State v. Wiltse

No. 38		                                                              1

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                  Respondent on Review,
                             v.
                MATTHEW RYAN WILTSE,
                   Petitioner on Review.
         (CC 20CR28544) (CA A175287) (SC S070253)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted January 11, 2024.
   Stacy M. Du Clos, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
   Doug Petrina, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   DUNCAN, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
   *
     Appeal from Curry County Circuit Court, Cynthia L. Beaman, Judge.

, 

 (2023).
2   State v. Wiltse
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         DUNCAN, J.
         In this criminal case, defendant appealed the trial
court’s judgment convicting him of third-degree assault
under ORS 163.165(1)(a). Defendant asserted that the trial
court had erred by giving a special jury instruction that the
state had requested. Although defendant had not objected to
the instruction in the trial court, he contended that the Court
of Appeals could address the error because it constituted a
“plain error.” See ORAP 5.45(1) (providing that an appellate
court “may, in its discretion, consider a plain error”). An
error constitutes a plain error if (1) it is an error “of law”; (2)
the legal point is “obvious, not reasonably in dispute”; and (3)
the error appears on the record, meaning that the appellate
court “must not need to go outside the record to identify the
error or choose between competing inferences, and the facts
constituting the error must be irrefutable.” Ailes v. Portland
Meadows, Inc., 

, 

 (1991) (citing
State v. Brown, 

, 

 (1990)).
         The special jury instruction at issue concerned the
meaning of “serious physical injury,” an element of third-
degree assault under ORS 163.165(1)(a). “Serious physical
injury” includes “protracted disfigurement.” ORS 161.015(8)
(defining “serious physical injury”). The special instruction
provided, “A scar on the scalp, visible five months after the
injury, qualifies as ‘protracted disfigurement.’ ” Defendant
argued in the Court of Appeals that the instruction was a
comment on the evidence. Such comments are prohibited by
ORCP 59 E, which applies to criminal trials by way of ORS
136.330(1). ORCP 59 E provides that a trial court “shall
not instruct with respect to matters of fact, nor comment
thereon.” Construing that rule, this court has held that a
trial court may not give “a jury instruction that tells the
jury how specific evidence relates to a particular legal issue.”
State v. Hayward, 

, 

 (1998).
         The Court of Appeals agreed with defendant that
the “protracted disfigurement” instruction was a comment
on the evidence and, as such, violated ORCP 59 E. State v.
Wiltse, 

, 

 (2023). But the court
held that giving the instruction did not constitute a plain
error. Id. at 536-37. According to the court, it was possible
4                                               State v. Wiltse

that defendant had agreed to the instruction or had made a
strategic choice not to object to it and, therefore, the alleged
error did not satisfy the third plain error requirement: It
did not appear on the record. Id. Thus, the court reasoned
that, because it was possible that defendant had agreed to
the instruction or had made a strategic choice not to object
to the instruction, it could not tell whether the trial court
had actually erred. The premise underlying that reasoning
is that it is not error for a trial court to give an instruction
that comments on the evidence if the parties agree to the
instruction or make strategic choices not to object to it.
         As we explain below, that premise is incorrect. Trial
courts have certain duties when it comes to jury instructions.
Under ORCP 59 B, a trial court has a duty to instruct the
jury on all the law necessary to the jury’s factual findings.
Under ORCP 59 E, a trial court has a duty not to comment
on the evidence. Those duties are imposed on courts them-
selves. They are not conditional or contingent; they do not
depend on the actions of parties. Parties cannot authorize
courts to violate those duties. Thus, whether a trial court
erred by giving an instruction that violated those duties is
something that can be determined based on the instruc-
tion itself. This court has so held repeatedly, including in
Brown and State v. Lotches, 

, 

(2000), cert den, 

 (2001). For example, in Lotches,
we determined whether the trial court’s instructions vio-
lated ORCP 59 B based on the content of the instructions;
we explained that we did not need to go outside the record
or select among competing inferences because whether the
instructions violated the rule could be “determined readily
by examining the instructions that were given.” Id.
         Although Brown and Lotches involved ORCP 59 B
and this case involves ORCP 59 E, the reasoning of those
cases applies here: We can determine whether, in giving
a jury instruction, a trial court violated its duties under
ORCP 59 by examining the instruction itself. Therefore, we
hold that the Court of Appeals erred in concluding that the
trial court’s instructional error did not appear on the record.
       We emphasize, however, that our holding does not
mean that defendant is entitled to a reversal. A plain error
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is not necessarily a reversible error. As we will explain,
whether a plain error is reversible can depend on consider-
ations including, but not limited to, the considerations that
this court identified in Ailes. To clarify that point, we apply
the Ailes factors here. For the reasons explained below, we
decline to exercise our discretion to reverse based on the
instructional error.
         HISTORICAL AND PROCEDURAL FACTS
         On the day of the incident that gave rise to this crim-
inal case, defendant was sitting at a picnic table in front of a
church, fashioning a handle for a knife. Across the street, RR
and her boyfriend were arguing in a public park. They yelled
and screamed at each other for half of an hour. Defendant
ridiculed RR for her role in the argument. In response, RR
drove her car across the street to confront defendant. She got
out of her car and picked up a metal pole, which was more
than five feet long. RR screamed at defendant, approached
him while carrying the pole, and came within three feet of
him. Exactly what happened next was disputed at trial, but
RR was injured and taken to a hospital, where a doctor deter-
mined that RR had suffered the kind of injury that could
cause brain damage and even death. The doctor ordered a
CT scan, which showed that RR’s eye socket had multiple
fractures. The doctor also treated a two-centimeter-long lac-
eration near RR’s left eye that required two layers of sutures.
         A grand jury indicted defendant with several
crimes, including three alternative counts of assault: one
first degree, one second degree, and one third degree. The
charges alleged different culpable mental states and inju-
ries. The first-degree count alleged that defendant had
intentionally caused RR serious physical injury by means of
a dangerous weapon, ORS 163.185(1)(a); the second-degree
count alleged that he had knowingly caused RR physical
injury by means of a dangerous weapon, ORS 163.175(1)(b);
and the third-degree count alleged that he had recklessly
caused RR serious physical injury by means of a dangerous
weapon, ORS 163.165(1)(a).1

