State v. Wiltse

“[W]hether a trial court erred by giving an instruction that violated [the rules governing jury instructions] is something that can be determined based on the instruction itself.”

At the State’s request, the trial court provided a special jury instruction, which conveyed that specific evidence established an element of the charged offense. Although no objection was raised in the trial court, Defendant asserted that the special instruction violated ORCP 59 E as an impermissible comment on the evidence, and the appellate court could consider the unpreserved error under the plain error doctrine.

The Court of Appeals concluded that they could not identify the alleged error in the special instruction’s provision without choosing between competing inferences, or going outside the record.

Trial courts’ duties regarding jury instructions are unaffected by the parties’ actions. “Thus, whether a trial court erred by giving an instruction that violated those duties is something that can be determined based on the instruction itself.” Consequently, review of instructional errors does not require a court to leave the record, or to consider competing inferences. “Therefore, we hold that the Court of Appeals erred in concluding that the trial court’s instructional error did not appear on the record.”