State v. Wiltse

No. 215 April 26, 2023 527

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW RYAN WILTSE,
Defendant-Appellant.
Curry County Circuit Court
20CR28544; A175287

Cynthia Lynnae Beaman, Judge.
Submitted October 4, 2022.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
528 State v. Wiltse

MOONEY, J.
Defendant appeals from a judgment convicting him
of third-degree assault, ORS 163.165. In a single assign-
ment of error, defendant contends that the trial court com-
mitted plain error when it gave the state’s special instruc-
tion on what constitutes a “protracted disfigurement” for
purposes of proving the “serious physical injury” element of
that offense. Specifically, defendant contends that the court
impermissibly commented on the evidence in violation of
ORCP 59 E when it instructed the jury: “A scar on the scalp
visible five months after the injury qualifies as protracted
disfigurement.” As explained below, we conclude that defen-
dant has failed to establish that the alleged error is “plain.”
The discussion of how the court came to instruct the jury
was not recorded, and the state has presented a plausible
strategic reason for defense counsel not to have objected.
Under those circumstances, the error is not apparent on the
face of the record and, therefore, the court did not plainly
err. Affirmed.
The following facts are undisputed. In May 2020,
during a verbal altercation between the defendant and the
victim, the defendant struck the victim on the side of her
face with a long metal pole and broke multiple bones in the
victim’s face. Soon after the incident, the victim was taken
by ambulance to an emergency room.
Defendant was charged by indictment on sev-
eral counts, including third-degree assault under ORS
163.165(1).1 Under that provision, a person commits third-
degree assault if, as relevant here, the person recklessly
causes a “serious physical injury” by means of a dangerous
or deadly weapon. ORS 163.165(1)(a).
Defendant’s trial took place approximately six
months later, in November 2020. At trial, the victim, who
is five feet two inches tall, testified that she had picked

1
A grand jury indicted defendant on first-degree assault, ORS 163.195
(Count 1); second-degree assault, ORS 163.175 (Count 2); third-degree assault,
ORS 163.165 (Count 3); and possession of methamphetamine, ORS 475.894
(Count 4). Defendant entered a guilty plea on Count 4, possession of metham-
phetamine. A jury found defendant not guilty on Count 1, and guilty on Count 3.
The trial court dismissed Count 2 at the state’s request.
Cite as 325 Or App 527 (2023) 529

up a metal pole and approached defendant to get him to
stop laughing at her but only wanted to intimidate him.
She denied any intention to strike defendant. When she
approached defendant with the pole, she saw that defen-
dant had a knife in his hand and “froze.” The next thing she
remembered was being hit by defendant with the pole and
waking up on the ground with “blood everywhere” and in a
lot of pain.
The emergency room physician who treated the
victim, Dr. Peipmeier, testified that multiple bones in her
eye socket were broken, and there was a cut on the side of
her face approximately two centimeters in length that was
“fairly deep.” The cut required seven stiches on the outer
layer, with additional stitches on the inside layer. Peipmeier
testified that the victim’s injury was “life-threatening” and
explained, “If the injury wasn’t treated, the [victim] could
have died, which is why I activated the trauma crew and
immediately took her back to have a CT of the head to rule
out impending death.”
The victim also testified that as a result of the inci-
dent, she was on a liquid diet for almost a month because
the pain in her jaw prevented her from eating. At the time of
the trial, she still experienced pain when it rained and had
trouble turning her neck while driving. The state presented
testimony and a photograph showing that, at the time of
trial, she still had a scar on the side of her face.
During defendant’s presentation of evidence, he tes-
tified that the victim had been menacing him with the pole,
and that he had inadvertently injured her when he “yanked
it out of her hands.”
After the presentation of evidence, each party sub-
mitted proposed jury instructions. The trial court called
counsel for the parties into chambers where they discussed
the jury instructions. Specifically, the trial court asked
the attorneys to “come back in the back for just a moment”
so that they could “go over the jury instructions” “off the
record.”
When the trial resumed, the court instructed the
jury on the law that it was to apply during its deliberations,
530 State v. Wiltse

