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State v. Moles

Court of Appeals of Oregon

November 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
LEVI ALLEN MOLES, Defendant-Appellant.

          Submitted October 19, 2018

          Benton County Circuit Court 16CR50808; Matthew J. Donohue, Judge.

          Ernest 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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         On 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.

          [295 Or.App. 2] HADLOCK, P. J.

         On 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.

         This 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.

         Before the trial court, defendant requested, and was granted, a self-defense instruction. See ORS 161.209.[1] The state responded by seeking an instruction describing the provocation limitation on the right to self-defense. See ORS 161.215.[2] 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."

         [295 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.

         Before 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 ...


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