No. 215 April 26, 2023 527

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MATTHEW RYAN WILTSE,

Defendant-Appellant.

Curry County Circuit Court

20CR28544; A175287

Cynthia Lynnae Beaman, Judge.

Submitted October 4, 2022.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Stacy M. Du Clos, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Michael A. Casper, Assistant Attorney 

General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Affirmed.
528 State v. Wiltse

MOONEY, J.

Defendant appeals from a judgment convicting him 

of third-degree assault, ORS 163.165. In a single assignment of error, defendant contends that the trial court committed plain error when it gave the state’s special instruction on what constitutes a “protracted disfigurement” for 

purposes of proving the “serious physical injury” element of 

that offense. Specifically, defendant contends that the court 

impermissibly commented on the evidence in violation of 

ORCP 59 E when it instructed the jury: “A scar on the scalp 

visible five months after the injury qualifies as protracted 

disfigurement.” As explained below, we conclude that defendant has failed to establish that the alleged error is “plain.” 

The discussion of how the court came to instruct the jury 

was not recorded, and the state has presented a plausible 

strategic reason for defense counsel not to have objected. 

Under those circumstances, the error is not apparent on the 

face of the record and, therefore, the court did not plainly 

err. Affirmed.

The following facts are undisputed. In May 2020, 

during a verbal altercation between the defendant and the 

victim, the defendant struck the victim on the side of her 

face with a long metal pole and broke multiple bones in the 

victim’s face. Soon after the incident, the victim was taken 

by ambulance to an emergency room.

Defendant was charged by indictment on several counts, including third-degree assault under ORS 

163.165(1).1

 Under that provision, a person commits thirddegree assault if, as relevant here, the person recklessly 

causes a “serious physical injury” by means of a dangerous 

or deadly weapon. ORS 163.165(1)(a).

Defendant’s trial took place approximately six 

months later, in November 2020. At trial, the victim, who 

is five feet two inches tall, testified that she had picked 

1 A grand jury indicted defendant on first-degree assault, ORS 163.195 

(Count 1); second-degree assault, ORS 163.175 (Count 2); third-degree assault, 

ORS 163.165 (Count 3); and possession of methamphetamine, ORS 475.894 

(Count 4). Defendant entered a guilty plea on Count 4, possession of methamphetamine. A jury found defendant not guilty on Count 1, and guilty on Count 3. 

The trial court dismissed Count 2 at the state’s request.
Cite as 325 Or App 527 (2023) 529

up a metal pole and approached defendant to get him to 

stop laughing at her but only wanted to intimidate him. 

She denied any intention to strike defendant. When she 

approached defendant with the pole, she saw that defendant had a knife in his hand and “froze.” The next thing she 

remembered was being hit by defendant with the pole and 

waking up on the ground with “blood everywhere” and in a 

lot of pain.

The emergency room physician who treated the 

victim, Dr. Peipmeier, testified that multiple bones in her 

eye socket were broken, and there was a cut on the side of 

her face approximately two centimeters in length that was 

“fairly deep.” The cut required seven stiches on the outer 

layer, with additional stitches on the inside layer. Peipmeier 

testified that the victim’s injury was “life-threatening” and 

explained, “If the injury wasn’t treated, the [victim] could 

have died, which is why I activated the trauma crew and 

immediately took her back to have a CT of the head to rule 

out impending death.”

The victim also testified that as a result of the incident, she was on a liquid diet for almost a month because 

the pain in her jaw prevented her from eating. At the time of 

the trial, she still experienced pain when it rained and had 

trouble turning her neck while driving. The state presented 

testimony and a photograph showing that, at the time of 

trial, she still had a scar on the side of her face.

During defendant’s presentation of evidence, he testified that the victim had been menacing him with the pole, 

and that he had inadvertently injured her when he “yanked 

it out of her hands.”

After the presentation of evidence, each party submitted proposed jury instructions. The trial court called 

counsel for the parties into chambers where they discussed 

the jury instructions. Specifically, the trial court asked 

the attorneys to “come back in the back for just a moment” 

so that they could “go over the jury instructions” “off the 

record.”

When the trial resumed, the court instructed the 

jury on the law that it was to apply during its deliberations, 
530 State v. Wiltse

including the elements of the various charged offenses. As 

relevant here, the court instructed the jury that to prove 

that defendant had committed third-degree assault, the 

state was required to prove beyond reasonable doubt that 

defendant “recklessly caused serious physical injury to [the 

victim] by means of a *** dangerous weapon.” In addition, 

the court instructed the jury that the term “serious physical 

injury” means:

“[a] physical injury that, one, creates a substantial risk of 

death; two, causes serious and protracted disfigurement; 

three, causes protracted impairment of health; or, four, 

causes protracted loss or impairment of the function of any 

bodily organ.”

