concurring.
I agree with the majority that the trial court erred in failing to give the jury an instruction that would properly channel its consideration of the evidence regarding the effect of defendant’s conduct on people in other states. I also agree that the error requires a reversal and a remand. In my view, that remedy follows regardless of the correctness of defendant’s proffered instruction.
The situation here is analogous to State v. George, 337 Or 329, 97 P3d 656 (2004). There, in his trial to a jury for aggravated murder, the defendant raised an insanity defense. As a result, ORS 161.313 required the trial court to “instruct the jury in accordance with ORS 161.327,” which sets out the consequences of a verdict of guilty except for insanity. The defendant objected to the uniform instruction designed to comply with ORS 161.313 and proffered an alternative instruction that the defendant believed was more accurate. The trial court, however, concluded that the jury should not be advised at all of the consequences of a guilty except for insanity verdict. The trial court therefore refused to give any instruction on the point.
*68On appeal, the defendant challenged the trial court’s refusal to give his requested instruction. Our court took a narrow view of the defendant’s argument. We concluded that he had raised only the issue of whether his proffered instruction should have been given, not the issue of whether the trial court erred in failing to give any instruction on the point. Because the defendant’s proffered instruction was not an accurate statement of the law, we rejected his challenge to the trial court’s failure to give it. State v. George, 183 Or App 583, 589-90, 54 P3d 619 (2002).
On review, the Supreme Court agreed that the defendant’s requested instruction was not accurate. That court, however, believed that the issue was broader and that the defendant had adequately raised the related question of whether the trial court failed in its obligation to give some instruction that comported with ORS 161.313. George, 337 Or at 336-37. Addressing the merits, the court concluded:
“The answer, on the merits, is inescapable. ORS 161.313 provides that, when a defendant’s sanity is an issue, the trial court ‘shall instruct the jury in accordance with ORS 161.327.’ As we already have noted, that statute unequivocally requires the trial court to give an instruction in accordance with ORS 161.327. The trial court failed to so instruct the jury and, in failing to do so, erred.”
Id. at 340 (emphasis in George).
In reaching that conclusion, the court rejected the state’s argument that the defendant’s failure to proffer an accurate instruction precluded the defendant’s challenge. The court did so for two independent reasons:
“Although the state’s position accurately reflects the approach that we ordinarily take regarding preservation of jury instruction issues, we reject that argument here for two reasons. First, it cannot be squared with the fact that ORS 161.313 unequivocally places the responsibility for giving the required instruction on the trial court, without regard to whether the defendant wants or requests such an instruction, much less offers one that is a correct statement of the law. Second, the state’s argument ignores the fact that, at the relevant time, the trial court already had announced that * * * it would not give the uniform instruction to the jury, ‘nor would [it] give a variation of it.’ In view *69of that announcement, defendant reasonably could assume that attempting to formulate a revised instruction that comported with the requirement of ORS 161.313 would have been an exercise in futility. Our requirements respecting preservation do not demand that parties make what the record demonstrates would be futile gestures.”
Id. at 339.
The same result should follow here. Defendant preserved an objection to the trial court’s failure to give such an instruction and did so in two ways. First, defendant objected to the punitive damages instruction requested by plaintiff,1 urging, among other objections, that “it allows punishment for out-of-state conduct.” In other words, defendant objected to the correctness of plaintiffs instruction on the theory that it contained no limitation of the kind required by federal due process principles.2 In addition, defendant proffered a requested instruction that would have limited the jury’s consideration of defendant’s out-of-state conduct.
Under the court’s analysis in George, the correctness of defendant’s proffered instruction is of no moment, because the trial court was required by the federal constitution to give a correct instruction regardless of defendant’s request or the correctness of its proffered instruction. As the majority in this case explains, in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 422, 123 S Ct 1513, 155 L Ed 2d 585 (2003), the United States Supreme Court held that, as a requirement of due process, a jury “must be instructed” on the limitations of its consideration of evidence of a defendant’s out-of-state conduct. The Court’s declaration in that regard was unqualified. That is, the Court did not suggest that such an instruction is necessary only if requested. Rather, the Court held that such an instruction is necessary so that the jury’s deliberations are constrained consistently with the federal due process limitations on a state’s power to punish a defendant’s conduct. Id. Just as the trial court in *70George was required to instruct the jury on the consequences of a guilty except for insanity verdict, so too was the trial court in this case required to guide the jury’s consideration of the evidence of out-of-state conduct and out-of-state harm.
The correctness of defendant’s proffered instruction also is of no moment for the second reason identified in George — that is, the trial court was unwilling to give any instruction limiting the jury’s consideration of the out-of-state evidence. The issue, as framed by the parties, posed an all or nothing proposition. Plaintiffs position was that no limitation was required, because defendant’s conduct was unlawful in all jurisdictions. Defendant’s position was that the jury was not entitled to award punitive damages based on its out-of-state conduct and harm to individuals in other states. The trial court agreed with plaintiff. As in George, given the trial court’s reasons for rejecting defendant’s proffered instruction, any effort by defendant to reformulate its requested instruction would have been an exercise in futility.
In sum, in failing to give a limiting instruction required by the Due Process Clause, the trial court erred. Under George, regardless of the correctness of the instruction that defendant requested, the case must be remanded for a new determination of the amount of punitive damages.
That instruction is set out in Judge Rosenblum’s separate opinion. See 206 Or App at 88, and 88 n 2 (Rosenblum, J., concurring in part; dissenting in part).
On appeal, defendant assigns error both to the giving of plaintiffs instruction and to the refusal to give defendant’s requested instruction limiting the jury’s consideration of the out-of-state conduct and presents a consolidated argument in support of those assignments of error.