State v. Brown

592

Submitted May 25, conviction for first-degree manslaughter reversed and

remanded, remanded for resentencing, otherwise affirmed August 23, 2023

STATE OF OREGON,

Plaintiff-Respondent,

v.

DUSTIN ALLEN BROWN,

Defendant-Appellant.

Yamhill County Circuit Court

19CR42871; A177027

536 P3d 1069

Defendant appeals from a judgment of conviction for first-degree manslaugh-

ter and felon in possession of a firearm. On appeal, defendant challenges only

his conviction for manslaughter, arguing that the trial court plainly erred by

failing to instruct the jury on the “initial aggressor” limitation on the defense of

self-defense. Held: The trial court plainly erred when it failed to instruct the jury

on the initial aggressor limitation to self-defense when the state intended to rely

on that limitation. Because it was the state’s obligation to disprove self-defense

and to ask for an instruction on the limitation to that defense, and because a jury

must be instructed on all matters of law necessary for its verdict, the prosecutor

who invoked the limitation was required to concomitantly seek the corresponding

jury instruction.

Conviction for first-degree manslaughter reversed and remanded; remanded

for resentencing; otherwise affirmed.

Ladd J. Wiles, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Laura A. Frikert, Deputy Public Defender,

Office of Public Defense Services, filed the briefs for

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Colm Moore, Assistant Attorney

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

JOYCE, J.

Conviction for first-degree manslaughter reversed and

remanded; remanded for resentencing; otherwise affirmed.

Cite as 327 Or App 592 (2023) 593

JOYCE, J.

Defendant appeals from a judgment of conviction

for first-degree manslaughter and felon in possession of a

firearm. On appeal, defendant challenges only his convic-

tion for manslaughter, arguing that the trial court plainly

erred by failing to instruct the jury on the “initial aggressor”

limitation to a claim of self-defense. See ORS 161.215(1)(b)

(describing defense and its limitations). We agree with

defendant that the trial court plainly erred and, cognizant

of the fact that we must exercise our discretion with “utmost

caution,” see State v. McKinney/Shiffer, 369 Or 325, 333, 505

P3d 946 (2022), we do so here and reverse.1

We review the facts “in the light most favorable

to the establishment of the facts necessary to require the

instruction.” Ossanna v. Nike, Inc., 365 Or 196, 199, 445 P3d

281 (2019). Defendant was walking his bike on a wooded

path in McMinnville, Oregon, where he encountered the vic-

tim. Defendant and the victim had a brief interaction, which

culminated in defendant shooting and killing the victim. A

house doorbell camera from a residence across the street

from the wooded area captured some (largely indiscernible)

audio evidence of the interaction between defendant and the

victim while in the woods. Although largely indiscernible,

that recording reflects that a verbal interaction between

defendant and the victim lasted only a few minutes before

two shots could be heard, about 11 seconds apart. The vic-

tim could be heard yelling at defendant to “get the fuck out

of here.” Video from the doorbell camera then shows defen-

dant backing out of the woods towards the street, followed

by the victim. Defendant then fired a third shot that struck

the victim in the torso, leading to his death. Defendant fled

the area. Police arrested him shortly thereafter.

After his arrest, defendant admitted to police during

an interview that he shot the victim and explained that he

did so because the victim was acting aggressively and errat-

ically. Defendant told police that, after he first noticed the

victim on the path and began to walk away, the victim stood

up and “stomped” towards defendant, yelling and hitting

1

Our resolution of defendant’s first assignment of error obviates the need to

address the second, which he makes in the alternative to the first.

594 State v. Brown

himself in the head. Defendant said that he backed up out of

the wooded area and told the victim to stop. The victim did

not, and continued to walk towards defendant with clenched

fists, yelling “What the fuck did you say?” and “Get the fuck

out of here.” Defendant explained to police that he asked

the victim “what’s going on” several times and pleaded with

the victim to stop advancing; when he did not, defendant

drew his gun. The victim continued towards defendant.

According to defendant, he then grabbed his bike, and the

victim continued to move towards him. He told the victim

to stop, and, when the victim was about 16 feet away from

defendant, defendant fired his gun to the right of the victim.