At the state’s request, the trial court also instructed the 

jury that,

“A scar on the scalp visible five months after the injury 

qualifies as protracted disfigurement.”

It is this latter instruction, specially requested by the state, 

that is at issue here and the focus of our opinion.

The parties then presented closing arguments. 

With respect to the third-degree assault charge, the state 

argued that the jury should find that the victim had suffered 

a “serious physical injury” for any of the following three reasons. First, Peipmeier testified that the victim’s injury was 

“life-threatening.” Second, the victim’s injury qualified as a 

“serious protracted impairment” of her health based on evidence that she could not eat solid food for a month and still 

had pain in the side of her face at the time of trial. Third, 

the state argued that the victim suffered “serious and protracted disfigurement” by directing the jurors’ attention to 

the instructions that they had been given and emphasizing 

the state’s specially requested instruction to drive its point 

home:

“If you go to the top of the next page, protracted disfigurement, a scar on the scalp visible—visible five months after 

the injury qualifies as protracted disfigurement. So we have 

a scar that’s visible on her scalp, on her face six months 

later, so that would count as protracted disfigurement. For 

you to decide, is it serious and protracted disfigurement? 
Cite as 325 Or App 527 (2023) 531

The State submits to you that this injury is serious and 

protracted disfigurement for her.”

Defendant did not address the seriousness of the 

victim’s injuries in closing. Instead, defense counsel argued 

that the state had failed to prove that defendant had acted 

with a culpable mental state and to disprove his claim that 

he had been acting in self-defense. Noting that the victim 

had approached defendant with the pole in her hand, counsel argued that defendant had acted “reasonably in this 

situation.”

As noted, after being instructed and hearing closing 

arguments, the jury found defendant guilty of third-degree 

assault and acquitted defendant of first-degree assault. The 

court dismissed the second-degree assault charges.

On appeal, defendant contends that the court 

plainly erred in instructing the jury on the “serious physical injury” element of third-degree assault. Specifically, 

defendant argues that instructing the jury that “[a] scar on 

the scalp visible five months after the injury qualifies as 

protracted disfigurement” was plain error, because it impermissibly commented on the evidence by informing the jury 

on what inference it was required to draw from the scar 

on the side of the victim’s face. Relying on State v. MacielCortes, 231 Or App 302, 308-09, 218 P3d 900 (2009), defendant argues that the instruction directly informed the jury 

how certain evidence related to whether the victim’s injury 

was protracted and whether it constituted disfigurement. 

In that case, we held that the court’s jury instruction that, 

“[d]riving under the influence of intoxicants is, itself, evidence that a person created a substantial risk of physical 

injury to passengers,” was improper comment on the evidence. Id. at 308-09.

Further, defendant asserts that the improper 

instruction was not harmless, because it allowed the jury 

to find defendant guilty of third-degree assault without 

independently finding that the victim’s injury qualified as a 

“protracted disfigurement.” See State v. Ramoz, 367 Or 670, 

704-05, 483 P3d 615 (2021) (concluding that an instructional 

error is not harmless when the error “probably created an 

erroneous impression of the law in the minds of the jury and 
532 State v. Wiltse

if that erroneous impression may have affected the outcome 

of the case” (internal quotation marks omitted)). Defendant 

also argues that when a jury instruction misstates a theory 

of criminal liability, the test for harm is simply “whether the 

jury’s guilty verdict on one or more of the charges could have 

been based on the theory of criminal responsibility contained 

in the erroneous instruction.” State v. Lopez-Minjares, 350 

Or 576, 585, 260 P3d 439 (2011). Defendant acknowledges 

that he did not preserve those arguments but requests that 

we conduct plain-error review and exercise our discretion to 

correct the error. See, e.g., State v. Vanornum, 354 Or 614, 

629, 317 P3d 889 (2013) (describing the plain-error doctrine).

In response, the state contends that defendant’s 

argument fails for several reasons. First the state argues 

that the trial court did not plainly err. Rather, the state 

contends that the trial court correctly instructed the jury 

about the meaning of “serious physical injury,” because it 

is a restatement of the holding in State v. Alvarez, in which 

the court concluded that “a scar on the scalp visible five 

months after the injury qualifies as protracted disfigurement.” 240 Or App 167, 171, 246 P3d 26 (2010), rev den, 350 

Or 408 (2011). Second, the state contends that any error 

is not plain, because the parties’ discussion with the trial 

court regarding the jury instructions is not in the record, 

and there is no way to know what position defendant took as 

to that instruction. The state argues that it is possible that 

defendant agreed to the instruction, given that it directly 

quoted the holding in Alvarez. The state also argues that it 

is possible that defendant chose not to object for strategic 

reasons.2

 Relying on State v. Gornick, 340 Or 160, 130 P3d 

780 (2006), the state contends that the error is not plain in 

this case because the record is subject to competing inferences, and one available inference from the record is that 

defendant chose not to raise the issue. See id. 169-70 (concluding that the claimed error was not one that appeared on 

the face of the record under ORAP 5.45(1), because the court 

“would be forced to choose between competing inferences”).

