Submitted October 19, 2018
County Circuit Court 16CR50808; Matthew J. Donohue, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Stacy M. Du Clos, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jacob Brown, Assistant Attorney General, fled
the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
appeal from a judgment of conviction for harassment and
fourth-degree assault, defendant assigns error to one of the
instructions given by the trial court. Held: The claimed
error was not preserved before the trial court and therefore,
the Court of Appeals would not address it on appeal.
Or.App. 2] HADLOCK, P. J.
appeal from a judgment of conviction for harassment, ORS
166.065, and fourth-degree assault, ORS 163.160, defendant
assigns error to one of the instructions given to the jury by
the trial court. Because the claimed error was not preserved
before the trial court, we do not address it on the merits
and, therefore, affirm.
case involves a series of events that occurred outside of a
bar in Corvallis, and involved a bartender and bouncers from
the bar along with defendant and his friends, who had been
drinking at the bar. In particular, the charges against
defendant stemmed from allegations that he had hit a
bartender who was taking a break outside the bar and had
bitten the finger of a bouncer who restrained him.
the trial court, defendant requested, and was granted, a
self-defense instruction. See ORS
161.209. The state responded by seeking an
instruction describing the provocation limitation on the
right to self-defense. See ORS
161.215. The court agreed to give that instruction
and, ultimately, instructed the jury as follows:
"The defendant is not justified in using physical force
on another person if he provoked the use of unlawful physical
force by that other person with the intent to cause physical
injury or death to the other person."
Or.App. 3] On appeal, defendant asserts that the evidence did
not support the giving of that instruction and, therefore,
the trial court erred. The state, for its part, responds that
we should not address defendant's contention because
defendant failed to preserve his argument in the trial court.
We agree with the state.
the trial court, defendant objected to the giving of the
provocation-limitation instruction as follows: "The
defense takes exception to the introduction of the
instruction regarding the defense use of physical force and
defense of person for provocation." Defendant did not
elaborate or present the ...