The victim again continued towards defendant, and defen-

dant fired a second time, again to the right of the victim.

Again, the victim walked further towards defendant, and

defendant fired a third shot, which hit the victim and ulti-

mately killed him. Defendant admitted that he was high on

methamphetamine during this altercation.

The state charged defendant with, among other

crimes, murder and felon in possession of a firearm. Before

trial, defendant gave notice of his intent to rely on ORS

161.209, which provides that a person is justified in using

physical force against another person for self-defense

against “[w]hat the person reasonably believes to be the use

or imminent use of unlawful physical force, and the per-

son may use a degree of force which the person reasonably

believes to be necessary for the purpose.” ORS 161.209.

The state submitted its proposed jury instructions,

including a uniform jury instruction about the defense of

self-defense. It also included an instruction on one limitation

on the use of deadly physical force, namely, that a defendant

cannot use deadly physical force on another unless they rea-

sonably believe that the other person was using or was about

to use unlawful deadly physical force against the defendant

or was committing or attempting to commit a felony involv-

ing the use or threatened imminent use of physical force

against the defendant. See ORS 161.219 (so providing).

At the close of the state’s evidence, the court reviewed

the proposed instructions. For the first time in the trial, the

Cite as 327 Or App 592 (2023) 595

prosecutor indicated that she intended to argue that the

defendant was the initial aggressor in the confrontation:

“Lastly, Your Honor, in my closing I plan to touch on

principles of the initial aggressor concept, and also what

in an altercation would constitute a misdemeanor or felony.

Just putting defense on notice in case he requested addi-

tional instructions.

“For example, I plan to make the statement that yelling

at somebody to leave is no crime, causing somebody physi-

cal injury with a weapon is a felony, so that the jury, when

reading the limitations of self-defense has some under-

standing of the difference between felonious conduct and

other conduct.”

The prosecutor’s reference to “initial aggressor”

was a reference to ORS 161.215. That statute provides that

a person is not justified in using physical force on another

person if the person is

“the initial aggressor, except that the use of physical

force upon another person under such circumstances is

justifiable if the person withdraws from the encounter and

effectively communicates to the other person the intent to

do so, but the latter nevertheless continues or threatens to

continue the use of unlawful physical force.”

ORS 161.215(1)(b).

After the prosecutor indicated her intent to rely on

the initial aggressor limitation to self-defense, defense coun-

sel did not object or request any additional instructions.

In advance of closing arguments, the court

instructed the jury on self-defense and on the limitation on

the use of deadly physical force. It did not instruct the jury

on the initial aggressor limitation to self-defense.

In accordance with her stated intentions, during the

state’s closing argument, the prosecutor told the jury that

a person is justified in using physical force upon another

person to defend himself but that that principle has a

“[c]aveat,” namely, that “[t]he person who starts the fight

can’t use self-defense to justify further escalation of the

fight. Because who had the right to self-defense in that situ-

ation? The person who didn’t start the fight.” She continued:

596 State v. Brown

“[F]rom the evidence that’s produced, who do you find is the

initial aggressor? Because the initial aggressor can’t claim

self-defense. The other person can.” She summarized:

“So, what it boils down to is this: If [defendant] is not

the initial aggressor and he had a claim of self-defense to

make or, therefore, had a valid self-defense claim, did he

do so in response to [the victim’s] commission or attempted

commission of a felony?

“* * * * *

“So I submit to you that there is strong evidence that

[defendant] is the initial aggressor and, therefore, had no

reason to brandish his firearm, no reason to shoot [the vic-

tim], and self-defense fails.”

In his closing argument, defense counsel asserted

that there was no evidence that defendant was the initial

aggressor. He told the jury that the state had the burden

of proving “that [defendant] was the aggressor, and that’s

one of the steps they’re addressing of self-defense, and they

haven’t proven that.” The jury acquitted defendant of mur-

der but found him guilty of the lesser-included offense of

first-degree manslaughter, as well as felon in possession of

a firearm.

