State v. Ramoz

                                       670

    Argued and submitted September 18, 2020; decision of Court of Appeals
           reversed, order of circuit court affirmed March 17, 2021


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                  TALON DUANE RAMOZ,
                    Petitioner on Review.
          (CC 15CR47950) (CA A163802) (SC S067290)
                                    

     Following a jury trial at which defendant was found guilty of two counts
of first-degree rape and two counts of first-degree unlawful sexual penetration, defendant moved for a new trial under ORCP 64 B(1). Defendant argued
that, due to a mistake or clerical error, the jury instructions had not included
the mens rea element to each of the charged crimes—that defendant acted
knowingly—and that the omission had prevented defendant from having a fair
trial. The trial court agreed and granted the motion. The state appealed, arguing that an instructional error is a legal error to which defendant was required
to object during trial and that defendant was not prevented from having a fair
trial because the instructional error in this case was harmless. Held: (1) Because
the omission in the instructions was an “irregularity in the proceedings of the
court” under ORCP 64 B(1), defendant was not required to object to, or except to,
the error in the jury instructions, instead, the moving party’s failure to object
was a factor the trial court may consider when deciding whether to exercise its
discretion to grant a new trial; (2) a trial court’s determination that an error is
not harmless is reviewed for legal error; and (3) the instructional error in this
case was not harmless.
     The decision of the Court of Appeals is reversed. The order of the circuit court
is affirmed.



    En Banc
    On review from the Court of Appeals.*
   Anne Fujita Munsey, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
   Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
______________
    * On appeal from Jackson County Circuit Court, Timothy Barnack, Judge.

, 

 (2019).
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review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   Kathryn H. Clarke, Portland, filed the brief for amicus
curiae Oregon Trial Lawyers Association.
  WALTERS, C. J.
   The decision of the Court of Appeals is reversed. The
order of the circuit court is affirmed.
672                                                          State v. Ramoz

           WALTERS, C. J.,
           Defendant was charged with two counts of first-degree rape and two counts of first-degree unlawful sexual
penetration. When it came time to instruct the jury on those
charges, defendant and the state both requested instructions that they expected would correspond to those set out
in the Uniform Criminal Jury Instructions. The final jury
instructions did not, however, correspond with those uniform instructions; instead, the instructions omitted, in the
list of elements the state was required to prove, the mens rea
elements—that defendant had acted knowingly. Defendant
was found guilty on all counts but moved for a new trial
under ORCP 64 B(1), alleging that the omission in the
instructions was an “[i]rregularity in the proceedings of the
court” that prevented him from having a fair trial. The trial
court granted defendant’s motion, and the state appealed. In
a divided, en banc decision, the Court of Appeals reversed.
State v. Ramoz, 

, 

 (2019). For
the reasons that follow, we conclude that the trial court did
not err in ordering a new trial and reverse the decision of
the Court of Appeals.
                           I. BACKGROUND
         The indictment alleged two counts each of both
first-degree rape under ORS 163.375(1)(d) and first-degree
unlawful sexual penetration under ORS 163.411(1)(c). One
count of each crime alleged that the victim was “incapable
of consent by reason of mental incapacitation,” and the other
count of each crime alleged that the victim was “incapable of consent by reason of physical helplessness.” Thus, to
prove that defendant was guilty of first-degree rape under
ORS 163.375(1)(d), the state had to prove that defendant
knowingly1 had “sexual intercourse” with the victim and
    1
      The minimum culpable mental state for conduct elements is “knowingly” or
“with knowledge.” See ORS 161.085(7) - (10) (defining “intentionally,” “knowingly,”
“recklessly,” and “criminal negligence” mental states). But the “knowingly” mental state does not apply to the element that the victim was “incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.”
Where the state’s theory is that the victim was unable to consent because the
victim “is mentally defective, mentally incapacitated or physically helpless, it is
an affirmative defense for the defendant to prove that at the time of the alleged
offense the defendant did not know of the facts or conditions responsible for the
victim’s incapacity to consent.” ORS 163.325(3).
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that she was “incapable of consent by reason of … mental
incapacitation or physical helplessness.” To prove that defendant was guilty of first-degree unlawful sexual penetration
under ORS 163.411(1)(c), the state had to prove that defendant knowingly “penetrate[d]” the victim’s vagina with his
finger and “[t]he victim [was] incapable of consent by reason
of … mental incapacitation or physical helplessness.”
         Defendant was tried by jury. The evidence showed
that the victim went to the house of Werner, a friend of
both the victim and defendant. While there, the victim consumed champagne and Xanax, eventually “pass[ing] out” on
Werner’s bed. The victim does not drink often, but on the
night in question she drank an entire bottle of champagne
and consumed about five or six of Werner’s Xanax pills. The
victim felt a “body high” during which she “couldn’t move
anymore.” She testified that, at some point, she heard defendant enter Werner’s apartment and Werner offer defendant
a glass of champagne with Xanax. She fell back asleep, later
waking up to someone “slapping [her] butt,” but she still
could not move. She was too intoxicated to “put it together.”
Instead, she was simply perceiving that someone had taken
her leggings off and that defendant was trying to kiss her.
She tried to swing her hand through the air, and in doing,
so, realized that her shirt had been taken off. She perceived
defendant crawl into the bed with her and put his fingers
in her vagina. She did not want him to do that, but she was
unable to respond. Eventually, due to the pain she felt after
defendant began having sex with her, she regained more
consciousness. She began crying, slipped off of the bed,
grabbed her keys and phone (but left her shoes), and ran
home. Werner’s neighbor, Harrop, who was a friend of defendant’s, testified that, after the victim ran home crying, he
asked defendant what had happened, and defendant admitted having sex with the victim and penetrating her vagina
with his fingers. When asked whether defendant was intoxicated when Harrop had spoken with him, Harrop recalled
that defendant was “buzzed.”
        Defendant called a single witness—Meneely—who
was qualified as an expert in the field of forensic toxicology. Meneely testified that Xanax was a sedative, and, when
mixed with alcohol, it is “severely sedating.” Defendant
674                                           State v. Ramoz

asked whether a person would still be conscious if a person
drank an entire bottle of champagne and then took five to
six Xanax pills, and Meneely answered, “no.” Meneely also
stated that a person who had consumed that amount of alcohol and Xanax would not be able to remember what had
happened because sedating medications like Xanax block
the formation of memory proteins. Additionally, Meneely
concluded that, if a person had consumed as much Xanax
and alcohol as the victim testified that she had consumed,
the person would not be able to wake up due to “slapping on
the buttocks” or “painful sexual intercourse.” Meneely testified that, although someone extremely sedated would likely
not be able to move, it is possible that the person could perceive what is going on around them.
         Before closing arguments, the parties submitted jury instructions. Both parties requested the Uniform
Criminal Jury Instructions (uniform instructions) defining the crimes of first-degree rape and first-degree unlawful sexual penetration, as well as the uniform instructions
defining the terms “knowingly,” “mentally incapacitated,”
“incapacity to consent,” “physically helpless,” and “ignorance or mistake as a defense to sexual offenses.” Defendant
requested those instructions by referring to the number corresponding to the relevant uniform instruction. The state
submitted typed instructions that were purportedly identical to the relevant uniform instructions. The parties and the
court discussed the instructions but did so off the record.
         When the court instructed the jury, it did not give
instructions that corresponded with the uniform instructions defining the crimes of first-degree rape and unlawful
sexual penetration in all respects. The first sentences of the
court’s instructions were identical to the first sentences of
the uniform instructions. They defined the charged crimes
and informed the jury that the law provides that a person
commits the charged crimes if the person “knowingly” commits the charged acts. The next part of the court’s instructions departed from the uniform instructions. The uniform
instructions list all of the elements that the state must
prove beyond a reasonable doubt, including that defendant
acted knowingly; the court’s instructions did not inform the
jury that the state must prove defendant’s mental state.
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Specifically, instead of informing the jury that the state must
prove that defendant “knowingly had sexual intercourse,”
the court told the jury that the state must prove that defendant “had sexual intercourse,” and instead of informing the
jury that the state must prove that defendant “knowingly
penetrated the vagina of [the victim] with an object other
than his penis or mouth,” the court told the jury that the
state must prove that defendant “penetrated the vagina of
[the victim] with an object other than his penis or mouth.”2
The trial court read those instructions to the jury and provided the jury with written copies to use during deliberation.
Neither party objected. The trial court also instructed the
jury that, if it found that defendant was voluntarily intoxicated, it could consider that fact in determining whether
defendant acted with the requisite mental state.
         After the trial court instructed the jury, the parties presented their closing arguments. The jury retired
and found defendant guilty of all charges. On September 30,
2016, the trial court held a sentencing hearing, and, on
October 5, 2016, it entered a judgment of conviction.
    2
       For example, the court’s instructions on Count 1 stated:
          “Oregon law provides that a person commits the crime of rape in the first
     degree if the person knowingly has sexual intercourse with another person
     and is incapable of consent by reason of physical helplessness. In this case, to
     establish the crime of rape in the first degree (count 1), the state must prove
     beyond a reasonable doubt the following elements:
          “(1) The act occurred on or about October 24, 2015;
          “(2) Talon Duane Ramoz had sexual intercourse with [the victim]; and
          “(3) [The victim] was incapable of consent by reason of physical
     helplessness.”
     If the instructions had matched the Uniform Criminal Jury Instruction for
first-degree rape, however, the instructions would have stated:
          “Oregon law provides that a person commits the crime of rape in the
     first degree if the person knowingly has sexual intercourse with another
     person and the other person was incapable of consent by reason of physical
     helplessness.
          “In this case, to establish the crime of rape in the first degree, the state
     must prove beyond a reasonable doubt the following elements:
          “(1) The act occurred on or about October 24, 2015;
          “(2) Talon Duane Ramoz knowingly had sexual intercourse with [the victim]; and
          “(3) [The victim] was incapable of consent by reason of physical
     helplessness.”
UCrJI 1603 (emphasis added).
676                                                           State v. Ramoz