including the elements of the various charged offenses. As
relevant here, the court instructed the jury that to prove
that defendant had committed third-degree assault, the
state was required to prove beyond reasonable doubt that
defendant “recklessly caused serious physical injury to [the
victim] by means of a * * * dangerous weapon.” In addition,
the court instructed the jury that the term “serious physical
injury” means:
“[a] physical injury that, one, creates a substantial risk of
death; two, causes serious and protracted disfigurement;
three, causes protracted impairment of health; or, four,
causes protracted loss or impairment of the function of any
bodily organ.”
At the state’s request, the trial court also instructed the
jury that,
“A scar on the scalp visible five months after the injury
qualifies as protracted disfigurement.”
It is this latter instruction, specially requested by the state,
that is at issue here and the focus of our opinion.
The parties then presented closing arguments.
With respect to the third-degree assault charge, the state
argued that the jury should find that the victim had suffered
a “serious physical injury” for any of the following three rea-
sons. First, Peipmeier testified that the victim’s injury was
“life-threatening.” Second, the victim’s injury qualified as a
“serious protracted impairment” of her health based on evi-
dence that she could not eat solid food for a month and still
had pain in the side of her face at the time of trial. Third,
the state argued that the victim suffered “serious and pro-
tracted disfigurement” by directing the jurors’ attention to
the instructions that they had been given and emphasizing
the state’s specially requested instruction to drive its point
home:
“If you go to the top of the next page, protracted disfigure-
ment, a scar on the scalp visible—visible five months after
the injury qualifies as protracted disfigurement. So we have
a scar that’s visible on her scalp, on her face six months
later, so that would count as protracted disfigurement. For
you to decide, is it serious and protracted disfigurement?
Cite as 325 Or App 527 (2023) 531

The State submits to you that this injury is serious and
protracted disfigurement for her.”
Defendant did not address the seriousness of the
victim’s injuries in closing. Instead, defense counsel argued
that the state had failed to prove that defendant had acted
with a culpable mental state and to disprove his claim that
he had been acting in self-defense. Noting that the victim
had approached defendant with the pole in her hand, coun-
sel argued that defendant had acted “reasonably in this
situation.”
As noted, after being instructed and hearing closing
arguments, the jury found defendant guilty of third-degree
assault and acquitted defendant of first-degree assault. The
court dismissed the second-degree assault charges.
On appeal, defendant contends that the court
plainly erred in instructing the jury on the “serious phys-
ical injury” element of third-degree assault. Specifically,
defendant argues that instructing the jury that “[a] scar on
the scalp visible five months after the injury qualifies as
protracted disfigurement” was plain error, because it imper-
missibly commented on the evidence by informing the jury
on what inference it was required to draw from the scar
on the side of the victim’s face. Relying on State v. Maciel-
Cortes, 231 Or App 302, 308-09, 218 P3d 900 (2009), defen-
dant argues that the instruction directly informed the jury
how certain evidence related to whether the victim’s injury
was protracted and whether it constituted disfigurement.
In that case, we held that the court’s jury instruction that,
“[d]riving under the influence of intoxicants is, itself, evi-
dence that a person created a substantial risk of physical
injury to passengers,” was improper comment on the evi-
dence. Id. at 308-09.
Further, defendant asserts that the improper
instruction was not harmless, because it allowed the jury
to find defendant guilty of third-degree assault without
independently finding that the victim’s injury qualified as a
“protracted disfigurement.” See State v. Ramoz, 367 Or 670,
704-05, 483 P3d 615 (2021) (concluding that an instructional
error is not harmless when the error “probably created an
erroneous impression of the law in the minds of the jury and
532 State v. Wiltse

if that erroneous impression may have affected the outcome
of the case” (internal quotation marks omitted)). Defendant
also argues that when a jury instruction misstates a theory
of criminal liability, the test for harm is simply “whether the
jury’s guilty verdict on one or more of the charges could have
been based on the theory of criminal responsibility contained
in the erroneous instruction.” State v. Lopez-Minjares, 350
Or 576, 585, 260 P3d 439 (2011). Defendant acknowledges
that he did not preserve those arguments but requests that
we conduct plain-error review and exercise our discretion to
correct the error. See, e.g., State v. Vanornum, 354 Or 614,
629, 317 P3d 889 (2013) (describing the plain-error doctrine).
In response, the state contends that defendant’s
argument fails for several reasons. First the state argues
that the trial court did not plainly err. Rather, the state
contends that the trial court correctly instructed the jury
about the meaning of “serious physical injury,” because it
is a restatement of the holding in State v. Alvarez, in which
the court concluded that “a scar on the scalp visible five
months after the injury qualifies as protracted disfigure-
ment.” 240 Or App 167, 171, 246 P3d 26 (2010), rev den, 350
Or 408 (2011). Second, the state contends that any error
is not plain, because the parties’ discussion with the trial
court regarding the jury instructions is not in the record,
and there is no way to know what position defendant took as
to that instruction. The state argues that it is possible that
defendant agreed to the instruction, given that it directly
quoted the holding in Alvarez. The state also argues that it
is possible that defendant chose not to object for strategic
reasons.2 Relying on State v. Gornick, 340 Or 160, 130 P3d
780 (2006), the state contends that the error is not plain in
this case because the record is subject to competing infer-
ences, and one available inference from the record is that
defendant chose not to raise the issue. See id. 169-70 (con-
cluding that the claimed error was not one that appeared on
the face of the record under ORAP 5.45(1), because the court
“would be forced to choose between competing inferences”).
2
Defendant did not address that issue in his appellate brief when discussing
whether the error was plain. Rather, in defendant’s discussion under the “preserva-
tion of error” section, defendant argued, as a basis to exercise our discretion to cor-
rect the error, that there was no conceivable reason for defendant’s failure to object.
Cite as 325 Or App 527 (2023) 533

