435 P.3d 826
Or. Ct. App.2019Background
- Petitioner (pro se) obtained a stalking protective order (SPO) against respondent after a bench hearing in a neighbor dispute.
- Respondent appealed, arguing the evidence was legally insufficient to support the SPO.
- Respondent contends he preserved the sufficiency challenge by raising it in closing argument; petitioner does not dispute preservation.
- The trial record shows respondent's counsel moved to dismiss a co-respondent for insufficiency (motion granted) but made no formal sufficiency motion for respondent.
- The appellate court reviewed the record to determine whether the sufficiency claim was preserved and whether the closing argument sufficiently raised a legal-insufficiency challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent preserved a legal-sufficiency challenge for appeal | Petitioner does not contest preservation | Respondent argues he preserved the claim via closing argument | Not preserved: closing argument did not clearly raise legal insufficiency, so claim not reviewable on appeal |
| Whether closing argument must distinctly assert legal insufficiency | N/A | Closing argument sufficed to raise sufficiency issue | Court: must clearly argue that evidence is legally insufficient (distinct from asking factfinder to disbelieve) |
| Whether appellate court may reach merits despite preservation failure | N/A | Requests review on merits | Court declines to reach merits due to preservation failure |
| Whether separate counsel motion on co-respondent affects preservation for respondent | N/A | Counsel moved to dismiss co-respondent for insufficiency; no motion for respondent | Court notes the contrast but treats lack of formal motion for respondent as reinforcing non-preservation |
Key Cases Cited
- Harrison v. Hall, 211 Or. App. 697 (2007) (appellate court's independent obligation to review preservation)
- State v. Wyatt, 331 Or. 335 (2000) (general rule that unpreserved issues are not considered on appeal)
- State v. Forrester, 203 Or. App. 151 (2005) (legal-sufficiency claims must be raised at trial to preserve them)
- State v. Taylor, 271 Or. App. 292 (2015) (in bench trials, sufficiency preserved if clearly raised in closing)
- State v. R. W. G., 288 Or. App. 238 (2017) (distinguishing argument to persuade factfinder from a legal-sufficiency challenge)
- State v. Walker, 350 Or. 540 (2011) (preservation requires giving trial court and opposing party enough information to respond)