State v. Worsham (373 Or 739, 2025): Plain-Error Limits on Unrequested Supplemental Jury Instructions

Introduction

State v. Worsham presented the Supreme Court of Oregon with a deceptively narrow question that carries significant systemic ramifications: does a trial court commit plain error by failing, sua sponte, to give a custom supplemental jury instruction neither requested nor objected to by any party, when the uniform instruction actually given is itself legally correct?

The respondent, Anthony Alan Worsham, was tried on charges of first-degree assault and unlawful use of a weapon following a stabbing incident. His chief defense was statutory self-defense under ORS 161.209. The prosecution countered that Worsham forfeited the defense because he was the “initial aggressor” under ORS 161.215(1)(b). A standard uniform instruction (UCrJI 1110) on self-defense and initial aggression was given without objection; no one sought further definition of the phrase “initial aggressor.” Only during closing summation did the prosecutor impermissibly broaden that term, prompting—on appeal—claims that the trial judge should have clarified the law on its own initiative.

The Court of Appeals accepted that argument and reversed the conviction, but the Supreme Court, speaking through Justice James for a unanimous en banc court, restored the trial judgment. The decision draws a sharp doctrinal line: a trial court’s failure to volunteer a custom instruction is ordinarily not “plain error” under the first prong of Ailes v. Portland Meadows.

Summary of the Judgment

• The Court of Appeals’ decision is reversed.
• The Douglas County Circuit Court’s judgment of conviction is affirmed.
• Holding: The omission of an unrequested supplemental definition of “initial aggressor” does not meet the definition of “plain error” set out in Ailes v. Portland Meadows, Inc., 312 Or 376 (1991), because the uniform instruction given was legally correct and no erroneous instruction was supplied.
• Ancillary holding: Although the prosecutor’s attempt to define “initial aggressor” in closing was improper, the absence of an objection foreclosed review; and improper closing argument, standing alone, did not convert the judge’s silence into plain error.

Detailed Analysis

1. Precedents Cited and their Influence

1. Ailes v. Portland Meadows, Inc., 312 Or 376 (1991).
   The governing two-step framework for “plain error” review: (1) Was there an error of law, obvious and irrefutable on the face of the record? If so, (2) should the appellate court exercise discretion to correct it?
   Worsham is essentially a clarification of step 1: absent a legally incorrect instruction, failure to add a better—but legally unnecessary—instruction is not “error” at all.
2. State v. Wiltse, 373 Or 1 (2024).
   The Court recently deemed it plain error to give incorrect instructions. Worsham distinguishes Wiltse: here, the uniform instruction was correct; the alleged shortcoming was an omission, not a misstatement.
3. State v. McKinney/Shiffer, 369 Or 325 (2022).
   Reiterates that giving an instruction omitting a required mental state is plain error. Again contrasted with Worsham where no element was omitted.
4. Penn v. Henderson, 174 Or 1 (1944).
   Provides substantive authority that words alone cannot render one the “initial aggressor.” The prosecutor’s closing contradicted this authority, but the court stresses that counsel’s misstatement does not automatically infect otherwise correct jury instructions.
5. State v. Chitwood, 370 Or 305 (2022).
   Cited to illustrate extreme circumstances where improper closing argument can violate fundamental fairness; used as a contrast to show that Worsham was not such an egregious case.
6. Civil Procedure Rules ORCP 59 & 58.
   These rules shape jury-instruction practices. The Court nudged the legislature to consider applying ORCP 59A (early submission of proposed instructions) to criminal cases, signaling policy concerns rather than doctrinal holdings.

2. The Court’s Legal Reasoning

The Court’s reasoning proceeds in concentric circles:

1. Existence of legal error:
   The first prong of Ailes demands an “error of law” that is apparent. Because UCrJI 1110 is a correct statement of law, delivering it without further elaboration cannot, by definition, be error.
2. Distinguishing “giving” vs. “failing to give” instructions:
   Giving an incorrect instruction is reviewable as plain error; failing to sua sponte give a custom instruction is not. The Court observes that to assess whether a hypothetical, unrequested instruction would be “legally correct in all respects” would require speculation beyond the record, violating Ailes.
3. Role of advocates vs. the court:
   Only courts may instruct on the law; attorneys may not in closing argument supply new legal definitions. When that boundary is crossed, the proper remedy is a contemporaneous objection, not after-the-fact plain-error review of instructions that were never sought.
4. Policy considerations and systemic guidance:
   While condemning the prosecutor’s remarks, the Court disclaims structural impact: the remarks, unobjected to, did not transform the correct instruction into an erroneous one, nor render the trial fundamentally unfair.

3. Impact of the Judgment

The decision carries at least four major implications:

• Narrowing Plain-Error Doctrine: Appellate courts applying Oregon law may not treat every missing definitional refinement as reviewable plain error. Parties must preserve such issues by objection or proposed instructions.
• Strategic Litigation Effects: Defense and prosecution teams gain heightened incentives to scrutinize uniform instructions and request clarifying definitions beforehand. Failure to do so will generally forfeit the issue.
• Guidance on Closing Argument: The Court fortifies ethical and procedural boundaries—advocates may argue how facts fit instructions but must avoid redefining legal terms. Judges are encouraged (though not required) to intervene promptly when those lines are crossed.
• Legislative / Rule-Making Signal: By hinting that ORCP 59A might be extended to criminal cases, the Court places the matter on the legislative and Council on Court Procedures radar, possibly spurring procedural reform for earlier, clearer settling of jury instructions.

Complex Concepts Simplified

Plain Error

An obvious legal mistake visible on the face of the trial record, so clear that a judge’s ruling contravenes apparent law without requiring additional fact-finding. Under Oregon’s Ailes standard, appellate courts may (but are not obliged to) correct such errors even if not preserved.

Uniform Criminal Jury Instruction (UCrJI)

A standardized instruction created by Oregon’s uniform-instruction committees. While not binding, it is widely relied on and presumed correct unless caselaw demonstrates otherwise.

Supplemental Instruction

An additional charge to the jury given to clarify or expand upon a standard instruction. It is normally proposed by counsel; judges rarely craft such instructions sua sponte.

Initial Aggressor Doctrine

Under ORS 161.215(1)(b), a person who initiates a physical confrontation ordinarily loses the right to claim self-defense unless they withdraw and communicate that withdrawal. Mere words usually do not make someone the initial aggressor.

Self-Defense (ORS 161.209)

Statutory justification allowing force to be used upon another when the actor reasonably believes such force is necessary to defend against imminent unlawful force.

Conclusion

State v. Worsham adds a pivotal clarification to Oregon’s plain-error jurisprudence: a court’s failure to volunteer a custom supplemental instruction—when the given uniform instruction correctly states the law—cannot constitute plain error. The opinion simultaneously admonishes counsel against using closing argument to redefine legal terms and sketches best practices for trial management of jury instructions. By delineating clearer responsibilities among judges, advocates, and appellate reviewers, the case promotes procedural predictability and underscores the premium on contemporaneous objections and proper instruction requests.

In the broader legal landscape, Worsham will likely curtail attempts to secure appellate relief based on instructional omissions untethered to any request or objection, reinforcing the foundational principle that trial advocacy duties include the vigilant protection—and preservation—of one’s own legal theories in real time.