I had a client charged with six counts of Robbery in the First Degree from two separate incidents. He was alleged to have used a firearm, but the firearm was never discharged so we had an argument, among others, that the state could not prove he was guilty of Robbery I, because they could not prove the gun was loaded. The MJOA was denied but I asked for the following jury instruction:
"An unloaded firearm is not a deadly weapon."
I relied on the following authority:
"We may agree that in a case involving the prosecution for robbery in the first degree under ORS 164.415(1)(a), the state has the burden to prove beyond a reasonable doubt all material elements of that crime, including the fact that defendant was "armed with a deadly weapon," and that in order to establish that element of the crime the state must prove beyond a reasonable doubt that the gun was loaded." State v. Vance, 285 Or 383, 390 (Or. 1979)
In my written motion, I noted that the burden to prove that the gun was loaded remains upon the state (Vance at 391), although I did not ask for specific language to that effect.
The state countered with their own special jury instruction. They wanted the judge to instruct the court that the jury was permitted to infer, from the fact that the firearm was pointed at people, that it was loaded. That same case, Vance, says as much. But it holds only that that inference is enough to survive a motion for judgment of acquittal (an opinion I think is in error and worth revisiting). But the jury is not required to make that inference any more than they are required to make any inference and there's no legal justification for judicial encouragement of them to do so.
I objected to the state's special instruction on the same grounds I object to almost every state's special instruction (because they almost all violate the same rule): it was a comment on the evidence.
"A trial court is not permitted to comment on the evidence. Or. R. Civ. P. 59 E; Or. Rev. Stat. § 136.330(1). Or. R. Civ. P. 59 E is applicable in criminal cases. A 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. A court also impermissibly comments on the evidence if it instructs the jury to draw an inference against the defendant that shifts the burden of proof from the state to the defendant. An inference cannot relieve the state of its burden of proving each element of the crime beyond a reasonable doubt." State v. Hayward, 327 Or 397 (1998) [emphasis added]
The judge suggested that both instructions were comments on the evidence, and I argued otherwise. It's a subtle difference, but my instruction is a simple statement of the law. The state's instruction was to reference facts of the case and how they might be interpreted in the state's favor. Subtle, yes, but it's like the difference between the right word and the almost right word, which Twain said is akin to the difference between lightning and a lightning bug.
The judge refused to give both instructions, which would have given me an issue for appeal, except that we beat the Rob Is.