledge.” To
put defendant’s argument in context, we begin with the relevant law.
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          ORCP 58 B2 and ORCP 59 B, made applicable to
criminal trials by ORS 136.330, provide two important
rules governing the structure of trials and requirements for
instructing the jury.
          ORCP 58 B provides the manner of proceedings
and the order in which stages of a jury trial must generally
occur. It provides that the court must instruct the jury at
two distinct times: after the jury is sworn and after the evidence is concluded. First, “[a]fter the jury is sworn, the court
will instruct the jury concerning its duties, its conduct, the
order of proceedings, the procedure for submitting written
questions to witnesses if permitted, and the legal principles
that will govern the proceedings.” ORCP 58 B(2). Second,
“[a]fter the evidence is concluded, the court will instruct the
jury. The court may instruct the jury before or after the closing arguments.” ORCP 58 B(8). The second set of instructions is the court’s “charge” to the jury. Webster’s Third New
Int’l Dictionary 377 (unabridged ed 2002) (A “charge” is “a
formal address containing instruction or exhortation: such
as … an instruction given by the court to the jury in order
to govern their action in coming to or making their decision;
specifically : the statement made by the judge to the jury
at the close of a trial of the principles of law that the latter
are bound to apply to the facts as determined by them in
deciding upon their verdict”); Black’s Law Dictionary 295
(4th ed 1968) (“Charge. In Common-law Practice. The final
address by judge to jury before verdict, in which he sums
up the case, and instructs jury as to the rules of law which
apply to its various issues, and which they must observe.”);
see also ORCP 58 B(6) (1978) (providing that, after the close
of evidence, “[t]he court then shall charge the jury”).
          ORCP 58 B provides trial courts with discretion to
deviate from the prescribed order of proceedings “for good
cause stated in the record.” ORCP 58 B (“Trial by a jury shall
proceed in the following manner unless the court, for good
cause stated in the record, otherwise directs.”). Additionally,
ORCP 58 B(8) provides the court with discretion, after the
    2
      ORCP 58 was amended in 2022, after defendant’s trial. The amendments
changed the word “shall” to “will” in subsections B(2) and B(8). Those amendments do not affect our analysis; consequently, throughout this opinion, we refer
to the current version.
366                                                State v. Shine

evidence is concluded, to provide its final jury instructions
either before or after closing arguments. ORCP 58 B(8)
(“After the evidence is concluded, the court will instruct the
jury. The court may instruct the jury before or after the closing arguments.”).
         ORCP 59 B also applies to the court’s final jury
instructions, and it requires the court to instruct the jury
on “all matters of law necessary for its information in giving
its verdict” both orally and in writing:
      “Charging the jury. In charging the jury, the court shall
   state to the jury all matters of law necessary for its information in giving its verdict. … . The court shall reduce,
   or require a party to reduce, the instructions to writing.
   The jury shall take the court’s written instructions with it
   while deliberating upon the verdict.”
Unlike ORCP 58 B, ORCP 59 B does not provide that a
court may exercise discretion and deviate from its requirements.
          Defendant argues that the court erred as a matter
of law by declining to read aloud to the jury, after the close of
evidence, the pages of jury instructions that included information about the presumption of innocence and proof beyond
a reasonable doubt, defendant’s statements, defendant not
testifying, evaluating witness testimony, inferences, direct
and circumstantial evidence, and the definition of “knowingly and with knowledge.” Defendant argues that, under
ORCP 58 B and 59 B, at the close of evidence, the court was
required to read those instructions to the jury in addition
to providing a written copy, regardless of the fact that the
court had read those same instructions to the jury at the
beginning of the trial. He argues that the court’s refusal
prejudiced him because it minimized the importance of
those fundamental legal principles, all of which relate specifically and indispensably to a criminal defendant’s rights.
         The state, on the other hand, characterizes the
issue as a discretionary timing choice. The state agrees that
the court was required to read the instructions aloud but
argues that, under ORCP 58 B, the court had discretion to
determine when it would do so and, because it read them
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on the first day of the trial, it fulfilled that requirement.
Additionally, the state argues that, because the court provided the jury with a written copy of the instructions to
reread independently, even if the court did err by only providing written instructions after the close of the evidence,
the error was harmless.
          The parties’ arguments raise a question of statutory
interpretation, which we review as a matter of law. See State
v. Gaines, 

