STATE v. ALVAREZ ALCAZAR (2026)

Defendant appeals from a judgment of conviction for second-degree murder with a firearm and unlawful use of a weapon with a firearm.¹ When defendant was 18 years old, he shot R, another young man, at a house party. R died at the scene. On appeal, defendant first argues that the trial court plainly erred when it failed to read aloud the jury instruction on self-defense. We agree, and we exercise discretion to reverse defendant's convictions and remand for a new trial. As a result, we do not need to reach defendant's second assignment of error, challenging the admission of hearsay testimony. As to defendant's third and fourth assignments, we conclude that the trial court did not err in denying defendant's motions for judgment of acquittal on the two convictions noted above.

The procedural facts are few and undisputed. At trial, defendant contended that he shot R in self-defense, and both defendant and the state requested that the trial court instruct the jury on the elements of self-defense. However, the jury instructions that were provided in writing to the jury and read aloud by the trial court at the close of the evidence omitted the self-defense instruction; instead, the written and oral instructions gave the following jury instruction on the elements of the defense-of-others defense:

“The defense of another person has been raised.

“A person is justified in using physical force on another person to defend a third party from what he reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which he reasonably believes to be necessary.

“If you find that the defendant was voluntarily intoxicated, the person's[2] voluntary intoxication is not to be considered by you to change the standard of reasonableness. The law provides that reasonableness must be judged by the jury from the standpoint of a reasonable person in the situation of the defendant at the time under all the circumstances surrounding him.

“The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.”

The error was brought to the court's attention immediately after the jury was released to begin its deliberations:

“THE COURT: All right. Take them back. It's your case, folks.

“(Jury out at 11:08 a.m.)

“[THE STATE]: Judge, [a prosecutor] correctly noticed that there was another typo on the jury instructions on page 6—defensive—defense, physical force, defense of a person.

“THE COURT: Yeah, it was given as a defensive and not as intent of a person.[3]

“[THE STATE]: Right. So if the Court cares to correct that, it probably should because the defendant—there's no evidence that the defendant was defending another person.

“THE COURT: A third person, correct.

“[DEFENSE COUNSEL]: So how would the Court go about—

“THE COURT: The easiest would be just give them the supplemental instruction and just hand it to them, if that's satisfactory.

“[THE STATE]: We would have no objection.

“[DEFENSE COUNSEL]: That's fine.

“THE COURT: Okay. Go pull that up.

“(Pause)

“[THE STATE]: Judge, I notice we're still on the record. Is there anything else you need from us?

“THE COURT: I don't believe so.

“[THE STATE]: Okay. Thank you.

“(Court recessed from 11:11 a.m. to 2:02 p.m.)

“THE COURT: All right. I understand we have a verdict, so let's get the jury back in.

“(Jury in at 2:03 p.m.)”

The printed instruction provided to the jury after the above discussion took place is not in the trial court record. However, the record discloses that both parties had requested Uniform Criminal Jury Instruction 1107 as it applies to self-defense, providing, as relevant here:

“The defense of self-defense has been raised.

“A person is justified in using physical force on another person to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which he reasonably believes to be necessary.

“The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.”

On appeal, the parties do not dispute that the court ultimately provided that instruction to the jury in writing. More importantly for our purposes, the parties also agree, and the record confirms, that a self-defense instruction was not given orally. (As noted, the trial court provided the jury with a written instruction, which it also read aloud, on the defense-of-others defense, with additional language instructing the jury that defendant's voluntary intoxication is not to be considered in relation to the reasonableness of his use of force.) The jury deliberated for less than three hours and returned guilty verdicts on all counts.

On appeal, defendant argues that the trial court lacked discretion to omit from its oral instructions matters of law necessary for the jury's information in giving its verdict, and therefore, it plainly erred when it failed to orally instruct the jury on the defense of self-defense.⁴

The state contends that defendant invited the error because defendant agreed with the court's proposed plan for correcting the instructional error. “Under the invited error doctrine, a party who was actively instrumental in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” State v. Kammeyer, 226 Or App 210, 214, 203 P3d 274, rev. den., 346 Or 590 (2009) (internal quotation marks omitted). “The goal of the rule is to ensure that parties who make intentional or strategic trial choices do not later blame the court if those choices prove to be unwise.” Id. (internal quotation marks omitted).

