State v. Reynolds

SERCOMBE, J.

Defendant appeals a judgment of conviction for, among other offenses, two counts of assault in the third degree, ORS IfiS-lfiSllXe).¹ She raises several assignments of error, none of which are preserved. We write only to address her first assignment of error and reject the others without discussion. In her first assignment, defendant argues that the trial court erred in failing to enter a judgment of acquittal on one of the third-degree assault charges. Defendant contends that there was no evidence on which to base that conviction. Thus, defendant requests that we review the error as one apparent on the record under ORAP 5.45(1).² The state concedes that “the evidence in this record does not appear to support the conviction at issue” but argues that we should not exercise our discretion to correct the error under Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991). We conclude that the error was plain and exercise our discretion to correct it.

We state the relevant facts, which are few, in a light most favorable to the state. State v. Burgess, 240 Or App 641, 643, 251 P3d 765 (2011). Defendant and Lemarroy stole money and drugs from the victim’s apartment and fled the scene. The victim and his girlfriend, who discovered defendant and Lemarroy in the apartment during the commission of the crime, followed in hot pursuit. When the victim confronted the thieves, a fight broke out. The victim and Lemarroy, who had a knife, wrestled for control of the stolen property. Meanwhile, defendant and the victim’s girlfriend fought nearby. Although the victim suffered multiple knife wounds, at no point during the melee did defendant inflict physical injury on the victim.³

Defendant was charged with numerous offenses for her involvement in those events. As relevant here, Count 13 of the indictment alleged that defendant committed third-degree assault against the victim, that is, that she “did unlawfully and knowingly cause physical injury to [the victim] while aided by another person actually present.” The case was tried to a jury. After the state had rested its case, defendant moved for a judgment of acquittal but advanced no specific argument in support of the motion:

“[DEFENSE COUNSEL]: Your Honor, I would be making a motion for judgment of acquittal at this time. I’m not making any argument.

“THE COURT: Okay. Any nonargument to the non-argument that you want to make on the record?

“[PROSECUTOR]: No, thank you.

“THE COURT: Okay. I believe, in the light most favorable to the state, there is sufficient evidence to send all counts to the trier of fact, so that will be to the jury. So the motion is denied.”

The jury ultimately convicted defendant of all charges.

Defendant now appeals, arguing that the trial court erred in failing to enter a judgment of acquittal on Count 13 because, at most, the evidence showed that she provided on-the-scene aid to another person (Lemarroy) who inflicted physical injury upon the victim. Defendant argues that, under State v. Merida-Medina, 221 Or App 614, 191 P3d 708 (2008), rev den, 345 Or 690 (2009), that evidence is insufficient as a matter of law to prove that she committed third-degree assault. She acknowledges that her argument is unpreserved but contends that the error is plain and that we should exercise our discretion to correct it. The state argues that we should not review defendant’s claim of error in light of the purposes of preservation.

Generally, we will not consider an unpreserved issue on appeal. State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). Nonetheless, we may review an unpreserved assignment of error as one “apparent on the record” under ORAP 5.45(1) if certain conditions are met: (1) the error is one of law; (2) the error is “apparent,” in that the “legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record,” such that “[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). Even where those conditions are satisfied, we must determine whether to exercise our discretion to reach the error and correct it. Ailes, 312 Or at 382.

The sufficiency of the evidence is a question of law, and we need not go outside the record or choose between competing inferences to resolve the issue in this case. See, e.g., State v. Inloes, 239 Or App 49, 243 P3d 862 (2010) (reviewing sufficiency of the evidence argument as plain error). There is no evidence in the record that defendant personally inflicted physical injury on the victim. Thus, the question is whether she can nonetheless be found liable — either directly or as an accomplice — for her conduct and, if not, whether that legal point is obvious.

In State v. Pine, 336 Or 194, 207, 82 P3d 130 (2003), the Supreme Court held that

“the fact that a defendant provided on-the-scene aid to another person who inflicted physical injury upon a victim does not, in itself, render the defendant [directly] liable for third-degree assault * * *. Rather, such a defendant either must have inflicted physical injury directly himself or herself, or must have engaged in conduct so extensively intertwined with infliction of the injury that such conduct can be found to have produced the injury.”

