State v. Vanornum

ORCP 59 H, which provides that "a party may not obtain review on appeal" of an asserted error in giving or failing to give an instruction unless the party objected in a specified manner, does not control preservation of instructional error for purposes of appellate court review.

Defendant appealed his conviction for resisting arrest. Defendant raised a defense of self-defense. At trial, the court gave Uniform Criminal Jury instruction (UCrJI) 1227, which describes when it is permissible to use physical force for self-defense against an officer's unreasonable force in making an arrest. Defendant did not object, but he requested that the court give a special instruction defining "unreasonable physical force" for purposes the self-defense claim. The trial court refused, and Defendant formally excepted to that decision. Defendant was convicted. On appeal, he argued that the trial court had erred by (1) giving UCrJI 1227, because it was an incorrect statement of the law; and (2) refusing to give Defendant's special instruction. Defendant acknowledged that the error was unpreserved but requested plain error review. The Court of Appeals declined, citing to ORCP 59 H as precluding plain error review because Defendant had not excepted to the trial court’s refusal to give the instruction with sufficient particularity. On appeal to the Supreme Court, Defendant argued that ORCP 59 H does not bind appellate courts to any preservation standard that they otherwise would apply under their own authority, and does not preclude plain error review. The Court agreed. Looking to the context and legislative history of ORCP 59 H (along with ORS 136.330(2) which applies the rule to criminal actions), the Court concluded that, in criminal and civil cases, ORCP 59 H neither governs preservation of instructional error nor precludes plain error review. Applying the plain error doctrine here, the Court held that both errors were plain on the face of the record. The Court remanded to the Court of Appeals to exercise its discretion whether to consider Defendant's first claim of plain error, and only reach the second claim if it deems necessary. Reversed and remanded.