Submitted January 15, 2019
Multnomah County Circuit Court 16CR31152; John A. Wittmayer,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Shawn Wiley, Deputy Public Defender, Offce of Public Defense
Services, fled the briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Greg Rios, Assistant Attorney General, fled the
briefs for respondent.
DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock,
Judge pro tempore.
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.
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.
Or.App. 496] AOYAGI, J.
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,
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).
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
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 ...