Subsequently, in Merida-Medina, we held that, “in an assault in which the assailant is aided by another person who is actually present,” the aiding person cannot be found guilty of third-degree assault as an accomplice. 221 Or App at 616, 619-20. Those cases were both decided before trial in this case, and the legal points that they establish are not reasonably in dispute. Because defendant could not be held liable as an accomplice for third-degree assault, and because there was no evidence that her conduct was “so extensively intertwined with infliction of the injury” that she could be held directly liable, she was entitled to a judgment of acquittal on that third-degree assault charge. Cf. State v. Nefstad, 309 Or 523, 543, 789 P2d 1326 (1990), cert den, 516 US 1081 (1996) (restraining the victim while he was being stabbed constituted “personally” committing the homicide); State ex rel Juv. Dept. v. K. C. W. R., 235 Or App 315, 230 P3d 973 (2010) (youth’s conduct in attacking the victim while a third person struck the victim with a bat was so extensively intertwined with the infliction of the injury that youth could be held directly liable for third-degree assault). Thus, the trial court committed plain error in entering a judgment of conviction on Count 13.

The question remains whether we should exercise our discretion to correct the error. Among the considerations relevant to that determination are

“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way * *

Ailes, 312 Or at 382 n 6. Related considerations may include whether the defendant in some way encouraged the trial court to make the error; whether the defendant made a strategic choice not to object; and whether the error could have been remedied if raised below. State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007).

We have often declined to invoke plain error review where a defendant has failed to move for a judgment of acquittal, Inloes, 239 Or App at 54 (so noting), or where such a motion is unspecific as to its theory, State v. Schodrow, 187 Or App 224, 231 n 5, 66 P3d 547 (2003) (same). That is because the trial court has not, consistently with the purposes of preservation, been apprised of the issue and given an opportunity to avoid the error by allowing supplemental evidence to be introduced. See Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008) (explaining that the policy reasons underlying the rule of preservation are procedural fairness to the opposing parties, development of a full record to facilitate review, and promotion of judicial efficiency). The state contends that the same restraint should be exercised when a defendant moves for, but does not argue in favor of, a judgment of acquittal.

Nonetheless, we conclude that there are sound reasons to correct the error in this case. First, the gravity of the error — an additional felony conviction based on insufficient evidence — is substantial. Defendant has a strong interest in having a criminal record that accurately reflects the nature and extent of her conduct. State v. Valladares-Juarez, 219 Or App 561, 564, 184 P3d 1131 (2008) (so noting in the context of a failure to merge convictions); see also State v. Ryder, 230 Or App 432, 435, 216 P3d 895 (2009) (imposition of additional felony conviction “strongly militates in favor of the exercise of discretion”).

Indeed, the error — entry of a criminal conviction without sufficient proof — is of constitutional magnitude. As held by the United States Supreme Court in Jackson v. Virginia, 443 US 307, 316, 99 S Ct 2781, 61 L Ed 2d 560 (1979),

“the due process guaranteed by the Fourteenth Amendment [mandates] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.”

The seriousness of that error, the “onus of a criminal conviction,” is not diminished by the fact that defendant will serve no additional time in prison, given that her sentence on the erroneous conviction will run concurrently with other sentences. We drew a similar conclusion in State v. Gibson, 183 Or App 25, 51 P3d 619 (2002), where we exercised Ailes discretion to address a plainly erroneous conviction. There, the defendant was convicted on a number of charges after agreeing with the state on guilty pleas to those crimes. The judgment, however, included a conviction on a charge to which the defendant had not pleaded guilty. The defendant did not object to that conviction during his sentencing hearing. We nevertheless reviewed the unpreserved claim of error, concluding that

“[w]e choose to exercise our discretion to review the error, because convicting defendant of a crime to which he did not plead guilty and of which a jury did not find him guilty violated defendant’s due process rights. See Jackson v. Virginia, 433 US 307, 314, 99 S Ct 2781, 61 L Ed 2d 560 (1979) (‘It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.’). Although defendant may not gain any benefit in the form of a decrease in his overall term of incarceration and post-prison supervision, we review his first assignment of error in order to protect that constitutional right.”

183 Or App at 33; see also State v. Hathaway, 207 Or App 716, 717-18, 143 P3d 545, rev den, 342 Or 254 (2006) (exercising discretion to correct merger error despite state’s argument that the additional convictions had no effect on the defendant’s term of imprisonment and noting that, “although the effects of merger are not always immediately apparent, they can be real and varied” (citation and internal quotation marks omitted)).

