Submitted October 16, 2013
Columbia County Circuit Court No.111061. Steven B. Reed, Judge.
Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[265 Or.App. 391] SERCOMBE, J.
Defendant appeals a judgment convicting her of fourth-degree assault, ORS 163.160, and harassment, ORS 166.065. Defendant asserts that the trial court erred when, in response to a question from the jury, it gave the jury instructions regarding criminal trespass and defense of premises. As explained below, we agree that the trial court erred and, accordingly, reverse and remand.
This case arose out of events that occurred on March 23, 2011, when defendant visited her sister (Crape). Defendant and her daughter, R, arrived at Crape's home in the evening, and defendant and Crape drank several alcoholic beverages and visited while defendant did laundry. At some point during the evening, R went to sleep in one of the bedrooms of the house.
At approximately 12:30 a.m., defendant informed Crape that she was ready to leave and Crape, who believed that defendant was intoxicated, asked defendant not to take R with her. Defendant nonetheless proceeded to the room where R was sleeping and woke her. R told defendant that she did not want to leave, and defendant responded by raising her voice and swearing at R. Crape then pulled defendant into the hallway of the home. Defendant and Crape struggled with each other and, at some point, defendant hit Crape in the face with her keys. R watched the two sisters struggle and eventually intervened when she saw that Crape's face was bleeding. Defendant was ultimately arrested and charged with fourth-degree assault and harassment. A breath test conducted at 4:14 a.m. at the police station indicated that defendant's blood alcohol content was 0.0 percent.
At trial, defendant asserted that she had acted in self-defense. She testified that, while she was in the bedroom with R, Crape had grabbed her arm and shoved her down the hallway. Defendant testified that she refused to [265 Or.App. 392] leave the house without R, and that Crape insisted that defendant do so and followed up by grabbing and twisting defendant's hair and pulling her down. According to defendant, she then swung upward toward Crape and struck her without realizing that the keys were in her hand.
The court instructed the jury on self-defense as follows:
" The defense of self-defense has been raised. A person is justified in using physical force upon another to defend herself from what she reasonably believes to be the use, or imminent use, of unlawful physical force. In defending, a person may only use that degree of force which she reasonably believes to be necessary. The burden of proof is on the ...