   1
     Defendant was also charged with one count of unlawful possession of meth-
amphetamine. He pleaded guilty to that charge and was sentenced to probation.
6                                                              State v. Wiltse

         The case was tried to a jury. At trial, RR testified
that she had approached defendant with the pole, which
she intended to be “intimidating.” She also testified that,
when she saw the knife that defendant had in his hand, she
“froze.” The next thing RR remembered was being hit with
the pole, falling to the ground in pain, and bleeding from
an injury near her left eye. Defendant asserted that he had
acted in self-defense. He testified that RR had been menac-
ing him with the pole, so he took it from her and, in doing so,
inadvertently injured her.
         Prior to trial, the parties submitted proposed jury
instructions. The state requested Uniform Criminal Jury
Instruction 1044A, which defines “serious physical injury”
as follows:
        “The term serious physical injury means a physical
    injury that (1) creates a substantial risk of death, (2) causes
    serious and protracted disfigurement, (3) causes protracted
    impairment of health, or (4) causes protracted loss or
    impairment of the function of any bodily organ.”
(First emphasis in original; second emphasis added.) See
ORS 161.015(8) (defining “serious physical injury”). The
state also requested a special instruction, entitled “pro-
tracted disfigurement,” which provided:
       “A scar on the scalp, visible five months after the injury,
    qualifies as ‘protracted disfigurement.’ ”2
         At the close of the evidence, the trial court had the
parties come into chambers to “go over the jury instruc-
tions.” The record does not reflect what occurred during that
discussion. The discussion was not recorded and neither the
court nor the parties summarized it when they returned to
the courtroom.
        Thereafter, the trial court instructed the jury
on the record. The instructions included the uniform jury
instruction on “serious physical injury,” as well as the state’s
     2
       It appears that the state’s special instruction regarding “protracted disfig-
urement” was based on State v. Alvarez, 

, 

 (2010),
rev den, 

 (2011). In that case, the Court of Appeals affirmed the trial
court’s denial of the defendant’s motion for a judgment of acquittal, “agree[ing]
with the state that a scar on the scalp, visible five months after the injury, qual-
ifies as a ‘protracted disfigurement.’ ” Id. at 171.
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special instruction on “protracted disfigurement.” The court
also instructed the jury, “When I tell you what the law is
on a particular subject or tell you how to evaluate certain
evidence, you must follow these instructions.”
         The record does not reflect that the trial court
asked the parties for their positions on the instructions that
it gave. Nor does it contain any agreement or objection to the
instructions by either party.
        During closing argument, the state argued that it
had presented sufficient evidence to prove that RR had suf-
fered “serious physical injury.” The prosecutor contended,
among other things, that RR’s scar constituted “protracted
disfigurement.” In support of that contention, the prosecutor
directed the jury’s attention to the state’s special instruction:
      “If you go to the top of the next page, protracted disfig-
   urement, a scar on the scalp 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.”
         The jury found defendant not guilty on the first-
degree assault count, did not reach a verdict on the second-
degree count, and found defendant guilty on the third-degree
count for recklessly causing serious physical injury to RR
by means of a dangerous weapon. The trial court entered a
judgment convicting defendant of third-degree assault and
sentencing him to 28 months in prison, to be followed by
24 months of post-prison supervision. At the state’s request,
the trial court dismissed the second-degree assault count.
         Defendant appealed the trial court’s judgment,
assigning error to the trial court’s giving of the state’s
special instruction regarding “protracted disfigurement.”
Defendant asserted that the instruction was a comment
on the evidence, prohibited by ORCP 59 E. Defendant
acknowledged that he had not objected to the instruction in
the trial court and, therefore, his assignment of error was
unpreserved. For that reason, defendant invoked the “plain
error” doctrine, under which an appellate court can consider
unpreserved errors in certain circumstances. See Peeples v.
Lampert, 

, 

 (2008) (explaining
8                                                   State v. Wiltse

that the “principal exception” to the preservation require-
ment is for “plain error”); ORAP 5.45(1) (providing for “plain
error” review); see also Ailes, 

 (describing
approach for determining whether to remedy a plain error);
Brown, 

 (holding that incorrect jury instruc-
tion was a plain error and exercising discretion to remedy
the plain error).
         The Court of Appeals first considered whether the
state’s special instruction on “protracted disfigurement”
was a comment on the evidence and held that it was. Wiltse,

. The court explained:
    “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,
    

, 

 (1998). * * * [An] instruc-
    tion may not direct the jury to draw any particular infer-
    ence from a given factual finding, let alone instruct the
    jury that such evidence is dispositive of the element.”
Wiltse, 