On appeal, defendant challenges his conviction for

first-degree manslaughter. Defendant contends that the

failure to provide a jury instruction on the initial aggressor

limitation is plain error and asks us to exercise our discre-

tion to correct the error. To qualify for plain error review,

the error must be one of law, it must be obvious and not

reasonably in dispute, and it must be apparent on the record

and not require us to choose between competing inferences.

State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). The

parties do not dispute, and we conclude, that the error is

one of law and is apparent on the face of the record. Thus,

whether the lack of an instruction on the limitation on self-

defense amounts to plain error depends upon whether we

can say that the legal point is obvious and not reasonably in

dispute.

For its part, the state, while acknowledging that a

trial court commits plain error if it fails to instruct the jury

Cite as 327 Or App 592 (2023) 597

on the material elements of the crime and that the state

bears the burden of disproving self-defense, argues that is

not obvious that a court commits plain error by failing to

instruct the jury on limitations to self-defense. For his part,

defendant points to several statutes and cases that, in his

view, establish that the legal point is not reasonably in dis-

pute. We begin with those.

ORCP 59 B requires a court to “state to the jury

all matters of law necessary for its information in giving

its verdict.” ORCP 59 B; see also ORS 136.330(1) (applying

ORCP 59 B to criminal cases). We have thus held that it is

error when the jury instructions “give the jury an incom-

plete and thus inaccurate legal rule to apply to the facts[.]”

State v. Abram, 273 Or App 449, 452, 359 P3d 431 (2015).

We have also held that a trial court commits plain error

when it fails to instruct the jury on all material elements of

a crime. State v. Gray, 261 Or App 121, 130, 322 P3d 1094

(2014). Additionally, when a defense—like self-defense—is

“raised,” a trial court errs in failing to instruct the jury that

the state bears the burden to disprove the defense where

defendant puts it at issue. See Abram, 273 Or App at 456;

ORS 161.055(1) (“When a ‘defense,’ other than an ‘affirma-

tive defense’ as defined in subsection (2) of this section, is

raised at trial, the state has the burden of disproving the

defense beyond a reasonable doubt.”). A court must thus

instruct the jury on all defenses that the defendant raises.

See State v. Dahrens, 192 Or App 283, 285, 84 P3d 1122

(2004) (“A defense to a criminal charge must be presented

to a jury through a jury instruction if there is any evidence

from which the jurors could infer that the required elements

of the defense are present.” (Internal quotation marks and

citation omitted.)); see also State v. Webber, 85 Or App 347,

351, 736 P2d 220, rev den, 304 Or 56 (1987) (“A criminal

defendant is entitled to instructions on all issues of law aris-

ing from the evidence[.]”).

We have also addressed when it is error not to

instruct the jury on a limitation to a defense. In State v.

Freeman, 109 Or App 472, 476, 820 P2d 37 (1991), the trial

court denied the defendant’s requested jury instruction on

self-defense and the defendant appealed. The state argued

598 State v. Brown

in part that the defendant’s requested instruction was

incomplete because it failed to include the limitations on

self-defense. Id. at 475. We began by observing that once a

claim of self-defense is raised, the state has the burden of

disproving it beyond a reasonable doubt. Id. at 475-76. We

explained that “[o]ne means of disproving self-defense is to

prove that one or more of the limitations in ORS 161.215

is present.” Id. at 476. Because the defendant had no bur-

den to disprove the limitations, we concluded that he had

no burden to submit the instructions on them; if the state

believed that “there was evidence proving one or more of

the limitations in ORS 161.215, it was obliged to request an

instruction conveying that theory to the jury.” Id.

We ultimately agree with defendant that ORCP 59 B,

in combination with the cases that establish that it is the

state’s burden to request instructions on self-defense—

including limitations on self-defense—establish that that

the error here is obvious and not reasonably in dispute.

From the statutes and cases just discussed, several princi-

ples are apparent:

• A jury must have instructions on all matters of law

necessary for its information in giving its verdict,

ORCP 59 B; ORS 136.330(1);

• It is the state’s burden to disprove a defendant’s

claim of self-defense, Abram, 273 Or App at 456;

ORS 161.055(1); and

• If the state contends that a limitation on a claim of

self-defense is supported by the evidence, it is obli-

gated to request an instruction conveying that the-

ory to the jury, Freeman, 109 Or App at 476.

