No. 851 October 1, 2025 695
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BENJAMIN SINYELLA KING,
aka Benjamin King, aka Benjamin S. King,
Defendant-Appellant.
Multnomah County Circuit Court
22CR60769; A183043
Angela F. Lucero, Judge.
Submitted September 8, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
AOYAGI, P. J.
Affirmed.
696 State v. King
AOYAGI, P. J.
Defendant was involved in a road rage incident that
led to his being convicted of attempted fourth-degree assault,
ORS 163.160, harassment, ORS 166.065, and second-degree
disorderly conduct, ORS 166.025. He raises three assignments of error on appeal, all relating to the initial-aggressor
limitation on self-defense and defense of others. In his first
two assignments of error, defendant contends that the trial
court erred in overruling two objections that he made to a
question calling for a legal conclusion. In his third assignment of error, defendant argues that the trial court erred
in refusing to instruct the jury on the meaning of “initial
aggressor.” We conclude that the trial court did not err in
the claimed respects and, accordingly, affirm.
FACTS
Defendant’s mother, King, cut off C while changing
lanes in her van. C had to slam on the brakes, causing his
little dog to hit the dashboard. C was very upset and, at
the next stoplight, pulled beside the van and yelled at King.
Defendant got out of the van, and a physical altercation
ensued between him and C. The state subsequently charged
defendant with various crimes, and he raised self-defense
and defense of another. At trial, the state’s witnesses were
C, a police officer, and six eyewitnesses. King and a character witness testified for the defense.
C’s version of events was that, when he pulled alongside the van at the stoplight, he rolled down his window and
yelled at King, including cursing at her and telling her that
she almost killed him. Defendant then emerged from the
back of the van and began punching C through C’s open window. C tried to get defendant off him but could not do so.
As defendant continued punching, C accelerated through the
intersection, with defendant initially hanging onto C’s vehicle and eventually being flung to the ground in the intersection. The testimony of the state’s eyewitnesses was generally
consistent with C’s testimony. Some thought that defendant
and C exchanged words before defendant started punching
C, but all agreed that C had remained in the vehicle throughout, and that defendant was the only one punching. Some
Cite as 343 Or App 695 (2025) 697
saw C grabbing at defendant’s arm or hair (defendant had
long hair), but only after he started punching C, and one witness specifically testified that C’s arm movements appeared
defensive.
Defendant’s version of events was relayed through
the testimony of a police officer and King. The police officer
testified that, when she spoke with defendant at the hospital, he told her that C had threatened to kill King, and he
claimed to have punched C only after C grabbed defendant’s
hair and started driving. For her part, King testified that
C had yelled at her at the stoplight, including telling her to
“pull over and get out” and that “I will kill you.” King heard
defendant say, “not today,” then defendant got out of the van.
King testified that she saw the driver’s door of C’s vehicle
open “four or five inches,” defendant pushed it closed, C tried
to open it again, and defendant pushed it closed again. Then
there was a struggle between defendant and C, but King
could not see exactly what happened.
The jury convicted defendant of attempted fourth-degree assault, harassment, and second-degree disorderly
conduct. It acquitted him on other charges.
EVIDENTIARY RULINGS
The first two assignments of error pertain to related
questions that the prosecutor asked two eyewitnesses,
Garris and Higham, over defendant’s objections.
After Garris described what she had seen, the
prosecutor asked whether, from her vantage point, the person in the vehicle or the other person was “the aggressor.”
Defendant objected that the question called for a legal conclusion. The trial court overruled the objection, stating that
Garris could “testify as to what her observations were.”
The prosecutor then re-asked the question, rephrasing it in
the process, such that the question actually answered was
which person was “more aggressive”:
“[PROSECUTOR]: From your vantage point, could you
see which person was being more aggressive towards the
other person?
698 State v. King
“[GARRIS]: Yes. The person outside the vehicle was
definitely more aggressive and had the ability to be more
aggressive.
“[PROSECUTOR]: “Why do you say he had the ability to
be more aggressive? …
“[GARRIS]: There was no way to—I’ve been hit through a
car window, and there is no way to really avoid that, other
than driving away. And potentially running the person
over.”
As for Higham, he had seen the entire incident,
except for the initial lane change, and he testified in detail
to what he saw. The prosecutor then asked Higham, “Based
on your observations, who was the initial physical aggressor?” Defendant objected that the question called for a legal
conclusion. The court overruled the objection. Higham
answered, “Defendant.” The prosecutor asked, “Are you certain?” Higham answered, “Yes.”
On appeal, defendant contends that it was error to
overrule his objections. He points out that he had raised the
defenses of self-defense and defense of another and that the
state was relying on the initial-aggressor limitation to try to
prove that those defenses did not apply. Defendant asserts
that whether he was the initial aggressor was therefore
“a fact the jury had to find,” and that Garris and Higham
should not have been allowed to give lay opinion testimony
regarding “a legal conclusion reserved for the jury.” The state
counters that Garris and Higham could give lay opinion testimony based on their personal observations of the incident.