          Meanwhile, on September 29, defendant filed a
motion for a new trial citing, as the basis for the motion,
ORCP 64 B(1).3 Defendant asserted that the jury instructions setting out the elements of first-degree rape and
first-degree unlawful sexual penetration “were submitted
to the jury without the mental state, effectively making
the charges strict liability offenses.” That omission, defendant argued, prevented him from receiving a fair trial.
Defendant also submitted a sworn affidavit from his trial
counsel, who stated that “[t]he state submitted jury instructions that included the appropriate mental state, to which I
stipulated.” (Emphasis in original.) The affidavit explained
that, “due to a typographical clerk error, the final version of
the jury instructions did not include the mental state.”
          The court held a hearing on that motion on
November 16, 2016. At the hearing, defendant asserted
that the erroneous instructions were given as a result of a
“clerical error,” that was “no one’s fault.” Defendant recalled
that the state and defendant had both submitted requests
for jury instructions, that the state had submitted written instructions, and that the parties and the court had
discussed the jury instructions off the record. Defendant
acknowledged that, in that conversation, he had stipulated
to the state’s instructions, but he asserted that the state’s
instructions had “complied with the uniform criminal jury
instructions.” Defendant declared that, “[f]or whatever reason when the jury instructions … were given back to us
… the words ‘knowingly on all four Counts’ were omitted.”
Defendant asserted that that omission constituted “obvious
plain error,” and asked the court to “take care of this before
it has to head up to the Court of Appeals.”
          In response, the state did not take the position
that the court’s instructions were legally correct or that
they corresponded to the instructions that either party had
requested. Instead, the state countered that the proper way
to remedy an error in jury instructions was on appeal and
     3
       ORS 136.535(1) provides, in relevant part, that “ORCP 64 A, B, and D to G
apply to and regulate new trials in criminal actions.”
     Defendant also moved for a new trial under ORCP 64 B(5), based on the
“[i]nsufficiency of the evidence to justify the verdict.” Defendant’s arguments concerning the sufficiency of the evidence are not before this court.
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that what had occurred was not an irregularity as contemplated by ORCP 64 B(1). In addition, the state asserted that
nobody “who heard this trial had any … doubts about what
was going on in terms of [defendant’s] state of mind” because
defendant had admitted to the investigating officer that he
had had sex with the victim; defendant’s defense was that
it had been consensual. According to the state, based on the
evidence at trial, “[no] member of that jury could’ve thought;
oh well, I don’t know if he did this knowingly but the …
rules don’t say that he … has to have done it knowingly so
I’ll find him guilty.” The state therefore concluded that an
appellate court would consider any error to be harmless and
argued that the state should have a chance to make that
point on appeal.
         The trial court rejected the state’s argument and
granted defendant’s motion. The court described the omission in the jury instructions as “plain error,” and expressed
concerns with the efficiency of waiting for an appeal when,
in its view, the Court of Appeals would ultimately reverse
the outcome. The court said that it did not “need the Court
of Appeals to tell me I made a mistake.” The court found
that it was responsible for reviewing the instructions to
determine that they were correct and for the content of the
instructions that it gave. In response to the state’s argument about the extent to which the mistaken instructions
tended to affect the outcome of the trial, the court reasoned
that, because “there was a lot of alcohol involved, … a lot of
Xanax,” the word “knowingly” was essential to the instructions. The court reflected that it could be that the jury was
not confused by the instructions and instead “gloss[ed] over”
the mistake, but, the court said, that was “not something
we should ever decide. We just need to give them the correct
instructions and let them make those calls.”
        The state appealed. In the Court of Appeals, the
state did not argue that what occurred did not constitute
an “irregularity” as that term is used in ORCP 64 B(1).
Instead, the state argued that regardless of whether what
had occurred was an “irregularity,” ORCP 64 B(1) did not
give the trial court authority to order a new trial because
the error was committed “openly on the record”—so defendant was aware of it and could have objected, but he did
678                                             State v. Ramoz

not do so. The state argued that in Maulding v. Clackamas
County, 

, 

 (1977), this court held that,
for such an error to constitute grounds for a new trial, a
party must object. Similarly, the state argued that, in State
v. Langley, 

, 

, cert den, 

, 

, 

 (1958), this court explained
that “the rule is that when a party having knowledge of an
error or an irregularity during the trial fails to call it to the
attention of the court and remains silent, speculating on the
result, he is deemed to have waived the error.” The state
contended that, “for purposes of ORCP 64 B(1), an ‘irregularity in the proceedings’ ” may warrant a new trial only in
instances involving “an alleged error that did not occur on
the record and the moving party was not otherwise aware
of it during trial, and hence was not in a position to raise an
objection before verdict.”
         The state also argued that, even if ORCP 64 B(1)
could provide a basis for a new trial, the trial court’s order
should nevertheless be reversed because any error in the
instructions was harmless error. The state asserted that
the trial court’s instructions were only partially incomplete
and that defendant had never denied that he committed the
actus reus of the charged crimes.
         Defendant disputed both the legal and factual premises of the state’s argument. He contended that Maulding
did not control because it was decided based on the predecessor statutes to ORCP 64 B(6) and ORCP 64 G and did
not address the predecessor to ORCP 64 B(1), the section
of the rule on which he was relying. On the factual question of whether defendant was aware of the error, defendant
pointed out that the trial court had implicitly decided that
question against the state.
         Defendant also pointed out an additional fact.
Defendant noted that, contrary to defense counsel’s affidavit below, the state’s typed instructions were not identical to
the uniform instructions. The state’s typed instructions for
the first-degree rape charges matched the uniform instructions for that crime in all respects, but the state’s typed
instructions for the first-degree unlawful sexual penetration charges did not. The state’s instructions on that crime
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defined the crime as one in which the defendant must act
“knowingly,” but omitted that requirement in the itemized
list of elements that the state must prove. Then, when the
trial court actually instructed the jury, the court not only
repeated the error in the typed instructions, the court also
compounded that error: When listing the elements that the
state must prove, the court omitted the mens rea element for
both the rape and the unlawful sexual penetration crimes.
Defendant argued that the fact that defense counsel had
incorrectly related the facts in the earlier affidavit was evidence that defendant had been unaware of the “irregularity” when it occurred.
          Finally, in response to the state’s argument that
any error in instructing the jury was harmless, defendant
asserted that the failure to instruct the jury on an element
of the crime is never harmless, nor can an error in the
instructions concerning an element of the crime charged be
cured by the instructions as a whole. See State v. Brown, 

, 

 (1990) (explaining that, where jury
instructions did not tell the jury it needed to find causation
element, “neither the sufficiency of the evidence nor the completeness of counsel’s arguments concerning that evidence
is a substitute for the sufficiency of the instructions”); State
v. Pierce, 

, 

 (2010) (where
portions of instructions added a theory of crime that was not
charged in the indictment, the fact that other portions of the
instructions were correct did not render the error harmless).
Furthermore, defendant argued, the court should defer to the
trial court’s findings regarding whether the error was harmless. See Highway Com. v. Kromwall, 

,

 (1961) (because the trial court was “familiar
with the atmosphere of the trial and the issues produced by
the conflicts in the evidence,” this court deferred to the trial
court’s finding that the instructional error was harmless).
         In an en banc decision, the majority of the Court of
Appeals accepted the state’s argument that defendant was
required to object to the instructions at trial and reversed.
Ramoz, 

. The court framed the question as “whether a trial court may grant a motion for new
trial under ORCP 64 B(1) if the court provided jury instructions to which the parties stipulated and did not object, but
680                                            State v. Ramoz

the trial court later concludes, post-verdict, that the instructions mistakenly stated the law.” 

. To answer
that question, the court explained that it was required to
“determine the meaning of the phrase ‘irregularity in the
proceedings of the court’ in ORCP 64 B(1).” 

. The
court noted that the “precise” question presented, then, was
“whether an instructional error can be an irregularity in
the proceedings of the court under ORCP 64 B.” 

.
         The court began its analysis by noting that it was
an “unexceptional premise that when a trial court incorrectly instructs a jury, that is legal error.” 

. The
court noted that a party may move for a new trial under
ORCP 64 B(6) based on legal error, but that provision states
that the error must have been “ ‘objected to or excepted to
by the party making the application.’ ” 

 at 796 (quoting
ORCP 64 B(6) (emphasis omitted)). The court explained that
ORCP 64 B(6) would not have provided authority to grant
a new trial because, not only did defendant not “ ‘object to’
or ‘except to’ any of the instructions when they were read
aloud in court and provided to the jury,” but defendant also
“affirmatively stipulated to two of the instructions on the
unlawful penetration charges that were ultimately given to
the jury using the same text that defendant stipulated to.”

