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)

483 P3d 615

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 penetra-

tion, 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, argu-

ing 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.

299 Or App 787, 451 P3d 1032 (2019).

Cite as 367 Or 670 (2021) 671

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 instruc-

tions 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 uni-

form 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, 299 Or App 787, 451 P3d 1032 (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 “incapa-

ble 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” men-

tal state does not apply to the element that the victim was “incapable of con-

sent 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).

Cite as 367 Or 670 (2021) 673

that she was “incapable of consent by reason of * * * mental

incapacitation or physical helplessness.” To prove that defen-

dant was guilty of first-degree unlawful sexual penetration

under ORS 163.411(1)(c), the state had to prove that defen-

dant 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 con-

sumed 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 defen-

dant 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 defen-

dant’s, testified that, after the victim ran home crying, he

asked defendant what had happened, and defendant admit-

ted having sex with the victim and penetrating her vagina

with his fingers. When asked whether defendant was intox-

icated 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 toxicol-

ogy. 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 alco-

hol 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 testi-

fied that, although someone extremely sedated would likely

not be able to move, it is possible that the person could per-

ceive what is going on around them.

Before closing arguments, the parties submit-

ted jury instructions. Both parties requested the Uniform

Criminal Jury Instructions (uniform instructions) defin-

ing the crimes of first-degree rape and first-degree unlaw-

ful sexual penetration, as well as the uniform instructions

defining the terms “knowingly,” “mentally incapacitated,”

“incapacity to consent,” “physically helpless,” and “igno-

rance or mistake as a defense to sexual offenses.” Defendant

requested those instructions by referring to the number cor-

responding to the relevant uniform instruction. The state

submitted typed instructions that were purportedly identi-

cal 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 instruc-

tions 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” com-

mits the charged acts. The next part of the court’s instruc-

tions 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.

Cite as 367 Or 670 (2021) 675

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 defen-

dant “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 pro-

vided 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 intox-

icated, it could consider that fact in determining whether

defendant acted with the requisite mental state.

After the trial court instructed the jury, the par-

ties 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 vic-

tim]; 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 instruc-

tions 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, defen-

dant 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 instruc-

tions 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 writ-

ten 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 rea-

son 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 con-

cerning the sufficiency of the evidence are not before this court.

Cite as 367 Or 670 (2021) 677

that what had occurred was not an irregularity as contem-

plated 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 omis-

sion 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 argu-

ment 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 instruc-

tions. 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 defen-

dant 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, 278 Or 359, 563 P2d 731 (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, 214 Or 445, 477, 323 P2d 301, cert den, 358 US

826, 79 S Ct 45, 3 L Ed 2d 66 (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 ‘irregu-

larity 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 prem-

ises of the state’s argument. He contended that Maulding

did not control because it was decided based on the prede-

cessor 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 ques-

tion 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 affida-

vit 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 instruc-

tions for that crime in all respects, but the state’s typed

instructions for the first-degree unlawful sexual penetra-

tion charges did not. The state’s instructions on that crime

Cite as 367 Or 670 (2021) 679

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 evi-

dence that defendant had been unaware of the “irregular-

ity” 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, 310

Or 347, 356, 800 P2d 259 (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 com-

pleteness of counsel’s arguments concerning that evidence

is a substitute for the sufficiency of the instructions”); State

v. Pierce, 235 Or App 372, 377, 232 P3d 978 (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 harm-

less. See Highway Com. v. Kromwall, 226 Or 235, 238-39,

359 P2d 907 (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, 299 Or App at 789-90. The court framed the ques-

tion as “whether a trial court may grant a motion for new

trial under ORCP 64 B(1) if the court provided jury instruc-

tions to which the parties stipulated and did not object, but

680 State v. Ramoz

the trial court later concludes, post-verdict, that the instruc-

tions mistakenly stated the law.” Id. at 795. 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).” Id. at 797. 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.” Id. at 798.

The court began its analysis by noting that it was

an “unexceptional premise that when a trial court incor-

rectly instructs a jury, that is legal error.” Id. at 795. 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.’ ” Id. 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.”

Id. 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).”

Id. at 796-97 (emphasis in original).

