Defendant appeals a judgment of conviction for, among other offenses, giving false information to a peace officer for service of an arrest warrant, ORS 162.385(l)(b).
We agree with the parties that the trial court erred and that the error is plain. By a grand jury indictment, the state charged defendant with giving false information to a peace officer under ORS 162.385. That statute provides, in pertinent part:
“(1) A person commits the crime of giving false information to a peace officer for issuance or service of a citation or for an arrest on a warrant if the person knowingly uses or gives a false or fictitious name * * * to any peace officer for the purpose of:
“(a) The officer’s issuing or serving the person a citation under authority of ORS 133.055 to 133.076 or ORS chapter 153; or
“(b) The officer’s arresting the person on a warrant.”
In the indictment, the state alleged that defendant had violated subsection (l)(b) when he “did unlawfully and knowingly use and give to a peace officer a false name for the purpose of the officer’s arresting defendant on an arrest warrant.” The state did not allеge that defendant violated subsection (l)(a). To prove that defendant violated ORS 162.385(l)(b), the state had to establish that “the officer asked for that information for the purpose of * * * ‘arresting the person on a warrant.’” Allen,
Here, there was no evidence at trial that the officer had asked for defendant’s identification for the purpose of arresting him on a warrant. To the contrary, the officer testified unequivocally that he had requested defendant’s driver’s license after stopping defendant for driving a car with overly tinted windows, a traffic violation. When the officer requested defendant’s identification, the officer did not know who defendant was or whethеr he had any outstanding warrants. Indeed, the officer did not learn about defendant’s true identity or his outstanding warrants until dispatch provided him with that information some time after he had requested defendant’s identification. Accordingly, the evidence failed to support a cоnviction, and the trial court plainly erred when it entered a conviction on that charge. See State v. CardosaMarlowe,
We must decide, however, whether this is an appropriate case for us to exercise our discretion to correct that error. Ailes v. Portland Meadows, Inc.,
“thе 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 preservatiоn of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Id. at 382 n 6. Since its decision in Ailes, the Oregon Supreme Court has identified several additional considеrations that may be relevant, including whether the defendant encouraged the trial court to make the error; whether the defendant made a strategic choice not to object; and whether the trial court could have corrected the error if the dеfendant had raised it below. State v. Reynolds,
We note, as we did in Reynolds, that we have often declined to exercise our discretion to correct a plain error when the defendant failed to move for a judgment of acquittal,
Several factors weigh in favor of our exercise of our discretion to correct the error. First, we consider the gravity of the error and the interests of the parties. The gravity of the error in this case is apparent: defendant stands convicted of a crime that the state failed to prove by sufficient evidence. As we noted in Reynolds, such an error “is of constitutional magnitude,” because, as the United States Supreme Court has recognized, “‘the due process guarantеed by the Fourteenth Amendment [mandates] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof[.]’” Reynolds,
Second, we conclude that, on the facts of this case, correcting the error would not undermine the 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,
We reject the state’s argument thаt the procedural fairness policy of the preservation rule would be undermined if we corrected the error, because, had defendant raised the error below, it could have moved to amend the indictment to state the correct charge under ORS 162.385(1)(a). The state cites State v. Kuznetsov,
Here, in contrast, the state charged defendant with a misdemeanor by grand jury indictment. Kuznetsov did not address whether a trial court is authorized to allow the state to make a substantive amendment to an indictment charging a misdemeanor. The state has not presented us with any other source of authority to support its position, nor is its position consistent with Oregon case law, specifically, State v. Burnett,
The procedural posture of Burnett is, in relevant respects, the sаme as the one presented in this case. The defendant was charged in Burnett by grand jury indictment with both a felony count and a misdemeanor count of fleeing or attempting to elude a police officer under ORS 811.540.
“It is true that the state did not have to present its misdemeanor charge to the grand jury initially. However, it chose to do so, and we are not aware of any authority, nor does the state point us to any, that allows the amendment of an indictment in any manner short of re-presenting it to the grand jury or, alternatively, in the case of a misdemeanor, presenting the case by way of an information.”
Id.
Therefore, under Burnett, the state in this case wоuld not have been permitted to amend the indictment to state the correct charge had defendant raised the issue below. Had defendant moved for a judgment of acquittal, the trial court would have had to grant it under Moresco and Allen, and the state would not have been able to amend the indictment at trial. Accordingly, defendant receives no improper benefit by our correction of the error. We therefore reject the state’s contention that the policies of the preservation rule would be thwarted by our correction of the error in this case.
Furthermore, we cannot discern any plausible strategic reason for defendant to have failed to make his argument below, nor does it appear that defendant encouraged the error in this case. On balance, we conclude that the gravity of the error, the interests of the parties, as well as our conclusion that other policies underlying the preservation rule would not be undermined by our correction of the error, weigh in favor of our correction of defendant’s unprеserved error. We note that our decision to exercise our discretion to correct the error in this case is consistent with our recent decision in Cardosa-Marlowe,
In case number A152028, conviction on Count 2 reversed; remanded for resentencing; otherwise affirmed. In case number A152029, affirmed.
Notes
This is a consolidated appeal in which defendant also appeals a judgment convicting him of delivery of marijuana for consideration, ORS 475.860(2). Because defendant does not advance any assignment of error related to that judgment in A152029, we affirm. Nor does he challenge his convictions in A152028, including for one felony count, other than his conviction for Count 2, giving false information to a peace officer.