26 July 1, 2026 No. 591
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
HERBERT JAMES RABAGO,
Defendant-Appellant.
Washington County Circuit Court
21CR10111, 21CR11204; A182381 (Control), A181938
Andrew Erwin, Judge.
Submitted July 30, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Daniel Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
SHORR, P. J.
Cite as 351 Or App 26 (2026) 27
SHORR, P. J.
In this consolidated criminal appeal, defendant appeals from a judgment of conviction in Case No.
21CR10111 for second-degree murder with a firearm, ORS
163.115(1) (Count 1), unlawful use of a weapon with a firearm, ORS 166.220 (Count 2), and felon in possession with a
firearm, ORS 166.270(1) (Count 3). In Case No. 21CR11204,
the trial court accepted defendant’s guilty pleas to four of
the charges against him and dismissed the fifth charge;
defendant does not challenge on appeal the judgment in that
case. Defendant raises five assignments of error related to
Case No. 21CR10111. Defendant’s first assignment of error
argues that the trial court plainly erred in failing to reread critical jury instructions at the end of trial. As explained
below, we agree with defendant that the trial court plainly
erred in that respect.1 Accordingly, we reverse and remand
in Case No. 21CR10111, and we remand for resentencing in
Case No. 21CR11204.
The charges in Case No. 21CR10111 arose out
of a confrontation between defendant, who was Rucker’s
ex-boyfriend and the father of one of her children, and
Rucker’s friend, J, that resulted in J’s shooting and death. A couple of weeks after the shooting, the police arrested defendant pursuant to an arrest warrant for J’s homicide. Rucker
testified at trial that defendant first pulled a gun on J at
her home, and later shot at J while he was driving in his
car. Rucker drove J to the nearest medical facility, where he
died of his injuries. The jury found defendant guilty of all
charges.
Defendant’s first assignment of error challenges the
trial court’s failure to read aloud all of the jury instructions at the end of trial. At the beginning of trial, after the jury
1
That conclusion obviates the need to address defendant’s second, third, and fifth assignments, which argue that the trial court erred in making an improper comment on the evidence, failing to give the witness-false-in-part instruction, and imposing the mandatory gun minimum on Count 2 instead of Count 1. See State v. Estrada-Robles, 312 Or App 357, 358, 492 P3d 731 (2021) (reversing and declining to address the remaining assignments where the record “may well develop differently on remand”). However, because the issue will arise again on remand, we address defendant’s fourth assignment of error challenging the trial court’s denial of his motion to suppress evidence.
28 State v. Rabago
was sworn in, the trial court provided the jury with written preliminary instructions, which it also read aloud to the
jury. Those instructions included standard instructions on
the presumption of innocence, the state’s burden of proof
beyond a reasonable doubt, defendant’s constitutional right
to not testify, evaluating defendant’s statements, evaluating witness testimony, inferences, direct and circumstantial evidence, and the definitions of “knowingly” and “with
knowledge.” After the close of evidence eight days later and
before closing arguments, the trial court informed both
parties that it would provide the jury with the complete
written instructions, that it did not intend to reread pages
one through six, and that counsel could read any instructions to the jury during closing arguments. Defense counsel
responded, “That’s what we will do.” The trial court then
gave the jury final instructions, and began by informing the
jury that it would not reread the instructions on pages one
through six that it had read at the beginning of the trial,
but would provide the “complete set, pages 1-11,” in written
form. The court then read aloud the remaining jury instructions, which primarily consisted of certain definitions and
the elements of the criminal offenses.
On appeal, defendant assigns error to the trial
court’s failure to reread aloud the instructions on the presumption of innocence and proof beyond a reasonable doubt,
defendant not testifying, defendant’s statements, evaluating witness testimony, inferences, direct and circumstantial evidence, and the definitions of “knowingly” and “with
knowledge.” Because defendant did not object to the trial
court’s procedure, he requests us to review for plain error.
An error is “plain” when it is one of law, obvious
and not reasonably in dispute, and the error is apparent on
the record without our having to choose among competing
inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889
(2013). If a plain error occurred, we next consider whether it was harmless, and, if it was not harmless, we must decide
whether to exercise our discretion to correct it. State v. Ortiz, 372 Or 658, 671-72, 554 P3d 796 (2024).
