Full Opinion (html_with_citations)

No. 23                     June 24, 2025                          739

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Petitioner on Review,
                             v.
               ANTHONY ALAN WORSHAM
                  Respondent on Review.
         (CC 21CR46056) (CA A178554) (SC S071176)


   En Banc
   On review from the Court of Appeals.*
   Argued and submitted February 27, 2025.
   Patricia G. Rincon, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the briefs were Ellen Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
   Stacy M. Du Clos, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for respondent on review. Also on the briefs was
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
   JAMES, J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.




______________
         * Appeal from Douglas County Circuit Court, Ann Marie Simmons,
Judge.
332 Or App 154
,
548 P3d 849
 (2024)
740   State v. Worsham
Cite as
373 Or 739
 (2025)                                     741

        JAMES, J.
          In this criminal case, we consider whether a trial
court commits plain error by failing to give a supplemental
instruction that no party had requested, in order to clarify a
term in a uniform jury instruction given, to which no party
had objected. Here, statements by the prosecutor in closing
argument attempted to define for the jury—incorrectly—a
term appearing in a uniform instruction. Had defendant
objected, it would have been appropriate for the trial court to
strike those statements, and permissible for the court to give
a curative instruction to the jury to disregard the prosecu-
tor’s argument, or to give a supplemental instruction to clar-
ify the law. On appeal, the Court of Appeals reversed, holding
that the trial court’s failure to give a supplemental instruc-
tion had amounted to error apparent on the record under
the first prong of this court’s decision in Ailes v. Portland
Meadows, Inc.,
312 Or 376, 382
,
823 P2d 956
 (1991). State
v. Worsham,
332 Or App 154
,
548 P3d 849
 (2024). We now
reverse the Court of Appeals. As we explain, a trial court’s
failure to give an unrequested custom supplemental instruc-
tion, where the instructions given were legally correct, does
not constitute plain error under the first prong of Ailes.
                       BACKGROUND
         This case arose out of allegations of a stabbing.
The state charged defendant with one count of first-degree
assault, ORS 163.185, and one count of unlawful use of a
weapon, ORS 166.220. The issue at trial centered on whether
defendant had acted in self-defense, as provided under ORS
161.209. However, self-defense can be limited by the provi-
sions of ORS 161.215, specifically, as pertinent to this case,
ORS 161.215(1)(b), which states that a person is not justi-
fied in using physical force upon another person “if * * * [t]he
person is the initial aggressor.” Below, the state argued that
defendant had been the initial aggressor.
         The state requested, and the trial court instructed
the jury with, Uniform Criminal Jury Instruction (UCrJI)
1110, as follows:
      “Defense—Use of      Physical   Force   in   Defense   of
   Person—Aggression.
742                                             State v. Worsham

  “Ordinarily a person is not justified in using physical force
  on another person if he was the initial aggressor. However,
  the Defendant’s use of physical force may be justified even
  when he was the aggressor if you find that he withdrew
  from the encounter and effectively communicated to the
  other person an intent to withdraw from the encounter
  but the other person nevertheless continued or threatened
  to continue the use of unlawful physical force upon the
  Defendant.”
(Emphasis added.) Defendant did not object to the court giv-
ing UCrJI 1110. And, while UCrJI 1110 does not define “ini-
tial aggressor,” no party requested a supplemental instruc-
tion defining the term.
         In closing argument, the state attempted to clar-
ify the boundaries of what could make someone an initial
aggressor:
  “[PROSECUTOR]: Maybe, maybe, maybe, maybe yelling
  stop beating a woman with an open knife and, and follow-
  ing for, following them for two minutes doesn’t provoke
  him. Okay. * * * Well, then you have to look who is the ini-
  tial aggressor. And it doesn’t have to be one or the other but
  who is the initial aggressor in this, right? And look in here.
  It doesn’t say physically aggressive. It’s aggressor. It’s open.
  It’s open to your determination.”
(Emphasis added.)
        And on rebuttal, the state returned to the notion of
what defined being an initial aggressor:
  “[PROSECUTOR]: And again, the talk about provoca-
  tion. You have to look at the circumstances. Okay. And * * *
  again, think about it * * *. There are situations where you
  could walk up to [someone] and say something in a certain
  manner and it might not be provocation or you may not be
  the initial aggressor. But you’re walking up to someone yell-
  ing in their face stop beating on women. In this * * * situation
  one thing is gonna happen.
  “* * * * *
  “And everyone in this courtroom knows it, including [defen-
  dant]. But he did that. He walked into that. He created the
  situation. * * * “[Defendant] is in control of the situation.
  He’s the one who is monitoring it. He’s the one who’s on the
Cite as
373 Or 739
 (2025)                                         743