. Applying that law, the court con-
cluded that,
    “[w]hen the trial court instructed the jury that, ‘[a] scar on
    the scalp visible five months after the injury qualifies as
    protracted disfigurement,’ it impermissibly drew the jury’s
    attention to the scar and the inference of protracted dis-
    figurement, essentially disposing of the state’s burden to
    prove the serious physical injury element. In other words,
    it commented on the evidence.”
Id. at 535 (second brackets in Wiltse). Although RR’s scar
was located on her face and not her scalp, the Court of
Appeals concluded that “the jury likely thought that the * * *
instruction was informing them that the scar in this case
constituted protracted disfigurement.” Id. at 536. Therefore,
the court concluded, the instruction “impermissibly directed
the jury on the inference to be drawn.” Id.
        The Court of Appeals then considered whether the
instruction “qualified for plain-error review.” Id. The court
observed that, “[t]o constitute error, an alleged error must
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appear on the record, which means that the reviewing
court must not need to go outside the record to identify the
error or choose between competing inferences.” Id. (inter-
nal quotation marks omitted). It then held that the alleged
instructional error did not “appear on the record,” explain-
ing that “a conclusion that the trial court erred by [giving
the protracted-disfigurement instruction] would require us
to resolve competing inferences regarding what the parties
discussed, and what agreement they may have reached,
during the off-the-record discussions that led the trial court
to instruct the jury without any objection from defendant.”
Id. (internal quotation marks omitted). Consequently, the
court concluded that, “although the trial court’s instruction
was an impermissible comment on the evidence, the court
did not plainly err in giving that instruction.” Id. at 537.
        Defendant petitioned for review of the Court of
Appeals’ decision, and we granted review of his petition to
address that court’s plain-error analysis.
                           ANALYSIS
         The issue on review is whether the Court of Appeals
erred in holding that the trial court’s comment on the evi-
dence did not constitute a plain error. As just recounted, the
Court of Appeals reasoned that the trial court’s comment on
the evidence did not satisfy the third plain-error require-
ment—viz., that the error must “appear on the record”—
because it was possible that defendant had agreed to the
instruction or had made a strategic choice not to object to
the instruction. Wiltse, 

 (internal quota-
tion marks omitted). As we understand it, the court’s rea-
soning was based on the premise that, although ORCP 59
E explicitly prohibits a trial court from commenting on the
evidence, it is not error for a trial court to give a jury instruc-
tion that comments on the evidence if the parties agreed
to the instruction or made strategic choices not to object to
the instruction. That premise is incorrect under our case
law. As we explain below, in cases where a party has argued
that a trial court erred by giving a jury instruction that vio-
lates the rules that govern jury instructions, this court has
held that (1) whether the instruction violates those rules
is a question of law that can be determined by examining
10                                              State v. Wiltse

the instruction itself; and (2) if the instruction violates the
rules, giving it was error and the error is apparent on the
record.
         Before turning to those cases, we begin with the
principles of preservation and plain error review. “Generally,
before an appellate court may address whether a trial court
committed an error * * *, the adversely affected party must
have preserved the alleged error in the trial court and
raised the issue on appeal by an assignment of error in its
opening brief.” Ailes, 

. But an appellate court
may consider errors that were not properly preserved or
raised if they constitute “plain error.” See Peeples, 

 (“The principal exception to preservation requirements
is for so-called ‘plain error[.]’ ”); ORAP 5.45(1) (an appellate
court “may, in its discretion, consider a plain error”).
         When determining whether to remedy an alleged
plain error, appellate courts employ a two-step analysis.
Ailes, 

. The first step is to determine if the
error constitutes a plain error. 

 (citing Brown, 

). To constitute a plain error, an error must be (1) an
error of law; (2) “obvious, not reasonably in dispute”; and (3)
apparent on the record, meaning that the appellate court
“must not need to go outside the record to identify the error
or choose between competing inferences, and the facts con-
stituting the error must be irrefutable.” 

 (citing Brown,

). Whether an error constitutes a plain
error is a question of law, which this court reviews for errors
of law. State v. Gornick, 

, 

 (2006)
(“First, this court considers whether the Court of Appeals
committed an error of law in determining that the three
elements under the first step of the plain error analysis had
been satisfied.”).
          If an error constitutes a plain error, then, at the
second step of the plain-error analysis, an appellate court
determines whether to exercise its discretion to reverse
based on the error. Ailes, 

 (citing Brown, 

). In Ailes, this court set out a nonexclusive
list of factors that a court may consider when determining
whether to exercise its discretion to reverse based on a plain
error:
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    “the competing interests of the parties; the nature of the
    case; the gravity of the error; the ends of justice in the par-
    ticular case; how the error came to the court’s attention;
    and whether the policies behind the general rule requir-
    ing preservation of error have been served in the case in
    another way, i.e., whether the trial court was, in some man-
    ner, presented with both sides of the issue and given an
    opportunity to correct any error.”
Id. at 382 n 6. Additional factors can include whether the
party alleging a plain error encouraged the error or made a
strategic choice not to object to it, State v. Fults, 

, 

 (2007),3 and whether the opposing party
played a role in causing the error, State v. Chitwood, 

, 

 (2022). When reviewing a Court
of Appeals decision regarding whether to reverse based on
a plain error, we apply an “abuse of discretion” standard of
review. Gornick, 

.4
         In this case, defendant assigned error to the trial
court’s giving of the state’s requested jury instruction regard-
ing “protracted disfigurement.” As mentioned, trial courts
have certain legal obligations when they give jury instruc-
tions. A trial court must “state to the jury all matters of law
necessary for its information in giving its verdict.” ORCP
59 B; ORS 136.330(1) (providing that ORCP 59 B applies in
criminal trials); Anderson v. N. P. L. Co., 

, 

 (1891) (“[I]t is the duty of the court to instruct the jury
upon every point relevant to the issue[.]”); see also Williams
    3
      Specifically, in Fults, we noted:
    “[F]actors that may apply in this case are: (1) defendant’s apparent encour-
    agement of the judge’s choice; (2) the role of the concurrent, permissible
    36-month probationary sentence; (3) the possibility that defendant made a
    strategic choice not to object to the sentence; and (4) the interest of the judi-
    cial system in avoiding unnecessary repetitive sentencing proceedings, as
    well as its interest in requiring preservation of error.”

