State v. Worsham

154 April 24, 2024 No. 258

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANTHONY ALAN WORSHAM,

Defendant-Appellant.

Douglas County Circuit Court

21CR46056; A178554

Ann Marie Simmons, Judge.

Argued and submitted February 7, 2024.

Stacy M. Du Clos, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, argued the

cause for respondent. On the brief were Ellen F. Rosenblum,

Attorney General, Benjamin Gutman, Solicitor General, and

Patricia G. Rincon, Assistant Attorney General.

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

Judge.

AOYAGI, P. J.

Reversed and remanded.

Cite as 332 Or App 154 (2024) 155

156 State v. Worsham

AOYAGI, P. J.

Defendant was convicted of second-degree assault

based on an incident in which he stabbed C with a pocket-

knife. The issue on appeal pertains to the “initial aggres-

sor” limitation on self-defense. After defendant raised the

defense of self-defense, the state sought to disprove self-

defense, including by arguing that defendant was the initial

aggressor. See ORS 161.215(1)(b) (“[A] person is not justi-

fied in using physical force upon another person if * * * [t]he

person is the initial aggressor[.]”).1 The jury ultimately

rejected the defense and found defendant guilty. On appeal,

in an unpreserved claim of error, defendant argues that the

trial court plainly erred by failing to instruct the jury on the

meaning of “initial aggressor.” For the reasons discussed

below, we agree that it was plain error in this case not to

instruct on the meaning of “initial aggressor,” that the error

was not harmless, and that the circumstances merit the

exercise of our discretion to correct the error. Accordingly,

we reverse and remand for a new trial.2

FACTS

We describe the evidence “in the light most favor-

able to the establishment of the facts necessary to require

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

445 P3d 281 (2019). That is, we describe it in the light most

favorable to defendant having acted in self-defense and hav-

ing not been the initial aggressor.

On August 31, 2021, defendant was living in a tent

in a park in Roseburg. The complainant, C, and his girl-

friend, B, were living in a parked vehicle in the area. C and

B had been arguing loudly for days. Around midnight, B left

the vehicle and walked to the park to purchase drugs, and

C, who had used methamphetamine that evening, followed

her. When C caught up to B in the park, the two yelled “bad

1

An exception to the initial-aggressor limitation applies when the initial

aggressor “withdraws from the encounter and effectively communicates to the

other person the intent to do so, but the latter nevertheless continues or threatens

to continue the use of unlawful physical force.” ORS 161.215(1)(b). That exception

is not at issue on appeal and is not relevant to our analysis, so we do not discuss it.

2

Given our disposition, we do not discuss defendant’s second assignment of

error.

Cite as 332 Or App 154 (2024) 157

words” at each other for “a good 15 minutes,” and B ended up

on the ground.3

From inside his tent, defendant heard C and B pass

by, their arguing, a big slap, then B yelling for someone to

help her and for C to get off her. Defendant decided to “step

in and go help.” Having been assaulted by people in the past,

he took his pocketknife (which had a three-inch blade) for

protection and held it near his thigh, open and pointing out-

ward, as he walked. When defendant was approximately

20 to 30 feet from C and B’s perceived location, defendant

yelled at C to stop beating on a woman. C walked toward

defendant. In the “pitch black” darkness, they did not see

each other until they were practically face to face and

bumped into one another on the trail. C—who did not real-

ize that defendant was holding a knife—swung four times

at defendant (making contact once), then charged at defen-

dant’s waist as if to wrestle him to the ground. Defendant

braced in response, and, when C charged, C impaled himself

on the knife, although neither man immediately realized it.

C backed up and kicked defendant in the ribs. C then touched

his shirt, realized he was bleeding, and said, “[Y]ou fucking

stabbed me.”

Defendant returned to his tent and called 9-1-1.

Defendant told the 9-1-1 operator that someone had run into

his knife while attacking him. In an interview at the hospi-

tal, C told the police that the fight was prompted by defen-

dant saying something like “you shouldn’t hit a woman.”

Defendant was interviewed at the police station over a nine-

hour period; he maintained that he never intended to stab

C, that he carried the knife only for protection, and that

C had impaled himself while trying to assault defendant.