From that, we conclude that it is obvious and not reasonably

in dispute that if, as here, the state intends to rely on the ini-

tial aggressor limitation to self-defense (and if the evidence

supports that theory), the trial court must instruct the jury

on that limitation. Stated slightly differently, because it is

the state’s obligation—not a defendant’s—to disprove self-

defense and to ask for an instruction on the limitation to

self-defense, and because a jury must be instructed on all

matters of law necessary for its verdict, a prosecutor who

Cite as 327 Or App 592 (2023) 599

invokes the exception must concomitantly seek the corre-

sponding jury instruction. The trial court therefore erred by

not giving the initial aggressor instruction when the state

intends to rely on that limitation, particularly where, as

here, the prosecutor announces their intent to rely on the

initial aggressor theory and then suggests, incorrectly, that

it is defendant’s burden to seek any additional instructions.

Next, we must consider whether the error was

harmless and, if not, whether we will exercise our discretion

to correct it. State v. Horton, 327 Or App 256, 262, 535 P3d

338 (2023). To assess whether error is harmless, we consider

“the instructions as a whole and in the context of the evi-

dence and record at trial, including the parties’ theories of

the case with respect to the various charges and defenses at

issue.” State v. Ashkins, 357 Or 642, 660, 357 P3d 490 (2015).

Defendant argues that the error is not harmless because,

absent the necessary instruction, the jury was misinformed

about the law because the prosecutor’s description of the

initial aggressor limitation was incomplete. He observes

that the initial aggressor limitation, while generally not

permitting someone who is the initial aggressor to claim

self-defense, does allow a claim of self-defense if the per-

son was the initial aggressor but then “withdraws from the

encounter and effectively communicates to the other person

the intent to do so, but the latter nevertheless continues or

threatens to continue the use of unlawful physical force.”

See ORS 161.215(1)(b).2 In her closing, the prosecutor noted

that defendant could not claim self-defense if he were the

initial aggressor but did not explain that self-defense would

be viable if defendant had withdrawn from the encounter:

“[T]he initial aggressor can’t claim self-defense. The other

person can.”

We agree with defendant that that statement was

incomplete and, given the evidence in the case—particu-

larly the evidence that defendant may have been backing

away from the victim at the time the fatal shot was fired—

we cannot say that there is little likelihood that the error

affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d

1111 (2003). That holds particularly true given that there

2

The state offers no argument about whether the error was harmless.

600 State v. Brown

was evidence that defendant may not have been the initial

aggressor and that even if he was, he had retreated, which

could give rise to an inference that he intended to withdraw

from the encounter.

Although we conclude that the error is not harmless,

“our assessment of where [the error] falls on the spectrum of

‘likelihood’ of having affected the verdict can be an import-

ant consideration to the exercise of discretion.” Horton, 327

Or App at 264. The likelihood that the error affected the

outcome goes to its “gravity” and to “the ends of justice.”

Id.; see also State v. Inman, 275 Or App 920, 936, 366 P3d

721 (2015), rev den, 359 Or 525 (2016) (“[T]he error in this

case was not particularly grave, in terms of its likelihood

of affecting the verdict[.]”); State v. Pergande, 270 Or App

280, 285-86, 348 P3d 245 (2015) (citing “the ends of justice

and the gravity of the error” in exercising discretion to cor-

rect a plain error that was “likely” harmful and carried a

“significant risk” that it affected the verdict).