, 

 (2009) (so reviewing); see also A. G. v. Guitron, 

, 

(2011) (“we apply the usual method of statutory interpretation” to rules of civil procedure). We begin with ORCP 59 B.
As noted above, that rule’s reference to “charging the jury”
addresses the court’s second set of instructions to the jury.
At that point, the trial court “shall state to the jury all matters of law necessary for its information in giving its verdict,”
and “shall” reduce the instructions to writing. ORCP 59 B
(emphases added). ORCP 59 B contains no indication that
the court has discretion to deviate from its requirements.
         Absent some textual indication to the contrary, a
court does not have discretion to ignore mandatory language. See Coleman and Coleman, 

, 

 (1992) (concluding that trial court does not have
discretion to ignore UTCRs using mandatory language of
“shall”); State ex rel AFSD v. Buethe, 

, 

 (1988) (mandatory language of ORS 109.155 that
admission of paternity “shall be reduced to writing” does not
grant discretion to accept oral admission rather than written). Thus, ORCP 59 B does not provide the trial court with
discretion to alter the method by which it provides instructions after the close of evidence: It must provide all of the
instructions “necessary for [the jury’s] information in giving
its verdict” both orally and in writing.
        With that in mind, we consider ORCP 58 B, which
uses mandatory language but also, as noted above, expressly
provides the court with discretion in two respects: The trial
court “may” give its post-close-of-evidence instructions to
the jury before or after closing arguments, ORCP 58 B(8),
and may alter the order in which the proceedings take place
368                                                            State v. Shine

“for good cause stated in the record,” ORCP 58 B.3 The state
contends that the court’s discretion to alter the order of
events at trial granted by ORCP 58 B includes discretion
to orally state some of the instructions “necessary for [the
jury’s] information in giving its verdict” at the start of trial,
rather than as part of the charge to the jury after the close
of evidence, as required by ORCP 59 B. In support of that
view, it cites State v. Stevens, 

, 

(1991), and State v. Thompson, 

, 

, cert den, 

 (1999).
         The question, then, is whether the discretion to
alter the order of trial granted in ORCP 58 B supersedes
the requirement of ORCP 59 B to provide the jury with all
the necessary instructions, both orally and in writing, after
the close of evidence. As a textual matter, it does not appear
to. As noted above, the text of ORCP 59 B is mandatory.
Further, ORCP 58 B(8)’s specific inclusion of a limited discretionary choice regarding charging the jury—the court
may choose whether to do it before or after closing arguments, but always after the close of evidence—confirms
ORCP 59 B’s textual indication that courts lack discretion
to deviate from its requirement that, in “charging the jury,”
the court “shall state to the jury all matters of law necessary
     3
       For example, ORCP 58 B(4) directs that “[t]he plaintiff will introduce the
evidence on plaintiff’s case in chief, and when plaintiff has concluded, the defendant may do likewise.” However, a trial court, for good cause stated in the record,
may allow parties to call witnesses out of order. See Dominguez and Fields, 

, 

 (2017) (parent allowed to examine a witness out
of order); Whaley v. Russell Stover Candies, Inc., 

, 

 (1980) (defense expert witness was “called out of order as an accommodation
during plaintiff’s case”). Despite ORCP 58 B(6)’s instruction that, after the evidence is concluded, unless both sides waive closing arguments, the plaintiff will
“commence and conclude the argument to the jury,” a trial court may vary the
manner in which closing arguments are conducted for good cause stated in the
record. State v. Stacey, 

, 

 (2020); see also State
v. Ness, 

, 

 (1981), aff’d on other grounds, 

, 

 (1982) (recognizing trial court’s discretion to vary which party
made the last argument under ORCP 58 B). Additionally, although ORCP 58 B(3)
instructs that, after the jury is sworn, “[t]he plaintiff may concisely state plaintiff’s case and the issues to be tried; the defendant then, in like manner, may
state defendant’s case based upon any defense or counterclaim or both,” a trial
court may allow the defense to defer its opening statement until after the state
puts on its case in chief. See State v. Seeger, 

, 

(1971) (trial court erred by allowing the prosecutor to argue that by “permitting
defendant to defer making his opening statement, the court was ‘allowing the
defendant to make up a story while the case is going on’ ”).
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for its information in giving its verdict” and also provide the
instructions in writing. (Emphasis added.)
         Further, contrary to the state’s argument, neither Stevens nor Thompson suggests otherwise. Although
those cases demonstrate that trial courts have discretion in
whether, and when, to give instructions at times other than
at the close of evidence, they do not address whether ORCP
58 B gives courts discretion not to comply with the mandatory jury-charge provision of ORCP 59 B.
         In Stevens, in response to the state’s objection that
a defense witness’s testimony was relevant to a defense
that the defendant had chosen not to raise, the trial court
instructed the jury by reading a statute describing the permissible use of the evidence. 

