State v. Cruz ( 2023 )

618
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted June 21, 2022, affirmed April 26, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
EMMANUEL OLMOS CRUZ,
Defendant-Appellant.
Wasco County Circuit Court
20CR19337; A174817
Janet L. Stauffer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Eric Seepe, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 618 (2023) 619
HELLMAN, J.
Defendant appeals his conviction for criminal mis-
chief in the second degree, ORS 164.354(1). He raises two
assignments of error.
In defendant’s first assignment of error, he argues
that the trial court erred when it relied on an unargued
theory of liability in reaching its verdict. Defendant did not
preserve this argument but asks us to review for plain error.
Assuming that the trial court’s reliance upon an unargued
theory of the case was plain error, we decline to exercise
our discretion to correct it. See Ailes v. Portland Meadows,
Inc., 312 Or 376, 382, 823 P2d 956 (1991). Our review of
the record demonstrates that a contemporaneous objection
could easily have led to a correction of any alleged error or,
barring that, a fully developed record on appeal. Exercising
our discretion here would thus directly undermine the rea-
sons for requiring preservation of errors in the trial court.
See Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637
(2008). The balance of the Ailes factors also favors declining
our discretion to review any plain error in this case.
In so ruling, we disagree with defendant that exer-
cise of our discretion is needed to serve the ends of justice
because his conviction was based on insufficient proof. There
was sufficient evidence in the record to support defendant’s
conviction under the prosecution’s theory. Importantly,
defense counsel never disputed the criminal mischief charge
in the face of the prosecution’s theory, focusing instead on
reducing defendant’s more serious charges for felony assault
and harassment. See State v. Fults, 343 Or 515, 522-23, 173
P3d 822 (2007) (a defendant’s strategic choice not to raise
an argument or make an objection may weigh against the
exercise of discretion to review for plain error).
In his second assignment of error, defendant argues
that the trial court erred when it imposed a compensatory
fine payable to the victim in the amount of $1,000. To rule
in defendant’s favor, we would have to choose between com-
peting inferences in the record about the statutory authority
for the fine and about the source of the economic damages
at issue. Any error is thus not plain. See State v. Brown, 310
620 State v. Cruz
Or 347, 355, 800 P2d 259 (1990) (holding that plain error
requires, among other things, the error be “on the face of the
record” such that a reviewing court is not required to choose
among competing inferences to find it).
Affirmed.