Defendant was charged with first-degree assault,

ORS 163.185, and unlawful use of a weapon, ORS 166.220.

Before trial, he gave notice that he claimed self-defense,

thus triggering the state’s burden to disprove self-defense.

At trial, the state sought to disprove self-defense by, among

3

According to B, she threw herself to the ground (testimony on direct) or

defendant pushed her to the ground (testimony on cross). According to C, he

“hugged” B, causing them both “to lie down and look at the stars” to try to “calm

down.”

158 State v. Worsham

other things, proving that defendant was the initial aggres-

sor. (The state also made arguments about provocation and

mutual combat.)

After both parties rested, and before closing argu-

ments, the court instructed the jury. As relevant here, the

court gave instructions on the elements of assault, the defense

of self-defense, and limitations on self-defense, including

that the defense is not available to the “initial aggressor.”

The court gave no instructions as to what it means to be the

“initial aggressor.”

In closing argument, the prosecutor addressed the

initial-aggressor limitation on self-defense, arguing that it

did not necessarily require “physical” aggression and that it

was up to the jury to decide what an “aggressor” is:

“Well, then you have to look who is the initial aggressor.

And it doesn’t have to be one or the other but who is the

initial aggressor in this, right? And look in here. It doesn’t

say physically aggressive. It’s aggressor. It’s open. It’s open

to your determination.

“A person is not justified in using physical force on

another person if he was the initial aggressor. What did

[the complainant] say to [defendant]? What did [the com-

plainant] know about [defendant] at that moment? Nothing.

He had no idea he was even there.”

A moment later, while transitioning into the separate issue

of deadly force, the prosecutor reiterated his broad view of

what an “initial aggressor” is, stating, “Then we move to

limitations on the use of deadly physical force. Let’s say you

get there and you say oh, no. [Defendant], he wasn’t the ini-

tial aggressor. He didn’t provoke anything. He’s just mind-

ing his own business and look what happens, right.”

In the defense’s closing argument, defense counsel

disputed that defendant was the initial aggressor. He

argued that C brought the force to defendant by charging

defendant, which resulted in an injury because defendant

was carrying a knife for protection at the time.

In rebuttal, the prosecutor focused on the limita-

tions on self-defense. He argued that, although “[t]here are

situations where you could walk up to something [sic] and

Cite as 332 Or App 154 (2024) 159

say something in a certain manner and it might not be

provocation or you may not be the initial aggressor,” here

defendant walked up “yelling in [C’s] face stop beating on

women.” The prosecutor continued, “In this, in this situation

one thing is gonna happen. And everyone in this courtroom

knows it, including [defendant]. But he did that. He walked

into that. He created the situation. He was the one in con-

trol.” The prosecutor continued on the theme of control, then

concluded by stating, “He has a duty, injecting himself, not

to provoke or be the initial aggressor which he clearly does.

That removes his ability for self-defense.” The prosecutor

asked the jury to find defendant guilty.

The jury found defendant guilty of second-degree

assault, as a lesser included offense of first-degree assault,

and unlawful use of a weapon. The two verdicts merged into

a single conviction for second-degree assault.

ANALYSIS

Defendant contends that the trial court erred by fail-

ing to instruct the jury on the meaning of “initial aggressor”

as relevant to self-defense. He acknowledges that he did not

preserve his claim of error and that we are therefore limited

to plain-error review. See State v. Wyatt, 331 Or 335, 341,

15 P3d 22 (2000) (“Generally, an issue not preserved in the

trial court will not be considered on appeal.”); ORAP 5.45(1)

(allowing discretionary review of “plain” errors). An error

is “plain” when it is an error of law, the legal point is obvi-

ous and not reasonably in dispute, and the error is apparent

on the record without having to choose among competing

inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889

(2013). It is a matter of discretion whether we will correct

a plain error. State v. Gornick, 340 Or 160, 166, 130 P3d

780 (2006). We must use “utmost caution” in exercising that

discretion, given the strong policy reasons favoring preser-

vation. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823

P2d 956 (1991).

“Initial aggressor” is a legal term of art. State v.