 The court noted that, “at least in this circumstance where
the party stipulated to some of the instructions and further
failed to object or except to all of the instructions, it would
render ORCP 64 B(6) meaningless to treat that type of error
as an irregularity in the proceeding under ORCP 64 B(1).”

 (emphasis in original).
          After determining that, if the facts of this case constituted an “irregularity in the proceedings” under ORCP 64
B(1), it would render ORCP 64 B(6) meaningless, the court
turned to the text of ORCP 64 B(1). 

. The court
explained that the phrase “irregularity in the proceedings
of the court” has been a part of Oregon civil procedure since
1862, so the court turned to dictionaries defining the phrase
during that time. 

. The phrase was defined as a
“ ‘[d]eviation from … any common or established rule’ or
‘deviation from method or order.’ ” 

 (quoting Noah Webster, 1
An American Dictionary of the English Language, unpaginated (1828) (alterations in Ramoz)). The court determined
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that, if a court provides an incorrect jury instruction, it is
not “deviating from an established rule, practice, or method
in the ‘proceedings of the court.’ ” Id. at 799. Instead, it is
“resolving a legal issue and then instructing the jury on the
law.” Id. Thus, the majority “decline[d] to adopt a construction of ‘irregularity of the proceedings’ under ORCP 64 B(1)
that would have the effect of opening the door for future litigants to seek a new trial for claimed instructional error that
they had either stipulated to or not objected or excepted to.”
Id. at 802. Because the majority concluded that what had
occurred was not an “irregularity in the proceedings,” the
court did not address the state’s argument that defendant
was not denied a fair trial because the error was harmless.
         Six judges dissented. Id. at 812. The dissent explained
that the majority incorrectly focused on defendant’s inattention to the erroneous jury instructions; the proper focus
of ORCP 64 B(1), the dissent explained, was on the court’s
actions and whether those actions were an “irregularity.” Id.
at 805 (Armstrong, J., dissenting). The dissent noted that the
trial court had recognized its failure to include a culpable
mental state in the instructions, and, the court explained,
from the trial court’s perspective, that was an irregularity.
Id. The dissent distinguished between what happened in
this case—a “scrivener’s” or “clerical” error—and errors that
result from the exercise of “judicial function”—the “normal
trial practice [of] announcing a … ruling on a legal question.” Id. at 806-10. Under that distinction, most instructional errors would not constitute “irregularities” under
ORCP 64 B(1) “because most instructional errors involve
an exercise of the judicial function.” Id. at 811. The dissent
explained that, because ORCP 64 B(1) was intended to give
trial courts authority to correct errors such as the one that
occurred in this case, it would have affirmed the trial court’s
decision. Id. at 811-12.
        Defendant sought, and we allowed, review.
            II. THE PARTIES’ ARGUMENTS
        On review, the parties’ arguments do not precisely
mirror the differing positions taken by the majority and
the dissent in the Court of Appeals. Consequently, rather
than setting out defendant’s objections to, and the state’s
682                                           State v. Ramoz

support for, the decision of that court, we find it more
helpful to set out the opposing positions presented in our
court.
         Here, the state argues that the trial court erred
in granting defendant’s motion for new trial for two reasons. First, the state contends that the trial court erred in
granting a new trial under ORCP 64 B(1) because, where a
claimed irregularity constitutes an “error in law,” ORCP 64
B(6), rather than ORCP 64 B(1), applies and is the exclusive
authority for an order permitting a new trial. ORCP 64 B(6)
provides a “cause” for a new trial based on an “[e]rror in law
occurring during trial,” but only when the party seeking the
new trial has “objected or excepted to” that error. The state’s
first argument thus goes as follows: The trial court committed “instructional error,” “instructional error” is an “error
in law,” an “error in law” can constitute a basis for a new
trial only if the moving party can demonstrate that he or
she objected or excepted to the error, and defendant did not
object or except to the court’s jury instructions. The state
contends, therefore, that properly framed, the first question
before us is whether a trial court has authority to grant a
new trial under ORCP 64 B(1) when the applicant could
have sought a new trial claiming an “error in law” under
ORCP 64 B(6), but would be precluded from relief under that
section because the applicant did not object or except to the
claimed error at trial. The state contends that the answer
is no, arguing that subsection (6) of ORCP 64 B is more specific than subsection (1) and therefore controls, that without
the imposition of a preservation requirement, subsection (1)
would swallow subsection (6) and render it meaningless,
and that this court already has decided that a trial court
is precluded from granting a new trial for instructional
error when the party seeking the order failed to object at
trial.
         The state’s second, alternative, argument is an
argument that the Court of Appeals did not reach. The state
contends that even if the trial court had authority to grant
defendant’s motion for new trial despite his failure to object
to its instructions, the trial court erred in granting defendant’s motion for new trial because the error was harmless.
The state explains that Article VII (Amended), section 3, of
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the Oregon Constitution sets a threshold that must be met
before a trial court can order a new trial and that a trial
court is precluded from ordering a new trial when the error
on which it relies constitutes harmless error. The state contends that, in this case, the irregularity on which the trial
court relied did not meet that threshold and that the trial
court erred in determining that it did.
         For his part, defendant takes a different view of
ORCP 64 B. Defendant begins by arguing that subsection (1)
of ORCP 64 B does not include a preservation requirement
and that the irregularity that occurred in this case should
be analyzed for compliance with that subsection and not for
compliance with the requirements of subsection (6). When
subsection (1) is invoked, defendant submits, the only limitation on a trial court’s authority is that the irregularity
must have prevented the moving party from having a fair
trial. Defendant acknowledges that, in making that determination, the Oregon Constitution requires a threshold
determination that the error on which the trial court relies
is prejudicial, but he argues that an appellate court must
“defer” to the trial court’s decision on that issue. In this
case, defendant asserts, we must defer to the trial court’s
determination that the irregularity which resulted in erroneous jury instructions was prejudicial, and we must conclude that the trial court had authority to grant defendant’s
motion.
                             III.    ANALYSIS
A.    Did defendant’s failure to object or except to court’s jury
      instructions bar the trial court from granting defendant’s
      motion for new trial?
        We begin our analysis with the state’s first argument, and, as is our practice, we also begin with the text
and context of ORCP 64 B, and its origins.4
    4
      “We interpret Oregon’s Rules of Civil Procedure in the same manner in
which we interpret Oregon’s statutes.” Waddill v. Anchor Hocking, Inc., 

, 

 (2000), adh’d to on recons, 

, 

 (2001).
When it comes to Oregon Rules of Civil Procedure, our aim is to determine the
intent of the Council on Court Procedures. 

 at 382 n 2 (explaining that, “unless
the legislature amended the rule at issue in a particular case in a manner that
affects the issues in that case, the Council’s intent governs the interpretation
of the rule”). With that in mind, when we interpret an Oregon Rule of Civil
684                                                         State v. Ramoz

        In 1854, Oregon adopted a law governing the
grounds for a new trial based on the law governing new trials in New York. The 1854 Oregon statute stated that:
       “The former verdict or other decision may be vacated
    and a new trial granted on the application of the party
    aggrieved for any of the following causes, materially affecting the substantial rights of such party:
        “1. Irregularity in the proceedings of the court, jury,
    or adverse party, or any order of the court, or abuse of discretion by which such party was prevented from having
    fair trial;
        “2.   Misconduct of the jury or prevailing party;
       “3. Accident or surprise which ordinary prudence
    could not have guarded against;
        “4. Newly discovered evidence, material for the party
    making the application, which he could not with reasonable
    diligence have discovered and produced at the trial;
      “5. Excessive damages, appearing to have been given
    under the influence of passion or prejudice;
        “6. Insufficiency of the evidence to justify the verdict
    or other decision, or that it is against law;
       “7. Error in law occurring at the trial, and excepted to
    by the party making the application.”
Statutes of Oregon, An Act to Regulate Proceedings in
Actions at Law in the Supreme and District Courts, ch 2,
tit VII, § 36, p 96 (1854).
        The rule has since remained largely unchanged.
For example, when the predecessor statutes to ORCP 64 B,
former ORS 17.610 and former ORS 17.630, were enacted
in 1953, those statutes mirrored the 1854 law. The first of

Procedure, we give primary weight to the text and context of the rule because
“there is no more persuasive evidence of intent of the [Council] than the words
by which the [Council] undertook to give expression to its wishes.” See State v.
Gaines, 

, 

 (2009) (internal quotation omitted). After
examining the text and context, we consider “pertinent legislative history that
a party may proffer.” 

. Finally, if the Council’s intent remains unclear
after examining the text, context, and legislative history, only then will this
court turn to general maxims of statutory construction. 

