State v. Haws

Generally, a "criminal defendant is entitled to have the jury instructed in accordance with his or her theory of the case if the instruction correctly states the law and there is evidence to support giving it." State v. Roberts, 293 Or App 340, 341, 427 P3d 1130 (2018).

Defendant appealed a judgment of conviction for several offenses, including fourth-degree assault constituting domestic violence, ORS 163.160(3), and first-degree burglary constituting domestic violence, ORS 164.225. Defendant assigned error to the trial court's jury instruction. On appeal, Defendant argued the trial court erred in (1) refusing to provide a special jury instruction that defined “substantial pain,” which was related to the assault charge, (2) denying his motion to exclude evidence, and (3) instructing the jury that it could reach a non-unanimous verdict. In response, the State argued that the trial court’s failure to give the "substantial pain" instruction was harmless because based on the record no jury could find Defendant caused any pain without also finding that pain to be substantial. Additionally, the State argued that the trial court’s failure to give the instruction was harmless because Defendant’s closing argument focused on the victim having no pain, as opposed to some "fleeting pain." Generally, a "criminal defendant is entitled to have the jury instructed in accordance with his or her theory of the case if the instruction correctly states the law and there is evidence to support giving it." State v. Roberts, 293 Or App 340, 341, 427 P3d 1130 (2018). The Court of Appeals held that the trial court’s instructional error was not harmless, and therefore, the offenses that directly or indirectly pertained to physical injury required reversal. 

Judgment of conviction on Counts 1 and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.