STATE v. WORSHAM (2026)

Defendant petitions for reconsideration from our opinion in State v. Worsham, 373 Or. 739, 571 P.3d 759 (2025). We grant reconsideration in part and modify our opinion, primarily because we should have remanded the case to the Court of Appeals, rather than simply reversing. Specifically, we allow reconsideration for the limited purpose of modifying our decision in the following two respects.

First, defendant correctly notes that the Court of Appeals did not reach his second assignment of error, because it had reversed the trial court on his first assignment of error. We reversed the Court of Appeals’ decision on the first assignment of error, but the second assignment of error has yet to be addressed by an appellate court. Accordingly, the case should be remanded for the Court of Appeals to consider that assignment of error in the first instance.

Second, we replace the second full paragraph at 373 Or. at 748, 571 P.3d 759 with the following to address a citation issue:

“Instructions ungiven present a challenge under plain error review, because plain error requires a showing of legal error appearing on ‘the record.’ Ailes [v. Portland Meadows, Inc.], 312 Or. [376] at 381-82, 823 P.2d 956 [(1991)]. In the preserved error context, establishing legal error for failing to give a requested instruction turns, in part, on showing that the ungiven instruction was legally correct ‘in all respects.’ Hernandez [v. Barbo Machinery Co.], 327 Or. [99] at 106, 957 P.2d 147 [(1998)] (citing Hall v. The May Dept. Stores Co., 292 Or. 131, 143, 637 P.2d 126 (1981)). Plain error review cannot demand any less. When the ungiven instruction is a custom supplemental instruction, as opposed to another uniform instruction, and no actual custom supplemental instruction was requested at trial, the accuracy and completeness of that theoretical instruction cannot appear on ‘the record,’ and the theoretical instruction cannot be assessed as to whether it is legally correct ‘in all respects.’ Ailes, 312 Or. at 381-82, 823 P.2d 956; Hernandez, 327 Or. at 106, 957 P.2d 147. As such, it is generally impossible for a trial court's failure to give an unrequested custom supplemental instruction to qualify as plain error.”

The petition for reconsideration is allowed. The former opinion is modified. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

JAMES, J.