154 April 24, 2024 No. 258

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANTHONY ALAN WORSHAM,

Defendant-Appellant.

Douglas County Circuit Court

21CR46056; A178554

Ann Marie Simmons, Judge.

Argued and submitted February 7, 2024.

Stacy M. Du Clos, Deputy Public Defender, argued the 

cause for appellant. Also on the briefs was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, argued the 

cause for respondent. On the brief were Ellen F. Rosenblum, 

Attorney General, Benjamin Gutman, Solicitor General, and

Patricia G. Rincon, Assistant Attorney General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,

Judge.

AOYAGI, P. J.

Reversed and remanded.
Cite as 332 Or App 154 (2024) 155
156 State v. Worsham

AOYAGI, P. J.

Defendant was convicted of second-degree assault 

based on an incident in which he stabbed C with a pocketknife. The issue on appeal pertains to the “initial aggressor” limitation on self-defense. After defendant raised the 

defense of self-defense, the state sought to disprove selfdefense, including by arguing that defendant was the initial 

aggressor. See ORS 161.215(1)(b) (“[A] person is not justified in using physical force upon another person if * ** [t]he

person is the initial aggressor[.]”).1 The jury ultimately 

rejected the defense and found defendant guilty. On appeal, 

in an unpreserved claim of error, defendant argues that the 

trial court plainly erred by failing to instruct the jury on the 

meaning of “initial aggressor.” For the reasons discussed 

below, we agree that it was plain error in this case not to 

instruct on the meaning of “initial aggressor,” that the error 

was not harmless, and that the circumstances merit the 

exercise of our discretion to correct the error. Accordingly, 

we reverse and remand for a new trial.2

FACTS

We describe the evidence “in the light most favorable to the establishment of the facts necessary to require 

the instruction.” Ossanna v. Nike, Inc., 365 Or 196, 199, 

445 P3d 281 (2019). That is, we describe it in the light most 

favorable to defendant having acted in self-defense and having not been the initial aggressor.

On August 31, 2021, defendant was living in a tent 

in a park in Roseburg. The complainant, C, and his girlfriend, B, were living in a parked vehicle in the area. C and 

B had been arguing loudly for days. Around midnight, B left 

the vehicle and walked to the park to purchase drugs, and 

C, who had used methamphetamine that evening, followed 

her. When C caught up to B in the park, the two yelled “bad 

1 An exception to the initial-aggressor limitation applies when the initial 

aggressor “withdraws from the encounter and effectively communicates to the 

other person the intent to do so, but the latter nevertheless continues or threatens 

to continue the use of unlawful physical force.” ORS 161.215(1)(b). That exception 

is not at issue on appeal and is not relevant to our analysis, so we do not discuss it. 

2 Given our disposition, we do not discuss defendant’s second assignment of 

error. 
Cite as 332 Or App 154 (2024) 157

words” at each other for “a good 15 minutes,” and B ended up 

on the ground.3

From inside his tent, defendant heard C and B pass 

by, their arguing, a big slap, then B yelling for someone to 

help her and for C to get off her. Defendant decided to “step 

in and go help.” Having been assaulted by people in the past, 

he took his pocketknife (which had a three-inch blade) for 

protection and held it near his thigh, open and pointing outward, as he walked. When defendant was approximately 

20 to 30 feet from C and B’s perceived location, defendant 

yelled at C to stop beating on a woman. C walked toward 

defendant. In the “pitch black” darkness, they did not see 

each other until they were practically face to face and 

bumped into one another on the trail. C—who did not realize that defendant was holding a knife—swung four times 

at defendant (making contact once), then charged at defendant’s waist as if to wrestle him to the ground. Defendant 

braced in response, and, when C charged, C impaled himself 

on the knife, although neither man immediately realized it.

C backed up and kicked defendant in the ribs. C then touched 

his shirt, realized he was bleeding, and said, “[Y]ou fucking 

stabbed me.”

Defendant returned to his tent and called 9-1-1. 

Defendant told the 9-1-1 operator that someone had run into 

his knife while attacking him. In an interview at the hospital, C told the police that the fight was prompted by defendant saying something like “you shouldn’t hit a woman.” 