After briefing in this case, the Supreme Court
decided State v. Shine, 375 Or 112, 588 P3d 231 (2026).
Cite as 351 Or App 26 (2026) 29
There, over the defendant’s objection, the trial court refused to read aloud the same instructions at issue in this case.
Id. at 115. The Supreme Court explained that “ORCP 59 B
requires the trial court to ‘charge’ the jury at the conclusion of trial by providing an oral statement of ‘all matters
of law necessary for its information in giving its verdict.’ ” Id. at 129 (quoting ORCP 59 B). The court, considering the
defendant’s claim in a preserved posture, concluded that the
instructions the trial court declined to reread were matters
of law necessary for the jury’s information in giving its verdict, that the trial court was required to reread them aloud
at the end of trial, and that it erred in not doing so. Id. In light of Shine, we conclude that the trial court’s failure to
reread the instructions was legal error that is obvious, not
reasonably in dispute, and appears on the record.2
We turn to whether the error was harmless. See
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (an error
is harmless if there is “little likelihood” that it affected the verdict). In Shine, the Supreme Court held that the error
in not rereading the instructions was not harmless because
they were “important instructions that protect defendants’
constitutional rights” and were “particularly salient” where
a defendant does not testify in his own defense. 375 Or at
130. The court also noted that “timing matters,” and that
an instruction read at the beginning of trial will not necessarily have the same effect as when the instruction is read
immediately before deliberation. Id. at 131. Finally, the
court explained that a party’s argument in closing “is not a
substitute for instructions from the court.” Id. For the same
reasons as articulated in Shine, we cannot conclude that the
error in this case was harmless.
2
The state attempts to argue that the error does not qualify as plain error because defendant might have had a plausible strategic purpose for not objecting. Specifically, the state points out that defendant could have concluded that rereading the instructions was unnecessary or distracting, that other instructions were sufficient, or that counsel could utilize closing statements to read any key instructions. We reject that argument for two reasons. First, the Supreme Court has clarified that in the context of jury instructions, a defendant’s strategic choice not to object goes to whether we should exercise our discretion to correct plain error, and not to whether the error constitutes plain error. State v. Hutchings, 375 Or 132, 144-45, 588 P3d 241 (2026); State v. Wiltse, 373 Or 1, 18, 559 P3d 380 (2024). Second, for the reasons explained in our decision to exercise discretion, we are not persuaded that defendant made a strategic choice not to object. 30 State v. Rabago
Finally, we consider whether to exercise our discretion to correct the plain error. In deciding whether to correct a plain error, we consider factors such as:
“the competing interests of the parties; the nature of the
case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
and whether the policies behind the general rule requiring preservation of error have been served in the case in
another way.”
Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823
P2d 956 (1991); see Vanornum, 354 Or at 630 (whether to
exercise discretion “entails making a prudential call” after
considering the Ailes factors).
We begin with the gravity of the error. In this case,
the court’s “charge to the jury here failed to communicate all of the information fundamental to the fairness of our criminal justice system.” State v. Escalante, 350 Or App 233, 240,
___ P3d ___ (2026) (internal quotation marks omitted). The
court’s final oral instructions did not charge the jury with
the important instructions intended to protect defendant’s
constitutional rights. The jury’s correct understanding of
those matters was critical to the outcome of the case. State
v. Vanornum, 273 Or App 263, 269, 356 P3d 1161 (2015) (“In
analyzing the gravity of an error, we consider if the issue
was critical to the outcome of the case.”). Indeed, we recently concluded that this same error was grave. Escalante, 350 Or
App at 240.
The nature of the case also weighs in favor of exercising our discretion. In this case, defendant did not testify in his own defense, but rather, his defense consisted entirely of arguing that the state had failed to prove its case beyond a reasonable doubt. In that context, the trial court’s failure to reinstruct the jury about defendant’s rights and the state’s
burden of proof at the end of trial, before they began deliberation, was particularly serious. See Shine, 375 Or at 130 (the instructions concerning a defendant’s constitutional rights
are “particularly salient” where a defendant does not testify
in his own defense).