We do not agree that defendant invited the error. Defendant requested that the trial court provide the correct instruction. Although defense counsel said the court's proposed plan to remedy the error was “fine,” the record does not disclose any basis to conclude that defendant encouraged or was “actively instrumental in bringing about” the error itself—here, the oral omission of the correct instruction and the oral statement providing the incorrect instruction. Id. at 214 (internal quotation marks omitted); see State v. Escalante, 350 Or App 233, 239-40, ––– P3d –––– (2026) (exercising discretion to correct unpreserved error when defendant did not object to the trial court's proposal to read aloud only a portion of the jury instructions). Moreover, “because correctly instructing the jury is the court's obligation, instructional error might not be vulnerable to an objection that it was invited.” State v. Wayman, 339 Or App 9, 22 n 6, 568 P3d 232, rev. allowed, 374 Or 372 (2025) (citing State v. Wiltse, 373 Or 1, 4, 559 P3d 380 (2024) (the trial court has an independent duty to instruct the jury on all the law necessary to the jury's factual findings under ORCP 59 B that does not depend on the actions of parties)).

We therefore turn to whether the trial court plainly erred in omitting the self-defense instruction in its oral recitation of the jury instructions. An error is “plain” when it is one of law, obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). After briefing in this case, the Supreme Court decided State v. Shine, 375 Or 112, 588 P3d 231 (2026). In that case, the court provided the jury with written instructions and, at the conclusion of trial, declined to reread the jury instructions that it had read aloud at the beginning of trial. Id. at 114. Those initial “precautionary” instructions covered various procedural matters and, among other things, the presumption of innocence, the state's burden of proof beyond a reasonable doubt, defendant's statements, and the definitions of knowingly and with knowledge. Id. at 115 & n 1. The Supreme Court explained that ORCP 59 B “requires the court to ‘state to the jury all matters of law necessary for its information in giving its verdict’ ” and that it also “requires the trial court to ‘state’ the required instructions orally.” Id. at 118 (quoting ORCP 59 B). The court concluded that the omitted instructions described “matters of law necessary for [the jury's] information in giving a verdict,” id. at 129 (internal quotation marks omitted), and that reading them aloud at the beginning of trial was not a substitute for a complete oral statement at the close of evidence for purposes of ORCP 59 B, id. at 130.⁵

Applying Shine, we conclude that the instruction on the elements of self-defense clearly concerned a matter of law necessary for the jury's information in giving its verdict in this case. That instruction both sets out the elements of self-defense and explains that the state had the burden to disprove the defense beyond a reasonable doubt. The trial court therefore plainly erred when it failed to read the self-defense instruction aloud at the close of the evidence. We further conclude that, following the reasoning in Shine, the trial court's proposal to remedy the omission by providing the jury with a written copy of the omitted instruction could not serve as an adequate substitute for an oral recitation from the bench. See id. at 115 (noting that the trial court provided the jury with a complete set of written instructions, called the jurors’ attention to the instructions that it had read the week before, and said that they were there for the jurors’ reference).

We next consider whether the plain error was harmless, and, if it was not harmless, we must decide whether to exercise our discretion to correct it. State v. Ortiz, 372 Or 658, 671-72, 554 P3d 796 (2024). On appeal, the state points to the other instructions provided to the jury, both orally and in writing, as well as the parties’ closing arguments to argue that the error was unlikely to have affected the verdict and that we should not exercise our discretion to correct it. For the following reasons, we conclude that the error was not harmless and we exercise our discretion to correct it.

“An instructional error is not harmless if it probably created an erroneous impression of the law in the minds of the jury and if that erroneous impression may have affected the outcome of the case.” Shine, 375 Or at 130 (internal quotation marks omitted). We consider the instructions as a whole, the evidence at trial, and the parties’ theories of the case in making that determination. Id.

We first consider the instructions as a whole. Defendant's sole defense was that he acted in self-defense, so the instruction that the trial court did not read aloud was crucial to the jury's evaluation of the charges against him. Here, as in Shine, that instruction contained information about the state's burden of proof: it would have explained to the jury that the state has the burden to prove beyond a reasonable doubt that the defense of self-defense does not apply. That information was never orally provided to the jury. The other instructions that were given orally concerned the limits on the justifiable use of deadly force but did not address when a person is justified in using physical force in self-defense. Although the parties stated that self-defense was at issue in their closing arguments, those arguments did not walk through the elements of the defense, and, in any case, “[a] party's argument is not a substitute for instructions from the court.” Shine, 375 Or at 131; see also Ossanna v. Nike, Inc., 365 Or 196, 221, 445 P3d 281 (2019) (“[A]rguments put forth by an interested party are not adequate surrogates for controlling jury instructions given by the court; jury instructions matter. Whereas the jury may accept or disregard any argument made by a party, the jury must abide by the instructions of the court, a neutral authority.”).