. On appeal,
the defendant argued that, by reading the instruction midtrial, the court had deviated from the “normal procedure”
of proceedings without good cause. 

. The Supreme
Court accepted, for the sake of argument, the defendant’s
contention that the instruction was not a properly given limiting instruction but was, instead, “a final instruction given
out of order,” but explained that the court’s reason for giving
it—allowing the defense witness to testify broadly “while
helping the jury to focus on the relevance of the evidence”—
constituted good cause for the change from the “customary
order” of proceedings. 

         Stevens demonstrates that a court’s discretion to
change the order of trial for good cause includes the ability to instruct the jury when it becomes necessary during
testimony. However, it does not address whether the court’s
discretion under ORCP 58 B permits deviation from the
requirements of ORCP 59 B, because the court’s instructions
at the close of evidence—its “charge” to the jury—were not at
issue.
        In Thompson, the trial court inadvertently failed
to provide the jury with certain statutory definitions and,
during deliberations, the jury asked a question demonstrating that it needed them. 

. The court provided
the missing definitions. 

 On appeal, the defendant argued
that the court improperly gave the instructions during
370                                                         State v. Shine

deliberations, because giving them at that time unduly
emphasized them. 

. The state argued that, under
ORCP 59 B, it would have been error for the trial court not to
provide the instructions when requested by the jury.4 

 at
266 n 11. The Supreme Court explained that the issue implicated a trial court’s power to provide “jury reinstruction,”
which is a discretionary question. 

; see ORCP 59 D
(if, after the jury retires for deliberation, the jury “requests
information on any point of law,” the court “may” provide
further information). The court disagreed with the defendant that the timing of the reinstruction was prejudicial,
and, apparently for that reason, held that the trial court did
not abuse its discretion in deciding whether to reinstruct
the jury. Thompson, 

. Thus, Thompson, like
Stevens, does not address ORCP 59 B.
           Based on the text of the rules, we conclude that a
trial court lacks discretion to omit “matters of law necessary
for [the jury’s] information in giving its verdict” from its oral
presentation of the instructions to the jury after the close of
evidence. The court, therefore, erred.
           However, our inquiry does not end there. The state
further argues that, even if the trial court erred by refusing
to read the instructions orally to the jury at the close of evidence, that error is harmless. An error is harmless if there
is “little likelihood” that it affected the jury’s verdict. State v.
Davis, 

, 

 (2003). “Instructional error,
like any other error, does not justify reversal unless the error
was prejudicial.” State v Guckert, 

, 

 (2013), rev den, 

 (2014). To constitute reversible
error, an instructional error must have prejudiced the party
when the instructions are considered as a whole. Thompson,

. “[C]ases should not be reversed upon instructions, despite technical imperfections, unless the appellate
court can fairly say that the instruction probably created an
erroneous impression of the law in the minds of the jur[ors]
which affected the outcome of the case.” Waterway Terminals
v. P. S. Lord, 

, 

 (1970). The state
argues that, because the trial court read the instructions at
    4
      It does not appear that the defendant argued that the trial court erred
under ORCP 59 B and, regardless, the court based its ruling on the trial court’s
discretionary power to reinstruct the jury, implicating ORCP 59 D.
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the beginning of the trial and provided the instructions in
written form at the end, when the instructions are considered as a whole, there is no reason to believe that the court’s
“minor departure from the procedures set forth in ORCP 58
and 59” had any effect on the verdict.
         The trial court characterized the instructions in
question, including the presumption of innocence and reasonable doubt, as “procedural.” However, “[t]he presumption
of innocence is not a mere form, but a substantial part of the
law, that remains with the defendant from the beginning
of the trial until a verdict is found.” State v. Rosasco, 

, 

 (1922). “[P]roof of a criminal charge
beyond a reasonable doubt is constitutionally required.” In
re Winship, 

, 

, 

(1970). It is important “in our free society that every individual going about his ordinary affairs have confidence that
his government cannot adjudge him guilty of a criminal
offense without convincing a proper factfinder of his guilt
with utmost certainty.” 