Cite as 

 (2021)                                     685

those statutes provided grounds for a party’s motion for a
new trial:
      “A former judgment may be set aside and a new trial
  granted on the motion of the party aggrieved for any of the
  following causes materially affecting the substantial rights
  of such party:
      “(1) Irregularity in the proceedings of the court, jury
  or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a
  fair trial.
     “(2)   Misconduct of the jury or prevailing party.
     “(3) Accident or surprise which ordinary prudence
  could not have guarded against.
      “(4) Newly discovered evidence, material for the party
  making the application, which he could not with reasonable
  diligence have discovered and produced at the trial.
    “(5) Excessive damages, appearing to have been given
  under the influence of passion or prejudice.
      “(6) Insufficiency of the evidence to justify the verdict
  or other decision, or that is against law.
      “(7) Error in law occurring at the trial, and excepted
  to by the party making the application.”
Former ORS 17.610 (1953). The second of those statutes set
out procedural requirements for a court to grant a new trial
on its own motion:
  “If a new trial is granted by the court on its own motion, the
  order shall so state and shall be made within 30 days after
  the filing of the judgment. Such order shall contain a statement setting forth fully the grounds upon which the order
  was made, which statement shall be a part of the record in
  the case. In event an appeal is taken from such an order,
  the order shall be affirmed only on grounds set forth in the
  order or because of reversible error affirmatively appearing
  in the record.”
Former ORS 17.630 (1953).
        Those statutes were eventually adopted as part of
the Oregon Rules of Civil Procedure, particularly as ORCP
64—former ORS 17.610 became ORCP 64 B, and former ORS
686                                                           State v. 

.630 became ORCP 64 G.5 The only major change that
occurred when those statutes were converted into ORCP 64
was that ORCP 64 B contained only six grounds for a new
trial—former ORS 17.610(5), which set out grounds for a
new trial based on excessive damages, was omitted.6 For our
purposes in this case, therefore, ORCP 64 B has remained
largely unchanged since the 1850s. ORCP 64 B provides, in
full:
       “A former judgment may be set aside and a new trial
    granted in an action where there has been a trial by jury on
    the motion of the party aggrieved for any of the following
    causes materially affecting the substantial rights of such
    party:
        “B(1) Irregularity in the proceedings of the court, jury
    or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having
    fair trial.
        “B(2) Misconduct of the jury or prevailing party.
       “B(3) Accident or surprise which ordinary prudence
    could not have guarded against.
       “B(4) Newly discovered evidence, material for the
    party making the application, which such party could not
    with reasonable diligence have discovered and produced at
    the trial.
       “B(5) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.
    5
      In fact, ORCP 64 as a whole is based on former statutes. The commentary
states:
        “This rule is based upon existing ORS sections. Section 64 A. is based
    on ORS 17.605. Section 64 B. is based on ORS 17.610. Section 64 C. is based
    on 17.435, but the language is modified to refer to a case tried without a jury
    rather than a suit in equity, and the last sentence is new. Sections 64 D. and
    E. are based on ORS 17.620 and 17.625. Section 64 F. is based on ORS 17.615.
    Section 64 G. is based on ORS 17.630[.] The last sentence of ORS 17.630 is not
    included and will remain as a statute as it relates to appellate procedure.”
See Oregon Rules of Civil Procedure, Promulgated by the Council on Court Procedures,
198-99 (Dec 2, 1978), counciloncourtprocedures.org/Content/Promulgations/
1978_original_ORCP_promulgation.pdf (accessed Mar 15, 2021) (comment to
ORCP 64).
    6
       From 1979, when the Oregon Rules of Civil Procedure were enacted, to
today, ORCP 64 was amended only once. In 2006, ORCP 64 F(2) was added, which
specifies the effect that a notice of appeal may have on a party’s motion for a new
trial.
Cite as 

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        “B(6) Error in law occurring at the trial and objected
    to or excepted to by the party making the application.”
ORCP 64 B.
          That longstanding text, considered with its context, gives rise to four observations. First, the authority
that ORCP 64 B(1) grants is very broad. It permits a trial
court to order a new trial in instances in which where there
was either an “irregularity in the proceedings of the court,
jury or adverse party,” or “any order of the court, or abuse of
discretion” that prevented the moving party from receiving
a fair trial. See D.C. Thompson and Co. v. Hauge, 

, 

 (1986) (noting that ORCP 64 B(1)
is divided into two subparts—the first part “inquires into
any ‘[i]rregularity in the proceedings of the court, jury or
adverse party’ ” and the second “asserts as grounds for a new
trial ‘any order of the court, or abuse of discretion’ ” (quoting
ORCP 64 B(1)). As the parties recognize, an “irregularity”
is a “[d]eviation from … any common or established rule;
deviation from method or order; as the irregularity of proceedings.” See Noah Webster, 1 An American Dictionary of
the English Language (unpaginated) (1828) (emphasis in
original);7 see also Black’s Law Dictionary 656 (2nd ed 1910)
(defining “irregularity” a “[v]iolation or nonobservance of
established rules and practices”).
          Second, the causes for which a new trial is permitted are numerous but, to serve as a basis for a new trial,
must be specified. ORCP 64 B permits a trial court to grant
a new trial on the motion of a party and lists six “causes”
on which the trial court can act. ORCP 64 D requires that a
moving party specify the “cause” on which the party relies
and provides that “no cause of new trial not so stated shall
be considered or regarded by the court.” ORCP 64 G recognizes that a trial court may grant a new trial on its own
initiative and does not limit the grounds on which the trial
court may act. ORCP 64 G requires, however, that the trial
court state the “grounds upon which the order was made”
and act within 30 days.
    7
      Because the phrase “irregularity in the proceedings” has been a part of
Oregon Civil Procedure since 1854, this court looks, in considering its meaning,
to dictionary definitions from that time. State v. Perry, 

, 

(2003).
688                                            State v. Ramoz

         Third, each of the “causes” for new trial includes
parameters of the trial court’s authority to grant a party’s
motion for new trial. For instance, ORCP 64 B(1) allows a
court to grant a new trial for an irregularity in proceedings,
but only in circumstances in which the irregularity prevented the moving party from receiving a “fair trial.” ORCP
64 B(3) allows a court to grant a new trial where there has
been an “[a]ccident or surprise,” but only if “ordinary prudence could not have guarded against” it. Similarly, ORCP
64 B(4) allows a trial court to grant a new trial based on
“[n]ewly discovered evidence,” but only if the party could not
“with reasonable diligence have discovered and produced”
the evidence at trial. ORCP 64 B(6) allows a trial court to
grant a new trial based on an “error in law,” but only if the
moving party “objected to or excepted to” the error.
          Finally, the “causes” for new trial appear to overlap.
In this case, for instance, the crux of the parties’ dispute
is whether the omission of the “knowingly” element constitutes a “cause” for a new trial under ORCP 64 B(1) or ORCP
64 B(6): ORCP 64 B(1) permits a new trial for irregularities in the proceedings of the court, but such an irregularity
also could constitute an “error in law” under ORCP 64 B(6).
Other provisions of the rule are similar, and it is easy to
imagine similar arguments concerning their overlap. For
instance, ORCP 64 B(1) permits a new trial for “irregularities in the proceedings of the … jury or adverse party,” but
such an irregularity also could constitute “[m]isconduct” by
the jury or the prevailing party under ORCP 64 B(2). ORCP
64 B(1) permits a new trial for “orders of the court” that
prevent a party “from having fair trial,” but such an “order”
also could constitute an “error in law” under ORCP 64 B(6).
And ORCP 64 B(3) permits a new trial for an “[a]ccident or
surprise,” but an “accident” or “surprise” also could constitute an “irregularity in the proceedings” under ORCP 64
B(1).
         With those observations, we measure the rule’s text
and context against the state’s argument that, in this case,
the trial court did not have authority to grant a new trial
under ORCP 64 B(1) because defendant did not object or
except to the instructions given at trial. First, we consider
the requirements set out in the plain text of ORCP B(1) and
Cite as 

 (2021)                                                 689

whether those requirements are met under these circumstances. It is not difficult to see that the court’s instructions
were the result of an “irregularity in the court’s proceedings,” and the state does not contend otherwise. Here, the
parties and the court agreed that the uniform instructions
should be used to instruct the jury, but due to what the trial
court characterized as “a mistake,” the court’s instructions
did not include the required mental state in the section that
informed the jury of the elements that the state must prove.
In D.C. Thompson and Co., this court considered a similar
mistake between a jury’s intended verdict and its expression
of that verdict to be an “irregularity in the proceedings” as
that term is used in ORCP 64 B(1). 

.8 And
in Libbee v. Permanente Clinic, 

, 

 (1974), this court upheld a trial court’s order granting
a new trial on the basis of an “irregularity in the proceedings,” when the trial mistakenly provided the jury with an
exhibit that had not been offered or received in evidence.
This case evidences a similar deviation from the expected
or intended method of proceeding.
          Second, we see that subsection (1) of ORCP 64 B does
not include the preservation requirement that is found in
subsection (6), and the state does not argue that we can read
its preservation requirement into subsection (1). This court
cannot “insert what has been omitted.” ORS 174.010; see also
State v. McNally, 

, 

 (2017) (“It is
axiomatic that this court does not insert words into a statute
that the legislature chose not to include.”). Accordingly, the
state’s argument is more nuanced. The state argues that we
should interpret the subsections of ORCP 64 B as mutually
exclusive and hold that, where the court commits an “error
in law,” subsection (6), rather than subsection (1), applies and
controls. The state relies on two rules of construction for that
point: The state argues that the specific rule controls the
general and that the state’s reading of the rule is necessary
to give effect to all the rule’s provisions. See ORS 174.020(2)
(“When a general provision and a particular provision are
    8
      In D.C. Thompson and Co., this court ultimately reversed the trial court’s
order granting a new trial; not because what occurred was not an “irregularity,”
but because the juror affidavits and testimony seeking to prove that members of
the jury misunderstood the verdict form were inadmissible. 