Defendant was interviewed at the police station over a ninehour period; he maintained that he never intended to stab 

C, that he carried the knife only for protection, and that

C had impaled himself while trying to assault defendant.

Defendant was charged with first-degree assault, 

ORS 163.185, and unlawful use of a weapon, ORS 166.220. 

Before trial, he gave notice that he claimed self-defense, 

thus triggering the state’s burden to disprove self-defense. 

At trial, the state sought to disprove self-defense by, among 

3 According to B, she threw herself to the ground (testimony on direct) or 

defendant pushed her to the ground (testimony on cross). According to C, he 

“hugged” B, causing them both “to lie down and look at the stars” to try to “calm 

down.”
158 State v. Worsham

other things, proving that defendant was the initial aggressor. (The state also made arguments about provocation and 

mutual combat.)

After both parties rested, and before closing arguments, the court instructed the jury. As relevant here, the 

court gave instructions on the elements of assault, the defense 

of self-defense, and limitations on self-defense, including 

that the defense is not available to the “initial aggressor.” 

The court gave no instructions as to what it means to be the 

“initial aggressor.”

In closing argument, the prosecutor addressed the 

initial-aggressor limitation on self-defense, arguing that it 

did not necessarily require “physical” aggression and that it 

was up to the jury to decide what an “aggressor” is:

“Well, then you have to look who is the initial 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.

“A person is not justified in using physical force on 

another person if he was the initial aggressor. What did 

[the complainant] say to [defendant]? What did [the complainant] know about [defendant] at that moment? Nothing. 

He had no idea he was even there.”

A moment later, while transitioning into the separate issue 

of deadly force, the prosecutor reiterated his broad view of 

what an “initial aggressor” is, stating, “Then we move to 

limitations on the use of deadly physical force. Let’s say you 

get there and you say oh, no. [Defendant], he wasn’t the initial aggressor. He didn’t provoke anything. He’s just minding his own business and look what happens, right.”

In the defense’s closing argument, defense counsel

disputed that defendant was the initial aggressor. He 

argued that C brought the force to defendant by charging 

defendant, which resulted in an injury because defendant 

was carrying a knife for protection at the time.

In rebuttal, the prosecutor focused on the limitations on self-defense. He argued that, although “[t]here are 

situations where you could walk up to something [sic] and 
Cite as 332 Or App 154 (2024) 159

say something in a certain manner and it might not be 

provocation or you may not be the initial aggressor,” here 

defendant walked up “yelling in [C’s] face stop beating on 

women.” The prosecutor continued, “In this, in this situation 

one thing is gonna happen. And everyone in this courtroom 

knows it, including [defendant]. But he did that. He walked 

into that. He created the situation. He was the one in control.” The prosecutor continued on the theme of control, then 

concluded by stating, “He has a duty, injecting himself, not 

to provoke or be the initial aggressor which he clearly does. 

That removes his ability for self-defense.” The prosecutor 

asked the jury to find defendant guilty.

The jury found defendant guilty of second-degree 

assault, as a lesser included offense of first-degree assault, 

and unlawful use of a weapon. The two verdicts merged into 

a single conviction for second-degree assault.

ANALYSIS

Defendant contends that the trial court erred by failing to instruct the jury on the meaning of “initial aggressor” 

as relevant to self-defense. He acknowledges that he did not 

preserve his claim of error and that we are therefore limited 

to plain-error review. See State v. Wyatt, 331 Or 335, 341, 

15 P3d 22 (2000) (“Generally, an issue not preserved in the 

trial court will not be considered on appeal.”); ORAP 5.45(1) 

(allowing discretionary review of “plain” errors). An error 

is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent 

on the record without having to choose among competing 

inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 

(2013). It is a matter of discretion whether we will correct 

a plain error. State v. Gornick, 340 Or 160, 166, 130 P3d 

780 (2006). We must use “utmost caution” in exercising that 

discretion, given the strong policy reasons favoring preservation. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 

P2d 956 (1991).

“Initial aggressor” is a legal term of art. State v. 

