State v. Moore ( 2023 )

465
This is a nonprecedential memorandum opinion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 February 27, affirmed June 14, petition for review denied
October 19, 2023 (371 Or 509)
STATE OF OREGON,
Plaintiff-Respondent,
v.
LYLE MARK MOORE,
Defendant-Appellant.
Lane County Circuit Court
21CR30394; A177090
Charles M. Zennaché, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
466 State v. Moore
HELLMAN, J.
Defendant appeals from a judgment of conviction
for felony fourth-degree assault constituting domestic vio-
lence, the resulting departure sentence, and the imposition
of fines. On appeal, he raises four assignments of error. For
the reasons below, we affirm.
Defendant’s first assignment of error argues that
the trial court erred when it failed to instruct the jury on
the correct mental state for the injury element of the offense.
See State v. Owen, 369 Or 288, 322, 505 P3d 953 (2022).
Defendant admits that the error is unpreserved but asks us
to review for plain error. See State v. McKinney/Shiffer, 369
Or 325, 333-34, 505 P3d 946 (2022).
An error is plain when it is “an error of law, obvious
and not reasonably in dispute, and apparent on the record
without requiring the court to choose among competing
inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d
889 (2013). We agree that under Owen the error is plain.
However, we decline to exercise our discretion to correct
the error because neither the ends of justice nor the grav-
ity of the error warrants correction. See Ailes v. Portland
Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991)
(holding that even when an error is plain, the court must
determine whether to exercise discretion to correct it).
Instructing the jury that defendant must have acted
with criminal negligence as to the risk that his conduct
would cause injury would not have impacted the verdict.
Criminal negligence requires that a defendant “fail[ed] to
be aware of a substantial and unjustifiable risk” such that
“the failure to be aware of it constitutes a gross deviation
from the standard of care that a reasonable person would
observe in the situation.” ORS 161.085(10).
At trial, the victim testified that defendant “slapped
my face to where there was a mark right here on my left side
of my lip on my bottom lower lip.” By his own admission to
law enforcement officers, evidence of which was admitted at
trial, defendant “smacked [the victim] a couple of times” so
that she would let go of his throat. In those circumstances,
which involved defendant intentionally hitting the victim in
Nonprecedential Memo Op: 326 Or App 465 (2023) 467
the face with the stated intent to make her let go of him, and
so hard that it left a mark, it is highly unlikely that the jury
would have reached a different result, even with a correct
instruction on the mental state for injury. Thus, defendant
has not established a basis for us to exercise our discretion
to correct the plain error.
In his second assignment of error, defendant asserts
that the evidence was insufficient to establish that supervi-
sion failed to deter him from committing further offenses
and that the trial court based its finding on impermissible
speculation. We disagree. The record contained evidence
that defendant had a lengthy criminal history dating back
to 2005, that he was on supervision for similar offenses, and
that one of the imposed conditions required him to “obey all
laws.” From that evidence, it was permissible for the trial
court to infer the existence of the departure factor. See State
v. Lennon, 348 Or 148, 157, 229 P3d 589 (2010).
In defendant’s third assignment of error, he raises
two related arguments about the trial court’s imposition
of fines in his case. He first argues that the court erred
in imposing fines on the mistaken belief that it was man-
datory. He also argues that the trial court erred when it
imposed fines without considering defendant’s ability to pay.
Defendant admits that his arguments are unpreserved but
asks for plain-error review.
Plain-error review is a two-step process. We must
first determine that the error is plain, which means that it
is “an error of law, obvious and not reasonably in dispute,
and apparent on the record without requiring the court to
choose among competing inferences.” Vanornum, 354 Or at
629. If those three elements are met, we then must deter-
mine whether to exercise our discretion to correct the error.
Ailes, 312 Or at 382. When imposing judgment, the trial
court stated in relevant part, “I’ll impose the statutory min-
imum set fines of $200 on each of the felonies, $100 on each
of the misdemeanors. I won’t require any contribution to
court-appointed attorney fees.” There is no obvious undis-
puted error in the court’s ruling. Contrary to defendant’s
argument, the trial court’s use of the phrase “set fines” does
468 State v. Moore
not conclusively demonstrate that it believed imposition of
the fines was mandatory. Accordingly, any error is not plain.
As to defendant’s second argument, he also admits
that under State v. Wheeler, 268 Or App 729, 732, 344 P3d
57 (2015), plain-error review is not available for a claim that
a trial court failed to consider a defendant’s ability to pay.
However, he asks us to overturn Wheeler and subsequent
cases as plainly wrong. See State v. Civil, 283 Or App 395,
416, 388 P3d 1185 (2017) (explaining standards for estab-
lishing that prior case law was plainly wrong and should be
overturned). We are unpersuaded by defendant’s arguments
that Wheeler was wrong, let alone “plainly wrong” under
Civil. Accordingly, we do not reach defendant’s third assign-
ment of error.
In his fourth assignment of error, defendant asserts
that the trial court erred when it denied his motion to pro-
hibit a trial on enhancement factors that were not submitted
to the grand jury. He argues that prior cases which allowed
the state to proceed to trial on enhancement factors that
were not submitted to a grand jury are no longer good law,
in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
1398, 206 L Ed 2d 583 (2020), and its rejection of the concept
of selective incorporation of the Fourteenth Amendment. We
previously rejected that argument in State v. Newkirk, 319
Or App 131, 134, 509 P3d 757 (2022), and we decline defen-
dant’s invitation to revisit it here.
Affirmed.