.
690                                           State v. Ramoz

inconsistent, the latter is paramount to the former so that a
particular intent controls a general intent that is inconsistent with the particular intent.”); ORS 174.010 (explaining
that “where there are several provisions or particulars such
construction is, if possible, to be adopted as will give effect
to all”). Although the state accurately states those rules of
construction, neither is helpful to the state here.

         ORS 174.020(2) provides that, when two provisions
“are inconsistent,” the more specific provision controls.
Thus, that rule of construction only applies when there is
a conflict or inconsistency in statutory provisions. See State
v. Pearson, 

, 

 (1968) (declining to
apply rule that specific statute controls over general because
“[t]he two statutes [could] be harmonized”). Here, the subsections of ORCP 64 B can be harmonized if we read them
to provide trial courts with expansive, overlapping authority to grant new trials in many different, and overlapping
circumstances. Subsection (1) is not necessarily inconsistent
with subsection (6). Both provisions may provide routes to a
trial court’s exercise of authority under the rule.

         Similarly, we can read ORCP 64 B to give effect
to all its provisions. Subsection (6) grants trial courts
authority to act when they may not have authority to act
under subsection (1). A trial court does not have authority
to grant a motion under subsection (1) unless the irregularity on which it relies denied the applicant a fair trial.
Subsection (6) does not include that requirement; instead it
requires that the applicant have objected or excepted to an
“error in law” during trial. Thus, if an applicant meets the
preservation requirement of subsection (6), the trial court
has authority to grant a motion for new trial under that
subsection, even if the error did not prevent the applicant
from receiving a fair trial as required under subsection (1).
So, for instance, if a party were to object to a question
posed in an opponent’s examination of a witness as seeking
irrelevant or otherwise inadmissible evidence, an “error in
law” in that evidentiary ruling could be the basis for a new
trial, even if that error did not deny the objecting party a
“fair trial.” Of course, ORCP 64 B generally requires that
the moving party show that the cause on which that party
Cite as 

 (2021)                                                     691

relies “materially affect[ed] the substantial rights” of that
party. But, as defendant points out, the “fair trial” requirement is not necessarily equivalent to the “materially affecting the substantial rights” requirement, and we can read
ORCP 64 B(1) in a way that does not render ORCP 64 B(6)
meaningless.
          Additionally, the legislature may have had good
reason to grant overlapping, rather than mutually exclusive, authority.9 The legislature may have done so to ensure
that the rule would cover the waterfront in laying out the
authority that it intended to grant.10 Although the general
rule is that this court construes a statute in a manner to
give effect to all its provisions, redundancy is permitted
where “there is evidence that that is precisely what the legislature intended.” Baker v. Croslin, 

, 

 (2016). If the legislature intended to permit trial courts
to grant new trials for a broad range of mistakes or errors
“materially affecting” the “substantial rights” of parties,
rather than requiring those parties to file appeals or petitions for post-conviction relief, then the legislature may have
intentionally listed all of the kinds of “causes” that could be
the basis for such orders, and it may have done so in a way
that would not require a trial court to draw fine distinctions
between them.
         The state contends, however, that such a reading
of the rule is foreclosed by this court’s prior opinions. The
state argues that this court already has held that, absent an
objection or exception, a trial court does not have authority
to grant a new trial to remedy an instructional error. The
    9
       As we have explained, “unless the legislature amended the rule [of civil
procedure] at issue in a particular case in a manner that affects the issues in that
case, the Council [on Court Procedures’] intent governs the interpretation of the
rule.” Waddill, 

 n 2. Here, as noted, ORCP 64 B was largely based
on former statutes, but neither party addresses whether the intent behind ORCP
64 B should be that of the Council or that of the legislature. Ultimately, however,
resolving that question is unnecessary for our purposes in this case.
    10
       As amicus curiae Oregon Trial Lawyers Association points out, it has long
been recognized by the Court of Appeals that there is the possibility of some
overlap under ORCP 64 B. See McCollum v. Kmart Corporation, 

, 

 (2009), vac’d on other grounds, 

, 

 (2010)
(noting that ORCP 64 B is substantially identical to predecessor rules and that
the rule “prescribes distinct and yet functionally overlapping ‘triggers’ for the
allowance of a new trial”).
692                                                State v. Ramoz

state’s reliance on our case law is understandable. We have
not always been consistent in our analysis of the basis for
a party’s motion for new trial or for the basis for a court’s
order granting such a motion. As a result, there are aspects
of that case law that may appear to be, or that may be, disjointed. We review that case law now, taking this opportunity to find coherence. In doing so, we ultimately find no
basis to conclude that we must read ORCP 64 B to preclude
a trial court from ordering a new trial when a party has
failed to object or except to an instructional error that constitutes an “irregularity” in the proceedings of the court as
that phrase is used in subsection (1) of that rule.
        We begin our review with Langley and Maulding,
the two cases on which the state focuses. Both Langley and
Maulding were decided under the predecessor statutes to
ORCP 64, former ORS 17.610 and former ORS 17.630, but,
since that statutory language has remained the same, they
are helpful in our understanding of ORCP 64 B.
         In Langley, the defendant moved for a new trial
based upon an “irregularity” under former ORS 17.610(1)—
the “irregularity” was prosecutorial and juror misconduct.
Langley, 

. The events underlying the claim of
misconduct were known by both the defendant and his counsel at the time they occurred, but the defendant made no
“objection, motion or other complaint concerning” the misconduct. 

. Instead, the defendant took issue with
the misconduct for the first time when he moved for a new
trial, and the trial court denied the motion. 

.
This court rejected the defendant’s argument that the trial
court erred in doing so, explaining that
   “the denial of the motion presents no question for this
   court’s consideration. While the trial judge has a certain
   discretion, which will not be disturbed on appeal except for
   its abuse, to grant a new trial, even in the absence of an
   objection or exception, for irregularities in the proceedings
   which deprive a party of a fair trial, Hays v. Herman, [

, 

 (1958)], State v. Bosch, 

, 

 [(1932)]; Veazie [et al.] v. Columbia [etc. R.R.
   Co.], 

, 

 (1924)], yet the rule is that when
   a party having knowledge of an error or an irregularity
   during the trial fails to call it to the attention of the court
Cite as 

 (2021)                                                   693

    and remains silent, speculating on the result, he is deemed
    to have waived the error, and the denial of a motion for
    a new trial based on that ground presents no reviewable
    question. Schafer v. Fraser, 

, 

 [(1955)].”

. The state seizes on that portion of Langley,
arguing that it stands for the proposition that, if the moving
party has knowledge of the alleged irregularity, but does not
object, the trial court cannot grant that party’s motion for a
new trial.
         The state overreads Langley. Langley stands for the
proposition that a trial court does not abuse its discretion in
denying a defendant’s motion for new trial on the basis that
the moving party could have objected to the irregularity
when it occurred, but—speculating on the result—did not.
That is evidenced by the fact that Langley states that a trial
court’s decision is reviewed for abuse of discretion “even in
the absence of an objection or exception,” citing Hays, Bosch,
and Veazie. Langley, 

. Notably, Hays and Veazie
held that a trial court did not abuse its discretion in granting a motion for a new trial even though the moving party
did not object. Hays, 

 (explaining that, had the
motion for new trial been denied, “plaintiff’s failure to object
or move for a mistrial at the time of the emotional display
would no doubt have prevented our reversing the judgment,”
but, “the failure to object is of lesser significance when a
new trial has been granted”);11 Veazie, 

 (explaining that, although the moving party could have objected
to the juror’s outburst during the plaintiff’s closing argument, an objection at that point in the proceedings would
not have saved any expense and would have prevented no
greater prejudice, and “the position of the parties would not
have changed in any way from that in which they now find
themselves,” so the trial court did not abuse its discretion
in granting motion). Bosch went even further, holding that

    11
       In Maulding, this court criticized Hays, noting that Hays perpetuated the
practice of ignoring the specific statutory requirements set out in former ORS
17.610 and instead affirming the trial court’s order granting a new trial if there
was any justification for the court’s order. Maulding, 

. For our
purposes here, we simply note that Langley’s reliance on Hays indicates that it
was reviewing the trial court’s decision for abuse of discretion.
694                                                             State v. Ramoz

“where reversible error is committed [during trial] it is the
duty of the court to grant a new trial,” which is true “even
when prejudicial evidence is admitted without objection.”
Bosch, 

.
         In Langley, this court concededly noted that the
“rule is that when a party having knowledge of an error or
an irregularity during the trial fails to call it to the attention of the court and remains silent, speculating on the
result, he is deemed to have waived the error.” 

. But, in doing so, this court was explaining that a party
loses the ability to challenge the denial of a motion for a new
trial on appeal when the party did not object to the irregularity at trial to speculate on the verdict. For the proposition
quoted above, Langley cites Schafer, which stated that point
explicitly: “In this jurisdiction it is well settled that an order
denying a motion for a new trial is not appealable where
the grounds of the motion could have been, but were not,
urged prior to judgment.” Schafer, 

 (emphasis
added).12
          Moreover, immediately after stating that a party
who fails to call an error or irregularity to the trial court’s
attention waives the error, the court in Langley said that
there is an “exception” to that rule where an error “injuriously affected a party’s right to a fair trial.” Langley, 

. By recognizing that “exception,” the court indicated
that a trial court has authority to grant a new trial when
an unpreserved irregularity denied the moving party a fair
trial.13 Reading Langley as a whole, it stands for the proposition that a trial court has discretion to deny a moving

     12
        Langley also cited State v. Foot You, 

, 

, reh’g den, 

, 

 (1893), in which the court said that “[i]t has been the constant
and uninterrupted practice of this court,” that “a motion to set aside a verdict, or
for a new trial, for insufficiency of the evidence, in either a criminal or civil case,
[is] addressed to the sound discretion of the trial court.” The court also said that
a trial court’s ruling on a motion for a new trial “cannot be assigned as error in
this court on appeal.” 

