dissenting.
It defies all reason to hold that the instruction challenged in this case requires reversal. Even the majority concedes that it could not have prejudiced defendant. I dissent.
I cannot see how this instruction could possibly hurt any defendant. We permit the state to prove a case through circumstantial evidence, facts that make it possible for the jury to infer the existence of the fact to be proved. We allow courts to instruct the jury that it may draw inferences based on circumstantial evidence. Both sides in a criminal trial may argue what inferences the jury should draw from the evidence. The instruction at issue here does no more than state the obvious.
That is essentially what the Supreme Court held in State v. Vance, 285 Or 383, 591 P2d 355 (1979), which approved a nearly identical instruction. In State v. Rainey, 298 Or 459, 693 P2d 635 (1985), it disapproved of instructions on inferences relating to an element of a crime. However, Rainey did not expressly overrule Vance. Moreover, the dictum in Rainey quoted by the majority does not stand for the proposition that any instruction on an inference relating to an element of a crime is reversible error. Rather, it characterizes such instructions as, at best, useless and, at worst, prejudicial. The instruction at issue in this case may have been unnecessary, insofar as it simply informed the jury, in essence, that it was not bound by the interpretation by either side. Given the Supreme Court’s pronouncements in Rainey, it might even be an error. It was not prejudicial. We are therefore bound to affirm the trial court. Art VII, § 3, Or Const; ORS 19.125(2).
*157In short, it is absurd to reverse defendant’s conviction on the basis of a single statement which, in the context of an entire trial, could not possibly have harmed him. It is not my desire to criticize the well-meaning majority, which obviously believes that Rainey has overruled Vance inferentially and thus requires reversal in this case. I strongly feel, however, that the Supreme Court’s hypertechnical pronouncement in Rainey is doing a great disservice to the criminal justice system.
I respectfully dissent.