State v. Flack

"In cases where a defendant has raised a defense of self-defense, a jury instruction regarding 'an officer's right to use force in effectuating an arrest' inserts 'an irrelevant issue—the arresting officers' actual state of mind—into the jury's deliberations concerning [the defendant's] claim of self-defense.'" State v. Flack, 290 Ore. App. 152, 156

Defendant appealed a conviction for multiple charges stemming from resisting arrest. Defendant assigned error to the trial court's decision to allow a self-defense jury instruction which shifted the burden of proof from the officer to the defendant by allowing the jury to consider the officer's reasonable belief about using force. On appeal, defendant argued that such an instruction improperly colors the evidence. The State argued that the defendant waived an appeal by stating “no” when asked by the trial court if the defendant had an objection to substituting one jury instruction with the one at issue here. The Oregon Supreme Court previously held that a self-defense instruction about the officer's state of mind, such as the one here, inappropriately shifted the burden from the officer to the defendant. Such an instruction which injects the officer’s state of mind into the defendant’s self-defense claim is irrelevant. State v. Oliphant, 347 Ore. 175, 194 (2009). The Court held that the instruction inappropriately shifted the burden to the defendant. The Court also found that the jury instruction was a plain error as the defendant did not actively cause in the error, thereby rejecting the State’s assertion that the defendant waived objected by stating “no.” Reversed and remanded in part; affirmed in part.