Reviewing for abuse of discretion, State v. Brannan, 332 Or
App 36, 38,
549 P3d 19 (2024), we agree with the state.
OEC 701 allows a lay witness to testify to “opinions
or inferences” that are “[r]ationally based on the perception of
the witness” and “[h]elpful to a clear understanding of testimony of the witness or the determination of a fact in issue.”
The rule “adopts a liberal standard for the admissibility of lay
opinions” under which a lay witness may “testify as to what
he has perceived by using a ‘shorthand’ description which in
reality is an opinion.” State v. Lerch, 296 Or 377, 383,
677 P2d
678 (1984). That the opinion “embraces an ultimate issue to
be decided by the trier of fact” does not affect its admissibility.
Cite as
343 Or App 695 (2025) 699
OEC 704 (“Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact.”); State v.
Wright,
323 Or 8, 17,
913 P2d 321 (1996) (recognizing same).
In this case, defendant claimed to have acted in self-defense or defense of King. Generally, “a person is justified
in using physical force upon another person for self-defense
or to defend a third person from what 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. However, a limitation on that defense is that a
person “is not justified in using physical force upon another
person if … [t]he person is the initial aggressor”—subject
to an exception for clear withdrawal that is not at issue in
this case. ORS 161.215(1)(b). If a defendant raises defense of
self or others, it is the state’s burden to disprove the defense
beyond a reasonable doubt. ORS 161.055(1).
Thus, as here, the state may seek to disprove that
a defendant acted in self-defense or defense of another by
proving that the defendant was the initial aggressor. “The
term ‘aggressor’ has long been a legal term of art used with
the criminal defense of self-defense.” State v. Phillips, 313
Or App 1, 5,
493 P3d 548, rev den,
368 Or 788 (2021). It
refers to the first person to engage in an overt act of hostility, such as slapping or striking a person, Silfast v. Matheny,
171 Or 1, 10,
136 P2d 260 (1943), or spitting in a person’s
face, Phillips,
313 Or App at 6-7. It does not refer to mere verbal provocation—”provocation by mere words, if unaccompanied by any overt act of hostility, will not justify an assault.”
Penn v. Henderson,
174 Or 1, 14,
146 P2d 760 (1944); see also
Phillips,
313 Or App at 6 (reiterating same).
To prove that defendant was the initial aggressor, the
state asked each of its witnesses to describe the incident as
they experienced or witnessed it, including asking Garris her
opinion as to which person was “more aggressive” and asking
Higham his opinion as to which person was the “initial physical aggressor.” Those questions were not improper. Although
the meaning of “initial aggressor” in ORS 161.215(1)(b) is a
question of statutory construction and thus one of law—such
700 State v. King
that it may be the appropriate subject of a jury instruction—
who the initial aggressor was in a particular situation is
ultimately a question of fact for the jury to decide based on
evidence. See Phillips, 313 Or App at 5 (considering whether
the evidence was sufficient to support “a jury finding” that
the defendant was the “initial aggressor”). The jury in this
case therefore needed to make a factual finding as to whether
defendant was the initial aggressor. Higham’s testimony
that, based on what he saw, defendant was the “initial physical aggressor” went directly to that ultimate issue of fact, but,
per OEC 704, that did not make it inadmissible. The same
is true of Garris’s testimony that defendant was the “more
aggressive” of the two men, which does not even go directly to
who the initial aggressor was.
Importantly, neither Higham nor Garris were asked
to opine on the law, which would be impermissible. We have
previously held, for example, that a trial court properly
excluded a sheriff’s deputy from giving expert testimony
“as to what constitutes a violation of” a particular statute,
because such testimony “would be more of a legal interpretation than a factual interpretation,” and the proper construction of a statutory term “was a matter of law for the court to
determine and to instruct the jury [on]—as, indeed, it did.”
Stokes v. Lundeen, 168 Or App 430, 441,
7 P3d 586, rev den,
331 Or 283 (2000) (internal quotation marks omitted); see
also Laird C. Kirkpatrick, Oregon Evidence, 648 (7th ed
2020) (“In general, questions of law are for the court and are
not a proper subject for expert testimony to the jury.”). Here,
the prosecutor did not ask the witnesses to opine on the
meaning of “initial aggressor” in ORS 161.215(1)(b), nor did
he ask them to offer any legal conclusion as to whether defendant met that definition. He instead asked only whom they
perceived to be the “initial physical aggressor” or the “more
aggressive” participant, based on what they saw, without
tying those questions to any legal definition. It was up to the
jury to consider all of the evidence, including that testimony,
in deciding whether defendant was the “initial aggressor,” as
they understood that term after receiving their instructions.
