State v. Blasingame, 341 P.3d 182

In April 2012 defendant was stopped, his impounded Dodge Neon later contained 13.4 ounces of marijuana packaged in baggies discovered during an inventory search at a tow lot.\
Defendant told an accompanying witness he had a large amount of marijuana in the car and later denied ownership to police; the witness called the tow operator reporting marijuana in the car.\
Trial theory: defendant argued the marijuana was not his; defense emphasized lack of evidence tying defendant to the drugs and read an instruction that mere presence in a vehicle is not enough for delivery.\
The trial court gave a special instruction stating that possession of a large amount is an example of a substantial step and that "possession with intent to deliver constitutes delivery even when no actual transfer is shown."\
After the jury retired defendant excepted to the instruction as (1) ambiguous and (2) a due process violation; trial counsel did not articulate the more specific appellate arguments later raised.\
The jury convicted defendant of delivery of marijuana; on appeal the court found the arguments unpreserved and declined to correct any assumed plain error under Ailes, affirming the conviction.\

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the special instruction was an improper comment on the evidence (ORCP 59 E)	State: instruction accurately stated law; not a comment on facts	Defendant: instruction impermissibly commented on evidence and shifted burden against him	Not preserved; appellate argument differs from trial objection, so not considered
Whether the instruction violated due process by shifting burden of proof	State: instruction follows statutory/case law and is proper	Defendant: instruction told jury to draw an inference against him and shifted burden to defendant	Not preserved; trial objection was generic and did not raise the specific burden-shifting claim
Whether the court should review unpreserved error as plain error (ORAP 5.45 / Ailes)	State: any error is debatable and harmless; do not exercise Ailes discretion	Defendant: requests plain-error review and Ailes relief if not preserved	Court assumed error could be plain but declined to exercise Ailes discretion given preservation policy, defense theory, and availability of trial objection
Whether any asserted instructional error was harmless to the verdict	State: dispute was ownership, not intent; instruction did not affect dispositive issue	Defendant: argues prejudice from inference instruction	Court: did not reach plain-error merits; reasoned instruction would not have affected jury’s primary question of ownership and denied relief

Ailes v. Portland Meadows, Inc., 312 Or 376 (court should cautiously recognize unpreserved error under exceptional circumstances)
State v. Walker, 350 Or 540 (preservation rule and purpose)
State v. Stevens, 328 Or 116 (requirement to raise relevant issue at trial; specificity not always required but not cursory)
State v. Naudain, 254 Or App 1 (instructional error preserved where trial objection alerted court to comment-on-evidence claim)
State v. Brown, 310 Or 347 (plain-error standard: error of law, apparent, on face of record)