Phillips, 313 Or App 1, 5, 493 P3d 548, rev den, 368 Or 788 

(2021) (“The term ‘aggressor’ has long been a legal term of art 

used within the criminal defense of self-defense.”). Although 
160 State v. Worsham

the term is not statutorily defined, it is well-established that 

“provocation by mere words, if unaccompanied by any overt 

act of hostility,” does not make a person the initial aggressor. 

Penn v. Henderson, 174 Or 1, 14, 146 P2d 760 (1944); see also 

Phillips, 313 Or App at 6 (same). Overt acts of hostility may 

include, for example, slapping or striking a person, Silfast v. 

Matheny, 171 Or 1, 10, 136 P2d 260 (1943), or spitting in a 

person’s face, Phillips, 313 Or App at 7.

The legal meaning of “initial aggressor” is thus 

narrower than the common definition. See, e.g., Webster’s 

Third New Int’l Dictionary 41 (unabridged ed 2002) (defining “aggression” as “an offensive action or procedure,” especially—but not only—“a culpable unprovoked overt hostile 

attack”); Merriam-Webster Unabridged Dictionary, https://

www.merriam-webster.com/dictionary/aggression (accessed 

on Apr 8, 2024) (defining “aggression” as “a forceful action or 

procedure (such as an unprovoked attack) especially when 

intended to dominate or master”). It is also significantly 

narrower than modern common usage. See, e.g., Wikipedia, 

https://en.wikipedia.org/wiki/Aggression (accessed on Apr 8, 

2024) (“Aggression is a behavior aimed at opposing or attacking something or someone. * ** In definitions commonly used 

in the social sciences and behavioral sciences, aggression is 

an action or response by an individual that delivers something unpleasant to another person. *** Aggression can take 

a variety of forms, which may be expressed physically, or 

communicated verbally or non-verbally[.]”); Dictionary.com, 

https://www.dictionary.com/browse/aggression (accessed on 

Apr 8, 2024) (defining “aggression” as “any offensive action, 

attack, or procedure”).

Relying on Penn and Phillips, defendant contends 

that, for self-defense purposes, the “initial aggressor” in an 

altercation is the person who first employs hostile physical 

force or threatens to imminently do so, that mere words are 

insufficient without an accompanying overt act of hostility, 

and that it was plain error not to instruct the jury on the 

meaning of “initial aggressor.” In response, the state concurs 

that “mere words” do not make someone the initial aggressor, but argues that physical “force” is not required (pointing 

to Phillips, 313 Or App at 5-6, as involving spitting, an “act 
Cite as 332 Or App 154 (2024) 161

of hostility * ** that also involves physical contact,” even if 

not “force”), and asserts that it is not obvious and is reasonably in dispute that the jury needed an instruction on the 

meaning of “initial aggressor.” In the state’s view, “[e]ven 

assuming that the term ‘initial aggressor’ was an essential 

term, jurors likely had a common understanding about what 

it means to be an ‘initial aggressor’ that was sufficient to 

permit the jury to reach a lawful verdict.”

As an initial matter, we note that, to the extent that 

the jury needed to be instructed on the meaning of “initial 

aggressor,” it was the state that should have requested the 

instruction, as the party bearing the burden of proof. See 

State v. Brown, 327 Or App 592, 598-99, 536 P3d 1069 (2023) 

(“[B]ecause it is the state’s obligation—not a defendant’s—

to disprove self-defense and to ask for an instruction on 

the limitation to self-defense, and because a jury must be 

instructed on all matters of law necessary for its verdict, 

a prosecutor who invokes the exception must concomitantly 

seek the corresponding jury instruction.”); State v. Freeman, 

109 Or App 472, 476, 820 P2d 37 (1991) (“A defendant has 

no burden to disprove the limitations [to self-defense] and, 

consequently, no burden to submit instructions on them.”). 

The state’s arguments faulting defendant for not requesting an instruction and seeking to put the onus on him to 

come up with the exact words for an instruction are therefore misplaced. Defendant’s failure to object at trial means 

that our review is limited to plain error. However, it was 

the state, not defendant, that was actually responsible for 

requesting any necessary instructions on the limitations on 

self-defense.

We now turn to whether an instruction on the 

meaning of “initial aggressor” was necessary in this case.

