and submitted September 26, 2017
County Circuit Court C053660CR; Rick Knapp, Judge.
Wiley, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Rios argued the cause for respondent. With him on the brief
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Defendant appeals from a judgment of conviction of
one count of felony murder, ORS 163.115, one count of
manslaughter, ORS 163.118, and one count of second-degree
assault, ORS 163.115. The parties had exchanged multiple
versions of a proffered instruction over the course of
months. However, the defendant's final fling of the
special instruction contained what all parties agree was an
incorrect statement of the law. On appeal, defendant argues
that the trial court erred when it denied his special
requested jury instruction. Held: The trial court
did not err. In reviewing jury instructions, the court is
confined to the final written instruction submitted. Any word
choice that affects the meaning of the instruction in a
material way cannot be considered a typographical error. The
instruction as proffered to the trial court was an incorrect
statement of the law, and therefore the instruction was
Or.App. 404] JAMES, J.
appeals from a judgment of conviction of one count of felony
murder, ORS 163.115, one count of manslaughter, ORS 163.118,
and one count of assault in the second degree, ORS 163.175.
On appeal, defendant raises four assignments of error. We
reject the third and fourth without discussion. His first and
second assignments raise a combined challenge to the trial
court's denial of his special requested jury instruction.
We conclude that the instruction proffered to the trial court
was not a correct statement of law, and affirm.
facts underlying defendant's conviction were summarized
by the Oregon Supreme Court in State v.
Lopez-Miniarez. 350 Or. 576, 260 P.3d 439 (2011):
"The charges in this case arose after defendant and his
father drove in defendant's truck to the home of a man
who was having an extra-marital affair with defendant's
mother. When defendant and his father arrived at the
man's home, no one was there. The victim-the man's
teen-aged son-arrived shortly thereafter. When victim
arrived, defendant or his father, or the two of them
together, pushed the victim into the house, where the victim
was shot, but not killed. The victim was then forced into
defendant's truck and taken to a remote area off a
logging spur road, where he was killed. Police arrested
defendant later that night at his home, after a neighbor
reported seeing the victim abducted and gave police the
license plate number of the truck in which he was taken.
Defendant's father was never apprehended by
Id. at 578.
a series of appeals, this case came back before the trial
court for retrial. In advance of that retrial, the state,
defense counsel, and the trial court engaged in an extensive
discussion, over the course of several months, regarding the
legal standard and proper instruction for felony murder. That
back and forth discussion included multiple filings with the
court. In his final filing, defendant set forth his latest
version of his proposed instruction:
"Felony Murder requires a 'causal connection'
between the felony the defendant was committing and the
homicide. [289 Or.App. 405] If the felony was completed,
terminated, or withdrawn from prior to the
coparticipant's commission of the felony, this
may be sufficient to break the causal connection between the
felony and the homicide in a ...