.
        Providing instructions orally serves specific and
indispensable functions that providing written instructions
cannot. Because of the jury’s critical role, “[i]t is essential
to the administration of justice that a jury scrupulously follow the law as given to it by the judge, and to that end his
instructions should be clear and firmly fixed in the mind of
each juror.” United States v. Becerra, 

 (9th
Cir 2019) (quoting Babson v. United States, 330 F2d 662, 666
(9th Cir 1964)). “Since before the founding of our Republic,
courts have universally met the need to educate jurors
by orally advising jurors” for multiple “excellent reasons.”
Becerra, 

. Some jurors may not adequately
understand written instructions, and
   “many of us at times succumb to the temptation to glaze
   over a long paragraph of text or flip over a few pages of a
   lengthy stack of papers. When the instructions are read
   orally, tonal inflection can make the content of the instructions more accessible, as well as discourage the ‘tuning out’
   common when reading dense material. Oral instruction in
   the formal courtroom setting thus assures that jurors are
   exposed to the substance of the essential instructions by at
   least one sensual route.
372                                                 State v. Shine

      “The oral charge also performs a second, signaling
   function that cannot be replaced by a printout or a pamphlet. Jury instructions are not the judicial equivalent of a
   car manual or a cookbook. When an enrobed judge orally
   charges the jury, the jurors are impressed with the fact
   that they have been entrusted with the power to decide the
   defendant’s fate. This oral, public ritual helps ensure that
   jurors recognize the enormity of their task and take that
   task seriously. …
      “For these reasons, the historic practice of oral jury
   instruction remains central to the fairness of jury trials.
   That conclusion does not mean that procedures for instructing juries have remained static—or should. Additions to
   oral instructions have enhanced the likelihood that jury
   instructions will effectively communicate to jurors the
   legal principles governing their critical task. …. But even
   as the exact form of a trial court’s jury charge has evolved,
   there has always been a bedrock recognition that the trial
   court must orally charge the jury before deliberations
   commence.”

 (internal citations and quotation marks
omitted).
         Here, we cannot say that the error had little likelihood of affecting the verdict, nor that the written instructions and preliminary instructions remedied the error when
considered as a whole. When providing its precautionary
instructions, the trial court recognized the importance and
impact of providing instructions in both written and oral
form for effective communication when it told the jury: “As
I read through these instructions, you’re welcome to read
along to yourself. You’re welcome to just listen. However you
process the information.” Eight days later, when discussing final instructions with the parties, the trial court recognized that the length of the trial may have affected the
jury’s knowledge of the instructions, stating “I am going to
attach the first five pages that I gave them before, because—
it’s been two weeks.” Both attorneys, who were undoubtably
more familiar with those instructions than the jury, also
needed to refresh their memories on which instructions had
been given at the beginning of the trial, with the prosecuting attorney requesting, “Can you review for us which are
included in those first five [pages]? Like the—the kind of
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generalized instruction?” At the close of evidence, the trial
court provided the final instructions and again invited the
jury: “So same rules apply as I read through this second set
of instructions. You can read along silently with yourself,
you can just listen, however you process the information.”
         As the Supreme Court has recognized, “[r]esearch
shows that people tend to remember best, and be influenced
most, by the latest event in a sequence.” State v. Chitwood,

, 

 (2022). Here, the final instructions read to the jury, eight days after the preliminary
instructions, did not communicate all of the information
fundamental to the fairness of our criminal justice system.
Rather, the jury, to the extent that it remembered them,
was left with the impression that those instructions, including the presumption of innocence, proof beyond a reasonable doubt, and defendant not testifying, are not important
enough to be impressed upon it again. The jury was sent to
deliberate without the instructions most foundational to a
defendant’s rights “firmly fixed in the mind of each juror.”
Becerra, 

.
         In effect, the trial court recognized and accepted a
legitimate risk that individual jurors would not remember,
understand, and apply the basic constitutional principles
that underlie a defendant’s rights in our criminal justice
system based upon their individual method of processing
information.5 To find this error harmless would dilute the
public’s confidence that their “government cannot adjudge
[them] guilty of a criminal offense without convincing a
proper factfinder of [their] guilt with utmost certainty.” In re
Winship, 

. We will not do so.
         In sum, the trial court erred when it did not read
aloud all of the final instructions to the jury as required by
ORCP 59 B. That error is not harmless because, although
the court read the instructions aloud at the very beginning
of the trial and then provided them in writing, substantial
time had passed, and—as ORCP 59 B recognizes—written

    5
      Even were written instructions sufficient, the trial court did not provide
any time for the jury to reread those instructions before closing arguments and
immediately began reading definitions of terms included in the charges for sexual crimes.
374                                            State v. Shine

instructions are not a substitute for oral instructions. In
light of the extreme importance and fundamental constitutional basis of the legal principles at issue specifically to a
criminal defendant, and the reality of recency bias, there
was more than “little likelihood” that the error affected the
jury’s verdict, and that defendant was prejudiced. Davis,

.
        Reversed and remanded.