 We do not understand that case to foreclose an appeal,
but to explain that, given the trial court’s discretion, such a challenge will rarely
be successful.
     13
        The court incorrectly described that authority as an “exception” because
a trial court cannot, under ORCP 64 B(1), and could not, under the predecessor
to ORCP 64 B(1), grant a new trial unless the irregularity prevented the moving
party from having a “fair trial.”
Cite as 

 (2021)                                 695

party’s motion for a new trial on the basis that that party
could have objected to the irregularity when it occurred, but
chose not to do so. See id. at 487 (“A careful examination
of the entire record fails to discover anything that would
enable this court to say that the circuit court abused its discretion in denying the motion for a new trial.”).
         Maulding also is not as helpful to the state as it
asserts. In Maulding, the plaintiff filed a personal injury
action against Clackamas County. Maulding, 

.
At trial, the plaintiff requested the uniform instruction on
comparative negligence. 

 That instruction stated that
the plaintiff could only recover if the defendant’s negligence
was greater than the plaintiff’s negligence. 

 The court
instructed the jury according to the plaintiff’s requested
instruction. 

 During deliberation, the jury asked the
trial court what it should do if it found that the plaintiff
was equally negligent. 

 The trial court answered that if
the jury found that the parties were equally negligent, the
plaintiff could not recover. 

 The plaintiff did not object,
and the jury returned a verdict for the defendant. 

         Unbeknownst to the parties and the court, the
instructions that were given to the jury were incorrect—
the legislature had changed the law to provide that, where
the parties were found equally negligent, a plaintiff can
recover one-half his or her damages. 

 That change had
become effective approximately two weeks before trial. 

The plaintiff’s attorney realized the change in the law after
the jury had returned its verdict, so the plaintiff moved for
a new trial on the grounds that the instruction was “erroneous because of the recent change in the law.” 

 The trial
court granted the plaintiff’s motion and ordered a new trial,
and the defendant appealed. 

         This court began by noting that there were two statutes which relate to the granting of a new trial by the trial
court—the statute pertaining to orders on the court’s own
initiative and the statute pertaining to orders requested
by a party. 

 at 362 (citing former ORS 17.610 (1977) and
former ORS 17.630 (1977). In Maulding, the ground the
plaintiff asserted for a new trial was under former ORS
17.610(7), based on an “[e]rror in law occurring at the trial,
696                                                         State v. Ramoz

and excepted to by the party making the application.”14 

. The defendant argued that ORS 17.610(7) did not
provide a basis for a new trial because the plaintiff had not
objected to the instructions. 

.
         This court agreed, overruling an earlier case—
Correia v. Bennett and Johnson et ux., 

, 

 (1953). Maulding, 

. In Correia, the
defendant had sought a new trial based on instructions
which had incorrectly “overemphasized” a particular aspect
of the case. Correia, 

. The defendant had not
objected to those instructions, but, in Correia, this court held
that an objection or exception was unnecessary: “[W]hether
excepted to or not, [an error sufficient to cause reversal on
appeal] may form the ground of a motion for a new trial.”

.
         In Maulding, this court noted that Correia and its
progeny had failed to distinguish between the two different statutes that governed new trials. The correct rule, we
said, was that found in Chief Justice O’Connell’s dissent in
Beglau v. Albertus, 

, 

 (1975)—
that a new trial may be granted only when the requisites
of the particular statute at issue are satisfied. Beglau, 

. In Maulding, the court analyzed the plaintiff’s
motion under former ORS 17.610(7), and not under former
ORS 17.630, and concluded that the court’s statement in
Correia was clearly incorrect under the former, “for it is
directly contrary to ORS 17.610(7), which requires that an
exception have been taken.” Maulding, 

.
         Thus, Maulding held that a trial court’s exercise of
its discretion, and this court’s review of the trial court’s decision, must be rooted in a specific statutory ground authorizing a new trial, but it did not hold that former ORS 17.610(7),
now ORCP 64 B(6), is the only cause for which a court may
grant a party’s motion for new trial when the court commits
a mistake that can be characterized as an “error in law.”
Maulding reasoned that conflating the two statutes—former
ORS 17.610 and former ORS 17.630—would “establish a basis
    14
       The trial court could not have granted a new trial under former ORS 17.630
because the order granting the new trial was not entered within 30 days of the
judgment. Maulding, 

.
Cite as 

 (2021)                                                     697

for new trial order which is so broad that is would swallow up
the existing statutory categories,” and it gave effect to the terms
of the applicable statute—ORS 17.610(7)—that expressly
required preservation. Maulding, 

 (emphasis
added). But Maulding did not reason that, if another subsection of former ORS 17.610 that did not expressly require
preservation had been invoked, the requirements of former
ORS 17.610(7) would nevertheless control. In fact, Maulding
does not quarrel with the idea that if the court had timely
acted on its own motion, as permitted by former ORS 17.630,
which did not require preservation, it could have done so.
Thus, we understand Maulding to require that a court consider the asserted basis for an order for new trial and meet
its dictates.
          That narrower reading of Maulding is supported
by this court’s decision in Arena v. Gingrich, 

, 

 (1988). There, the plaintiff had moved for new trial
based on the insufficiency of the evidence under ORCP 64
B(5). 

 at 8 n 1. The trial court had denied the plaintiff’s
motion, and the plaintiff had appealed, assigning error to
that ruling. 

. The Court of Appeals declined to consider that assignment of error, citing its decision in Barrett v.
Warrington, 

, 

 (1982) (per curiam),
which had in turn, without explanation, cited Maulding
and had held that the issue of “insufficient evidence to support the verdict” could not “be raised for the first time in a
post-trial motion.” Barrett, 

. In Arena, this
court explained that Maulding provided no support for the
Court of Appeals’ conclusion because Maulding was based
on the predecessor to ORCP 64 B(6), while Arena was based
on ORCP 64 B(5). Arena, 

 n 1. Nonetheless, we
agreed with the result that the court had reached: The trial
court did not abuse its discretion in denying the plaintiff’s
motion for new trial. 

. Arena confirms that Maulding
does not affirmatively decide the question presented here,15
     15
        This court also did not decide the issue in Bennett v. Farmers Ins. Co., 

, 

 (2001). There, the trial court granted the defendant’s motion
for a new trial under ORCP 64 B(6), and the issue before us was “what constitutes
a sufficient objection or exception under ORCP 64 B(6) when the asserted error of
law is an error in the jury instructions.” 

.
     Finally, our more recent decision in State v. Sundberg, 

, 

 (2011), also does not decide the question that faces us in this case.
698                                                          State v. Ramoz

and Arena is consistent with Langley in its emphasis on the
standard by which we review an order denying a motion for
new trial, which is for abuse of discretion.
         In summary, Langley, Maulding, and Arena show
that, where the basis for a party’s motion for new trial is
an “error in law” under ORCP 64 B(6), the moving party
must have objected or excepted to that error and that the
party’s failure to do so precludes the court from granting
the motion. But those cases do not establish that, where the
basis for the party’s motion is an irregularity in the proceedings under ORCP 64 B(1), the trial court is precluded
from acting. Rather, they are consistent with a construction
of ORCP 64 B(1) that permits a trial court to consider the
moving party’s failure to object or except to the irregularity
when it decides whether to exercise its discretion to grant a
motion for new trial. Put differently, a trial court may consider the moving party’s failure to object to an irregularity,
and it may deny a motion for a new trial on that basis, but
the moving party’s failure to object to an irregularity does
not preclude a trial court from granting the party’s motion
under ORCP 64 B(1).
        That construction of ORCP 64 B(1) also is consistent with other related policies, rules, and statutes that

In Sundberg, the defendant moved for a new trial on the ground that empaneling an anonymous jury was a “jury irregularit[y].” 

. The trial court
denied the defendant’s motion, and the Court of Appeals affirmed. 

 The Court
of Appeals concluded that “defendant had waived any right to a new trial based
on jury irregularities by not objecting before the jury returned a guilty verdict.”

 This court granted review and began by analyzing whether defendant preserved his argument that the trial court violated Article I, section 11, when it
empaneled an anonymous jury. 

. In arguing that the issue was not
preserved, the state made a similar argument as it does in this case—that, under
Maulding, where the asserted ground for a new trial is something that resulted
in legal error, even if what occurred was also an irregularity, the moving party
is required to object at trial. In response to that argument, the defendant did not
assert, as defendant does in this case, that no such requirement exists. Instead,
the defendant asserted that he had, in fact, preserved his argument. This court
agreed that the defendant had preserved his argument, and it therefore did not
address whether the issue would be properly before the court if the defendant had
not done so. 