This is a case in which it is appropriate for us to

exercise our discretion to correct the error. As we explained

above, we cannot say that there was little likelihood that

the error affected the verdict. It was the state, and not

defendant, that raised the issue of initial aggressor, and

given the timing of it doing so (late in the trial), defendant

had limited opportunity to address the issue. And it was

the state, not defendant, who bore the burden of asking

for instructions if it chose to rely on the initial aggressor

limitation. Additionally, as we have noted in a similar cir-

cumstance, although defendant could have prevented the

problem by requesting a further instruction, which weighs

against exercising our discretion, defendant’s challenged

conviction is for serious a felony. See State v. Pervish, 202

Or App 442, 466, 123 P3d 285 (2005), rev den, 340 Or 308

(2006) (holding that unpreserved instructional error was

plain and exercising our discretion to correct it, in part

because of the seriousness of the convictions); see also Gray,

261 Or App at 132 (concluding that gravity of the error

compelled exercise of discretion to correct plain instruc-

tional error, because the trial court’s failure to instruct the

jury as to culpable mental state was not harmless, and the

Cite as 327 Or App 592 (2023) 601

defendant’s challenged convictions included “serious felo-

nies”—convictions for first-degree rape). What is more, we

have often chosen to exercise our discretion in the interest

of judicial economy and to forestall future post-conviction

proceedings, yet another reason that guides our discretion

here. See, e.g., State v. Simkins, 263 Or App 459, 461-62, 330

P3d 1235 (2014) (exercising discretion to correct plain error

in the interest of judicial economy and to forestall future

post-conviction proceedings).

In choosing to exercise our discretion, we reject the

state’s contention that defendant may have had a strate-

gic reason for not objecting or seeking the initial aggres-

sor instruction himself. As the Supreme Court recently

explained, where the record reflects that a defendant

“invited,” “encouraged,” or “even sought the court’s ruling”

that the defendant then claims is plain error, an appellate

court will not exercise its discretion to correct the error.

State v. Chitwood, 370 Or 305, 324-25, 518 P3d 903 (2022)

(describing the circumstances from which it is reasonable

to conclude that defense counsel acted strategically). Also

significant to the court’s decision to correct the plain error

in Chitwood was the fact that “even if defendant may have

benefited by remaining silent and failing to object,” the

defendant’s “advantage, if any, occurred at the instigation of

the prosecutor[.]” Id. at 325. In reaching that conclusion, the

court surveyed previous cases in which the record reflected

a strategic decision on a defendant’s part. Id. at 324. For

instance, in State v. Fults, 343 Or 515, 523, 173 P3d 822

(2007), the Supreme Court declined to exercise its discretion

where the defendant acted with “apparent encouragement of

the judge’s choice” with respect to a departure sentence. And

in State v. Steen, 346 Or 143, 154, 206 P3d 614 (2009), the

court declined to exercise its discretion to reverse for plain

error where “defense counsel stipulated to the procedure

that the state and the trial court followed.” See also State v.

Serrano, 355 Or 172, 188, 324 P3d 1274 (2014), cert den, 576

US 1037, 135 S Ct 2861, 192 L Ed 899 (2015) (declining to

reverse for plain error because trial court had consulted the

parties before crafting a response to jury questions and the

defendant had agreed with answers given).

602 State v. Brown

Applying those precepts here, the record does not

support an inference that defendant “invited or encouraged”

the error. To the contrary, it was the prosecutor who raised

the issue (and did so in incomplete fashion). Even if, as in

Chitwood, defendant may have had a reason to remain silent

(which, as we explain below, is unlikely), the record does not

demonstrate that defendant encouraged, agreed to, stipu-

lated to, or otherwise invited the omitted jury instruction.

To be sure, as the state observes, the initial aggres-

sor limitation is a limit on the ability of a defendant to

claim self-defense, and thus a defendant might not want an

instruction that highlights that fact. Yet it is equally true

that the limitation contains within it another limitation

that permits a defendant to retreat from being the initial

aggressor, which—particularly given defendant’s version

of events—could have benefitted defendant in this case.

Moreover, we can think of no strategic reason why defen-

dant would want the jury to be instructed on one limita-

tion on self-defense (the use of deadly physical force) and

not another (initial aggressor), particularly where, as here,

there was evidence that defendant may have been attempt-

ing to withdraw from the encounter. We therefore exercise

our discretion to correct the error.

Conviction for first-degree manslaughter reversed

and remanded; remanded for resentencing; otherwise

affirmed.