.
    4
      We note that appellate courts are not required to proceed through the first
step of the plain-error analysis before the second. Instead, they may resolve cases
by stating that, even if the asserted error qualified as a plain error, they would
not exercise their discretion to review it. See, e.g., Gonzalez-Aguilera v. Premo,

, 

 (2015), rev den, 

 (2016) (even assum-
ing that the trial court plainly erred, the court declined to exercise its discretion
to correct any error); State v. Digesti, 

, 

 (2014),
rev den, 

 (2015) (same); State v. Martinez-Sanchez, 

,

 (2011) (same).
12                                              State v. Wiltse

et al. v. Portland Gen. Elec., 

, 

(1952) (“[T]he very purpose for which instructions are given
to juries [is to] enlighten them and to give to them in clear,
understandable, unambiguous language the legal principles
which will guide them in their deliberations.”).
         At the same time, a trial court “shall not instruct
with respect to matters of fact, nor comment thereon.” ORCP
59 E; ORS 136.330(1) (providing that ORCP 59 E applies in
criminal trials). The purpose of the rule prohibiting trial
courts from commenting on the evidence is to protect the
jury’s role as the ultimate factfinder. See ORS 136.320 (“all
questions of fact,” except those that have been judicially
noticed, “shall be decided by the jury”); State v. Boots, 

, 

, cert den, 

 (1993) (hold-
ing that the “right to a trial by jury includes the right to a
jury determination on every factual element essential to the
crime charged”). The rule both reflects and protects the dif-
ferent roles of the court and the jury in trials. It is intended
to preserve the impartiality of the court, the independence
of the jury, and the integrity of the trial.
         In cases like this one, where a party has argued
that a trial court plainly erred by giving a jury instruction
that failed to comply with the rules that govern jury instruc-
tions, this court has determined whether the court erred by
examining the instruction itself. Brown is illustrative.
         In Brown, the defendant was charged with aggra-
vated murder under ORS 163.095(2)(a)(E) (1977), which
defined aggravated murder to include the murder of a wit-
ness if the murder was “related to the performance of the
victim’s official duties in the justice system.” 

.
Under that statute, the state was required to prove a causal
connection between the murder and the victim’s status as a
witness. State v. Maney, 

, 

 (1984)
(so holding). The defendant and the state each submitted jury
instructions setting out the elements of aggravated murder.
Brown, 

. Although the parties’ instructions dif-
fered in some respects, each required a causal connection
between the murder and the victim’s status as a witness. 

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         The trial court prepared its own instructions and
reviewed them with the parties before closing arguments.
Id. at 353-54. The court’s aggravated murder instruction
provided that the state had to prove that the defendant had
“intentionally caused the death” of the victim and that the
victim “was to be a witness in a criminal proceeding,” but it
did not provide that the state had to prove a causal connec-
tion between the murder and the victim’s status as a wit-
ness. Id. The defendant did not object to the instruction. Id.
at 354. After the court instructed the jury, the defendant
excepted to the instruction, but only on the ground that
there was insufficient evidence to support giving it; he did
not except to it on the ground that it did not include the
causation element. Id. at 355.
         When the case was on review in this court, the
defendant did not assign error to the instruction. Id. But,
demonstrating “the highest ethical standards of our pro-
fession,” the state pointed out that the instruction failed to
include the causation element. Id.
         This court explained that, ordinarily, to obtain
appellate relief based on the giving of an erroneous jury
instruction, a party must have excepted to the instruction
in the trial court and assigned error to it in the appellate
court. Id. But, we further explained, under ORAP 5.45(2)
(1990), the court could consider plain errors. Id. At the time,
ORAP 5.45(2) provided that “the appellate court may con-
sider errors of law apparent on the face of the record.”5 Based
on the text of ORAP 5.45(2) (1990), we held that, to qualify
as an “error[ ] of law apparent on the face of the record,”
(1) an error must be “of law”; (2) the error must be “appar-
ent,” that is, “the legal point is obvious, not reasonably in

    5
      In 2017, ORAP 5.45 was amended to its current form, and the plain-error
review provisions are now in ORAP 5.45(1), which provides that “the appellate
court may, in its discretion, consider a plain error.” In keeping with Brown and its
progeny, including Ailes, a footnote to ORAP 5.45(1) provides:
        “For an error to be plain error, it must be an error of law, obvious and
    not reasonably in dispute, and apparent on the record without requiring the
    court to choose among competing inferences; in determining whether to exer-
    cise its discretion to consider an error that qualifies as a plain error, the court
    takes into account a non-exclusive list of factors, including the interests of
    the parties, the nature of the case, the gravity of the error, and the ends of
    justice in the particular case.”
14                                             State v. Wiltse

dispute”; and (3) the error must appear “on the face of the
record.” Brown, 

. Applying those requirements,
this court held that the trial court’s instruction, which omit-
ted the causation element, constituted an “error[ ] of law
apparent on the face of the record.” 

         First, this court held that the error was an error
of law because a trial court has a legal duty to instruct the
jury on all the law necessary for its verdict, and whether a
trial court has performed that duty is a question of law. 

We explained that ORCP 59 B provides that, “[i]n charging
the jury, the court shall state to them all matters of law
necessary for their information in giving their verdict.” 