 Because the defendant in Sundberg did not make the argument
that defendant makes here, we do not read Sundberg to bar our interpretation
of ORCP 64 B. See State v. Pittman, 

, 518 n 10, 

 (2021)
(noting that, because the defendant in prior case did not make the argument that
the defendant in Pittman had made, this court “had no occasion to address” the
issue and therefore considered it afresh).
Cite as 

 (2021)                                  699

allow courts to remedy errors that may occur during trial.
For instance, appellate courts have discretion in deciding
whether to review an unpreserved claim of error, and consider, among other factors, “the competing interests of the
parties; the nature of the case; the gravity of the error; the
ends of justice in the particular case; how the error came to
the court’s attention, and whether the policies behind the
rule requiring preservation of error have been served in the
case in another way.” Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991). A party’s failure to
preserve a claim in the trial court does not bar an appellate
court from reversing the trial court judgment and ordering
a new trial.
         Similarly, Oregon’s post-conviction statutes provide
authority to grant a criminal defendant a new trial after
conviction when there was a “substantial denial” of the
defendant’s constitutional rights, and that authority
includes instances in which the defendant’s counsel fails to
take issue with that denial during the original trial. See,
e.g., ORS 138.520 (relief under post-conviction statutes can
include “new trial”); ORS 138.530 (post-conviction relief
may be granted where petitioner establishes “[a] substantial denial in the proceedings … of a petitioner’s” constitutional rights); North v. Cupp, 

, 

 (1969) (construing “substantial denial” standard in ORS
138.530 as requiring that criminal defendant’s trial counsel
serve in “good faith,” noting that client is entitled to a “fair
trial, not a perfect one” (internal quotation omitted)).
         An interpretation of ORCP 64 B(1) that permits,
but does not require, a trial court to act in the absence of
an objection is consistent with the legislature’s determination that such a party may seek a new trial on appeal or in
post-conviction proceedings. See ORS 138.540(1) (providing
that post-conviction relief does not “replace or supersede
the motion for new trial … or direct appellate review”). It
is also consistent with ORCP 1 B, which directs this court
to construe the Oregon Rules of Civil Procedure “to secure
just, speedy, and inexpensive determination of every action.”
        Considering the text of ORCP 64 B(1) in context
with the intended purpose of ORCP 64 B, our prior case law,
700                                                         State v. Ramoz

and with other rules permitting courts to remedy errors
that occurred during trial, we construe ORCP 64 B(1) to
provide trial courts with authority to grant a motion for
new trial even when the moving party did not object to the
irregularity that is the basis for the motion. That the text
of ORCP 64 B(1) does not include a preservation requirement is a difficult hurdle to overcome, and the state does not
persuade us that the legislature intended to impose such a
requirement. The legislature’s intent to allow trial courts
broad authority is evident in the fact that ORCP 64 B sets
out a broad range of “causes” authorizing a court to grant
a new trial on motion of a party. It is also evident in the
fact that ORCP 64 G does not limit the causes on which the
court can act when it does so on its own initiative. When
an “irregularity in the proceedings of the court” denies a
party a fair trial, the legislature has an interest in granting
trial courts authority to remedy that wrong; parties and our
judicial system benefit when the costs and delay occasioned
by appeal or post-conviction proceedings can be avoided.
We conclude, therefore, that the legislature intended that
trial courts have authority under ORCP 64 B(1) to grant a
new trial where an irregularity prevented the moving party
from having a fair trial, even when the moving party does
not object to the irregularity during trial. That said, we
nevertheless understand that trial courts may well hesitate
to grant such motions when the irregularity could have been
avoided had the moving party spoken up earlier. As noted,
a trial court may consider a party’s failure to object when
it is deciding whether to exercise its discretion to order a
new trial. But, when a court chooses to take responsibility
for an irregularity that deprived a party of a fair trial, we
conclude that the legislature did not intend to preclude the
court from providing an immediate remedy. For all the reasons discussed, we reject the state’s argument that the trial
court was precluded from granting defendant’s motion for
new trial under ORCP 64 B(1) because defendant did not
object to the court’s instructions at trial.16
    16
       We understand that the state now argues that defendant stipulated to the
written instructions that the state submitted and that that “waiver” precluded
the court from acting, at least as to the charges that were decided based on those
stipulated instructions. There are a number of problems with that argument.
First, when the trial court made its ruling on defendant’s motion for a new trial,
Cite as 

 (2021)                                                     701

B.   Did the irregularity constitute harmless error?
         We turn, then, to the state’s alternative argument:
Even if defendant’s failure to raise an objection at trial
did not preclude the trial court from granting defendant’s
motion, the court erred in doing so because the omission in
the court’s jury instructions constituted “harmless error.”
In making that argument, the state assumes, and defendant does not dispute, that if the omission in the court’s
instructions was “harmless error,” then the omission did
not reach the threshold necessary to a determination that
it deprived defendant of a “fair trial” under ORCP 64 B(1).
That assumption is based on this court’s holdings that
Article VII (Amended), section 3, of the Oregon Constitution
limits a trial court’s ability to order a new trial. In Beglau,
for example, we said that it is “fundamental that a new trial
may be ordered by a trial court only for prejudicial error,”
which “has been the rule since 1910 when Art VII, § 3, was
added to the Constitution.” Beglau, 

, 180 n 2;
see also Timmins v. Hale, 

, 

 (1927)
(noting that Article VII (Amended), section 3, of the Oregon
Constitution limits the trial court’s ability to order a new
trial). Thus, the state’s argument begins from an understanding that prejudicial, nonharmless, error is a threshold that a party must meet to demonstrate that the party
was denied a fair trial and leaves to another day the question whether something beyond harmless error is necessary
to deprive a defendant of a fair trail. We agree with that
premise.
         As framed, the parties pose two questions for our
determination: The first is what standard of review an
appellate court should apply in evaluating whether the error

it had before it an affidavit from defendant stating that the state’s typed instructions were correct and in accord with the Uniform Criminal Jury Instructions,
and the state did not dispute that affidavit. Second, the trial court found that
it was responsible for the incorrect instructions, and we cannot decide the facts
differently than did the trial court. State v. Cunningham, 

, 

 (2004) (a trial court’s preliminary factual determinations are reviewed
to determine if there is “any evidence” to support that ruling). Third, the state
did not make the argument that it makes in this court to the trial court. If the
state had made the argument that the mistake was at least partially the state’s
fault, and that defendant had stipulated to the mistake at least as to part of the
instructions, then the trial court could have considered that fact when it decided
whether to exercise its discretion to grant defendant’s motion.
702                                               State v. Ramoz

on which a trial court relied in granting a new trial constituted “harmless error,” and the second is whether that
standard was met here. As to the first question, the state
contends that our review is for legal error, while defendant
contends that we must “defer” to the trial court’s finding of
prejudice. Defendant notes that in Clark v. Fazio et al., 

, 

 (1951), this court explained:
       “Where a new trial has been ordered by a trial court for
   error committed, whether on a motion of a party therefor,
   or on its own motion, this court on appeal from such order
   will not ordinarily determine whether, in our opinion, the
   error was prejudicial. We will make such determination
   only in the presence of exceptional circumstances, as where
   the error is insignificant or clearly not prejudicial. This is
   true because we recognize the fact that the trial judge is in
   much better position to judge whether or not error was prejudicial in the particular case before him than are we, confined as we are to a consideration of a cold, printed record.”
This court reiterated that point in Kromwall. There, the
trial court ordered a new trial based on instructional error.
Kromwall, 

. The state argued that the error
was “nonprejudicial,” and therefore, a new trial should not
have been awarded. 

. This court rejected that argument, explaining that
   “[t]he trial judge evidently was satisfied to that effect when
   he ordered a new trial, for he would not have sustained the
   defendant’s motion unless he believed that the erroneous
   instruction had prejudiced the defendant. The trial judge
   was familiar with the atmosphere of the trial and with the
   issues produced by the conflicts in the evidence. He was
   in a better position than we are to have known the effect
   upon the issues of the instructions which he gave. Since he
   ordered a new trial he manifestly believed that his challenged instruction was not only erroneous but also prejudicial. We defer to his views.”

.
         In the cases that defendant cites, this court was
correct in its observations that, in some ways, a trial court
is in a better position than we are to assess the effect that
an error may have on a trial. This court does not have the
benefit of seeing the trial in person; we must review the
Cite as 

 (2021)                                                     703

record on paper. And we cannot set aside a trial court’s factual findings when they are supported by the evidence. State
v. Johnson, 

, 

 (2003) (“It is a familiar doctrine that we are bound by a trial court’s findings of
fact, if there is evidence in the record to support them.”).
But, when we consider whether a trial court’s legal ruling
was permissible, we make that call without “deference” to
the trial court’s views.17 And when we determine whether
a legal ruling was permissible, we apply either an “abuse
of discretion” or a “legal error” standard of review. State
v. Iseli, 

, 

 (2020). We apply an
abuse of discretion standard when “application of the appropriate legal principles would permit more than one legally
correct outcome,” but, when there is “ ‘only one legally correct outcome,’ [an] appellate court must determine whether
the trial court erred as a matter of law.” 