In light of the evidence in the case, the state con-
tends that it was a losing argument for defendant to suggest
that the victim’s injuries were not sufficiently protracted
and disfiguring to qualify as a “serious physical injury.”
Next, the state points to the fact that defendant did not
argue that the element of “serious physical injury” had not
been proven. Rather, defendant’s theory of the case was that
he lacked the mental culpability for the state to prove any
of the charges and that he acted in self-defense. In that con-
text, agreeing to the challenged instruction would be a rea-
sonable strategy, because it would limit the extent to which
the jury would need to focus its attention on the nature and
scope of the injuries.

In any event, the state argues that even if the error
was plain, there are several reasons that we should not exer-
cise our discretion to correct any error. First, this is not the
type of “rare and exceptional case[ ],” Gornick, 340 Or at 166,
in which plain-error review would be warranted, because it
is inferable that defendant made a strategic decision not to
object, and defendant failed to make a record of the discus-
sion regarding jury instructions. Second, according to the
state, even if defendant’s silence was not strategic, there is
little likelihood that the error affected the verdict given the
undisputed evidence establishing the element of “serious
physical injury” based upon two other theories. Specifically,
there was undisputed evidence that the injury “created a
substantial risk of death” and that it had caused the victim
“protracted impairment of health.”

Furthermore, even if the record does not definitively
establish that an unpreserved error was harmless, the state
notes that we are not required to exercise our discretion to
address that error under ORAP 5.45; see State v. Inman,
275 Or App 920, 936, 366 P3d 721 (2015), rev den, 359 Or
525 (2016) (explaining that “the harmless-error analysis
does not govern [the court’s] discretionary decision about
whether to address unpreserved claims of error” and that
we “must [instead] balance the gravity of [the] error, in the
context of the ‘nature of the case,’ against the other [perti-
nent] factors”). Here, the state argues that the gravity of the
error is diminished when the record does not affirmatively
534 State v. Wiltse

show that the error likely changed the outcome. See State v.
Derschon, 206 Or App 574, 581, 138 P3d 30, rev den, 341 Or
392 (2006) (declining to correct error in admitting evidence
when the state presented “ample evidence of defendant’s
guilt over and above the [challenged] evidence”).
We begin with defendant’s assertion that the trial
court’s instruction was an impermissible comment on the
evidence. Under ORCP 59 E, applicable to criminal cases
under ORS 136.330, a trial court may not instruct the jury
“with respect to matters of fact, nor comment thereon.” A
trial court impermissibly comments on the evidence “when
it gives a jury instruction that tells the jury how specific evi-
dence relates to a particular legal issue.” State v. Hayward,
327 Or 397, 410-11, 963 P2d 667 (1998). Instructing the jury
to draw an inference against the defendant in a way that
shifts the burden of proof from the state to the defendant
also constitutes an impermissible comment on the evidence.
Id. at 411. “An inference cannot relieve the state of its bur-
den of proving each element of the crime beyond a reason-
able doubt.” Id. An instruction may permissibly draw the
jury’s attention to a particular fact and state that it relates
to a particular element. See State v. Blanchard, 165 Or App
127, 130, 131, 995 P2d 1200, rev den, 331 Or 429 (2000)
(explaining that an instruction that is neutral regarding the
inference it may draw from particular evidence is permissi-
ble). But the instruction may not direct the jury to draw any
particular inference from a given factual finding, let alone
instruct the jury that such evidence is dispositive of the
element. See State v. Newcomer, 265 Or App 706, 711, 337
P3d 137 (2014) (explaining that the court’s instruction was
an improper comment on the evidence because it “required
the jury to make an inference that substituted for the jury’s
finding of the required culpable mental state”).
In reviewing whether a defendant was prejudiced
by a court’s erroneous instruction, we consider “the instruc-
tions as a whole and in the context of the evidence and
record at trial, including the parties’ theories of the case
with respect to the various charges and defenses at issue.”
State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020) (inter-
nal quotation marks and citations omitted).
Cite as 325 Or App 527 (2023) 535

