and submitted December 6, 2016, De La Salle High School,
County Circuit Court AP140002Lynn W. Hampton, Judge.
Melichar, Deputy Public Defender, argued the cause for
appellant. With her on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
L. Kutler, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
Summary: Defendant appeals a judgment of conviction for
fourth-degree assault, ORS 163.160, assigning error to the
trial court's refusal to instruct the jury on
self-defense. Held: The trial court erred by not
instructing the jury on self-defense. Once a defendant has
properly raised a defense of self-defense, under ORS 161.055,
it is the state's burden to disprove the defense beyond a
reasonable doubt. The evidentiary threshold for a defendant
seeking the instruction is low; the evidence must be such
that, when the record as a whole is viewed in the light most
favorable to the defendant, it would be rational for a
factfnder to find that the state had not met its burden of
proving that self-defense does not apply. Under that
standard, the evidence was sufficient to require the trial
court to give the instruction.
Or. 614] LAGESEN, J.
appeals a judgment of conviction for fourth-degree assault,
ORS 163.160. Before trial, defendant raised the
defense of self-defense by providing notice in writing to the
state and requested that the trial court deliver Oregon
Uniform Criminal Jury Instruction 1107 on
self-defense. The trial court declined to instruct
the jury on self-defense, concluding that the evidence did
not support the instruction. On appeal, defendant assigns
error to the trial court's refusal to instruct the jury
on self-defense. For the reasons that follow, we agree with
defendant that the jury should have been instructed on
self-defense and that the trial court's failure to
deliver the instruction was not harmless. We therefore
reverse and remand.
struck Koskela, the maintenance man for defendant's
apartment building, while Koskela was fixing something in the
apartment of McDuffie, another tenant. Koskela's
resulting injuries included scratches, cuts, back spasms, and
pulled muscles. Defendant was McDuffie's Alcoholics
Anonymous sponsor. This much is not disputed. What is
disputed, and was disputed at trial, are the circumstances
surrounding defendant's act of striking Koskela.
to Koskela, defendant was arguing with him due to a dispute
regarding Koskela's maintenance duties. Defendant entered
the apartment unexpectedly and started "screaming
obscenities and flailing." Koskela asked defendant to
leave, but defendant hit Koskela instead. At one point,
defendant pulled Koskela to the ground, which was severely
painful for Koskela because of a preexisting back condition.
Koskela pulled a gun on defendant, but defendant persisted in
coming after Koskela. Defendant [288 Or. 615] then exhibited
signs of a seizure, which Koskela believed was faked.
Defendant's partner, Hudson, entered the apartment and
escorted defendant out of the apartment. The whole event
lasted three to five minutes.
to McDuffie, defendant had entered her apartment without
permission and immediately started attacking Koskela. The
altercation lasted 15 or 20 minutes before Koskela pulled a
gun. During that altercation, defendant had a two-minute
seizure, also believed by McDuffie to be faked, and then got
up and went after Koskela again, attacking him for another 10
minutes. It was then that Koskela pulled a gun. During the
altercation, defendant threw Koskela against the kitchen
sink, causing him to fall to the ground.
to defendant, he had entered the apartment on McDuffie's
invitation. Defendant had spent most of the day counseling
McDuffie, because she had been contemplating drinking again,
but had taken a break to eat and unwind in his own apartment.
During that time, Koskela arrived at McDuffie's
apartment. When defendant returned to McDuffie's
apartment (he had called her first and she had told him to
come over), Koskela "aggressively" told defendant
to leave, but defendant said that he would not leave until he
spoke with McDuffie. After that point, defendant does not
remember what happened because he had a seizure and blacked
out. When he came to, his partner, Hudson, was tending to
to Hudson, shortly before defendant hit Koskela, defendant
had come to the door to let Hudson into the apartment
building. Defendant went back into the building while Hudson
finished his cigarette. Approximately two minutes later,
Hudson heard yelling between two people coming from the
direction of McDuffie's apartment. Hudson knew that
defendant was counseling McDuffie, and he went to her
apartment. There, he saw Koskela pointing a pistol at
defendant; defendant then "reached out, popped him one,
turned around, took two steps, and went into a seizure."
Hudson tended to defendant during and after the seizure, and
he helped defendant ...