Phillips, 313 Or App 1, 5, 493 P3d 548, rev den, 368 Or 788

(2021) (“The term ‘aggressor’ has long been a legal term of art

used within the criminal defense of self-defense.”). Although

160 State v. Worsham

the term is not statutorily defined, it is well-established that

“provocation by mere words, if unaccompanied by any overt

act of hostility,” does not make a person the initial aggressor.

Penn v. Henderson, 174 Or 1, 14, 146 P2d 760 (1944); see also

Phillips, 313 Or App at 6 (same). Overt acts of hostility may

include, for example, slapping or striking a person, Silfast v.

Matheny, 171 Or 1, 10, 136 P2d 260 (1943), or spitting in a

person’s face, Phillips, 313 Or App at 7.

The legal meaning of “initial aggressor” is thus

narrower than the common definition. See, e.g., Webster’s

Third New Int’l Dictionary 41 (unabridged ed 2002) (defin-

ing “aggression” as “an offensive action or procedure,” espe-

cially—but not only—“a culpable unprovoked overt hostile

attack”); Merriam-Webster Unabridged Dictionary, https://

www.merriam-webster.com/dictionary/aggression (accessed

on Apr 8, 2024) (defining “aggression” as “a forceful action or

procedure (such as an unprovoked attack) especially when

intended to dominate or master”). It is also significantly

narrower than modern common usage. See, e.g., Wikipedia,

https://en.wikipedia.org/wiki/Aggression (accessed on Apr 8,

2024) (“Aggression is a behavior aimed at opposing or attack-

ing something or someone. * * * In definitions commonly used

in the social sciences and behavioral sciences, aggression is

an action or response by an individual that delivers some-

thing unpleasant to another person. * * * Aggression can take

a variety of forms, which may be expressed physically, or

communicated verbally or non-verbally[.]”); Dictionary.com,

https://www.dictionary.com/browse/aggression (accessed on

Apr 8, 2024) (defining “aggression” as “any offensive action,

attack, or procedure”).

Relying on Penn and Phillips, defendant contends

that, for self-defense purposes, the “initial aggressor” in an

altercation is the person who first employs hostile physical

force or threatens to imminently do so, that mere words are

insufficient without an accompanying overt act of hostility,

and that it was plain error not to instruct the jury on the

meaning of “initial aggressor.” In response, the state concurs

that “mere words” do not make someone the initial aggres-

sor, but argues that physical “force” is not required (pointing

to Phillips, 313 Or App at 5-6, as involving spitting, an “act

Cite as 332 Or App 154 (2024) 161

of hostility * * * that also involves physical contact,” even if

not “force”), and asserts that it is not obvious and is reason-

ably in dispute that the jury needed an instruction on the

meaning of “initial aggressor.” In the state’s view, “[e]ven

assuming that the term ‘initial aggressor’ was an essential

term, jurors likely had a common understanding about what

it means to be an ‘initial aggressor’ that was sufficient to

permit the jury to reach a lawful verdict.”

As an initial matter, we note that, to the extent that

the jury needed to be instructed on the meaning of “initial

aggressor,” it was the state that should have requested the

instruction, as the party bearing the burden of proof. See

State v. Brown, 327 Or App 592, 598-99, 536 P3d 1069 (2023)

(“[B]ecause it is the state’s obligation—not a defendant’s—

to disprove self-defense and to ask for an instruction on

the limitation to self-defense, and because a jury must be

instructed on all matters of law necessary for its verdict,

a prosecutor who invokes the exception must concomitantly

seek the corresponding jury instruction.”); State v. Freeman,

109 Or App 472, 476, 820 P2d 37 (1991) (“A defendant has

no burden to disprove the limitations [to self-defense] and,

consequently, no burden to submit instructions on them.”).

The state’s arguments faulting defendant for not request-

ing an instruction and seeking to put the onus on him to

come up with the exact words for an instruction are there-

fore misplaced. Defendant’s failure to object at trial means

that our review is limited to plain error. However, it was

the state, not defendant, that was actually responsible for

requesting any necessary instructions on the limitations on

self-defense.

We now turn to whether an instruction on the

meaning of “initial aggressor” was necessary in this case.