Second, correcting the error would not, on the whole, undermine the important policies behind the preservation rule, i.e., “procedural fairness to the parties and the trial court, judicial economy, and full development of the record.” State v. Parkins, 346 Or 333, 340, 211 P3d 262 (2009). “Ultimately, the preservation rule is a practical one, and close calls — like this one — inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” Id. at 341.

The “particular record” in this case shows that the insufficiency of evidence could not have been cured by a contemporaneous objection. This is not a case where, if the error had been timely raised, the state could have reopened its case and corrected the deficiency in its proof. The victim testified unequivocally that defendant did not inflict physical injury on him (“She never assaulted me at all. * * * [My girlfriend] had her pretty much, you know, subdued.”). See State v. Matheson, 220 Or App 397, 409, 186 P3d 309 (2008) (correcting plain error as to insufficiency of the evidence where, among other things, the victim’s testimony made it “unlikely that the state would have been able to reopen the record and elicit additional testimony” to remedy the deficiency in proof and concluding that the state was not prejudiced by a lack of preservation); State v. Sweeney, 188 Or App 255, 258-59, 71 P3d 168, rev den, 336 Or 146 (2003) (correcting plain error as to insufficiency of the evidence where, among other things, there was “no suggestion that the state could have introduced evidence” that would have remedied the deficiency in proof). Given the lack of any factual dispute on that point, it is unlikely that the record would have developed differently had defendant’s argument been made. The state does not contend otherwise. Thus, consideration of the plainly erroneous conviction in this case would not undermine the policy interest in the “full development of the record.”

Indeed, the irrefutable fact of defendant’s lack of guilt distinguishes this case from the more common scenario of an unpreserved claim as to the sufficiency of the evidence — situations where the deficiency in proof is happenstance, where not all of the evidence that could be adduced was introduced into the record. That was the case in State v. Hockersmith, 181 Or App 554, 47 P3d 61 (2002), where we refused to review a defendant’s conviction for possession of a controlled substance, alleged to be wrongful because drug testing reports had not formally been received into evidence. See also Matheson, 220 Or App at 407-08 (state could have reopened record if error were raised by the defendant); State v. Caldwell, 187 Or App 720, 726, 69 P3d 830 (2003), rev den, 336 Or 376 (2004) (state could have remedied defect in indictment if error were raised by the defendant). Allowing review in those rare cases where a defendant’s innocence is established — as opposed to those where guilt is unproved — -is consistent with the preservation principle that plain error review be exercised only in “rare and exceptional cases.” State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006) (citation and internal quotation marks omitted).

In addition, we cannot fathom any reason why the state would have an interest in upholding the erroneous conviction. Defendant did not encourage the error, and she will not obtain a more advantageous result than if she had raised the error at trial. Thus, correcting the wrongful conviction would not result in unfairness to the adversarial party.

Furthermore, we can conceive of no plausible tactical reason for defendant’s failure to make her argument below. The dissent contends that defendant may have elected “to pursue a holistic ‘all-or-nothing’ strategy with respect to Count 13,” so as to avoid drawing attention to “the availability and propriety of a conviction for fourth-degree assault.” 250 Or App at 542 (Haselton, C. J., concurring in part, dissenting in part). Simply put, we do not think that that is a plausible strategic choice. The difference between those convictions is not insignificant — indeed, it is the difference between a felony and a misdemeanor conviction. ORS 163.160(2); ORS 163.165(2)(a). Under that circumstance, a trial counsel’s decision — if indeed trial counsel consciously makes a decision — to forgo a motion for judgment of acquittal is not reasonable. Moreover, an “all-or-nothing” approach is as likely in this case as it is in any other where there are multiple charges or where a lesser-included offense exists; that is, under the dissent’s theory, nearly every failure to move for a judgment of acquittal could be deemed a strategic choice. See State v. Martino, 245 Or App 594, 597, 263 P3d 1111 (2011) (rejecting state’s “strategic choice” argument for similar reasons).