After determining that, if the facts of this case con-

stituted 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). Id. at 797. 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. Id. at 798. The phrase was defined as a

“ ‘[d]eviation from * * * any common or established rule’ or

‘deviation from method or order.’ ” Id. (quoting Noah Webster, 1

An American Dictionary of the English Language, unpagi-

nated (1828) (alterations in Ramoz)). The court determined

Cite as 367 Or 670 (2021) 681

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 construc-

tion of ‘irregularity of the proceedings’ under ORCP 64 B(1)

that would have the effect of opening the door for future liti-

gants 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 inat-

tention 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 ques-

tion.” Id. at 806-10. Under that distinction, most instruc-

tional 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 rea-

sons. 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 commit-

ted “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 spe-

cific 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 defen-

dant’s motion for new trial because the error was harmless.

The state explains that Article VII (Amended), section 3, of

Cite as 367 Or 670 (2021) 683

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 con-

tends 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 lim-

itation 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 deter-

mination, 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 erro-

neous jury instructions was prejudicial, and we must con-

clude 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 argu-

ment, 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., 330 Or

376, 381, 8 P3d 200 (2000), adh’d to on recons, 331 Or 595, 18 P3d 1096 (2001).

When it comes to Oregon Rules of Civil Procedure, our aim is to determine the

intent of the Council on Court Procedures. Id. 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 tri-

als 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 affect-

ing 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 dis-

cretion 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, 346 Or 160, 171, 206 P3d 1042 (2009) (internal quotation omitted). After

examining the text and context, we consider “pertinent legislative history that

a party may proffer.” Id. at 172. 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. Id.

Cite as 367 Or 670 (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 dis-

cretion, 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 state-

ment 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. Ramoz

17.630 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 dis-

cretion, 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 ver-

dict 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 367 Or 670 (2021) 687

“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 con-

text, 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, 300 Or

651, 656, 717 P2d 1169 (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 pro-

ceedings.” 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 permit-

ted 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 recog-

nizes 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, 336 Or 49, 52, 77 P3d 313

(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 pre-

vented 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 pru-

dence 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 consti-

tutes 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 irregulari-

ties 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 “irregulari-

ties 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 consti-

tute 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 367 Or 670 (2021) 689

whether those requirements are met under these circum-

stances. It is not difficult to see that the court’s instructions

were the result of an “irregularity in the court’s proceed-

ings,” 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). 300 Or at 656-67.8 And

in Libbee v. Permanente Clinic, 269 Or 543, 544-46, 525 P2d

1296 (1974), this court upheld a trial court’s order granting

a new trial on the basis of an “irregularity in the proceed-

ings,” 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, 361 Or 314, 328, 392 P3d 721 (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. 300 Or at 660.

690 State v. Ramoz

inconsistent, the latter is paramount to the former so that a

particular intent controls a general intent that is inconsis-

tent 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, 250 Or 54, 58, 440 P2d 229 (1968) (declining to

apply rule that specific statute controls over general because

“[t]he two statutes [could] be harmonized”). Here, the sub-

sections of ORCP 64 B can be harmonized if we read them

to provide trial courts with expansive, overlapping author-

ity 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 irregu-

larity 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 367 Or 670 (2021) 691

relies “materially affect[ed] the substantial rights” of that

party. But, as defendant points out, the “fair trial” require-

ment is not necessarily equivalent to the “materially affect-

ing 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 exclu-

sive, 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 leg-

islature intended.” Baker v. Croslin, 359 Or 147, 157, 376 P3d

267 (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 peti-

tions 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, 330 Or at 382 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, 228 Or App 101,

111, 207 P3d 1200 (2009), vac’d on other grounds, 347 Or 101, 226 P3d 703 (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, dis-

jointed. We review that case law now, taking this opportu-

nity 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 con-

stitutes 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, 214 Or at 473. The events underlying the claim of

misconduct were known by both the defendant and his coun-

sel at the time they occurred, but the defendant made no

“objection, motion or other complaint concerning” the mis-

conduct. Id. at 475. 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. Id. at 475-77.

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, [213

Or 140, 322 P2d 119 (1958)], State v. Bosch, 139 Or 150,

154, 7 P2d 554 [(1932)]; Veazie [et al.] v. Columbia [etc. R.R.

Co.], 111 Or 1, 224 P 1094 (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 367 Or 670 (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, 206 Or 446, 489-90, 290 P2d

190 [(1955)].”