(quoting ORCP 59 B (1982)). We held that, in omitting the
required causal connection when it instructed the jury, the
trial court had failed to instruct the jury as required by
ORCP 59 B and, thereby, had committed legal error. 

         Second, this court held that the error was “obvi-
ous.” 

 We based that holding on our determination that it
was “not reasonably in dispute” that a court generally must
instruct on all the elements of a charged crime. 

        Third, and finally, this court held that the error
appeared “on the face of the record.” 

 We explained that
we did not need to “go outside the record or choose between
competing inferences to find it” and that “the facts that
comprise the error are irrefutable.” 

 Thus, we were able
to determine whether the trial court’s instruction violated
ORCP 59 B based on the instruction itself.
         After determining that the error qualified as a plain
error, we considered whether to exercise our discretion to
reverse the defendant’s aggravated murder conviction based
on the error. 

. In doing so, we noted, among
other things, the effect that the error could have had on the
verdict, the consequences of the verdict for the defendant,
and the extent to which the purposes of the preservation
requirement were served. 

 Based on those case-specific
considerations, we chose to reverse the defendant’s convic-
tion and remand the case to the trial court for further pro-
ceedings. 

.
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         In sum, in Brown, this court determined that
whether the trial court’s aggravated murder instruction com-
plied with the law was a question of law that could be deter-
mined based on the instruction itself. Id. at 355. Notably,
in Brown, the parties and the trial court had reviewed the
court’s instructions before the court gave them to the jury,
and the defendant had not objected to the aggravated mur-
der instruction on the ground that it did not include the
causation element. But, on review, we did not consider those
facts when determining whether the error qualified as a
plain error. Instead, we considered matters related to fair-
ness and efficiency, which the preservation requirement is
intended to protect, when determining whether to exercise
our discretion to reverse based on the plain error.6
          Brown was consistent with precedent. In Kuhnhausen
v. Stadelman, 

, 

, reh’g den, 

,

 (1944), this court held that a jury instruction
that misstated the law constituted an error “appearing on
the face of the record,” and, therefore, we could “take notice
of” it, even though the defendant had not objected to it. Id. at
311 (applying the predecessor to ORAP 5.45(2) (1990), Rule
of Procedure No. 2 (“Errors Considered”) (1941) (stating that
“this court reserves the right to take notice of an error of
law apparent on the face of the record,” even if the appellant
does not present the assignment of error)). We then consid-
ered several factors relevant to whether the error “should be
noticed,” and concluded that it should. Id.
        Brown has been followed in other cases, including
Lotches, an aggravated murder case. In Lotches, one of the
issues on review was whether the trial court had plainly
erred by failing to instruct the jury in a manner that would
ensure that the jurors unanimously agreed that the state had
proved the aggravating factors it had alleged, as required
by Boots. Lotches, 

 (“[T]he unanimity rule
requires that the jury agree as to just what defendant did
to bring himself within the purview of the particular sub-
section of the aggravated murder statute under which he
was charged.” (Internal quotation marks omitted.)); State v.

    6
      We followed that two-step process in Ailes. 

 (describing
process for plain-error review).
16                                             State v. Wiltse

Boots, 

, 

 (1989) (holding that, to
convict a defendant of aggravated murder, “the jury must
unanimously agree” on the aggravating factor).
         To resolve that issue, this court first determined
that the three aggravated murder instructions were erro-
neous. Lotches, 

. We explained that, although
the aggravated murder counts were based on underlying fel-
onies, the instructions did not identify “the victim or atten-
dant circumstances applicable to each of those underlying
felonies or in any other way ensure jury unanimity concern-
ing those issues.” 

 We further explained that, “because
the aggravated murder instructions that were given did not
either limit the jury’s consideration to a specified underlying
felony or require jury unanimity concerning a choice among
alternative felonies, each instruction carried the same dan-
ger that this court had condemned in Boots.” 

. We
acknowledged that Boots was “distinguishable factually”
because, in Boots, the trial court had expressly instructed
the jurors that they did not have to unanimously agree on
the aggravating factors, but we held that there was “no rea-
sonable basis for refusing to apply the rule of Boots to the
present case.” 

         After determining that the instructions were erro-
neous, we considered whether there was “a substantial like-
lihood of jury confusion as to the underlying felony that was
applicable to each count.” 

. We concluded that,
for two of the instructions, there was such a likelihood. 

.
         We then turned to the question of whether those
two instructions qualified as plain errors. 

. To do
so, we followed Brown and applied the elements of plain
error. Lotches, 

 (citing Brown, 

).
We held that the errors were “errors of law” because “the
question of what must be included in a jury instruction is
a question of law.” 

 We further held that the errors were
“obvious” because, under Boots, it was “clear * * * that a jury
must be instructed concerning the necessity of agreement
on all material elements of a charge in order to convict,”
and, therefore, the trial court should have known what
its “duties respecting jury instructions” were. 