Here, the state charged defendant with third-
degree assault, ORS 163.165(1)(a). As charged, the state was
required to prove that defendant caused the victim “seri-
ous physical injury” by use of a dangerous weapon. Below,
the trial court correctly instructed the jury on the statutory
definition of “serious physical injury”: “physical injury which
creates a substantial risk of death or which causes serious
and protracted disfigurement, protracted impairment of
health or protracted loss or impairment of the function of
any bodily organ.” ORS 161.015(8). In addition, the court
gave the state’s special instruction that was taken from our
holding in Alvarez: “[A] scar on the scalp, visible five months
after the injury, qualifies as ‘protracted disfigurement.’ ”
240 Or App at 171.
In this case, the state’s requested special instruc-
tion on “protracted disfigurement” recited evidence that
the court in Alvarez found to be sufficient to overcome a
motion for a judgment of acquittal. However, Alvarez was
not about how to properly instruct a jury on “protracted dis-
figurement.” As we have explained before, there is a “risk
of using wording from opinions as jury instructions and, in
particular, [in] crafting a jury instruction from statements
in a case intended to describe why particular evidence was
sufficient.” State v. Morales, 307 Or App 280, 285 n 4, 476
P3d 965 (2020) (citing Rogers v. Meridian Park Hospital, 307
Or 612, 616, 772 P2d 929 (1989)); see Rogers, 307 Or at 616
(“[B]ecause many appellate opinions are written with no
view that they will be turned into instructions, care must
be exercised in using the language of these opinions for
instructions to juries.”).
When the trial court instructed the jury that, “[a]
scar on the scalp visible five months after the injury quali-
fies as protracted disfigurement,” it impermissibly drew the
jury’s attention to the scar and the inference of protracted
disfigurement, essentially disposing of the state’s burden to
prove the serious physical injury element. In other words,
it commented on the evidence. That it correctly read a line
from the holding in Alvarez does not turn the instruction
into something other than a comment on the evidence and
it does not make the comment proper. The court did not
536 State v. Wiltse

neutrally inform the jury on what factors it could consider
in determining whether an injury caused “disfigurement”
or whether that disfigurement was “protracted.” Rather,
it directly informed the jury how certain evidence related
to two factual issues—that is, whether the injury was pro-
tracted and whether it constituted disfigurement.
In this case, the scar was located on the victim’s
face near her eye and not on her scalp. Nonetheless, the jury
likely thought that the court’s instruction was informing
them that the scar in this case constituted protracted dis-
figurement. Therefore, we conclude that the court’s instruc-
tion, impermissibly directed the jury on the inference to be
drawn. See State v. Stewart, 316 Or App 450, 454, 502 P3d
241 (2021) (explaining that “it remains a question for the
factfinder in each individual case whether under the spe-
cific circumstances pleaded and proved a defendant subjects
another to offensive physical contact” (internal quotation
marks and citation omitted)).
Despite the court’s erroneous instruction, the par-
ties disagree as to whether the court’s error qualified for
plain-error review. To constitute error, an alleged error
must appear “on the record,” which means that “the review-
ing court must not need to go outside the record to iden-
tify the error or choose between competing inferences, and
the facts constituting the error must be irrefutable.” Ailes
v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956
(1991). As noted earlier, that requirement is not met if one
inference is that the litigant chose not to object. Gornick,
340 Or at 169-70. However, under plain-error analysis, com-
peting inferences “do not arise automatically, but must be
plausible.” See State v. Belen, 277 Or App 47, 53, 369 P3d 438
(2016) (internal quotation marks and citations omitted).
Here, a conclusion that the trial court erred by
instructing the jury that “[a] scar on the scalp visible five
months after the injury qualifies as protracted disfigure-
ment” would require us to resolve competing inferences
regarding what the parties discussed, and what agreement
they may have reached, during the off-the-record discus-
sions that led the trial court to instruct the jury without
any objection from defendant. Given defendant’s self-defense
Cite as 325 Or App 527 (2023) 537

theory and the evidence in the case, we agree with the state
that it is plausible that defendant might have chosen not to
object as a strategic decision, or that defendant agreed to
the instruction or that defendant agreed that the instruc-
tion was a correct statement of the law. However, the tran-
script does not establish what transpired during those unre-
corded discussions, and we cannot entertain a claim of plain
error that requires us to speculate about what the parties
might have discussed while off the record. See State v. Cook,
267 Or App 776, 780, 341 P3d 848 (2014) (concluding that an
error that required speculation as to what the parties accom-
plished while off the record precluded plain-error review);
see also State v. Harbick, 234 Or App 699, 705, 228 P3d 727,
rev den, 349 Or 171 (2010) (explaining that the appellant
had not demonstrated that the trial court committed plain
error by considering a guilty-except-for-insanity defense,
because given the evidence of off-the-record proceedings in
that particular case, “[i]t is at least possible that, following
the competency hearing, the parties discussed that very
issue off the record”).
Accordingly, although the trial court’s instruction
was an impermissible comment on the evidence, the court
did not plainly err in giving that instruction.
Affirmed.