As to the evidence at trial and the parties’ theories of the case, how the late-night encounter between defendant, R, and two of R's friends escalated was the central disputed issue in the case, and the evidence was inconclusive concerning that sequence of events.

The state called three witnesses who observed the encounter. The first was one of R's friends, who testified that it was after 2:00 a.m. when he heard R and defendant arguing loudly. Defendant had drunkenly stepped on R's designer shoes. The witness and another of R's friends came over, joined in the argument, and attempted to persuade defendant to take it outside to settle the dispute. At some point in the course of the argument, the witness punched defendant in the face, then his friend choked defendant for 10 to 15 seconds. When defendant reached down towards his waistband to get his gun, R pushed the witness to the side, and then defendant shot R twice. As R was falling to the ground, R pulled out his firearm and shot at defendant. He testified that during the argument defendant did say aloud that he would shoot, but that the statement was not directed at anyone in particular. His testimony was inconsistent as to whether defendant made that statement before or after he was punched and choked. He also testified that he was carrying a firearm at the party that night as well.

The second witness to the encounter was across the room when he heard the fight and saw the shooting. He testified that he could not see much of what happened because it was crowded, and he testified inconsistently regarding the participants’ actions during the argument and the shooting.

The third witness testified that she saw R arguing with someone and motioning with his hands in the air and that, after she heard gunshots, she saw R holding a gun as he fell.

Because the instructions as a whole did not convey the elements of self-defense, nor the state's burden to disprove it, and in light of the inconclusive evidence regarding defendant's conduct and the sequence of events preceding the shooting, we cannot conclude that the failure to orally instruct the jury on self-defense was harmless.

Finally, we consider whether to exercise our discretion to correct the plain error. “A court's decision to recognize unpreserved or unraised error * * * should be made with utmost caution.” Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991). In making that decision, we consider factors including, among others, “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served.” Id. at 382 n 6.

Here, defendant acquiesced to the trial court's proposal to send a written copy of the self-defense instruction to the jury even though he had an opportunity to argue that the jury must be orally “charged” and that the trial court should “state to the jury all matters of law necessary for its information in giving its verdict.” ORCP 59 B (emphasis added). In that sense, the purposes of preservation were not served. As in our recent decision in Escalante, 350 Or App at 239-40, in which we exercised our discretion to correct a plain error under Shine notwithstanding defendant's failure to take advantage of opportunities to object to the trial court's proposed procedure, we likewise conclude that that consideration is outweighed by the gravity of the error and the ends of justice.

As to the interests of justice and the gravity of the error, the jury's understanding of the elements of self-defense and the state's burden of proof was critical to the outcome of the case. State v. Vanornum, 273 Or App 263, 269, 356 P3d 1161 (2015) (“In analyzing the gravity of an error, we consider if the issue was critical to the outcome of the case.”). And, defendant was convicted of a serious felony and sentenced to life in prison. We have previously found it appropriate to exercise discretion to correct a plain error under similar circumstances. State v. Rabago, 351 Or App 26, 31, ––– P3d –––– (2026) (exercising discretion to correct a plain error under Shine when the defendant was sentenced to life in prison, in part, because the defendant's “compelling interest in ensuring he was not convicted of serious crimes before a jury that might not have understood the important underlying constitutional principles” that were contained in the omitted oral instructions, under the circumstances, “carries greater weight than the judicial system's interest in avoiding an unnecessary retrial”); see State v. Pervish, 202 Or App 442, 466, 123 P3d 285 (2005), rev. den., 340 Or 308 (2006) (exercising discretion to correct unpreserved instructional plain error, in part because of the seriousness of the convictions).