 And, of
Cite as 

 (2024)                                                         17

particular relevance here, we held that we could identify the
instructional errors without having to go outside the record
or select among competing inferences because “what was
or was not included is determined readily by examining the
instructions that were given.” Id. (emphasis added). Thus, we
concluded that the instructions constituted plain errors. Id.
Then, because there was a substantial likelihood that the
instructions had caused jury confusion, we exercised our
discretion to reverse the defendant’s convictions based on
those instructions. Id. at 471-72.
          Since Lotches, this court has continued to hold, at
the first step of the plain-error analysis, that jury instruc-
tions that do not comply with the law constitute plain errors.
See, e.g., State v. McKinney/Shiffer, 

, 

 (2022) (holding, in consolidated cases, that trial
courts’ failures to instruct on a required mental state ele-
ment constituted plain errors because they were errors of
law, not reasonably in dispute, and apparent on the record);
State v. Vanornum, 

, 

 (2013)
(holding that an instruction that misstated the law regard-
ing self-defense was an error apparent on the record); State
v. Hale, 

, 

 (2003), cert den, 

 (2004) (following Lotches and holding that a trial
court’s failure to instruct a jury in a manner that ensured
juror unanimity constituted a plain error).7
          The reasoning underlying Brown, Lotches, and our
other plain-error jury-instruction cases is sound. Whether a
jury instruction fails to comply with the law can be deter-
mined by looking at the instruction itself. As discussed,
under ORCP 59, a trial court has legal obligations regard-
ing jury instructions, and whether a court has complied
with those obligations does not depend on the actions of
    7
      The Court of Appeals has also held that incorrect instructions are errors
that appear on the record. See, e.g., State v. Hooper, 

, 

 (2021) (holding that, based on Lotches, the instructional error was one of law
and appeared on the record); State v. Gregg, 

, 

,
rev den, 

 (2021) (holding that the trial court plainly erred when it gave
the jury a nonunanimous verdict instruction, in part because “the instructional
error is apparent on the record”); State v. Gaines, 

, 

 (2015) (relying on Lotches and holding that the trial court’s failure to give a
jury concurrence instruction was plain error); State v. Gray, 

,

 (2014) (holding that a jury instruction incorrectly stated the law
because it omitted elements of the charged crime and that the error was plain).
18                                                            State v. Wiltse

the parties. Parties cannot authorize trial courts to breach
those obligations.
         ORCP 59 E’s prohibition against comments on the
evidence protects the jury’s role as the factfinder, and par-
ties cannot agree to allow a trial court to interfere with that
role.8 Thus, if a trial court gives a jury instruction that vio-
lates ORCP 59 E, the trial court has erred and the error is
apparent on the record. Whether the parties agreed to the
instruction or made strategic choices not to object to it does
not alter the fact that, by giving the instruction, the trial
court violated its independent duty under ORCP 59 E. (But
those possibilities can affect whether an appellate court
exercises its discretion to remedy an error.)
         Applying our precedent to this case, we first turn to
the question of whether the trial court erred in giving the
state’s requested “protracted disfigurement” instruction.
The Court of Appeals held that it did, and we agree. As dis-
cussed, ORCP 59 E prohibits trial courts from commenting
on evidence, and one of the purposes of that rule is to protect
the jury’s role as the ultimate factfinder. When a defendant
has entered a not guilty plea, the defendant has denied com-
mitting the charged crime and the state bears the burden
of proving all the elements of the crime beyond a reasonable
doubt. ORS 135.370 (a not guilty plea “controverts and is a
denial of every material allegation in the accusatory instru-
ment”); State v. Cunningham, 

, 

(1943) (“The plea of not guilty imposed upon the state the
burden of proving every element of the crime of murder.”). It
is the jury’s role to determine whether the state has carried
that burden; the jury must find the facts that establish the
elements of the crime. Boots, 

.
         A trial court cannot intrude on the jury’s role by
commenting on the evidence in violation of ORCP 59 E. As
     8
       ORCP 59 E’s prohibition against comments on the evidence is akin to other
prohibitions that help protect the jury’s role as the factfinder. For example, this
court has held that parties cannot stipulate to the admission of polygraph evi-
dence, and one of our reasons for so holding is that the evidence could interfere
with the jury’s role. State v. Lyon, 

, 

 (1987) (citing
State v. Brown, 

, 

 (1984)). Admission of such evi-
dence could impair “the integrity of the trial process” and “the traditional role
of the jury,” and “parties cannot by private agreement ‘waive’ these vital institu-
tional concerns.” 

Cite as 

 (2024)                                     19

this court observed in Hayward, a trial court violates ORCP
59 E “when it gives a jury instruction that tells the jury how
specific evidence relates to a particular legal issue.” 

; see also State v. Tucker, 

, 

 (1993) (affirming trial court’s denial of the defendant’s
requested instructions regarding specific factors that it
should consider in mitigation of his sentence on the ground
that the instructions were comments on the evidence, pro-
hibited by ORCP 59 E). Such comments are prohibited, “even
in the absence of rebutting evidence.” State v. Rainey, 

, 

 (1985). Here, as the Court of Appeals
correctly explained, the state’s requested “protracted dis-
figurement” instruction conveyed to the jury that specific
evidence in the case established an element of the charged
offense. Wiltse, 

. Thus, the instruction
violated ORCP 59 E.
         The question then becomes whether giving the
instruction qualifies as a plain error. As discussed, the Court
of Appeals held that it did not because it did not “appear on
the record.” Id. at 536-37 (internal quotation marks omit-
ted). The court reasoned that, because it was possible that
defendant might have agreed to the instruction off the
record, it could not tell whether giving the instruction was
an error at all. Id. We disagree. As Brown, Lotches, and the
other cases discussed above show, an appellate court can
determine whether a jury instruction violates the rules that
govern jury instructions based on the content of the instruc-
tion itself.
        Taking that approach, and mirroring Lotches, we
hold that giving the “protracted disfigurement” instruc-
tion was an error of law because the question of whether
an instruction violates ORCP 59 E is a question of law. See
Lotches, 331 at 472 (holding that jury instructions that vio-
lated ORCP 59 B constituted “errors of law” because “the
question of what must be included in a jury instruction is
a question of law”). We further hold that the error is “obvi-
ous” because it is clear that a court is prohibited from com-
menting on evidence, ORCP 59 E, and that a court violates
that prohibition “when it gives a jury instruction that tells
the jury how specific evidence relates to a particular legal
20                                                                State v. Wiltse

issue.” Hayward, 

; see Lotches, 

(holding that erroneous instructions were “obvious” under
case law). And, finally, we hold that the error can be identi-
fied without having to go outside the record or select among
competing inferences because the content of the instruction
is set out in the record. See Lotches, 