Although the error could have been readily corrected
had defendant objected, which weighs against exercising
Cite as 351 Or App 26 (2026) 31
our discretion, we nevertheless have found it appropriate
to exercise discretion where a defendant’s challenged conviction is for a serious felony. State v. Pervish, 202 Or App
442, 466, 123 P3d 285 (2005), rev den, 340 Or 308 (2006)
(holding that unpreserved instructional error was plain and
exercising our discretion to correct it, in part because of the seriousness of the convictions). Here, as a result of his convictions, defendant has been sentenced to life in prison. He
has a compelling interest in ensuring he was not convicted
of serious crimes before a jury that might not have understood the important underlying constitutional principles.
That compelling interest, in these particular circumstances,
carries greater weight than the judicial system’s interest in
avoiding an unnecessary retrial.
We acknowledge that the policies behind the general rule requiring preservation were not served. However,
we reject the state’s argument that defendant might have
had strategic reasons for not objecting.3 We do not perceive
that defendant could plausibly have obtained any benefit by
remaining silent. Although defense counsel acquiesced to
the trial court’s proposed procedure, the record does not suggest that defendant believed the rereading of the instructions would be unnecessary or distracting or that other
instructions were sufficient.
Given the seriousness of defendant’s convictions, the
gravity of the error, and the nature of the case, we believe the ends of justice are best served by the exercise of our discretion to correct the plain error here. Accordingly, we do so, with the “utmost caution” and because this is a “rare and exceptional”
case that requires it. State v. Hutchings, 375 Or 132, 149, 588 P3d 241 (2026) (internal quotation marks omitted).
Because we reverse based on defendant’s first assignment of error, we need not address most of defendant’s remaining assignments. However, because the issue will arise again
on remand, we turn to defendant’s fourth assignment of error
challenging the trial court’s denial of his motion to suppress
3
This is the third time that this issue has been before us. This particular trial court’s practice was to not reread aloud certain jury instructions at the end of trial. State v. Shine, 334 Or App 360, 363-64, 557 P3d 181 (2024), aff’d, 375 Or 112, 588 P3d 231 (2026); Escalante, 350 Or App at 235.
32 State v. Rabago
AT&T phone data. He argues that the affidavit in support of
the warrant failed to establish probable cause because Rucker
was the sole informant linking him to the scene of the crime
and her information was unreliable because law enforcement
failed to corroborate her statements. We disagree.
When considering information provided by a named
informant, the informant’s veracity may “be established in
several ways including corroboration by the police, corroboration by another informant, the informant exposing himself to liability for filing a false report or by the informant’s statements against penal interest.” State v. Pelster/Boyer,
172 Or App 596, 604, 21 P3d 106, rev den, 332 Or 632 (2001).
Here, each of those factors support Rucker’s reliability. She was a named informant, which “is one indication that
* * * her information is reliable, because a named informant
is exposed to possible criminal or civil charges should the
information prove false.” State v. Payne, 150 Or App 469, 473, 946 P2d 353 (1997), rev den, 326 Or 390 (1998). She made
a statement against penal interest when she acknowledged
that she had hidden drugs in the medical facility’s restroom
when she took J there. See id. at 474 (the named informant’s
statement against penal interest was sufficient to establish
his reliability). Rucker’s identification of defendant as the
shooter was corroborated by another named informant who
provided information that defendant had admitted that he
“fucked up” and “shot that dude.” Her statement that defendant had displayed a gun during the initial confrontation
at her home was corroborated by a text sent by J to a friend
about 25 minutes before the shooting. Finally, police corroborated by video surveillance her statement that immediately
after the shooting she had followed after defendant’s car, but then turned around to check on J. See id. (“Police corroboration of details from an informant’s statements is yet another
indication of the statement’s reliability.”). For the foregoing reasons, the affidavit provided an adequate basis to conclude
that Rucker’s statements were reliable. The trial court did
not err in denying defendant’s motion to suppress.
In Case No. 21CR10111, reversed and remanded. In
Case No. 21CR11204, remanded for resentencing; otherwise
affirmed.