   outside looking in, right. Of course, he’s gonna blend those
   lines to make it look as close as possible as ‘I couldn’t * * *
   really do anything.’ * * * He has a duty, injecting himself, not
   to provoke or be the initial aggressor, which he clearly does.”
(Emphasis added.)
        Defendant did not object to the state’s closing, nor
did defendant, after hearing the closing, request a supple-
mental instruction defining “initial aggressor.” The jury
convicted defendant, and he appealed.
         On appeal, defendant asserted that the trial court
had erred in failing to sua sponte define “initial aggressor”
for the jury. The Court of Appeals agreed, holding that the
trial court’s duty to correctly instruct the jury extends to
“important terms of art used in the elements of the crime.”
Worsham,
332 Or App at 162
. The Court of Appeals then
noted that “[a]ny doubt about the need to instruct the jury
on the meaning of ‘initial aggressor’ ceased to exist during
closing arguments.”
Id. at 163
. The Court of Appeals con-
cluded that the trial court’s failure to define initial aggres-
sor amounted to error apparent on the record, as required
under the first prong of Ailes,
312 Or at 382
. The Court of
Appeals then exercised its discretion to correct the error
and reversed the judgment of the trial court. The state peti-
tioned for review, which we allowed.
                            ANALYSIS
         In Ailes,
312 Or at 382
, we set out a two-prong
inquiry for plain error. Under the first prong, we held that the
error must be one of law; it must be apparent, with the legal
point obvious and not reasonably in dispute; it must appear
on the record, requiring no need to go “outside the record to
identify the error or choose between competing inferences;
and the facts constituting the error must be irrefutable.” 310
Or at 355-56. If that first prong is met, then the appellate
court has “discretion to consider or not to consider the error,
and if the court chooses to consider the error, the court must
articulate its reasons for doing so.” Id. As explained, the
issue before us in this case is whether the trial court’s giv-
ing of UCrJI 1110—without further instructing the jury on
“initial aggressor”—qualifies as plain error under the first
744                                                    State v. Worsham

prong of Ailes. As we will explain, we conclude that, on this
record, the trial court did not commit plain error. However,
before we turn to that explanation, we think it valuable to
pause and discuss what crystalized the issue in this case:
the state’s closing argument.
          The prosecutor’s argument—that the term “initial
aggressor” “doesn’t say physically aggressive[;] [i]t’s aggres-
sor[;] * * * [i]t’s open to your determination”—in the context
of the evidence presented in defendant’s trial, attempted
to convey to the jury the idea that one could be an initial
aggressor through words alone. That is incorrect as a mat-
ter of law. See Penn v. Henderson,
174 Or 1, 14
,
146 P2d 760
(1944) (“[P]rovocation by mere words, if unaccompanied
by any overt act of hostility, will not justify an assault.”).
But, more fundamentally, the prosecutor’s argument was
improper in that it sought to instruct the jury on the law in
a way that differed from the trial court’s instruction under
UCrJI 1110. Specifically, the argument sought to define a
term that the trial court had not defined.
         Attorneys are afforded considerable freedom to
argue their case. And closing argument may reasonably
employ time-worn techniques of persuasion and rhetoric.
But there are limits to what attorneys may say in closing
argument, and if there were any doubt, we say it now with
clarity: Only the court should instruct the jury on the law.1
Attorneys are free to argue how the facts in their case do—
or do not—meet the standard of the law, but, in doing so,
attorneys should be careful not cross the line from argu-
ment to instructing the jury differently from how the court
has instructed the jury. If a term in a court’s instruction
needs further definition, that clarification should occur
via discussion amongst the court and counsel resulting in
a supplemental instruction, not for the first time through
argument. Accordingly, attorneys should be mindful of the
risks of using argument to recast the instructions given—
whether by rephrasing them, using synonyms, or colloquial-
izing them.