As in Rabago, “[g]iven the seriousness of defendant's convictions, the gravity of the error, and the nature of the case, we believe the ends of justice are best served by the exercise of our discretion to correct the plain error here.” 351 Or App at 31. Because we reverse and remand based on defendant's first assignment of error, we do not address his second assignment of error, which challenges the admission of hearsay testimony. See State v. Estrada-Robles, 312 Or App 357, 358, 492 P3d 731 (2021) (reversing and declining to address the remaining assignments where the record “may well develop differently on remand”).

We briefly address defendant's third and fourth assignments of error—that the trial court erred in denying his motion for judgment of acquittal on the two counts that went to the jury—because if he prevails, the remedy would be an outright reversal, which would provide greater relief than a remand for a new trial. On review of the denial of a motion for judgment of acquittal, we examine the evidence “in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert. den., 514 US 1005 (1995). When the defense of self-defense is raised by a defendant, the state has the burden of disproving it beyond a reasonable doubt. ORS 161.055(1); State v. Freeman, 109 Or App 472, 475, 820 P2d 37 (1991).

Defendant argues that the state did not provide evidence sufficient to meet its burden of disproving all the elements of self-defense. One of those elements involves determining “when a person may use physical force to defend themselves.” State v. J. M. W., 340 Or App 44, 47, 569 P3d 702, rev. den., 374 Or 419 (2025) (internal quotation marks omitted). In the case of the use of deadly physical force, that requires the person to reasonably believe that the other person was “[c]ommitting or attempting to commit a felony involving the use or threatened imminent use of physical force against a person[.]” ORS 161.219(1). Defendant first argues that no reasonable jury could find that defendant did not reasonably believe that, under the circumstances, R was, at a minimum, attempting to commit a felony assault against him. We agree with the state that there was legally sufficient evidence on this element to go to the factfinder. A rational factfinder could find on this record that R's participation in the encounter consisted largely of nonspecific verbal threats that did not indicate that an assault or attempted assault was imminent. Although there was evidence that R was gesticulating towards defendant, a rational factfinder could also find, on the basis of the evidence at trial, that it was not reasonable for defendant to believe that R was attempting to commit a felony involving the imminent threatened use of physical force.⁶

Defendant also argues that, because he had his back against the kitchen counter in a three-against-one confrontation and was punched and choked, and where at least two of the other participants were also carrying firearms, no reasonable jury could find that the degree of force he used was not reasonably necessary for the purpose of self-defense. ORS 161.209 (“[T]he person may use a degree of force which the person reasonably believes to be necessary for the purpose [of self-defense].”). “The degree of force that a person reasonably believes to be necessary turns on an objective evaluation of the circumstances in which physical force has been used and how a reasonable person would have assessed defendant's circumstances at the time.” J. M. W., 340 Or App at 48 (citations and internal quotation marks omitted). The specific circumstances of the encounter, then, bear on the reasonableness of the extent of force that defendant used. Although R and at least one of his friends were carrying firearms at the time of the altercation, a jury could infer from the evidence that those weapons were not visible and that defendant was not aware of their presence or the danger they posed. As to the location of the encounter, a jury could also infer from the evidence that defendant was not trapped against the kitchen counter and that a means of escape was available to him given that the encounter occurred near a door that was open to the back yard. Finally, the evidence supports a finding that defendant was the first to use a firearm during an interaction that previously involved only the nonlethal use of voices, hands, and fists. Under those circumstances, a rational jury could reasonably conclude that the degree of force defendant used was not reasonable. As a result, the trial court did not err in denying defendant's motion for judgment of acquittal.

Convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed.

This case raises two important questions. First, can trial courts generally rely on the parties’ agreement to fashion a procedural remedy for an instructional error? And second, should we decline to exercise our discretion to correct any plain error for a party who agreed to a remedy for instructional error at trial but now challenges that remedy for the first time on appeal? Because I answer those questions in the affirmative, I respectfully dissent from the portion of the majority opinion that reverses defendant's convictions on plain-error grounds for failure to give the jury an oral self-defense instruction when the jury received the correct written instruction. I agree with the majority opinion's rejection of defendant's third and fourth assignments of error, and I would also reject his second assignment because it was not preserved and, even if preserved, any error was harmless. Accordingly, I respectfully concur in part and dissent in part.

