¶1dissenting.
¶2The majority holds that the instruction passes muster, because it does not refer to any particular element of the crime charged and because it was not “necessary” for the jury to draw inferences in order to find defendant guilty. I disagree on both points.
¶3The majority’s first explanation stands State v. Rainey, 298 Or 459, 693 P2d 635 (1985), on its head. In my view, the instruction here is even more offensive than the instruction in Rainey, because it could apply to every element of the crime, not just to one element, as in Rainey. The majority apparently believes that Rainey’s statement that “even an abstract or general inference instruction applied to an element of the crime may conflict with the more-likely-than-not or beyond-a-reasonable-doubt standard,” 298 Or at 467 (emphasis supplied), means that a general instruction conflicts with the applicable standard only if a trial court instructs the jury to apply the inference to an element of the crime. That logic is patently wrong, because the instruction would then no longer be an abstract or general one. The court must have meant that permitting a jury to apply an inference to any element of the crime charged conflicts with the state’s burden of proof.
¶4The majority also reasons that “inferences were not necessary to find defendant guilty beyond a reasonable doubt[, because t]here was sufficient direct evidence from which the jury could make that finding.” 84 Or App at 684. The majority *685misses the point. The issue is not whether it was “necessary” for the jury to draw inferences, but whether the jury could draw them. If so, it was error to give the instruction. The majority does not suggest that it was impossible for the jury to apply the general inference instruction to some element of the crime, and the jury may well have done so. It was prejudicial error to give the instruction.