 (holding
that erroneous instructions could be identified without hav-
ing to go outside the record or select among competing infer-
ences because “what was or was not included is determined
readily by examining the instructions that were given”).9
Therefore, we conclude that the trial court’s instruction,
which violated ORCP 59 E, is apparent on the record.
         In arguing otherwise, the state relies on Gornick
and State v. Perez, 

, 

 (2006). In
each of those cases, the trial court imposed sentences based
on aggravating facts that the court found itself. Each defen-
dant’s sentencing hearing occurred before the Supreme
Court’s decision in Blakely v. Washington, 

, 

, 

 (2004), in which the Court held
that a judge exceeds their “ ‘proper authority’ by inflicting
additional punishment based upon facts that the jury did
not find beyond a reasonable doubt and that defendant did
not admit.” Gornick, 

 (quoting Blakely, 

). Based on Blakely, the defendants in Gornick
and Perez argued that their trial courts had plainly erred
by finding the aggravating facts themselves. This court
rejected those arguments.
        In Gornick, this court explained that a trial court
does not legally err by finding aggravating facts during
sentencing if the defendant chose not to exercise their right
to have a jury find the aggravating facts. 340 Or at 168.
     9
       We note that this case does not involve a stipulation, which is a party’s waiver
of the right to require the other party to prove a particular fact. See State v. Harris,

, 

 (2005) (explaining that such a waiver must show “an
intentional relinquishment or abandonment of a known right or privilege” (inter-
nal quotation marks omitted)). Defendant did not stipulate to the “serious physical
injury” element. See State v. Hess, 

, 

 (2007) (a judicial
admission allows a person to enter a “formal waiver of proof that relieves an oppos-
ing party from having to prove the admitted fact and bars the party who made
the admission from disputing it” (internal quotation marks omitted)); Johnson v.
Northwest Acceptance, 

, 

 (1971) (a stipulation requires a clear
and intentional waiver of a right). Defendant pleaded not guilty to the charges, and
all the elements of the charges were submitted to the jury.
Cite as 

 (2024)                                    21

The court stated that the “mere fact that a judge, rather
than a jury, decides the facts * * * does not demonstrate that
any error occurred.” Id. Thus, because the record did not
show that the defendant took issue with the trial court’s
factfinding and instead “sat by quietly and made no other
objections”—and, in fact, parts of the record (including the
defendant’s guilty plea) did show that the defendant under-
stood that the trial court would engage in factfinding—the
court determined that the defendant “could have chosen to
have the trial court, rather than a jury, find the aggravating
facts.” Id. at 169. Given that possibility, and given that “a
trial court does not commit legal error by finding aggravat-
ing facts if the defendant chooses not to exercise his rights
under Blakely,” id. at 168, the court determined that the
record did not clearly show that the trial court erred and
that the claimed error was thus not “on the * * * record,” id.
at 170.
         Similarly, in Perez, the defendant did not object
when the trial court found several aggravating facts and
imposed a departure sentence based on those facts. Prior
to the trial court engaging in its factfinding, the defendant
had signed a jury waiver form stating that he “elects to
waive trial by jury and consents to be tried by a [j]udge”; he
also signed a form stating that he “fully understand[s] that
the actual sentence is up to the court.” 340 Or at 317. As
in Gornick, the court determined that the defendant could
have chosen to have the trial court, instead of a jury, find
the aggravating facts, in which case the trial court would
not have legally erred. Id. at 318. The court concluded that
that inference was one of “several competing inferences,” so
the record did not clearly show that the trial court erred
and, therefore, the defendant’s plain-error claim failed at
the first step of the Ailes analysis. Id.
        Gornick and Perez dealt with different types of
alleged errors than the instructional error at issue here. In
each of those cases, the defendants could have taken steps
to authorize the trial court’s actions: they could have agreed
to have the trial court find the aggravating facts. (And, in
both cases, there is evidence suggesting that the defendants
understood that the trial court would be the entity making
22                                              State v. Wiltse

factual findings.) But, for the reasons explained above, as
both we and the Court of Appeals have held in plain-error
jury-instruction cases, a party’s agreement to a jury instruc-
tion, or choice not to object to an instruction, does not affect
whether an instructional error violates the rules that gov-
ern jury instructions. If an instruction violates those rules,
it is error to give it, and it satisfies the third plain error
requirement: it is apparent on the record.
          Because, in this case, the record shows the trial
court gave an instruction that violated ORCP 59, we con-
clude, contrary to the Court of Appeals, that the erroneous
instruction appears on the record and constitutes a plain
error. As should be clear, that conclusion concerns only the
first step of the Ailes plain-error analysis: the determination
of whether an error constitutes a plain error.
        Although the Court of Appeals did not reach the
second step of the Ailes analysis, we proceed to that step in
the interest of providing an example of how the two steps
work together.
         Whether an appellate court should exercise its dis-
cretion to reverse based upon a plain error is a case-specific
determination. We cannot anticipate all the facts that could
be relevant to that determination in every case. But we can
reiterate some general principles regarding preservation
and plain error.
         There are strong reasons for the preservation
requirement. Among other things, it promotes fairness
and judicial economy. State v. Parkins, 

,

 (2009). It helps ensure that “parties are not
taken by surprise, misled, or denied opportunities to meet
an argument.” Davis v. O’Brien, 