The undisputed facts as set out in the majority opinion illustrate how a trial court and the parties could adequately fashion a remedy to address a minor error in instructing the jury. After the defense rested, the trial court gave the jury a printed copy of the jury instructions and then orally instructed the jury. As noted, the trial court's instruction contained an undisputed error, incorrectly using the defense-of-others instruction instead of the self-defense instruction. After the court instructed the jury, the parties gave their closing arguments, and the court excused the jury to deliberate.

Although the majority opinion helpfully provides the full colloquy after the jury was released to deliberate, that description does not include the parties’ closing arguments, which also provides important context. When viewed with that context, it becomes more reasonable to conclude that the jury did not rely upon the erroneous written and oral instruction. In my view, the jury was always aware that self-defense was at issue, not defense of others. Indeed, the state's closing argument included the substance of the self-defense jury instruction that was later provided to the jury in writing.

During the state's closing argument, after advancing arguments about evidence and the elements of the charges, the prosecutor's argument turned to the issue of self-defense:

“[Prosecutor]: Self-defense has been raised in this case. A person is justified in using self-defense against another person to defend themselves or a third person from what they presumably view as an imminent use of unlawful physical force. Now remember, it's a defense of yourself here. That's what the allegation seems to be that [defendant] was defending himself. So it has to be a reasonable belief and it has to be the imminent use of unlawful physical force. In defending, that person can only use the degree of force which they reasonably believe to be necessary.

“The burden's on the state to prove—disprove that beyond a reasonable doubt.”

After going through the evidence, the prosecutor then summarized the state's argument again by referencing the burden of proof on the issue of self-defense:

“[Prosecutor]: * * * Ladies and gentlemen of the jury, in this case, [the victim] was murdered. It is the state's burden to disprove beyond a reasonable doubt that self-defense did not apply. That a person did not have the reasonable belief, and that person being the defendant, did not have a reasonable belief to use the degree of force that he used in this case, and that's what the state is arguing.

“A verbal altercation that escalated to a physical altercation that escalated to a deadly altercation didn't need to be there. The use of force in this case, the excessive use of force, was not reasonable by an objective standard. The state would ask that you find the defendant guilty of murder in the second degree and unlawful use of a weapon. Thank you.”

Defense counsel then presented closing argument to the jury, and the prosecutor delivered a rebuttal before the trial court excused the jury to deliberate. At that point, the parties engaged in the colloquy recounted in the majority opinion where the prosecutor brought up the “typo” in the jury instructions on page six, the court acknowledged the error and then proposed a solution. Importantly, both defense counsel and the prosecutor agreed that the court should provide the jury with the correct instruction as a supplemental written instruction, which was accomplished less than five minutes after the jury was excused to deliberate.¹ Defendant did not ask for the jury to return to the courtroom to be orally instructed. That position changed, of course, and now defendant claims on appeal that it is reversible plain error to proceed as the trial court did, and the majority opinion agrees. I respectfully disagree.

In my view, trial courts have broad discretion to fashion remedies for errors that occur during a trial, and courts certainly can rely on the parties to help fashion an appropriate remedy. See, e.g., State v. Harrell/Wilson, 353 Or 247, 261, 297 P3d 461 (2013) (observing that “it is well-established that trial courts generally possess broad discretion to ensure that the proceedings before them are orderly and expeditious”). Here, defendant agreed to the submission of the supplemental written instruction to the jury—minutes after it retired to deliberate—to correct the erroneous oral instruction. Defendant's complaint about that process either should be barred by the invited-error doctrine, or we should decline to exercise our discretion to correct any plain error (or both).²

Under the invited-error doctrine, which has been part of Oregon law for over a century, a party who was “actively instrumental” in bringing about the alleged error “cannot be heard to complain, and the case ought not to be reversed because of it.” Anderson v. Oregon Railroad Co., 45 Or 211, 216-17, 77 P 119 (1904). The goal of the rule is to ensure that parties who make intentional or strategic trial choices do not later “blame the court” if those choices prove unwise. Crawford v. Jackson, 252 Or 552, 555, 451 P2d 115 (1969). Here, despite the majority opinion's conclusion to the contrary, the circumstances unfold like a textbook illustration of a party being “actively instrumental” in the error advanced on appeal.