    1
      There are, of course, other ways that closing argument can be improper,
some of which are discussed in State v. Burton, ___ Or ___, ___ P3d ___ (2025),
decided today.
Cite as
373 Or 739
 (2025)                                                     745

         When argument strays into improper instruction,
opposing counsel may object. And, when such improper
argument is objected to, a trial court should, at a minimum,
strike the statement and remind the jury that only the
court—not attorneys—can properly, and accurately, instruct
the jury on the law. Other remedies, too, may be appropri-
ately considered at the trial court’s discretion, including
admonition of the attorney and the need for a supplemental
instruction clarifying the misperception of the law caused
by the improper closing argument. In the most egregious
cases, when an attorney’s closing argument attempts to
instruct the jury on the law in a way that renders the trial
fundamentally unfair in a way that cannot be cured by fur-
ther court instruction, mistrial may be required. See, e.g.,
State v. Chitwood,
370 Or 305, 308-09
,
518 P3d 903
 (2022)
(holding that a defendant’s right to a fundamentally fair
trial was violated by the prosecutor using closing argument
to define “moral certainty” as “if you determine that [defen-
dant] should not reside with an adolescent girl, that’s your
moral certainty and I have proven my case beyond a reason-
able doubt”).2
         Turning to the merits, ORCP 59 B provides that,
“[i]n charging the jury, the court shall state to the jury all
matters of law necessary for its information in giving its
verdict.” See ORS 136.330(1) (making ORCP 59 B applicable
to criminal trials). Generally, a trial court has an obliga-
tion in a criminal case to instruct on all the elements of the

     2
       Because proper closing argument is bounded, in part, by the instructions
given, attorneys are well-served by working with opposing counsel and the court
to finalize jury instructions early in the trial process, well in advance of the day
of closing arguments. In civil cases, ORCP 59 A requires that, “[u]nless otherwise
requested by the trial judge on timely notice to counsel, proposed instructions
shall be submitted at the commencement of the trial.” The legislature, through
ORS 136.330, has made parts of ORCP 59 applicable to criminal cases, but not
ORCP 59 A. As a result, we observe that it is not uncommon for Oregon trial
judges presiding over criminal trials to receive proposed jury instructions late
in the trial, sometimes on the eve of instructing the jury. It is not unheard of
for judges presiding over criminal trials to be finalizing instructions while the
parties are giving their closing arguments. Whether ORCP 59 A should apply to
criminal trials may be worth the legislature’s consideration.
     We also note that, while ORCP 58 B(8) permits the court to “instruct the jury
before or after closing arguments,” instruction before closing may better position
the court and counsel to identify when closing arguments are diverging from the
instructions given.
746                                            State v. Worsham

offense. See State v. Brown,
310 Or 347, 354-56
,
800 P2d 259
(1990) (explaining that when instructing the jury on the ele-
ments of aggravated murder of a witness, the trial court was
required to instruct the jury on the “a causal link between
the murder and the victim’s status as a witness”).
         Claims of error regarding jury instructions can be
broken into two categories: (1) that the trial court erred in
giving an instruction, or (2) that the trial court erred in fail-
ing to give an instruction. Under the first category, as we
recently explained in State v. Wiltse,
373 Or 1, 19-20
,
559 P3d 380
 (2024), when a trial court gives a legally incorrect
instruction, that constitutes an “obvious” error of law, not
reasonably in dispute, and apparent on the record, satisfy-
ing the first prong of Ailes,
312 Or 376
. See also State v.
McKinney/Shiffer,
369 Or 325, 334
,
505 P3d 946
 (2022) (con-
cluding that the trial court plainly erred in giving instruc-
tion that incorrectly failed to inform the jury that assault
required the defendant to have at least a criminally negli-
gent mental state with regard to the injury that her conduct
caused).
           The error in this case is not in that first category,
i.e., it is not an error in giving an incorrect instruction.
Again, UCrJI 1110 provides:
      “Defense—Use of       Physical   Force   in   Defense   of
   Person—Aggression.
   “Ordinarily a person is not justified in using physical force
   on another person if he was the initial aggressor. However,
   the Defendant’s use of physical force may be justified even
   when he was the aggressor if you find that he withdrew
   from the encounter and effectively communicated to the
   other person an intent to withdraw from the encounter
   but the other person nevertheless continued or threatened
   to continue the use of unlawful physical force upon the
   Defendant.”
The Court of Appeals reasoned that a trial court’s duty
to instruct on the law “extends to important terms of art
used in the elements of the crime.” Worsham,
332 Or App at 162
. For the Court of Appeals, because “initial aggressor”
had been defined in caselaw narrower than common usage,
Cite as
373 Or 739
 (2025)                                                   747