 (quoting State v.
Cunningham, 

, 

 (2004)).
          When this court reviews a decision by the Court of
Appeals determining that a trial court’s error was or was not
“harmless,” we review for “legal error” and not “abuse of discretion.” In State v. Payne, 

, 

(2020), for example, we reviewed the Court of Appeals decision, State v. Payne, 

, 

 (2019),
in which that court concluded that the trial court’s refusal
to give the witness-false-in-part instruction to the jury was
harmless error, because that instruction tells the jury “what
it is already free to do.” We reversed, not because the Court
of Appeals “abused its discretion” in determining the error
was harmless, but because we concluded that, under Article
VII (Amended), section 3, of the Oregon Constitution, the
error was not harmless as a matter of law. Payne, 

. We do not defer to Court of Appeals’ conclusions
as to the harmlessness of an error because application of
the harmless-error test permits only one legally correct
outcome—an error is either harmless, or it is not. The same
then, should be true when it is the trial court, and not the
    17
       Thus, to the extent that Clark and Kromwall stand for the proposition that
the determination of harmless error is purely a matter of “discretion,” or that
this court should “defer” to the trial court’s conclusion as to harmlessness, those
decisions are no longer good law. To the extent that Clark and Kromwall may be
read to stand for the proposition that this court will defer to the factual findings
that underlie a legal determination as to harmlessness, we adhere to them.
704                                              State v. Ramoz

Court of Appeals, that must decide the issue of whether a
trial court error was prejudicial. Accordingly, when a trial
court’s decision to grant a new trial comes to us with an
argument that the trial court erred because the irregularity on which it relied constituted harmless error, we neither
“defer” to the trial court’s decision nor review it for abuse of
discretion; rather, we review the trial court’s conclusion as
to whether an error was harmless for errors of law.
          To clarify, we do not mean to imply that we will
never review a trial court’s order granting a motion for new
trial for abuse of discretion. Questions of statutory construction and a trial court’s authority to act, such as whether the
circumstances presented constitute a “cause” for new trial
under ORCP 64 B, are questions of law. State v. Thompson,

, 

 (1999) (“A trial court’s interpretation of a statute is reviewed for legal error. Therefore,
we review a trial court’s determination that the state met
the statutory requirements for joinder of charges for legal
error.” (Internal citation omitted.)). But, if the trial court has
authority to act, or, said another way, if the parameters of
one of the subsections of ORCP 64 B are met, then the court
has discretion to grant or deny a motion for a new trial and
our review would be for abuse of discretion. See ORCP 64 B
(explaining that “[a] former judgment may be set aside and
a new trial granted” upon the causes listed in the subsections of ORCP 64 B (emphasis added)); Langley, 

 (reviewing trial court order denying motion for new trial
for abuse of discretion).
         In this case, the trial court granted defendant’s
motion for new trial under ORCP 64 B(1), and, in doing so,
made an implicit determination that the parameters of the
rule, including the threshold requirement that the error on
which it relied was prejudicial, were met. We review the
determination of whether the error was harmless for legal
error, and we proceed now to that review.
        In determining whether an error is harmless,
this court analyzes whether there was “little likelihood”
that the error affected the verdict. Payne, 

.
Instructional error is not harmless if it “ ‘probably created
an erroneous impression of the law’ in the minds of the jury
Cite as 

 (2021)                                705

and ‘if that erroneous impression may have affected the outcome of the case.’ ” Ossanna v. Nike, Inc., 

,

 (2019) (quoting Hernandez v. Barbo Machinery
Co., 

, 

 (1998)). In making that
determination, 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.’ ” Payne, 

 (quoting State v. Ashkins, 

, 

 (2019)).
         Here, the state begins by reminding us that, in
its description of the crime, the trial court informed the
jury that it had to find that defendant acted knowingly.
Consequently, the state asserts, the instructions as a whole
were not prejudicial. Further, the state argues, the evidence
showed that defendant had admitted that he had sexual
intercourse with the victim and that he had penetrated the
vagina of the victim with an object other than his penis or
mouth. The state contends that defendant’s “only defense to
the charges was that the victim was awake and competent
and that she had consented to that activity,” that defendant
had expressly acknowledged that there was no issue as to
whether those acts occurred, and that defendant had not
argued that he was too intoxicated to know what he was
doing. Finally, the state contends that it made the issues
and the elements clear to the jury in its closing argument.
The state began its closing argument by noting that defendant was “not contesting … the fact that he penetrated
[the victim] … in the ways that are charged.” Instead, the
state noted, the “crux of the defense” was that the victim
had consented. The state then “point[ed] out” some of the
more applicable instructions in the case. The state noted
that the jury had been instructed on involuntary intoxication as a defense. The state explained that the jury could
consider defendant’s voluntary intoxication “in making your
decision about whether the defendant had the mental state
that is required for commission of this offense.” The state
noted that the required mental state was “knowingly,” so
“for this to be a defense it would have to mean he did not
know what he was doing. He did not know that he was penetrating her. He did not know he was having sex with her.”
That, the state concluded, was “non-sensible.”
706                                           State v. Ramoz

         Defendant disagrees with the state’s characterization of the evidence and his position at trial. He contends
that the record shows that he ingested some alcohol and
Xanax on the night in question, and he points out that, in
his closing, defendant stated, “I think that everybody would
probably agree when you mix alcohol, drugs, young people, partying; there’s going to be drama.” Defendant also
asserts that, because the jury was not told that the state
had to prove an element of the crime—that defendant acted
knowingly—the error could not be harmless.
         On that latter point, defendant points out that this
court has said that a jury must be instructed on the elements
of a crime and that, when it is not, “neither the sufficiency
of the evidence nor the completeness of counsel’s arguments
concerning that evidence is a substitute for the sufficiency of
the instructions.” Brown, 

. In Brown, the jury
was not instructed that it had to find a causal connection
between the defendant’s knowledge that the victim was to
be a witness against him and the defendant’s decision to kill
her. 

 The state argued that error was harmless because
there was sufficient evidence to establish that element and
the state had emphasized causation during its closing argument. 

 The court, however, had instructed the jury that
the parties’ closing arguments were not evidence and that
the jury should apply the facts as it remembered them to
the instructions the court provided. 

 This court concluded
that the court’s failure to provide an instruction on causation
was not harmless. 

 Similarly, this court has explained
that a prosecutor’s arguments are “not a legally sufficient
substitute for necessary jury instructions.” State v. Lotches,

, 

 (2000), cert den, 

(2001).
         The state distinguishes Brown and Lotches by noting that, in those cases, an instruction that should have
been given was omitted in its entirety. The state is correct in
that regard, but we are not convinced that that distinction
matters here. Although the court’s instructions did describe
the charged crimes as requiring evidence that defendant
acted knowingly, they did not articulate that requirement
in the list of the elements that the state must prove beyond
a reasonable doubt. As a result, although the instructions
Cite as 

 (2021)                                 707

provided complete general definitions of the charged crimes,
the instructions did not inform the jury that the state must
prove those elements beyond a reasonable doubt. The state
is correct that we must look to the instructions as a whole,
and we agree that examining a particular omission in isolation can be misleading. But here, the two different parts
of the instructions could be viewed as conflicting. When it
described the relevant crimes, the court told the jury that
defendant had to have acted knowingly, but when it told
the jury the elements that the state must prove, it omitted
that requirement. The court also led the jury astray when
it instructed them that the state must prove certain elements of a crime but not that it must prove other essential
elements—the mens rea of the crimes. Where an instruction
is “equally capable of a correct or an incorrect statement of
the law,” then there is a likelihood that the error affected
the verdict. See Fairbrother v. Rinker, 

,

 (1976) (explaining that, although instructions
could be interpreted as conveying the law correctly, “the
instruction would still be prejudicial and reversible error if
it can also be interpreted to bear the meaning which plaintiff attributes to it”).
         We also are not convinced that defendant’s mental state was not an issue in the case. Defendant did not
expressly admit that he knowingly had sexual intercourse
with the victim, nor did he expressly admit that he knowingly penetrated the victim’s vagina with his finger. During
closing, defendant acknowledged that there had been “sexual activity between two young people,” and that defendant
had “never denied that he penetrated [the victim’s] vagina
with his fingers” and had “never denied that he had sexual
intercourse.” Defendant did not, however, concede that he
did so knowingly. Defendant argued that what had occurred
was consensual, but, in doing so, defendant’s aim was to
counter the state’s evidence that the victim was incapable of
consent by reason of mental incapacitation or physical helplessness, not to concede an element of the crime.
        Furthermore, although defendant did not expressly
focus on the issue of his knowledge, the state still had the
burden to prove that element beyond a reasonable doubt.
To that question, the jury was told that it could “consider
708                                           State v. Ramoz

evidence of voluntary intoxication in making your decision
whether the defendant had the mental state that is required
for the commission of the charged,” but not what mental state
was required or that the state had to prove it. Thus, if the
jury found that defendant was voluntarily intoxicated, it did
not have the benefit of an instruction that fully explained
how that factual finding should be considered in deciding
whether the state had met its burden of proof.
        The state had the burden to prove that defendant
knowingly committed the actus reus of each of the charged
crimes. Because the jury instructions could have indicated
that the state need not prove, and the jury need not find,
the mens rea element of each of the charged crimes, the
error was not harmless and the trial court did not err in so
concluding.
                    IV. CONCLUSION
         In summary, the trial court did not err in granting defendant’s motion for new trial. Defendant’s failure to
object to the irregularity in the proceedings did not preclude
the court from considering defendant’s motion, and the trial
court did not err in concluding that its instructions prevented defendant from having a fair trial.
        The decision of the Court of Appeals is reversed.
The order of the circuit court is affirmed.