- Court: Oregon Court of Appeals
- Area(s) of Law: Appellate Procedure
- Date Filed: 10-08-2014
- Case #: A149727
- Judge(s)/Court Below: Duncan, P.J. for the Court; Wollheim, J.; and Schuman, S.J.
- Full Text Opinion
Defendant, who was convicted after a bench trial of a number of offenses arising from multiple incidents involving the victim, his girlfriend, appealed and asserted that the trial court erred in not acquitting him, based on insufficient evidence, of the charges of witness tampering and second-degree assault constituting domestic violence. The Court only addressed why they declined to correct plain error with respect to the witness tampering charge and why they concluded that the error asserted with respect to the second-degree assault charge was not plain. Defendant did not preserve for appeal his argument that there was insufficient evidence to find him guilty of witness tampering. Raising the potential issue of a judgment for acquittal on all counts does not sufficiently preserve the argument. The state conceded that there was no evidence in the record that the victim had been legally summoned to testify before the grand jury at the time Defendant attempted to induce her not to appear. The state further conceded that, in light of the absence of evidence, the trial court committed plain error by entering a judgment of conviction on the witness tampering charge. The court accepted the state's concession. The state contended that the relevant considerations weigh against the exercise of the court's discretion to correct the error. The factors that the court considers in determining whether to correct an unpreserved plain error include the ends of justice in the particular case, the gravity of the error, and whether the policies underlying the preservation requirement were served in another way. One of the policies underlying the preservation requirement is that of allowing the opposing party the opportunity to respond to the asserted error. If Defendant had raised this error at trial, the court would have permitted the state to show evidence that the witness had been summoned. Because Defendant did not raise his objection, the policies underlying the preservation requirement were undermined, and the Court declined to exercise its discretion to correct the error. With regard to his second assignment of error, the Defendant again did not sufficiently raise the error. The victim had a scar from the cigarette burn inflicted by the Defendant. The Court rejected Defendant's contention that it was "obvious" and not reasonably in dispute from the record that serious and protracted disfigurement could not have resulted from Defendant's use of a cigarette to burn the victim's cheek. The Court found that because of this, the trial court did not commit plain error. Affirmed.