Admittedly, the preservation principle of “judicial efficiency” would not be served by review of defendant’s unpreserved claim of error. Had defendant moved for a judgment of acquittal on the third-degree assault charge, that relief could have been obtained sooner and with less consumption of judicial resources. That inefficiency, however, is present in nearly all cases where review of unpreserved issues are under consideration. That consideration does not distinguish those cases where review should be allowed from those where it should not. We said as much in State v. Morris, 217 Or App 271, 274, 174 P3d 1127 (2007), rev den, 344 Or 671 (2008):

“To be sure, as the state suggests, if defendant had raised his present objection before the trial court, error might well have been avoided. But that is true in many ‘plain error’ cases — indeed, in virtually all such cases except for those in which the claim of error is based on an intervening, post-judgment change in the law.”

Thus, the error in this case is plain and serious, and its correction will not undermine the relevant principles that underlie the preservation rule. For the most part, the dissent does not quibble with those conclusions. Chief Judge Haselton agrees that the error is plain and grave, so much so that the exercise of Ailes discretion is “presumptive.” 250 Or App at 537 (Haselton, C. J., concurring in part, dissenting in part). Where the dissent parts company is in the next step of the analysis.

We conclude that the ends of justice in this case militate in favor of correcting the plain error. As the dissent notes, it is likely that defendant would be able to obtain post-conviction relief from the erroneous conviction. However, we conclude, contrary to the dissent, that the availability of post-conviction relief is a reason in support of affirmatively exercising our discretion. As we have noted in the plain error context before,

“[w]e see no reason, and the state offers none, as to why [the] defendant should be made to jump through more procedural hoops before he can get the relief to which he is entitled. In this case, we are in a position to order the same relief to which [the] defendant would be entitled under a post-conviction proceeding, and we do so in the interests of judicial economy.”

State v. Cleveland, 148 Or App 97, 100, 939 P2d 94, rev den, 325 Or 621 (1997). There is, in short, no reason to deny review where it would result in more unnecessary proceedings and, ultimately, less judicial efficiency.

Defendant concedes that the entry of a conviction on the lesser-included offense of fourth-degree assault is appropriate. The burden on the judicial system in amending the judgment and resentencing defendant is minimal. See Ryder, 230 Or App at 435 (citing the minimal burden on the judicial system as a reason to correct plain error); see also State v. Donner, 230 Or App 465, 469, 215 P3d 928 (2009) (“Given that our burden in reviewing and correcting the error is minimal and that sentencing defendant according to the law serves the ends of justice, we elect to exercise our discretion to correct the error here.”).

Correction of the plain error on direct review, then, implements our mandate to administer justice “completely and without delay” under Article I, section 10, of the Oregon Constitution.⁴ The normal barriers to the complete administration of justice at the appellate level in the review of unpreserved claims of error — an incomplete record or procedural advantage or unfairness to either party — are not present. And postponing correction of an unjust conviction to another day, to the purview of a post-conviction relief or habeas corpus court, is delayed justice. Thus, those constitutionally mandated “ends of justice” strongly support the exercise of Ailes discretion in this case.

In sum, the reasons in favor of exercising our discretion to correct the plain error in this case outweigh any considerations militating against our review. See Fults, 343 Or at 523 (suggesting that exercise of discretion depends on a “weighing” of “the relevant factors”). Therefore, we conclude that correction of the error is warranted. See, e.g., Matheson, 220 Or App at 409 (exercising discretion to correct plain error as to sufficiency of the evidence where the defendant would not obtain a more advantageous result, it was unlikely that the state could have reopened the record, and the gravity of the error was substantial); State v. Hurst, 147 Or App 385, 936 P2d 396 (1997), rev den, 327 Or 521 (1998) (exercising discretion to correct an error apparent on the record where no evidence supported the conviction); State v. Lindsey, 45 Or App 607, 609 P2d 386 (1980) (same). As noted, defendant concedes that the entry of a conviction on the lesser-included offense of fourth-degree assault is appropriate. Accordingly, we reverse the conviction and remand to the trial court for entry of a judgment of conviction on the lesser-included offense of fourth-degree assault and for resen-tencing.

Conviction on Count 13 for assault in the third degree reversed and remanded for entry of judgment of conviction for assault in the fourth degree; remanded for resen-tencing; otherwise affirmed.

1 This is a consolidated appeal in which defendant also appeals judgments revoking her probation. However, defendant does not advance any assignment of error related to those judgments.

2 ORAP 5.45(1) provides, in part:

“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the record.”

3 When asked whether defendant had cut him, the victim testified, “She never assaulted me at all. * * * [My girlfriend] had her pretty much, you know, subdued.”

4 Article I, section 10, provides that

“[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”