State v. Johnson

760 P.2d 1345, 93 Or. App. 61, 1988 Ore. App. LEXIS 1512

Opinion

PER CURIAM

Defendant appeals his conviction for burglary in the second degree. He contends that the trial court erred in instructing the jury on evidence of flight. Because defendant took no exception to the giving of the instruction, the state urges us not to consider it, even though it was error. State v. Stilling, 285 Or 293, 304, 590 P2d 1223, cert den 444 US 880 (1979). Defendant argues that we should consider it, because the error is egregious. State v. McNamer, 80 Or App 418, 722 P2d 51 (1986). We agree that the error is egregious under Stilling, but we decline to reverse.

The evidence of defendant’s participation in the burglary was clear and substantial. Two witnesses caught defendant and his accomplice “red handed,” confronted them before they fled from the scene and later positively identified both in photographs.¹ Both witnesses positively identified defendant in court. The strength of the evidence makes it very unlikely that the result of the trial would have been different had the instruction not been given, and the error, therefore, was harmless. State v. Miller, 300 Or 203, 220, 709 P2d 225 (1985), cert den 475 US 1141 (1986).

Affirmed.

1 Defendant’s accomplice already had been convicted of the burglary before this case was tried.