, 

 (1995). It also helps ensure that a court has a “chance
to consider and rule on a contention, thereby possibly avoid-
ing an error altogether or correcting one already made.”
Peeples, 

. Consequently, “[a] court’s decision
to recognize unpreserved or unraised error * * * should be
made with utmost caution. Such an action is contrary to the
strong policies requiring preservation and raising of error.”
Ailes, 

.
Cite as 

 (2024)                                                         23

         As set out above, in Ailes, this court identified some
factors that appellate courts may consider when deciding
whether to exercise their discretion to reverse a plain error:
    “the competing interests of the parties; the nature of the
    case; the gravity of the error; the ends of justice in the par-
    ticular case; how the error came to the court’s attention;
    and whether the policies behind the general rule requir-
    ing preservation of error have been served in the case in
    another way, i.e., whether the trial court was, in some man-
    ner, presented with both sides of the issue and given an
    opportunity to correct any error.”

 n 6. Courts may also consider whether the
party alleging the plain error encouraged the error or made
a strategic choice not to object to it. Fults, 

;
State ex rel Juv. Dept. v. S.P., 

, 

(2009) (stating that whether a party “encouraged commis-
sion of the error in question or made a strategic choice not
to object” are relevant to whether this court will “exercise
its discretion” to reverse an asserted plain error); see, e.g.,
State v. Serrano, 

, 

 (2014), cert
den, 

 (2015) (assuming that, by giving certain
jury instructions, the trial court committed plain error, but
declining to reverse because the defendant had made “an
explicit decision to endorse” the instructions).10
         Here, the gravity of the error, in the context of the
case, weighs against reversal. Although the error concerns
a jury instruction, the instruction related to an issue that
defendant did not actively dispute: whether RR’s injuries
constituted one form of “serious physical injury,” specif-
ically, “protracted disfigurement.” As mentioned, defen-
dant’s defense was that RR approached him with the pole,
he grabbed it in self-defense, and he inadvertently injured
RR. Defendant did not dispute the nature of RR’s injuries.
That is understandable, given defendant’s defense and the
undisputed evidence, which included a doctor’s testimony
that RR had suffered a type of injury that was potentially

    10
       As the list of non-exclusive factors set out in Ailes suggests, there are a
variety of factors that an appellate court may consider when deciding whether
to exercise its discretion to reverse based on a plain error. But a court is not
required to address every factor in every case. In some cases, for example, one
factor may be a sufficient reason for a court to decline to exercise its discretion.
24                                              State v. Wiltse

life threatening, her eye socket had been fractured in multi-
ple places, and she had a two-centimeter laceration near her
left eye that required two layers of sutures.
         To be sure, the state should not have requested
the erroneous instruction and the trial court should not
have given it. And, if defendant had objected to it and the
court had overruled his objection, we might conclude that
the error was not harmless and reverse on the ground that
the instruction could have affected the jury’s verdict. But
whether an error was not harmless (and therefore reversible
if there was an objection) is a different question from whether
an error was grave (which we consider when determining
whether to reverse when there was not an objection). State
v. Ortiz, 

, 

 (2024) (so explain-
ing). Here, because the erroneous instruction concerned an
undisputed factual issue that did not affect defendant’s self-
defense claim, we conclude that giving the instruction was
not a grave error.
         Relatedly, an evaluation of the competing interests
of the parties weighs against reversal. Defendant had a full
opportunity to try the issues in the case and he chose a self-
defense theory that was largely successful. As recounted
above, the state charged defendant with three alternative
counts of assault, and the jury found defendant guilty of the
least serious count, third-degree assault, for recklessly caus-
ing serious physical injury. Again, defendant did not dispute
the nature of RR’s injuries. If we were to reverse, the state
might have to retry the case and, if so, the defendant might
raise a new defense, gaining a second bite at the proverbial
apple.
          In addition, this is not a case where the purposes of
preservation were otherwise served. The parties submitted
their jury instructions to the court before trial, as required
by ORCP 59 A. Defendant had the opportunity to review the
state’s instructions. In addition, the trial court discussed the
instructions with counsel. Thus, defendant had notice of the
requested instruction and an opportunity to object to it. But,
as far as the record reveals, defendant did not object to the
instruction. If he had, it is possible that the state and court
would have realized that the instruction was erroneous.
Cite as 

 (2024)                                       25

But, even if they did not, the state could have withdrawn
the instruction or the court could have opted not to give the
instruction rather than risk an error. Thus, this is a case
where, had defendant objected to the erroneous instruction,
the error could have been readily avoided or corrected.
         In light of those Ailes factors—the gravity of the
error in the context of the case, the parties’ competing inter-
ests, and whether the purposes of preservation were other-
wise served—we decline to exercise our discretion to reverse
based on the instructional error.
         Before closing, we highlight what today’s decision
means for trial lawyers and trial judges. Trial lawyers
should understand that they should continue to object to
any jury instruction that they think is objectionable for any
reason. Counsel should not read today’s opinion as creat-
ing a tactical advantage of silence. Absent an objection, an
instructional error is unlikely to be the basis for a rever-
sal in most cases. Trial judges—who often work to finalize
jury instructions in a short time frame at the close of trial—
should understand that, in most circumstances, giving jury
instructions that have been jointly requested or requested
by one party without objection is unlikely to lead to reversal
on plain-error review. However, we note that all discussion
of instructions is best accomplished on the record, so that
appellate courts will know whether an instruction resulted
from a joint proposal, an unobjected to request of one party,
or was given over a party’s objection. See State v. Lutz, 

, 

 (1988) (“[N]othing of importance
bearing on the conduct of the trial should be ‘off the record.’ ”)
        The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.