State v. Walsh

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Appellate Procedure
  • Date Filed: 10-18-2017
  • Case #: A158193
  • Judge(s)/Court Below: Armstrong, P.J. for the Court; Egan, J.; & Shorr, J.
  • Full Text Opinion

As a general rule, "[an appellate court] will not consider an argument on appeal that has not been raised in the trial court." State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011). In order to determine whether an issue has been preserved for appeal, a court will look to “whether a party has given opponents and the trial court enough information to be able to under the contention and to fairly respond to it.”  State v. Blasingame, 267 Or App 686, 691, 341 P3d 182 (2014), rev den, 357 Or 299 (2015).

Defendant appealed from a judgment of conviction of 19 counts of sexual crimes. Defendant assignment error to the trial court’s denial for his motion to dismiss for improper venue. On appeal, Defendant argued that a photograph, relating to four counts of sexual crimes, was insufficient to establish venue because State failed to prove the photograph was taken in Oregon. Specifically, Defendant contended that the location of the photograph was “not readily ascertainable” and could have been taken in his home in Vancouver, Washington. In response, State argued that Defendant failed to preserve this argument because he had argued at trial that the photograph was likely taken in Crook County, Oregon. As a general rule, "[an appellate court] will not consider an argument on appeal that has not been raised in the trial court." State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011). In order to determine whether an issue has been preserved for appeal, a court will look to “whether a party has given opponents and the trial court enough information to be able to under the contention and to fairly respond to it.”  State v. Blasingame, 267 Or App 686, 691, 341 P3d 182 (2014), rev den, 357 Or 299 (2015). The Court of Appeals held that the argument Defendant made on appeal was in contradiction to the argument proffered at trial, and therefore it hadn't been preserved for appeal. Affirmed.

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