dissenting.
The majority holds that the trial court should have instructed the jury on the consequences of a guilty but insane verdict, even if defendant’s requested instruction on that issue were flawed. That holding is unexceptional, and I would have no quarrel with it if the issue were properly before us. Defendant, however, made a conscious decision not to present that issue to the Court of Appeals, and I would not reach it. I respectfully dissent.
ORS 161.313 provides that, when a defendant raises an insanity defense, a trial court “shall instruct” the jury on the consequences of a guilty but insane verdict. Defendant submitted a flawed instruction on that issue1 and asked the trial court to give either his instruction “or some other [instruction] that accurately sets out the [information that ORS 161.313 requires].” The trial court declined to give any instruction on the issue because it understood, incorrectly it turned out, that the Oregon Constitution prohibited it from doing so.2
*342Before the Court of Appeals, defendant assigned error to the trial court’s decision not to give his requested instruction. He did not assign error to the court’s refusal to give any instruction on the issue, nor did he argue in his brief that the court erred in that respect. Rather, defendant identified only one error in the course of his argument. He contended, consistently with his assignment of error, that the court had erred in refusing to give his requested instruction.
It is true, as the majority notes, that defendant’s brief in the Court of Appeals referred to the trial court’s fail[ure] to give an instruction required by Oregon law.” But he did so only in the course of arguing that the ruling he had assigned as error (the failure to give his requested instruction) had prejudiced him.3 In my view, defendant did not contend in his brief that the failure to give any instruction on the consequences of his insanity defense constituted a separate, reversible error.
Were there any doubt about the matter, defense counsel’s remarks at oral argument removed it. Defense counsel began her oral argument to the Court of Appeals by explaining that she was challenging only the trial court’s failure to give her requested instruction. She was not raising any other issue. Defense counsel stated:
“First of all, I want to just clarify that, I’m sticking with my assignment of error. I’m saying that it was error not to give defendant’s special instruction. I am not arguing that the court erred in not giving something. Okay. The state spent a lot of time on how I couldn’t do that. I didn’t do that, and I am not going to do it today. So we are just talking about defendant’s special instruction number 14.”
Defense counsel’s remarks eliminated whatever ambiguity may have inhered in the brief. The only issue that defendant raised in his first assignment of error was whether the trial *343court had erred in not giving his requested instruction. Not surprisingly, the Court of Appeals limited its discussion of defendant’s first assignment of error to that issue.
Before this court, defendant advances both the issue that he preserved in the Court of Appeals (the failure to give his requested instruction) and also the issue that he deliberately chose not to raise in that court (the failure to give any instruction on the effects of a guilty but insane verdict). The majority does not reach the issue that defendant preserved but reverses on an issue that he chose not to pursue in the Court of Appeals. In my view, the court errs in doing so.
The court has long recognized that a party may not raise an issue in this court that he or she failed to raise in the Court of Appeals. Tarwater v. Cupp, 304 Or 639, 644, 748 P2d 125 (1988). More recently, this court held that it may not reach an issue that was not “properly before” the Court of Appeals. State v. Wyatt, 331 Or 335, 345-46, 15 P3d 22 (2000) (applying ORAP 9.20(2)). That is so even though the adverse party concedes that the Court of Appeals may reach the issue, and the Court of Appeals does so. Id. In this case, defendant chose not to pursue, before the Court of Appeals, the issue that he now pursues in this court, and the Court of Appeals did not decide that issue. The issue upon which the majority bases its decision was not “before” the Court of Appeals, much less “properly before” it.
Admittedly, it would have been helpful if the state had argued to us that defendant had failed to brief the issue in the Court of Appeals that he now asks us to decide, and it would have been particularly helpful if the state (or defendant for that matter) had directed us to defense counsel’s remarks at oral argument, which remove any doubt about defendant’s appellate strategy. The state’s failure to do so, however, does not excuse our independent obligation to reach only those issues that were properly before the Court of Appeals, a proposition that Wyatt makes clear. Id. at 346 (stating that proposition).
Having failed to preserve this issue in the Court of Appeals, defendant is left with a claim of plain error. See Wyatt, 331 Or at 346 (describing procedural options). Here, even if one assumes that the error is apparent on the face of *344the record, that does not end the inquiry. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (explaining plain error doctrine). As Ailes makes clear, under the plain error doctrine, the question is not only whether the error is apparent on the face of the record but also whether a court should exercise its discretion to reach the unpreserved issue. Id. at 382. To me, the answer to the latter question is clear. When, as in this case, a party has deliberately bypassed the opportunity to raise an issue in the Court of Appeals, we should not exercise our discretion to reach it.
Because defendant deliberately chose not to pursue in the Court of Appeals the issue upon which the majority bases its decision and because it is not appropriate to reach that issue under the plain error doctrine, I respectfully dissent.
The majority finds it unnecessary to decide whether defendant’s requested instruction was flawed. I would hold, for the reasons noted in the majority opinion, that it was.
When the trial court ruled on this issue, the Court of Appeals had held that Article I, section 11, of the Oregon Constitution prohibited giving the sort of instruction that ORS 161.313 requires. See State v. Amini, 154 Or App 589, 963 P2d 65 (1998) (so holding). After the trial court entered judgment in this case, this court reversed the Court of Appeals decision in Amini. State v. Amini, 331 Or 384, 15 P3d 541 (2000).
Defendant’s brief stated:
“The trial court’s error prejudiced defendant when the jury instructions are considered as a whole. See State v. Williams, 313 Or 19, 38, 828 P2d 1006 (1992) (stating standard for reversible error). Here, the trial court failed to give an instruction required by Oregon law. No other instruction even touched upon the consequences of an insanity verdict. Therefore, error should be presumed harmful because the jury instructions were not a complete and accurate statement of Oregon law.” (Emphasis in original.)