The trial court did not abuse its discretion in overruling defendant’s evidentiary objections.
Cite as 343 Or App 695 (2025) 701
“INITIAL AGGRESSOR” INSTRUCTION
We next consider defendant’s third assignment of
error, in which he argues that the trial court erred in failing to instruct the jury on the meaning of “initial aggressor.”
Defendant requested an instruction on the meaning of that
term, but the trial court declined to give it. Later, during deliberations, the jury expressly sought guidance from the court on
that issue, sending out a note that asked, “What [does] the
law state about being initial aggressor?” The court declined to
answer; it told the jurors that they had received “all of the jury
instructions regarding the law they will receive in this case.”
Defendant argues that the jury could not reach a
proper verdict without an instruction on the meaning of
“initial aggressor,” because a basic understanding of that
legal term of art was necessary to the jury’s task. See State
v. Brown, 310 Or 347, 355,
800 P2d 259 (1990) (“The court
generally must instruct on all essential elements of the
crime charged.”); State v. Bistrika,
261 Or App 710, 728,
322
P3d 583, rev den,
356 Or 397 (2014), cert den,
577 US 828
(2015) (giving “an incomplete and thus inaccurate legal rule
to apply to the facts” is one form of instructional error (internal quotation marks omitted)). The state disagrees. It argues
that the trial court did not err in refusing to give defendant’s requested instruction, as that instruction contained
an inaccuracy that made it more favorable to the state than
it should have been, and that the court itself had no obligation to instruct the jury on the meaning of “initial aggressor” without a correct instruction offered by defendant.
The Supreme Court recently held in State v. Worsham,
373 Or 739, 741,
571 P3d 759 (2025), that, in a criminal case in
which self-defense and the initial-aggressor limitation are at
issue, it is not plain error not to give a jury instruction on the
meaning of “initial aggressor” if none is requested. The court
identified two categories of instructional error—affirmative
errors (errors “in giving an instruction”) and errors of omission (errors “in failing to give an instruction”)—and explained
that “it is generally impossible for a trial court’s failure to give
an unrequested custom supplemental instruction to qualify
as plain error,” at least absent a uniform instruction on the
issue, because there is no proposed instructional language to
702 State v. King
assess for correctness.1 Id. at 746, 748 (emphasis in original).
As we understand it, the holding of Worsham is deeply rooted
in the limitations of plain-error review. We do not understand
it to suggest that a trial court may refuse to give a legally
correct instruction on the meaning of “initial aggressor” if
one is requested. As noted in Worsham, parties are generally
“entitled to have a supplemental instruction given when the
existing instructions, read as a whole, do not fully cover a
necessary legal point, and when the requested supplemental
instruction is legally correct in all respects and supported by
the evidence.” Id. at 748 (internal citation omitted).
In this case, unlike in Worsham, defendant did
request an instruction on the meaning of “initial aggressor.”
The problem for defendant is that the instruction he requested
was not quite right. It stated, “ ‘Initial aggressor’ means the
first person to use hostile physical force or to threaten the
use of hostile physical force.” (Emphasis added.) But a mere
threat of hostile physical force is not enough to make someone the initial aggressor—it must be accompanied by an
overt act of hostility. Penn, 174 Or at 14. We therefore cannot
say that the requested instruction was “legally correct in all
respects.” Worsham,
373 Or at 748. It follows that there is no
reversible error. The trial court was not required to give the
requested instruction, because it was legally incorrect (albeit
in a way more favorable to the state than defendant), and the
trial court itself had no obligation to sua sponte give a correct
instruction, per the Supreme Court’s decision in Worsham.
Defendant’s third assignment of error therefore fails.
Affirmed.
1
The Supreme Court has long made clear that, although uniform instructions are a useful tool for the bench and bar, they carry no legal weight. See State
v. Lopez-Minjarez, 350 Or 576, 583 n 4,
260 P3d 439 (2011) (“The fact that the erroneous instruction is part of the Uniform Criminal Jury Instructions, of course,
is inconsequential in the analysis. Those uniform instructions are drafted by a
committee of members of the Oregon State Bar and are not themselves the law.
They instead are a salutary effort on the part of legal practitioners in Oregon to
state the law in a correct way that is helpful to jurors. As this case demonstrates,
that effort does not always succeed.”). Under Worsham, however, the existence of
a uniform instruction may be relevant in deciding whether a trial court committed plain error in failing to give a necessary-but-unrequested instruction. See
Worsham,
373 Or at 748. We note that there is presently no uniform instruction
on the meaning of “initial aggressor.” See UCrJI 1110 (2024) (uniform instruction
on “use of physical force in defense of person—aggression”).