Id. at 476-77. 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, 214 Or at 476. Notably, Hays and Veazie

held that a trial court did not abuse its discretion in grant-

ing a motion for a new trial even though the moving party

did not object. Hays, 213 Or at 147 (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, 111 Or at 6 (explain-

ing that, although the moving party could have objected

to the juror’s outburst during the plaintiff’s closing argu-

ment, 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, 278 Or at 364-65. 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, 139 Or at 153.

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 atten-

tion of the court and remains silent, speculating on the

result, he is deemed to have waived the error.” 214 Or at

477. 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 irregu-

larity 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, 206 Or at 489 (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 “injuri-

ously affected a party’s right to a fair trial.” Langley, 214 Or

at 477. 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 prop-

osition that a trial court has discretion to deny a moving

12

Langley also cited State v. Foot You, 24 Or 61, 70, 32 P 1031, reh’g den, 24

Or 61, 33 P 537 (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.” Id. 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 367 Or 670 (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 dis-

cretion 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, 278 Or at 361.

At trial, the plaintiff requested the uniform instruction on

comparative negligence. Id. That instruction stated that

the plaintiff could only recover if the defendant’s negligence

was greater than the plaintiff’s negligence. Id. The court

instructed the jury according to the plaintiff’s requested

instruction. Id. During deliberation, the jury asked the

trial court what it should do if it found that the plaintiff

was equally negligent. Id. The trial court answered that if

the jury found that the parties were equally negligent, the

plaintiff could not recover. Id. The plaintiff did not object,

and the jury returned a verdict for the defendant. Id.

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. Id. That change had

become effective approximately two weeks before trial. Id.

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 “erro-

neous because of the recent change in the law.” Id. The trial

court granted the plaintiff’s motion and ordered a new trial,

and the defendant appealed. Id.

This court began by noting that there were two stat-

utes 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. Id. 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 Id.

at 361-62. 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. Id. at 361.

This court agreed, overruling an earlier case—

Correia v. Bennett and Johnson et ux., 199 Or 374, 261 P2d

851 (1953). Maulding, 278 Or at 365-66. In Correia, the

defendant had sought a new trial based on instructions

which had incorrectly “overemphasized” a particular aspect

of the case. Correia, 199 Or at 381. 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.”

Id. at 382.

In Maulding, this court noted that Correia and its

progeny had failed to distinguish between the two differ-

ent statutes that governed new trials. The correct rule, we

said, was that found in Chief Justice O’Connell’s dissent in

Beglau v. Albertus, 272 Or 170, 190, 536 P2d 1251 (1975)—

that a new trial may be granted only when the requisites

of the particular statute at issue are satisfied. Beglau, 272

Or at 190. 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, 278 Or at 363.

Thus, Maulding held that a trial court’s exercise of

its discretion, and this court’s review of the trial court’s deci-

sion, must be rooted in a specific statutory ground authoriz-

ing 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, 278 Or at 366.

Cite as 367 Or 670 (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, 278 Or at 366 (emphasis

added). But Maulding did not reason that, if another sub-

section 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 con-

sider 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, 305 Or 1, 748

P2d 547 (1988). There, the plaintiff had moved for new trial

based on the insufficiency of the evidence under ORCP 64

B(5). Id. at 8 n 1. The trial court had denied the plaintiff’s

motion, and the plaintiff had appealed, assigning error to

that ruling. Id. at 7. The Court of Appeals declined to con-

sider that assignment of error, citing its decision in Barrett v.

Warrington, 60 Or App 406, 653 P2d 1020 (1982) (per curiam),

which had in turn, without explanation, cited Maulding

and had held that the issue of “insufficient evidence to sup-

port the verdict” could not “be raised for the first time in a

post-trial motion.” Barrett, 60 Or App 406. 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, 305 Or at 8 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. Id. at 8. 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., 332

Or 138, 26 P3d 785 (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.” Id. at 152.

Finally, our more recent decision in State v. Sundberg, 349 Or 608, 247

P3d 1213 (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 pro-

ceedings 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 con-

sider 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 consis-

tent with other related policies, rules, and statutes that

In Sundberg, the defendant moved for a new trial on the ground that empan-

eling an anonymous jury was a “jury irregularit[y].” Id. at 613. The trial court

denied the defendant’s motion, and the Court of Appeals affirmed. Id. 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.”