A trial court is required to “state to the jury all mat-

ters of law necessary for its information in giving its ver-

dict.” ORCP 59 B; see ORS 136.330(1) (making ORCP 59 B

applicable to criminal cases). Moreover, “[a] party is gen-

erally entitled to have the court instruct a jury on a legal

principle if there is evidence to support it and the proposed

instruction accurately states the law.” State v. McNally,

272 Or App 201, 207, 353 P3d 1255 (2015), rev’d on other

162 State v. Worsham

grounds, 361 Or 314, 392 P3d 721 (2017). “Generally, words

of common usage need not be defined for the jury.” State v.

McDonnell, 313 Or 478, 497, 837 P2d 941 (1992). When a

term’s legal meaning differs from common usage, however,

an instruction may be necessary. Compare State v. Nichols,

236 Or 521, 535, 388 P2d 739 (1964) (holding that it was

not error to decline to instruct the jury on the meaning of

“deliberate,” where its meaning was “understandable with-

out elaboration in the context in which it was used”), with

Purdy v. Deere & Co./Norton, 311 Or App 244, 265-66, 492

P3d 99, rev den, 369 Or 110 (2021) (holding that it was

error not to give a requested instruction on the meaning of

“adequate warning,” where the legal meaning of that term

included an objective component that was “not necessarily

encompassed within the common meaning of the term”),

and State v. Roberts, 293 Or App 340, 347-48, 427 P3d 1130

(2018) (holding that it was error not to instruct the jury on

the meaning of “substantial pain,” where the legal meaning

of that term contained a durational component that was not

part of its common meaning and would not be apparent to a

juror without instruction).

Here, had the state requested an instruction on the

meaning of “initial aggressor,” or had defendant objected to

the lack of such an instruction, we would readily conclude on

this record that the court erred in failing to give an instruc-

tion. That is not the question before us though. The question

here is whether it was plain error not to instruct the jury on

the meaning of “initial aggressor,” where the state did not

ask and defendant did not object. Under the circumstances

of this case, we conclude that it was.

It is plain error to fail to instruct the jury on all

material elements of a crime. State v. Gray, 261 Or App 121,

130, 322 P3d 1094 (2014). That principle extends to import-

ant terms of art used in the elements of the crime. For

example, in State v. Chase, 263 Or App 709, 710, 328 P3d

838 (2014), we held that it was plain error not to instruct

the jury on the meaning of “enter or remain unlawfully,” a

statutorily defined term of art used in one of the elements of

the charged crime. In State v. Burris, 309 Or App 604, 609-

10, 483 P3d 1213, rev den, 368 Or 511 (2021), we held that

Cite as 332 Or App 154 (2024) 163

it was plain error not to instruct the jury on the meaning

of “sexual contact,” a statutorily defined term of art used in

one of the elements of the charged crime.

It is also plain error to fail to instruct the jury on the

elements of a defense or limitations on a defense. In Brown,

327 Or App at 599, we held that it was plain error for the

trial court not to instruct the jury on the initial-aggressor

limitation on self-defense, where the prosecutor raised that

limitation during closing argument.

In this case, the court instructed the jury that the

defense of self-defense is not available to the “initial aggres-

sor,” but it did not instruct on what “initial aggressor” means,

despite that term having a narrower legal meaning than

its common usage. It was particularly important on this

record for the jury to have a correct understanding of what

it means to be the “initial aggressor,” because the jury heard

conflicting versions of events from different witnesses, with

a spectrum of scenarios ranging from defendant merely yell-

ing at C not to beat on women, to defendant approaching

C with the intention of starting a fight, to defendant stabbing

C immediately upon seeing him. Without an instruction

from the court as to what it means to be the “initial aggres-

sor,” a juror could reasonably—but incorrectly—conclude

that defendant deciding to involve himself in the situation

and yelling at C not to beat on women qualified as an ini-

tiating act of “aggression” sufficient to defeat self-defense.4

Any doubt about the need to instruct the jury on the

meaning of “initial aggressor” ceased to exist during clos-

ing arguments. In closing argument, the prosecutor told the

jury that being the “initial aggressor” did not necessarily

require “physical” aggression and that it was for the jury to

decide what “aggressor” means. The prosecutor also inac-

curately implied that the jury could find defendant to be

the initial aggressor based on defendant “injecting” himself

into the situation, by approaching the scene of C and B’s

4

C testified to being unaware that defendant had a knife until he was

stabbed. Defendant testified that he yelled out as he was leaving his tent that

he had a knife, not knowing who he might encounter on the trail, but that no one

responded and that it was likely that no one heard him in the commotion. No

version of events was presented in which defendant brandished the knife at C or

threatened C with the knife or in which C even saw the knife.

