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State v. Flack

Court of Appeals of Oregon

February 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
GEORGE MELVIN FLACK, Defendant-Appellant.

          Argued and submitted December 19, 2016

         Deschutes County Circuit Court 14FE0717; A. Michael Adler, Judge.

          Andrew D. Robinson, 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 Services.

          Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for resisting arrest, second-degree assault, and assaulting a public safety officer. Defendant contends that the trial court erred by providing a jury instruction on self-defense that permitted the jury to improperly consider the victim's reasonable belief regarding the necessity of force, instead of focusing on defendant's reasonable belief. The state argues that the Court of Appeals should not review the error because defendant invited the error. Held: The court concluded that defendant did not invite the error. Furthermore, the court concluded that the error was plain and exercised its discretion to correct the error.

         [290 Or. 153] TOOKEY, J.

         Defendant appeals a judgment of conviction for resisting arrest, second-degree assault, and assaulting a public safety officer, raising three assignments of error. We write to address only defendant's first assignment of error, and reject his second and third assignments without discussion.[1] In his first assignment, defendant contends that the trial court erred by providing an instruction on self-defense that permitted the jury to improperly consider the officer's reasonable belief regarding the necessity of force, instead of focusing on defendant's reasonable belief. The state argues that we should not review the error because defendant invited it. For the reasons that follow, we conclude that defendant did not invite the error. Furthermore, we conclude that the error in this case was plain and exercise our discretion to correct it. Accordingly, we reverse and remand defendant's convictions for resisting arrest, second-degree assault, and assaulting a public safety officer, and we otherwise affirm.

         The relevant facts are primarily procedural. Following an affray with Officer Murphy, defendant was charged with second-degree disorderly conduct, ORS 166.025, resisting arrest, ORS 162.315, second-degree assault, ORS 163.175, assaulting a public safety officer, ORS 163.208, and second-degree escape, ORS 162.155. At trial, defendant relied on a theory of self-defense, and the parties requested jury instructions on that point. The state first requested Uniform Criminal Jury Instruction (UCrJI) 1116. UCrJI 1116, "Defense-Physical Force-Involving Peace Officers, " provides, in pertinent part, that "[a peace officer] is justified in using physical force on a person being arrested when and to the extent that [he] reasonably believes it is necessary to [make an arrest] unless [he] knows the arrest is not lawful." Defendant argued that the court should not instruct the jury [290 Or. 154] with UCrJI 1116 because it "is a comment on the evidence" and because "the state is going to be arguing that Officer Murphy is not on trial in this case, and that he had no burden to * * * justify the use of force." The state responded that the instruction is "an accurate statement of the law" and is appropriate to show Murphy was "justified in using physical force" because defendant was claiming self-defense. The court ruled that UCrJI 1116 was an appropriate instruction to give the jury.

         Next, the state offered UCrJI 1226, "Resisting Arrest-Illegality of Arrest-No Defense, " which provides: "If [defendant] knew that the person making the arrest was a [peace officer], it is not a defense to the charge of resisting arrest that the [peace officer] lacked legal authority to [make the arrest], provided the officer was acting under color of official authority." Defendant continued to object to any instruction that focused the jury's attention on the lawfulness of Murphy's actions, stating, "Here again, I think * * * what this does is it shifts the burden of proof from the state to the defendant, and I think it does so improperly." The court overruled defendant's objection and decided to give UCrJI 1226 to the jury.

         Finally, the state offered UCrJI 1227A, "Peace Officer Use of Physical Force During an Arrest, " which provided that "[a] peace officer may use physical force on a person he is arresting, but only when and to the extent that the officer reasonably believes physical force is necessary to make an arrest. An arresting officer may use reasonable physical force to overcome opposition to the arrest."[2]Defendant objected, stating that UCrJI 1227A is "covered by [UCrJI] 1116" and is essentially "the exact same instruction." The state and the court agreed that giving both instructions would be "redundant, " and the state withdrew its request to give UCrJI 1227A.

          [290 Or. 155] The court turned to defendant's proposed instructions. Defendant requested UCrJI 1227, "Self-Defense- Resisting Arrest, " which provides:

"If [defendant] reasonably believed that the officer arresting [him was] using more physical force than was necessary to make the arrest, then [defendant] was entitled to use physical force in self-defense. In defending, [defendant] was entitled to use only that degree of physical force that [he] reasonably believed to be necessary to ...

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