and Submitted March 23, 2018
County Circuit Court F21134; Russell B. West, Judge.
Fujita Munsey, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Patrick M. Ebbett, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals from a judgment of conviction for
two counts each of assault in the second degree, menacing,
unlawful use of a weapon, and pointing a firearm at another.
Defendant was charged following an altercation during which
he shot the victim. At trial, defendant argued that he shot
the victim in self-defense. The trial court ruled that an
expert in the use of force could testify that, based on a
video recording of the altercation between defendant and the
victim, the expert "saw no elements of a crime being
committed" by the victim. Defendant challenges that
ruling on appeal, arguing that the expert provided an
impermissible legal conclusion. Held: The trial
court erred by allowing the expert to testify that he
"saw no elements of a crime being committed"
because that testimony offered an impermissible legal
conclusion. Further, the error was not harmless because the
wrongly admitted testimony undermined defendant's theory
of self-defense. Self-defense is a valid defense only when a
person responds to certain types of unlawful behavior, and,
here, the expert's testimony supported the inference that
the victim had acted lawfully.
Or.App. 485] SHORR, J.
appeals from a judgment of conviction for two counts each of
assault in the second degree, ORS 163.175; menacing, ORS
163.190; unlawful use of a weapon, ORS 166.220; and pointing
a firearm at another, ORS 166.190. Defendant was charged
following an incident during which defendant, a construction
foreman, shot and wounded Hains, one of his employees, with a
.22-caliber rifle during an altercation at a construction
site. Another employee recorded the altercation with a video
camera. At trial, defendant argued that he had acted in
self-defense. Over defendant's objection, the trial court
allowed the police chief who investigated the incident to
provide expert testimony that, based on the video recording,
the chief "saw no elements of a crime being committed
[by Hains]," effectively refuting defendant's
self-defense theory. We conclude that the challenged
testimony provided an impermissible legal conclusion with
respect to Hains's conduct during the altercation.
Further, the erroneous admission of that evidence was not
harmless. Accordingly, we reverse and remand.
provide the following facts as context for our analysis of
the trial court's evidentiary ruling. Defendant worked as
a foreman on construction projects remodeling houses.
Defendant had worked with Hains on and off for several years.
Four to six months prior to the charged incident in this
case, defendant had fired Hains for being disrespectful
toward defendant and making derogatory comments to women on
the job. Defendant rehired Hains about one month before the
charged incident to assist with a remodel of a home owned by
defendant's parents. Another of defendant's workers,
Kaleikini, helped with that project as well.
project progressed, defendant became upset with Hains's
behavior-including what defendant viewed as excessive
drinking and reckless conduct at work-and decided to fire him
again. Defendant asked Kaleikini to come with him and record
the firing with a video camera because defendant feared
Hains's reaction. Defendant was worried because he knew
Hains had a violent temper. Defendant was also concerned
because he knew Hains had recently begun [293 Or.App. 486]
drinking after a period of sobriety. Defendant armed himself
with a loaded .22-caliber rifle and masked his face with a
bandana and then approached Hains, who was working in the
garage at the construction site. Defendant immediately fired
a "warning shot" in the air upon entering the
garage and then told Hains that he was fired and ordered him
to leave. After some argument, Hains began to leave the scene
but suddenly turned and moved quickly toward defendant.
Defendant backed up into the kitchen adjoining the garage and
fired more "warning shots." Hains dared defendant
to shoot him and then lunged toward defendant, at which point
defendant shot Hains in the leg. Hains moved back into the
garage, where he turned and bent over to grab something off
the ground. Defendant then shot Hains a second time in the
buttock. The two shots were several seconds apart. Defendant
testified at trial that he shot Hains a second time because
Hains had picked up a two-by-four board studded with exposed
neighbor called the police, who arrived on the scene shortly
thereafter. Defendant gave his account of the events and
explained that he approached Hains with the gun because he
was afraid of Hains and wanted to avoid a physical
altercation. Defendant then handed over the gun and video
camera with the recording of the altercation.
trial, defendant asserted that he acted in self-defense when
he shot Hains. Although Hains did not suffer life-threatening
injuries, on appeal the parties do not dispute that defendant
used deadly physical force when he shot Hains. Under ORS
161.219, which describes limitations on the use of deadly
physical force in self-defense,
"a person is not justified in using deadly physical
force upon another person unless the person reasonably
believes that the other person is:
"(1) Committing or attempting to commit a felony
involving the use or threatened imminent use of physical