UCrJI 1110 was flawed in its failure to provide that legal
definition.
         We agree that a court’s duty to instruct may extend
to terms of art, but with important limitations. When a term
within a uniform instruction is clearly flawed, such that a
lack of further definition renders the uniform instruction
itself an incorrect statement of the law, then a trial court
would commit plain error under the first prong of Ailes in
giving the instruction. See Wiltse,
373 Or at 19-20
 (holding
that it was plain error for the trial court to give an instruc-
tion that was a comment on the evidence). But, where a
custom supplemental instruction would simply improve a
legally correct uniform instruction, not fix a fatal defect, a
trial court does not err in giving the uniform instruction.3
         UCrJI 1110 states that “[o]rdinarily a person is not
justified in using physical force on another person if he was
the initial aggressor.” That is a correct statement of the law.
While various decisions over the years have held that the
term “initial aggressor” may be contextually narrower than
common usage—and thus UCrJI 1110 might arguably be
improved by defining the term—that instruction is not fatally
flawed, such that the giving of UCrJI 1110 is itself error. We
have cautioned that “because many appellate opinions are
written with no view that they will be turned into instruc-
tions, care must be exercised in using the language of these
opinions for instructions to juries.” Rogers v. Meridian Park
Hospital,
307 Or 612, 616
,
772 P2d 929
 (1989). Not every
appellate refinement of a term’s meaning necessitates that
trial courts must, sua sponte, scour the uniform instructions
for language that could be improved. As we have observed,
“[t]he ultimate purpose of instructions is not that they may
stand up under calm analysis in the quietude of the losing
attorney’s law office, but that they convey the needed infor-
mation to the juror [who] sits and listens in the box.” Silfast
v. Matheny,
171 Or 1, 9-10
,
136 P2d 260
 (1943). UCrJI 1110
meets that standard, because it correctly instructed the
    3
      We note that some uniform instructions are written in the alternative, with
different word choices available to the court. We do not foreclose the possibility
that, in a specific case, the giving of one version of a uniform instruction, as
opposed to other alternatives proposed by the uniform instruction itself, could
render the instruction given an incorrect statement of the law.
748                                        State v. Worsham

jury on the “initial aggressor” exception to the justified use
of force. ORS 161.215. Accordingly, by giving UCrJI 1110,
the trial court did not instruct the jury erroneously, as was
the case in Wiltse,
373 Or at 19-20
.
         If the trial court erred here, it was error of the
second category—error in failing to give an instruction.
Generally, parties are entitled to have a supplemental
instruction given when the existing instructions, read as a
whole, do not fully cover a necessary legal point, Hernandez
v. Barbo Machinery Co.,
327 Or 99, 106
,
957 P2d 147
 (1998),
and when the requested supplemental instruction is legally
correct in all respects and supported by the evidence, State
v. McBride,
287 Or 315, 319
,
599 P2d 449
 (1979); see also
State v. Nefstad,
309 Or 523, 542
,
789 P2d 1326
 (1990) (con-
cluding that trial court properly refused proffered instruc-
tion because it was “not correct”).
          Instructions ungiven present a challenge under
plain error review, because plain error requires a showing
of legal error appearing on “the record.” Ailes,
312 Or at 382
.
In the preserved error context, establishing legal error for
failing to give a requested instruction turns, in part, on
showing that the ungiven instruction was “legally correct
in all respects.” McBride,
287 Or at 319
. Plain error review
cannot demand any less. When the ungiven instruction is
a custom supplemental instruction, as opposed to another
uniform instruction, and no actual custom supplemental
instruction was requested at trial, the accuracy and com-
pleteness of that theoretical instruction cannot appear
on “the record,” and the theoretical instruction cannot be
assessed as to whether it is “legally correct in all respects.”
Ailes,
312 Or at 382
; McBride,
287 Or at 319
. As such, it
is generally impossible for a trial court’s failure to give an
unrequested custom supplemental instruction to qualify as
plain error.
         That is the problem here. If the trial court erred,
it was in failing to give a custom supplemental instruction
to UCrJI 1110. But because none was requested, defendant
cannot establish that the ungiven supplemental instruc-
tion was correct in all respects. That precludes defendant
from establishing error apparent on the record, and for this
Cite as
373 Or 739
 (2025)                            749

reason, the trial court did not commit plain error under
Ailes,
312 Or at 382
.
        The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.