As described above, after the prosecutor immediately brought up the “typo” in the written jury instructions, the trial court acknowledged the error and proposed a solution. Defendant asked the court about a remedy, the trial court offered what it viewed as the easiest solution to the problem, and defendant responded, “That's fine.”³ That exchange is, in my view, one of the many ways a party can be “actively instrumental” in bringing about an error. Defendant was given an opportunity to challenge the trial court's decision to submit the written supplemental instruction instead of bringing the jury back to the courtroom to orally instruct them on the supplemental instruction. Instead, defendant agreed to the proposed solution, which he now claims was error. See, e.g., State v. Kammeyer, 226 Or App 210, 213-14, 203 P3d 274, rev. den., 346 Or 590 (2009) (concluding that, although the defendant “complained about the proposed restitution,” the defendant reiterated that his plea agreement, which provided that he “would pay restitution,” was “good,” and therefore, he was “actively instrumental in causing” the error that he assigned as error on appeal); Clay/Luttrell v. Pay Less Drug Stores, 276 Or 673, 677, 556 P2d 125 (1976) (concluding that an erroneous jury instruction was “not a basis for reversal,” when the plaintiffs’ counsel “in essence informed the court that he had no objection to the court instructing the jury in the language of the changed instruction”).

Reliance on the Supreme Court's recent decision in State v. Shine, 375 Or 112, 588 P3d 231 (2026), which was decided after briefing in this case, is misplaced in my view. In Shine, the court concluded that “ORCP 59 B requires the trial court to charge the jury at the conclusion of trial by providing an oral statement of all matters of law necessary for its information in giving its verdict.” Id. at 129 (internal quotation marks omitted). That case is readily distinguishable for at least two reasons. As an initial matter, unlike the situation in Shine, the trial court in this case correctly charged the jury under ORCP 59 B by reading all of the instructions and then it provided the jury with a copy of the written instructions. The issue in this case is much narrower than the circumstances presented in Shine because it involves merely correcting the self-defense instruction.

More importantly, however, Shine explicitly did not reach a situation—like the one presented here—where the parties have agreed to a process. The court in Shine recognized that there are situations where the parties may stipulate to procedures that differ from what is contemplated by the rules of procedure and explained:

“We acknowledge that it is not uncommon for the parties to stipulate to the timing of instructions and for trial courts to act consistently with those stipulations, particularly in civil cases. This case does not call upon us to consider whether the parties may stipulate to something other than what ORCP 59 B requires, nor the effect that such a stipulation may have on a claim of error on appeal.”

Shine, 375 Or at 130 n 9. Just like in civil cases, it is not uncommon for parties in criminal cases to agree upon a particular trial procedure—such as the admission of evidence or to take a witness out of order or to adjust the proceedings to accommodate jury scheduling—and trial courts should be able to rely upon the parties’ stipulation or agreement subject to constitutional limitations. Defendant's claim on appeal rests on the argument that the agreed-upon solution created a significant risk of confusion for the jury, not that he was denied a fair trial. In short, given his explicit agreement to submitting the written supplemental instruction to the jury minutes after it retired to deliberate, the invited-error doctrine should preclude defendant's argument on appeal challenging the procedure that he agreed to at trial.

Finally, even assuming that the invited-error doctrine is inapplicable under the circumstances of this case and that the trial court committed plain error, we should not exercise our discretion to correct the trial court's plain error. See State v. Vanornum, 354 Or 614, 630, 317 P3d 889 (2013) (explaining that if the three parts of the plain-error test are met, a reviewing court must decide whether to exercise its discretion to correct the error and explain its reasons); see also Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991) (describing nonexclusive list of factors to consider when deciding whether to exercise discretion to correct a plain error). As the Supreme Court has explained, recognition of an unpreserved or unraised error should be made with “utmost caution” because reaching such an error is contrary to the strong policies requiring preservation. Ailes, 312 Or at 382. The preservation requirement promotes fairness and judicial economy, ensures that parties are not taken by surprise or denied opportunities to meet an argument, and helps secure the trial court's ability to consider and rule on a contention, thereby avoiding an error altogether or fixing one already made. See State v. Wiltse, 373 Or 1, 22, 559 P3d 380 (2024).

