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State v. Longoria

Court of Appeals of Oregon

November 14, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEPH VALENTINO LONGORIA, aka Joseph V. Longoria, Defendant-Appellant.

          Submitted January 15, 2019

          Multnomah County Circuit Court 16CR31152; John A. Wittmayer, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, fled the briefs for respondent.

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

         Case Summary:

         Defendant appeals a judgment of conviction for first-degree robbery, ORS 164.415, and second-degree assault, ORS 163.175. He challenges the convictions based on an allegedly erroneous jury instruction. Specifically, defendant argues that it was error to instruct the jury on the provocation limitation on self-defense, because there was no evidence that defendant provoked the victim to use physical force so that defendant could justify responding with physical force. The state concedes the error but argues that it was harmless.

         Held:

         The trial court erred in giving the provocation instruction, as there was no evidence to support that instruction. However, the error was harmless in that, on this record, there is little likelihood that it affected the verdict.

          [300 Or.App. 496] AOYAGI, J.

         Defendant appeals a judgment of conviction for one count of first-degree robbery, ORS 164.415, and one count of second-degree assault, ORS 163.175. He assigns error to the trial court's instruction to the jury on the provocation limitation on self-defense. The state concedes the error but argues that it was harmless. Because we agree with the state, we affirm.[1]

         We take the facts from the trial record, noting discrepancies between the parties' versions of events where those discrepancies are significant to our review. See State v. Pine, 336 Or. 194, 196, 82 P.3d 130 (2003).

         Defendant stole a hat from a convenience store. The store owner saw the theft and confronted defendant outside the store. A physical altercation ensued, during which defendant stabbed the owner in the leg with a knife. Defendant was charged with robbery and assault. At trial, defendant admitted to stabbing the owner in the leg but argued that he was not guilty of either charged offense because he acted in self-defense. According to defendant, the owner grabbed and punched him from behind, and defendant used the knife to defend himself but only intended to slash the owner's pants. The owner disputed defendant's account and identified defendant as the initial aggressor.

         Given the defense theory, the parties agreed that the trial court should give the jury the uniform instruction on self-defense, Uniform Criminal Jury Instruction 1107, which is based on ORS 161.209, the statute recognizing self-defense as a defense. See ORS 161.209 ("Except as provided in ORS 161.215 and 161.219, a person is justified in using physical force upon another person for self-defense *** from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose."). The state requested that the court also give Uniform Criminal [300 Or.App. 497] Jury Instructions 1109 and 1110, regarding the provocation and initial-aggressor limitations on self-defense. See ORS 161.215(1) ("Notwithstanding ORS 161.209, a person is not justified in using physical force upon another person if[, w]ith intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by ...


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