- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 12-02-2015
- Case #: A153812
- Judge(s)/Court Below: Lagesen, P.J. for the Court; Duncan, J.; & Flynn, J.
- Full Text Opinion
Defendant appealed his conviction for first-degree burglary, arguing the trial court failed to give a jury instruction that at least 10 jurors had to concur on the specific crime or crimes Defendant intended to commit when he was alleged to have committed burglary. At trial, the court provided a copy of the jury instructions to the parties and, after confirming with Defendant and the State that there were no objections, gave the instruction on burglary in a way that was inconsistent with how burglary was charged in the indictment. On appeal, Defendant argued that, although the error was unpreserved, under State v. Frey it was plainly erroneous for the trial court to have not, on its own, provided a concurrence instruction. The Court held that while a trial court could plainly err for failure to deliver the concurrence instruction absent a request from a party, in this case it declined to exercise discretion to consider and correct the alleged error because Defendant failed to raise an issue with the court’s proposed instruction and the jury ultimately returned an 11-1 verdict against Defendant. Affirmed.