State v. Worsham

── State v. Worsham ── Court: Court of Appeals of Oregon Date: May 13, 2026 Author: Aoyagi Category: General No. 399 May 13, 2026 419 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 On remand from the Oregon Supreme Court, State v. Worsham, 374 Or 781, 593 P3d 1042 (2026). Ann Marie Simmons, Judge. Submitted on remand March 31, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Oregon Public Defense Commission, for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patricia G. Rincon, Assistant Attorney General, for respondent. Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot, Judge. AOYAGI, P. J. Affirmed. 420 State v. Worsham AOYAGI, P. J. This case is on remand from the Supreme Court. Defendant was charged with first-degree assault and unlawful use of a weapon, based on an incident in which he stabbed C in the chest with a pocketknife during an encoun- ter at night in a park. Defendant claimed self-defense, and, at trial, the state sought to defeat that defense by proving 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[.]”). The jury ultimately found defendant guilty of second-degree assault (as a lesser included offense) and unlawful use of a weapon, thus necessarily rejecting self-defense. On appeal, defendant has raised two assignments of error: (1) that the trial court erred in not instructing the jury on what it means to be an “initial aggressor”; and (2) that the trial court erred in “allowing the state to urge the jury to reject defendant’s self-defense claim on an improper basis.” Neither claim of error was preserved in the trial court, so defendant requests plain-error review. We addressed the first assignment of error in State v. Worsham, 332 Or App 154, 548 P3d 849 (2024), rev’d, 373 Or 739, 571 P3d 759 (2025), modified on recons, 374 Or 781, 583 P3d 1042 (2026) (Worsham I). There, we held that the trial court plainly erred in failing to define “initial aggres- sor” for the jury. Id. at 164-65. The Supreme Court dis- agreed and reversed our decision, holding that it was not plain error not to instruct the jury on the meaning of “ini- tial aggressor” when no one had requested that instruction. State v. Worsham, 373 Or 739, 741, 571 P3d 759 (2025), mod- ified on recons, 374 Or 781, 583 P3d 1042 (2026) (Worsham II). The court remanded for us to address defendant’s second assignment of error. Worsham II, 374 Or at 782. We did not reach that assignment in our original opinion. Worsham I, 332 Or App at 156 n 2 (“Given our disposition, we do not dis- cuss defendant’s second assignment of error.”). Whereas defendant’s first assignment of error focused on how the court instructed the jury on self-defense and its limitations, defendant’s second assignment of error challenges how the prosecutor argued the initial-aggressor Cite as 349 Or App 419 (2026) 421 limitation to the jury. Defendant contends that the prosecu- tor’s improper closing argument deprived him of a fair trial. As explained below, we conclude that the prosecutor’s clos- ing argument was obviously improper, in that it misled the jury as to what it means to be an initial aggressor, but that the error would have been curable by properly instructing the jury on that issue and thus ensuring defendant a fair trial. It follows that defendant’s plain-error claim fails. We therefore affirm. FACTS On August 31, 2021, defendant was livin