2 Defendant did not address that issue in his appellate brief when discussing 

whether the error was plain. Rather, in defendant’s discussion under the “preservation of error” section, defendant argued, as a basis to exercise our discretion to correct the error, that there was no conceivable reason for defendant’s failure to object.
Cite as 325 Or App 527 (2023) 533

In light of the evidence in the case, the state contends that it was a losing argument for defendant to suggest 

that the victim’s injuries were not sufficiently protracted 

and disfiguring to qualify as a “serious physical injury.” 

Next, the state points to the fact that defendant did not 

argue that the element of “serious physical injury” had not 

been proven. Rather, defendant’s theory of the case was that 

he lacked the mental culpability for the state to prove any 

of the charges and that he acted in self-defense. In that context, agreeing to the challenged instruction would be a reasonable strategy, because it would limit the extent to which 

the jury would need to focus its attention on the nature and 

scope of the injuries.

In any event, the state argues that even if the error 

was plain, there are several reasons that we should not exercise our discretion to correct any error. First, this is not the 

type of “rare and exceptional case[],” Gornick, 340 Or at 166, 

in which plain-error review would be warranted, because it 

is inferable that defendant made a strategic decision not to 

object, and defendant failed to make a record of the discussion regarding jury instructions. Second, according to the 

state, even if defendant’s silence was not strategic, there is 

little likelihood that the error affected the verdict given the 

undisputed evidence establishing the element of “serious 

physical injury” based upon two other theories. Specifically, 

there was undisputed evidence that the injury “created a 

substantial risk of death” and that it had caused the victim 

“protracted impairment of health.”

Furthermore, even if the record does not definitively 

establish that an unpreserved error was harmless, the state 

notes that we are not required to exercise our discretion to 

address that error under ORAP 5.45; see State v. Inman, 

275 Or App 920, 936, 366 P3d 721 (2015), rev den, 359 Or 

525 (2016) (explaining that “the harmless-error analysis 

does not govern [the court’s] discretionary decision about 

whether to address unpreserved claims of error” and that 

we “must [instead] balance the gravity of [the] error, in the 

context of the ‘nature of the case,’ against the other [pertinent] factors”). Here, the state argues that the gravity of the 

error is diminished when the record does not affirmatively 
534 State v. Wiltse

show that the error likely changed the outcome. See State v. 

Derschon, 206 Or App 574, 581, 138 P3d 30, rev den, 341 Or 

392 (2006) (declining to correct error in admitting evidence 

when the state presented “ample evidence of defendant’s 

guilt over and above the [challenged] evidence”).

We begin with defendant’s assertion that the trial 

court’s instruction was an impermissible comment on the 

evidence. Under ORCP 59 E, applicable to criminal cases 

under ORS 136.330, a trial court may not instruct the jury 

“with respect to matters of fact, nor comment thereon.” A 

trial court impermissibly comments on the evidence “when 

it gives a jury instruction that tells the jury how specific evidence relates to a particular legal issue.” State v. Hayward, 

327 Or 397, 410-11, 963 P2d 667 (1998). Instructing the jury 

to draw an inference against the defendant in a way that 

shifts the burden of proof from the state to the defendant 

also constitutes an impermissible comment on the evidence. 

Id. at 411. “An inference cannot relieve the state of its burden of proving each element of the crime beyond a reasonable doubt.” Id. An instruction may permissibly draw the 

jury’s attention to a particular fact and state that it relates 

to a particular element. See State v. Blanchard, 165 Or App 

127, 130, 131, 995 P2d 1200, rev den, 331 Or 429 (2000) 

(explaining that an instruction that is neutral regarding the 

inference it may draw from particular evidence is permissible). But the instruction may not direct the jury to draw any 

particular inference from a given factual finding, let alone 

instruct the jury that such evidence is dispositive of the 

element. See State v. Newcomer, 265 Or App 706, 711, 337 

P3d 137 (2014) (explaining that the court’s instruction was 

an improper comment on the evidence because it “required 

the jury to make an inference that substituted for the jury’s 

finding of the required culpable mental state”).

In reviewing whether a defendant was prejudiced 

by a court’s erroneous instruction, we consider “the instructions as a whole and in the context of the evidence and 

record at trial, including the parties’ theories of the case 

with respect to the various charges and defenses at issue.” 