Here, foremost among the multiple adequate and independent reasons not to exercise our discretion to correct any plain error is defendant's agreement to the proposed solution. See, e.g., State v. Serrano, 355 Or 172, 187-88, 324 P3d 1274 (2014), cert. den., 576 US 1037 (2015) (declining to exercise discretion when, even assuming that the trial court committed plain error by giving certain supplemental jury instructions, the defendant had made “an explicit decision to endorse” the instructions). Given that a decision to reverse a conviction based on plain error must be made with “utmost caution,” we should not exercise our discretion under these circumstances because it undercuts the policies served by the preservation doctrine and undercuts the parties and the court's ability to fashion appropriate remedies. See State v. Ortiz, 372 Or 658, 666, 554 P3d 796 (2024) (observing that “it is only in rare and exceptional cases that an appellate court should reverse based on an error that had not been raised in the trial court” (internal quotation marks omitted)).

Further, we should not exercise our discretion in this case because the jury would not have relied upon the erroneous instruction as it was clear that self-defense was at issue. Any confusion by the erroneous oral instruction would have been cleared up by closing arguments and by receiving the correct self-defense instruction in writing less than five minutes after being excused to deliberate. Moreover, despite the error, the jury was repeatedly told that a defense was raised and that the burden of proof was on the state to prove beyond a reasonable doubt that the defense did not apply. That is, although the trial court gave the jury the defense-of-another-person instruction—instead of the agreed upon self-defense uniform jury instruction—the jury was on notice from the written instructions that the state had a burden to prove that the defense did not apply.

In short, this case presents circumstances in which a trial court can rely on the parties’ agreement on how to fix an error in the jury instructions. Less than five minutes elapsed after the jury had been excused to deliberate before it received the correct written instruction. Under those circumstances, we should reject defendant's change of heart regarding the trial court's procedure to remedy an error and affirm.

I concur in part and dissent in part.

FOOTNOTES

1.   Defendant pleaded no contest to Count 3, unlawful possession of a firearm, and does not challenge that conviction on appeal.

2.   The written instructions specified “the defendant's” voluntary intoxication.

3.   This sentence was likely mis-transcribed. In context, it appears to us—and was treated by the parties—as the trial court's recognition that the jury instruction was given as a “defense of others” instruction and not as self-defense instruction. Regardless, it does not impact our analysis in light of the other undisputed procedural facts.

4.   Defendant also notes, and we agree, that because the case does not involve reinstruction in response to an inquiry from the jury, the trial court was not otherwise authorized by ORCP 59 D to provide the missing instruction only in writing. See ORCP 59 D (“After retirement for deliberation, if the jury requests information on any point of law, * * * the information requested, if given, shall be given either orally or in writing[.]”).

5.   ORCP 59 B provides, in full:“In charging the jury, the court shall state to the jury all matters of law necessary for its information in giving its verdict. Whenever the knowledge of the court is by statute made evidence of a fact, the court shall declare such knowledge to the jury, which is bound to accept it as conclusive. The court shall reduce, or require a party to reduce, the instructions to writing. The jury shall take the court's written instructions with it while deliberating upon the verdict. The clerk shall file a copy of the written instructions given to the jury in the court file of the case.”

6.   R was also carrying a firearm which he eventually discharged, but there was no evidence that it was visible during the argument, and the witness testimony was inconsistent as to when he drew and fired.

1.   According to the transcript, the jury was excused to deliberate at 11:08 a.m., the parties engaged in the colloquy about how to remedy the instructional error, and the trial court recessed at 11:11 a.m. after ordering the written supplemental instruction to be handed to the jury.

2.   Defendant, of course, could pursue a collateral challenge in a post-conviction proceeding by bringing a claim of inadequate assistance of counsel based on the choice to submit the written supplemental instruction to the jury instead of bringing the jury back into the courtroom for the trial court to orally instruct the jury. That claim, however, is not suitable for consideration in this direct appeal in a criminal case. See, e.g., State v. Johnson, 329 Or App 588, 599-600, 542 P3d 467 (2023), rev. den., 372 Or 718 (2024) (rejecting the defendant's arguments about the adequacy of counsel because those must be raised and resolved under the post-conviction relief procedures set out in statute and not on direct appeal).

3.   After the jury was excused to deliberate, the prosecutor immediately raised the issue of “another typo on the jury instructions on page 6,” and the parties and the court discussed a remedy to that error:“[DEFENSE COUNSEL]: So how would the Court go about—“THE COURT: The easiest would be just give them the supplemental instruction and just hand it to them, if that's satisfactory.“[PROSECUTOR]: We would have no objection.“[DEFENSE COUNSEL]: That's fine.”

SHORR, P. J.

Powers, J., concurring in part; dissenting in part.