A trial court is required to “state to the jury all matters of law necessary for its information in giving its verdict.” ORCP 59 B; see ORS 136.330(1) (making ORCP 59 B

applicable to criminal cases). Moreover, “[a] party is generally entitled to have the court instruct a jury on a legal 

principle if there is evidence to support it and the proposed 

instruction accurately states the law.” State v. McNally, 

272 Or App 201, 207, 353 P3d 1255 (2015), rev’d on other 
162 State v. Worsham

grounds, 361 Or 314, 392 P3d 721 (2017). “Generally, words 

of common usage need not be defined for the jury.” State v. 

McDonnell, 313 Or 478, 497, 837 P2d 941 (1992). When a 

term’s legal meaning differs from common usage, however, 

an instruction may be necessary. Compare State v. Nichols, 

236 Or 521, 535, 388 P2d 739 (1964) (holding that it was 

not error to decline to instruct the jury on the meaning of 

“deliberate,” where its meaning was “understandable without elaboration in the context in which it was used”), with 

Purdy v. Deere & Co./Norton, 311 Or App 244, 265-66, 492 

P3d 99, rev den, 369 Or 110 (2021) (holding that it was 

error not to give a requested instruction on the meaning of 

“adequate warning,” where the legal meaning of that term 

included an objective component that was “not necessarily 

encompassed within the common meaning of the term”), 

and State v. Roberts, 293 Or App 340, 347-48, 427 P3d 1130 

(2018) (holding that it was error not to instruct the jury on 

the meaning of “substantial pain,” where the legal meaning 

of that term contained a durational component that was not 

part of its common meaning and would not be apparent to a 

juror without instruction).

Here, had the state requested an instruction on the 

meaning of “initial aggressor,” or had defendant objected to 

the lack of such an instruction, we would readily conclude on 

this record that the court erred in failing to give an instruction. That is not the question before us though. The question 

here is whether it was plain error not to instruct the jury on 

the meaning of “initial aggressor,” where the state did not 

ask and defendant did not object. Under the circumstances 

of this case, we conclude that it was.

It is plain error to fail to instruct the jury on all 

material elements of a crime. State v. Gray, 261 Or App 121, 

130, 322 P3d 1094 (2014). That principle extends to important terms of art used in the elements of the crime. For 

example, in State v. Chase, 263 Or App 709, 710, 328 P3d 

838 (2014), we held that it was plain error not to instruct 

the jury on the meaning of “enter or remain unlawfully,” a 

statutorily defined term of art used in one of the elements of 

the charged crime. In State v. Burris, 309 Or App 604, 609-

10, 483 P3d 1213, rev den, 368 Or 511 (2021), we held that 
Cite as 332 Or App 154 (2024) 163

it was plain error not to instruct the jury on the meaning 

of “sexual contact,” a statutorily defined term of art used in 

one of the elements of the charged crime.

It is also plain error to fail to instruct the jury on the 

elements of a defense or limitations on a defense. In Brown, 

327 Or App at 599, we held that it was plain error for the 

trial court not to instruct the jury on the initial-aggressor 

limitation on self-defense, where the prosecutor raised that 

limitation during closing argument.

In this case, the court instructed the jury that the 

defense of self-defense is not available to the “initial aggressor,” but it did not instruct on what “initial aggressor” means, 

despite that term having a narrower legal meaning than 

its common usage. It was particularly important on this 

record for the jury to have a correct understanding of what 

it means to be the “initial aggressor,” because the jury heard 

conflicting versions of events from different witnesses, with 

a spectrum of scenarios ranging from defendant merely yelling at C not to beat on women, to defendant approaching

C with the intention of starting a fight, to defendant stabbing

C immediately upon seeing him. Without an instruction 

from the court as to what it means to be the “initial aggressor,” a juror could reasonably—but incorrectly—conclude 

that defendant deciding to involve himself in the situation 

and yelling at C not to beat on women qualified as an initiating act of “aggression” sufficient to defeat self-defense.4