State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020) (internal quotation marks and citations omitted).
Cite as 325 Or App 527 (2023) 535

Here, the state charged defendant with thirddegree assault, ORS 163.165(1)(a). As charged, the state was 

required to prove that defendant caused the victim “serious physical injury” by use of a dangerous weapon. Below, 

the trial court correctly instructed the jury on the statutory 

definition of “serious physical injury”: “physical injury which 

creates a substantial risk of death or which causes serious 

and protracted disfigurement, protracted impairment of 

health or protracted loss or impairment of the function of 

any bodily organ.” ORS 161.015(8). In addition, the court 

gave the state’s special instruction that was taken from our 

holding in Alvarez: “[A] scar on the scalp, visible five months 

after the injury, qualifies as ‘protracted disfigurement.’” 

240 Or App at 171.

In this case, the state’s requested special instruction on “protracted disfigurement” recited evidence that 

the court in Alvarez found to be sufficient to overcome a 

motion for a judgment of acquittal. However, Alvarez was 

not about how to properly instruct a jury on “protracted disfigurement.” As we have explained before, there is a “risk 

of using wording from opinions as jury instructions and, in 

particular, [in] crafting a jury instruction from statements 

in a case intended to describe why particular evidence was 

sufficient.” State v. Morales, 307 Or App 280, 285 n 4, 476 

P3d 965 (2020) (citing Rogers v. Meridian Park Hospital, 307 

Or 612, 616, 772 P2d 929 (1989)); see Rogers, 307 Or at 616 

(“[B]ecause many appellate opinions are written with no 

view that they will be turned into instructions, care must 

be exercised in using the language of these opinions for 

instructions to juries.”).

When the trial court instructed the jury that, “[a] 

scar on the scalp visible five months after the injury qualifies as protracted disfigurement,” it impermissibly drew the 

jury’s attention to the scar and the inference of protracted 

disfigurement, essentially disposing of the state’s burden to 

prove the serious physical injury element. In other words, 

it commented on the evidence. That it correctly read a line 

from the holding in Alvarez does not turn the instruction 

into something other than a comment on the evidence and 

it does not make the comment proper. The court did not 
536 State v. Wiltse

neutrally inform the jury on what factors it could consider 

in determining whether an injury caused “disfigurement” 

or whether that disfigurement was “protracted.” Rather, 

it directly informed the jury how certain evidence related 

to two factual issues—that is, whether the injury was protracted and whether it constituted disfigurement.

In this case, the scar was located on the victim’s 

face near her eye and not on her scalp. Nonetheless, the jury 

likely thought that the court’s instruction was informing 

them that the scar in this case constituted protracted disfigurement. Therefore, we conclude that the court’s instruction, impermissibly directed the jury on the inference to be 

drawn. See State v. Stewart, 316 Or App 450, 454, 502 P3d 

241 (2021) (explaining that “it remains a question for the 

factfinder in each individual case whether under the specific circumstances pleaded and proved a defendant subjects 

another to offensive physical contact” (internal quotation 

marks and citation omitted)).

Despite the court’s erroneous instruction, the parties disagree as to whether the court’s error qualified for 

plain-error review. To constitute error, an alleged error 

must appear “on the record,” which means that “the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and 

the facts constituting the error must be irrefutable.” Ailes 

v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 

(1991). As noted earlier, that requirement is not met if one 

inference is that the litigant chose not to object. Gornick, 

340 Or at 169-70. However, under plain-error analysis, competing inferences “do not arise automatically, but must be 

plausible.” See State v. Belen, 277 Or App 47, 53, 369 P3d 438 

(2016) (internal quotation marks and citations omitted).

Here, a conclusion that the trial court erred by 

instructing the jury that “[a] scar on the scalp visible five 

months after the injury qualifies as protracted disfigurement” would require us to resolve competing inferences 

regarding what the parties discussed, and what agreement 

they may have reached, during the off-the-record discussions that led the trial court to instruct the jury without 

any objection from defendant. Given defendant’s self-defense 
Cite as 325 Or App 527 (2023) 537

theory and the evidence in the case, we agree with the state 

that it is plausible that defendant might have chosen not to 

object as a strategic decision, or that defendant agreed to 

the instruction or that defendant agreed that the instruction was a correct statement of the law. However, the transcript does not establish what transpired during those unrecorded discussions, and we cannot entertain a claim of plain 

error that requires us to speculate about what the parties 

might have discussed while off the record. See State v. Cook, 

267 Or App 776, 780, 341 P3d 848 (2014) (concluding that an 

error that required speculation as to what the parties accomplished while off the record precluded plain-error review); 

see also State v. Harbick, 234 Or App 699, 705, 228 P3d 727, 

rev den, 349 Or 171 (2010) (explaining that the appellant 

had not demonstrated that the trial court committed plain 

error by considering a guilty-except-for-insanity defense, 

because given the evidence of off-the-record proceedings in 

that particular case, “[i]t is at least possible that, following 

the competency hearing, the parties discussed that very 

issue off the record”).

Accordingly, although the trial court’s instruction 

was an impermissible comment on the evidence, the court 

did not plainly err in giving that instruction.

Affirmed.