164 State v. Worsham

argument and yelling at C not to beat on women, instead of

“minding his own business.” The lack of an instruction left

the jury without necessary information. The prosecutor’s

closing argument filled that void with misleading sugges-

tions about what it means to be an initial aggressor—even

if, as the state contends, the prosecutor did not mean to be

misleading—and thus exacerbated the problem.

Under the circumstances, the state should have

asked the court to instruct the jury on the meaning of “ini-

tial aggressor.” See Brown, 327 Or App at 598-99 (when the

prosecution relies on a limitation on self-defense, it is the

state’s obligation to request the necessary instructions on

that limitation). Even absent such a request, however, the

court needed to provide sufficiently complete instructions

on the defense of self-defense, and the limitations on that

defense, for defendant to receive a fair trial. Although “ini-

tial aggressor” is not statutorily defined, it is undisputed

that it is a legal term of art as used in ORS 161.215, see

Phillips, 313 Or App at 5, and the difference between the

colloquial meaning of aggression and the legal meaning for

purposes of self-defense law was directly relevant to one of

the key factual questions to be decided by the jury.

As for what instruction should have been given,

the parties disagree on the specific phrasing of a proper

instruction on the meaning of “initial aggressor.” The state

contends that defendant’s phrasing in his opening brief

is slightly too narrow, to which defendant replies that the

precise phrasing is not the point. We agree with defendant.

Again, it was the state, not defendant, that should have pro-

posed an instruction. In the end, what the court needed to

convey to the jury was that the “initial aggressor” is the

person who first engages in an overt act of hostility, and that

“mere words” do not make a person the “initial aggressor”

unless accompanied by an overt act of hostility.5

In sum, we agree with defendant that, on this

record, it is obvious that the court needed to instruct the

5

There is currently no uniform jury instruction on the meaning of “initial

aggressor,” although the comment to the uniform instruction on the initial-

aggressor limitation notes that “ ‘provocation by mere words’ does not cause a

person to become the initial aggressor unless accompanied by an ‘overt act of

hostility.’ ” Comment to UCrJI 1110 (quoting Phillips, 313 Or App at 6).

Cite as 332 Or App 154 (2024) 165

jury on the meaning of “initial aggressor,” and failing to do

so was a plain error. We also agree that the error was not

harmless. As noted, the jury was presented with different

versions of events—some that would make defendant the

initial aggressor, and some that would not. Having reviewed

the entire record, we conclude that there is more than a lit-

tle likelihood that the lack of instruction on the meaning

of “initial aggressor” affected the verdict.6 State v. Davis,

336 Or 19, 32, 77 P3d 1111 (2003) (an error is harmless if

“there was little likelihood that the error affected the jury’s

verdict”). Finally, this is an appropriate case in which to

exercise our discretion to correct a plain error, and we are

unpersuaded by the state’s arguments to the contrary. Of

particular importance is the gravity of the error, which may

well have resulted in defendant being wrongly convicted of

a Class B felony and sentenced to 70 months in prison.

Reversed and remanded.

6

In reaching that conclusion, we do not consider relevant the fact that

the jury saw excerpts of defendant’s recorded police interview in which police

detectives asserted that defendant was the “aggressor” and could not claim self-

defense. The court instructed the jury not to consider those statements for truth

and that they could “contain inaccurate statements about the law and the facts

in this case.” We presume that the jury followed its instructions, Burns v. General

Motors Corp., 133 Or App 555, 564, 891 P2d 1354 (1995), and therefore do not

view that evidence as relevant to the harmlessness analysis.