State Of Or. v. Nebel

• Decision Date: 25 August 2010
• Docket Number: 06FE0164; A136957.
• Citation: 238 P.3d 423,237 Or.App. 30
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Elmer Walter NEBEL, Defendant-Appellant.
• Court: Oregon Court of Appeals

237 Or.App. 30
238 P.3d 423

STATE of Oregon, Plaintiff-Respondent,
v.
Elmer Walter NEBEL, Defendant-Appellant.

06FE0164; A136957.

Court of Appeals of Oregon.

Argued and Submitted July 30, 2009.
Decided Aug. 25, 2010.

238 P.3d 424

Ernest G. Lannet, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Erika L. Hadlock, Assistant Solicitor General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Harry B. Wilson, Assistant Attorney General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DEITS, Senior Judge.

ARMSTRONG, J.

237 Or.App. 32

Defendant appeals a judgment of conviction for first-degree assault. ORS 163.185 (2007). He assigns error to the trial court's refusal to give jury instructions to support his defense that he was justified in using deadly force to protect himself and others. The state concedes that the trial court's stated reason for refusing to give the instructions was erroneous but argues that the trial court's refusal to give those instructions was nonetheless correct because defendant's requested instructions did not correctly state the applicable law. We affirm.

We review a trial court's refusal to give a requested jury instruction for legal error and the evidence supporting the instruction in the light most favorable to the party who requested it. State v. Marsh, 186 Or.App. 612, 614, 64 P.3d 1141, rev. den., 335 Or. 655, 75 P.3d 899 (2003). We state the facts of this case accordingly.

One evening in October 2006, defendant and several others were gathered at their friend Nevel's house in Prineville. At some point, the group decided to go to defendant's house. Nevel drove one car, and Thompson, a member of the group, drove his own car.

Meanwhile, Sather and Jas were at Sather's house eating pizza and drinking beer outside with their families. Sather lived around the corner from defendant, roughly a quarter of a mile away.

Thompson drove his car past the Sather residence at a high rate of speed. He missed the turn to defendant's house, so he skidded to a halt, reversed, and sped off down defendant's street. Thompson arrived at defendant's house, where defendant and six or seven friends had gathered on the back porch. Thompson remained outside by the garage with several other people to smoke a cigarette.

Sather and Jas had seen Thompson's driving maneuver and were angered because of the danger that it posed to neighborhood children. They decided to find the driver and tell him about their concerns. They found Thompson's car parked in defendant's driveway, and saw

237 Or.App. 33

Thompson and the small group near the garage. Sather and Jas stayed on the side of the street at the top of a small hill that sloped down into defendant's yard. With raised, angry voices, they asked who owned the car that they had seen pass, and Thompson admitted that he was the owner. Defendant and his friends heard the commotion and came around to the side of

238 P.3d 425

the house. Neither Sather nor Jas knew defendant; however, Jas and Nevel knew each other.

A heated exchange ensued. Thompson moved up the hill towards Sather and Jas, trying to apologize, but Jas threatened to “kick [Thompson's] ass,” if he came any farther up the hill. Another of defendant's friends, Stackhouse, tried to calm Sather and Jas. In response, Jas said to Stackhouse, “Shut up, Spic,” and called him a “beaner.” Thompson moved toward Sather and Jas, trying to apologize; Nevel also tried to calm Sather and Jas down. Nonetheless, Jas shoved Thompson, who stumbled down the hill. Thompson regained his balance and moved back up the hill toward Sather and Jas. Either Jas or Sather proceeded to punch Thompson in the face.

Defendant then walked up behind Jas and stabbed him twice in the back with a knife. Sather intervened and put defendant in a headlock. After a few moments, defendant dropped his knife, though Sather sustained a knife wound on his arm. While Sather had defendant in a headlock, Jas repeatedly kicked defendant in the face. Jas then used Sather's phone to call 9-1-1. Sather eventually released defendant.

The police arrived, and Sather and Jas were both treated for their wounds. During their interviews with police, Sather said the assailant looked “Mexican” and Jas said he looked “Hispanic.”

Defendant was arrested and charged with first-degree assault for stabbing Jas and second-degree assault for wounding Sather. At trial, defendant asserted that his use of deadly force was justified because he had acted under a reasonable belief that such force was necessary to defend him and others from felonious actions by Sather and Jas-namely, assault and intimidation. In support of that defense,

237 Or.App. 34

defendant requested five separate jury instructions. The first provided a general instruction on defense of person and the second on limitations on the use of deadly force.

Defendant's three other requested jury instructions were intended to supplement his self-defense claims by explaining the crimes of third-degree assault and first-degree intimidation to which he allegedly responded. Specifically, defendant asserted that his actions were reasonable based on a belief that Sather and Jas were committing or about to commit assault and intimidation against Thompson and others.

The trial court gave defendant's requested instructions on defense of person, limitations on the use of deadly force, and third-degree assault. However, the court refused to give the two first-degree intimidation instructions derived from Uniform Criminal Jury Instructions (UCrJI) 2312 and 2314. UCrJI 2312 is based on ORS 166.165(1)(a)(A), which provides that two or more persons acting together commit the crime of first-degree intimidation if they “[i]ntentionally, knowingly or recklessly cause physical injury to another person because of the actors' perception of that person's race, color, religion, national origin or sexual orientation[.]” Similarly, UCrJI 2314 is based on ORS 166.165(1)(b), which provides that two or more persons acting together commit the crime of first-degree intimidation if they “[i]ntentionally, because of the actors' perception of another person's race, color, religion, national origin or sexual orientation, place another person in fear of imminent...