Submitted: May 1, 2015.
Multnomah County Circuit Court. 131154171. Adrienne C. Nelson, Judge.
Peter Gartlan, Chief Defender, and Anna Melichar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[271 Or.App. 852] PER CURIAM
Defendant appeals a judgment of conviction for fourth-degree assault, ORS 163.160, and harassment, ORS 166.065. Defendant assigns error to the trial court's instruction to the jury that the victim's use of force against defendant was lawful if the victim reasonably believed that defendant was committing a criminal trespass (a defense of premises instruction). At trial, defendant raised a self-defense theory and the trial court instructed the jury accordingly. In his view, giving a defense of premises instruction was error because State v. Oliphant, 347 Or. 175, 194, 218 P.3d 1281 (2009), and State v. Carlon, 265 Or.App. 390, 397, 335 P.3d 343 (2014), together hold that instructing the jury to consider the lawfulness of the victim's use of force in defense of premises inserts irrelevant issues into the jury's deliberations regarding a defendant's self-defense claim. That is, the defense of premises instruction impermissibly shifted the jury's consideration of defendant's perspective (whether defendant reasonably believed that the victim unlawfully used force against him) to the victim's perspective (whether the victim reasonably believed that he lawfully used force). See Oliphant, 347 Or. at 194 (the defendant " had a right to have the jury consider the circumstances surrounding the event from his own point of view" ).
The state agrees that Oliphant and Carlon are dispositive here and concedes that the trial court erroneously instructed the jury on defense of premises. We accept the state's concession and conclude that the instructional error is not harmless. Accordingly, ...