An argument that this instruction is an inadmissible "comment on the evidence" under ORCP 59 E. ORCP 59 E applies to criminal cases under ORS 136.330(1). It provides that: "The judge shall not instruct with respect to matters of fact, nor comment thereon." As the Supreme Court explained in State v. Hayward, 327 Ore. 397, 410-11, 963 P.2d 667 (1998) (holding that an instruction on coexisting intents was not a comment on the evidence), "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." Whether a jury instruction is a comment on the evidence is a question of law. See State v. Henry, 138 Ore. App. 286, 288, 907 P.2d 1133 (1995).