Any doubt about the need to instruct the jury on the 

meaning of “initial aggressor” ceased to exist during closing arguments. In closing argument, the prosecutor told the 

jury that being the “initial aggressor” did not necessarily 

require “physical” aggression and that it was for the jury to 

decide what “aggressor” means. The prosecutor also inaccurately implied that the jury could find defendant to be 

the initial aggressor based on defendant “injecting” himself 

into the situation, by approaching the scene of C and B’s 

4 C testified to being unaware that defendant had a knife until he was 

stabbed. Defendant testified that he yelled out as he was leaving his tent that 

he had a knife, not knowing who he might encounter on the trail, but that no one 

responded and that it was likely that no one heard him in the commotion. No 

version of events was presented in which defendant brandished the knife at C or 

threatened C with the knife or in which C even saw the knife.
164 State v. Worsham

argument and yelling at C not to beat on women, instead of 

“minding his own business.” The lack of an instruction left 

the jury without necessary information. The prosecutor’s 

closing argument filled that void with misleading suggestions about what it means to be an initial aggressor—even 

if, as the state contends, the prosecutor did not mean to be 

misleading—and thus exacerbated the problem.

Under the circumstances, the state should have 

asked the court to instruct the jury on the meaning of “initial aggressor.” See Brown, 327 Or App at 598-99 (when the 

prosecution relies on a limitation on self-defense, it is the 

state’s obligation to request the necessary instructions on 

that limitation). Even absent such a request, however, the 

court needed to provide sufficiently complete instructions 

on the defense of self-defense, and the limitations on that 

defense, for defendant to receive a fair trial. Although “initial aggressor” is not statutorily defined, it is undisputed 

that it is a legal term of art as used in ORS 161.215, see 

Phillips, 313 Or App at 5, and the difference between the 

colloquial meaning of aggression and the legal meaning for 

purposes of self-defense law was directly relevant to one of 

the key factual questions to be decided by the jury.

As for what instruction should have been given, 

the parties disagree on the specific phrasing of a proper 

instruction on the meaning of “initial aggressor.” The state 

contends that defendant’s phrasing in his opening brief 

is slightly too narrow, to which defendant replies that the 

precise phrasing is not the point. We agree with defendant. 

Again, it was the state, not defendant, that should have proposed an instruction. In the end, what the court needed to 

convey to the jury was that the “initial aggressor” is the 

person who first engages in an overt act of hostility, and that 

“mere words” do not make a person the “initial aggressor” 

unless accompanied by an overt act of hostility.5

In sum, we agree with defendant that, on this 

record, it is obvious that the court needed to instruct the 

5 There is currently no uniform jury instruction on the meaning of “initial 

aggressor,” although the comment to the uniform instruction on the initialaggressor limitation notes that “‘provocation by mere words’ does not cause a 

person to become the initial aggressor unless accompanied by an ‘overt act of 

hostility.’” Comment to UCrJI 1110 (quoting Phillips, 313 Or App at 6). 
Cite as 332 Or App 154 (2024) 165

jury on the meaning of “initial aggressor,” and failing to do 

so was a plain error. We also agree that the error was not 

harmless. As noted, the jury was presented with different 

versions of events—some that would make defendant the 

initial aggressor, and some that would not. Having reviewed 

the entire record, we conclude that there is more than a little likelihood that the lack of instruction on the meaning 

of “initial aggressor” affected the verdict.6 State v. Davis, 

336 Or 19, 32, 77 P3d 1111 (2003) (an error is harmless if 

“there was little likelihood that the error affected the jury’s 

verdict”). Finally, this is an appropriate case in which to 

exercise our discretion to correct a plain error, and we are 

unpersuaded by the state’s arguments to the contrary. Of 

particular importance is the gravity of the error, which may 

well have resulted in defendant being wrongly convicted of 

a Class B felony and sentenced to 70 months in prison.

Reversed and remanded.

6 In reaching that conclusion, we do not consider relevant the fact that 

the jury saw excerpts of defendant’s recorded police interview in which police 

detectives asserted that defendant was the “aggressor” and could not claim selfdefense. The court instructed the jury not to consider those statements for truth 

and that they could “contain inaccurate statements about the law and the facts 

in this case.” We presume that the jury followed its instructions, Burns v. General 

Motors Corp., 133 Or App 555, 564, 891 P2d 1354 (1995), and therefore do not 

view that evidence as relevant to the harmlessness analysis.