Id. This court granted review and began by analyzing whether defendant pre-

served his argument that the trial court violated Article I, section 11, when it

empaneled an anonymous jury. Id. at 613-14. 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. Id. 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, 367 Or 498, 518 n 10, 479 P3d 1028 (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 367 Or 670 (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 con-

sider, 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., 312

Or 376, 382 n 6, 823 P2d 956 (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] substan-

tial denial in the proceedings * * * of a petitioner’s” consti-

tutional rights); North v. Cupp, 254 Or 451, 459, 461 P2d

271 (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 determina-

tion 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 require-

ment 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 rea-

sons 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 367 Or 670 (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 defen-

dant 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, 272 Or at 180, 180 n 2;

see also Timmins v. Hale, 122 Or 24, 43-44, 256 P 770 (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 under-

standing that prejudicial, nonharmless, error is a thresh-

old that a party must meet to demonstrate that the party

was denied a fair trial and leaves to another day the ques-

tion 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 instruc-

tions 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, 337 Or 528, 537, 99

P3d 271 (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 con-

stituted “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., 191

Or 522, 528-29, 230 P2d 553 (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 prej-

udicial in the particular case before him than are we, con-

fined 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, 226 Or at 236-37. The state argued that the error

was “nonprejudicial,” and therefore, a new trial should not

have been awarded. Id. at 237. This court rejected that argu-

ment, 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 chal-

lenged instruction was not only erroneous but also prejudi-

cial. We defer to his views.”

Id. at 238-39.

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 367 Or 670 (2021) 703

record on paper. And we cannot set aside a trial court’s fac-

tual findings when they are supported by the evidence. State

v. Johnson, 335 Or 511, 523, 73 P3d 282 (2003) (“It is a famil-

iar 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, 366 Or 151, 161, 458 P3d 653 (2020). We apply an

abuse of discretion standard when “application of the appro-

priate legal principles would permit more than one legally

correct outcome,” but, when there is “ ‘only one legally cor-

rect outcome,’ [an] appellate court must determine whether

the trial court erred as a matter of law.” Id. (quoting State v.

Cunningham, 337 Or 528, 536, 99 P3d 271 (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 dis-

cretion.” In State v. Payne, 366 Or 588, 608-09, 468 P3d 445

(2020), for example, we reviewed the Court of Appeals deci-

sion, State v. Payne, 298 Or App 438, 442, 447 P3d 71 (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, 366 Or

at 609. 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 irregular-

ity 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 construc-

tion 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,

328 Or 248, 256-57, 971 P2d 879 (1999) (“A trial court’s inter-

pretation 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 subsec-

tions of ORCP 64 B (emphasis added)); Langley, 214 Or at

487 (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, 366 Or at 609.

Instructional error is not harmless if it “ ‘probably created

an erroneous impression of the law’ in the minds of the jury

Cite as 367 Or 670 (2021) 705

and ‘if that erroneous impression may have affected the out-

come of the case.’ ” Ossanna v. Nike, Inc., 365 Or 196, 219,

445 P3d 281 (2019) (quoting Hernandez v. Barbo Machinery

Co., 327 Or 99, 106-07, 957 P2d 147 (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, 366 Or at 609 (quot-

ing State v. Ashkins, 357 Or 642, 660, 357 P3d 490 (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 defen-

dant 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 intoxica-

tion 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 pen-

etrating 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 characteriza-

tion 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 peo-

ple, 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, 310 Or at 356. 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. Id. 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 argu-

ment. Id. 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. Id. This court concluded

that the court’s failure to provide an instruction on causation

was not harmless. Id. Similarly, this court has explained

that a prosecutor’s arguments are “not a legally sufficient

substitute for necessary jury instructions.” State v. Lotches,

331 Or 455, 469, 17 P3d 1045 (2000), cert den, 534 US 833

(2001).

The state distinguishes Brown and Lotches by not-

ing 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 367 Or 670 (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 iso-

lation 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 ele-

ments 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, 274 Or 525, 529-30,

547 P2d 605 (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 plain-

tiff attributes to it”).

We also are not convinced that defendant’s men-

tal 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 know-

ingly penetrated the victim’s vagina with his finger. During

closing, defendant acknowledged that there had been “sex-

ual 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 help-

lessness, 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 grant-

ing 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 pre-

vented defendant from having a fair trial.

The decision of the Court of Appeals is reversed.

The order of the circuit court is affirmed.