State v. Campbell

785 P.2d 370, 100 Or. App. 153, 1990 Ore. App. LEXIS 36

• Court: Court of Appeals of Oregon
• Decided: January 17, 1990
• Docket: 10-88-05511; CA A50109
• Status: Published

Opinions

WARREN, J.

Defendant appeals his conviction for robbery. ORS 164.415. He contends that the trial court erred in instructing the jury:

“If you find that a firearm was pointed at another within firing range, then you are permitted but you are not required to infer that the firearm was loaded.”

The Supreme Court approved a virtually identical instruction in State v. Vance, 285 Or 383, 591 P2d 355 (1979). Six years later, the Supreme Court took a new look at instructions on inferences in State v. Rainey, 298 Or 459, 693 P2d 635 (1985), where the defendant had been convicted for knowingly delivering a controlled substance, a crime in which knowledge and delivery are separate elements. ORS 475.992(1); ORS 161.095(2). The trial court had instructed the jury that proof of unlawful delivery is “prima facie evidence of knowledge of its character.” 298 Or at 462. The instruction would have allowed the jury to find the element of knowledge satisfied when the only evidence offered to prove it, delivery, bore little, if any, rational connection to the defendant’s knowledge. See OEC 309(2) (b). The Supreme Court did not decide the case that narrowly, however, but took the opportunity to denounce broadly all instructions on inferences in criminal cases:

“[W]hen used against a defendant with reference to an element of the crime, an instruction on an inference ought not to be used. Acknowledging that it is theoretically possible to employ an instruction on an inference, the instruction likely would be so abstract, perhaps incomprehensible, as to be of little or no help to the jury. But even an abstract or general inference instruction applied to an element of the crime may conflict with the more-likely-than-not or beyond-a-reasonable-doubt standard set forth above. On the other hand, should the instruction be sufficiently concrete to assist the jury, it would violate the longstanding statutory provision prohibiting a trial judge from instructing the jury in respect of [sic] matters of fact or commenting thereon.” 298 Or at 466-67. (Footnotes omitted.)

Although trial courts should not instruct on inferences, it is difficult to see how defendant was prejudiced by the instruction in this case. The inference on which the trial court instructed was a logical one that, as defendant concedes, the prosecutor could have argued to the jury. The trial court merely told the jury that it could draw an inference of a fact which it, in fact, could draw logically from proven facts. Nevertheless, we are bound by State v. Rainey, supra, to reverse.¹

Reversed and remanded for a new trial.

1 The state’s argument that defendant did not preserve the error lacks merit. Defendant objected to the instruction, arguing that it constituted a comment on the evidence. That was adequate. See ORCP 59H; State v. Short, 88 Or App 567, 746 P2d 742 (1987).