Lead Opinion
Defendant appeals a judgment of conviction for, among other offenses, two counts of assault in the third degree, ORS IfiS-lfiSllXe).
We state the relevant facts, which are few, in a light most favorable to the state. State v. Burgess,
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,
Generally, we will not consider an unpreserved issue on appeal. State v. Wyatt,
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,
In State v. Pine,
“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.
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,
We have often declined to invoke plain error review where a defendant has failed to move for a judgment of acquittal, Inloes,
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,
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,
“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,
“[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.”
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
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,
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,
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.”
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,
“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.”
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,
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,
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.
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,
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.
Notes
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.
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.”
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.”
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.”
Concurrence in Part
concurring in part, dissenting in part.
For nearly 40 years, beginning with State v. Willy,
Our answers to those questions — which we have, not infrequently, conflated — have been diffuse and obtuse. Even allowing for case-specific circumstantial variability, our analysis, viewed collectively, has been inscrutable at best— and whimsical at worst.
This case is the most recent of the genre. By that, I imply no criticism of the majority’s analysis, which is considered and thoughtful, though I disagree with some of its particulars and ultimately dissent from the positive exercise of Ailes discretion. Rather, as the latest of this incorrigible genus, this case provides at least some opportunity to try to identify a few coherent and durable principles that may inform our approach going forward.
Before turning to putative principles and their application, a quick “deck-clearing” observation: There was no legally cognizable MJOA here. To be sure, defendant’s counsel uttered the term, but a “motion for judgment of acquittal” proffered generically and expressly without “any argument,” much less without any differentiation among 14 counts involving multiple victims and distinct criminal conduct, is a nonmotion. It is meaningless and, ultimately, an abdication of counsel’s obligation to identify for the court’s consideration purported deficiencies — that is, legal insufficiency — of the state’s proof as to particular elements of particular charges. See, e.g., State v. Paragon,
Thus, given that posture, this case is no different from any other plain error case — that is, a case in which the appellant seeks to have us correct a trial court’s action (or inaction) notwithstanding the failure to raise that matter, in any cogent fashion, before the trial court. That is the essential construct of any plain error challenge, including, as here, challenges based on the purported legal insufficiency of evidence to support a criminal conviction notwithstanding the defendant’s failure to make an MJOA or functional equivalent before the trial court. And, as with any other invocation of plain error review, our analysis and disposition depends on two cumulative inquiries: (1) Did the challenged judicial action or inaction constitute an “error of law apparent on the record,” ORAP 5.45(1), under the classic formulation prescribed in State v. Brown,
A. “Plain error”?
So much for abstract methodology. The devil is in the details, jurisprudential and prudential. And the first of those bedeviling details with respect to unpreserved challenges to the sufficiency of evidence supporting criminal convictions pertains to the first, “Was it plain error?” question — and, specifically, to the proper characterization of the purported error.
Frequently, the asserted error is cast as “the trial court erred in failing sua sponte to enter a judgment of acquittal.” See, e.g., State v. Hockersmith,
The distinction transcends form. Consistently with deference to the dynamics of the adversarial system, the universe of circumstances in which a trial court is compelled to act, in the absence of a motion or
Conversely, casting and viewing the purported error in terms of the court’s action in entering the judgment of conviction more comfortably comports with our treatment of other species of plain error, including, most consistently, sentencing error, in which we have held that, even in the absence of an objection, a trial court exceeded its authority in undertaking a particular act. See, e.g., State v. Gutierrez,
Either of the contending formulations of the predicate error is imperfect, but the latter most closely corresponds to the essential concern, viz., that the defendant has been wrongly convicted of, and sentenced for, a crime. The inquiry focuses not on whether the trial court erred in failing to act sua sponte but, instead, on whether the action that the court did undertake was plainly contrary to law.
With the first, “Was it plain error?” question so focused, the answer is straightforward: In every case in which, viewing the evidence and disputed inferences in the light most favorable to the state, the legal insufficiency of the state’s proof is “not reasonably in dispute,” Brown,
The touchstone is not whether, as a substantive/ merits matter, the appellant’s position as to the law and its proper application is correct; rather, it is whether that position is correct beyond reasonable dispute. Thus — to invoke a quintessentially contentious issue of criminal proof — it could well be that a preserved challenge as to the sufficiency of proof based on the multiplicity or strength of inferences could result in a reversal, but an unpreserved challenge on the
Such concerns are inapposite to this case. For purposes of our review, the circumstances of defendant’s conviction for third-degree assault on Count 13 are undisputed. The applicable law, as announced in State v. Merida-Medina,
B. A digression to discretion
Before turning to Ailes discretion, a pause for some historical perspective — a sort of entr’acte — is in order. That is so because of the convolutions of our treatment of discretion, including some apparent conflation of the “plain error” and “exercise of discretion” determinations.
It all began with Willy, where the defendant raised an unpreserved challenge to the sufficiency of evidence underlying a conviction for unlawfully obtaining food stamps.
The first reference to “discretion” in this context appears in Lindsey, which we decided two years after Willy. There, the defendant, who was convicted of fourth-degree assault after a trial to the court, appealed, asserting that “there was no evidence to support that conviction.”
“Willy should not be read as establishing any general rule that we will always consider challenges to the sufficiency of the evidence when such challenges were not raised in the trial court. The rule is that we may consider such assignments in our discretion. Willy was a case in which we exercised that discretion.”
Thus, in Lindsey, we phrased and framed the exercise of discretion as pertaining to our “consideration]” of the unpreserved challenge, but we did not identify any principles informing or constraining that discretion. See also State v. Dennison,
In State v. Wagner,
We entered the Brown/Ailes era with Hurst. There, the defendant, who had been convicted for unlawful possession of a short-barreled shotgun, raised an unpreserved challenge, contending that the state had failed to prove that the rifle she possessed was not, in fact, registered as required under federal law.
Our most recent reference to Willy — until today— was in Hooker smith, where we declined to review the defendant’s unpreserved contention that his conviction for possession of a controlled substance must be reversed because certain documents evincing the nature of the substance had, inadvertently, never been received into evidence. In so holding, we observed:
“[Djefendant does not contend that the error is one of law apparent on the face of the record. Even assuming that it is, however, he offers no justification for exercising our discretion to consider it. Particularly in light of the fact that defendant stipulated to the facts contained in the police report and the laboratory reports, was shown them at trial, and then stood idly by as the trial court ruled without formally admitting them into evidence, we are not inclined to address his complaints about the failure to admit those reports for the first time on appeal.”
Thus, our refusal to exercise Ailes discretion in Hockersmith turned on the consideration that, if the deficiency in the proof had been raised by way of a timely MJOA, the trial court would (almost certainly) have permitted the state to reopen to remedy that deficiency and the necessary proof would readily have been adduced. To permit the defendant in Hockersmith to prevail on his unpreserved claim of error and, thus, obtain an outright reversal of his conviction, would have placed him in a better position than if trial counsel had timely raised the purported error. Accord State v. Caldwell,
Finally, and most recently, in State v. Inloes,
“First, given the intervening material change in the law, correcting the asserted error here will not subvert the judicial system’s interest in requiring preservation of error. Second, the gravity of the error — the imposition of four felony convictions based on legally insufficient evidence — -is extreme.”
Inloes,
In sum, to paraphrase Ecclesiastes, “Better is the end of [the] thing than the beginning.” But not much. For nearly 40 years we have referred to our “discretion” to review and correct unpreserved error of this sort — but, in doing so, we have variously conflated or equated the clarity of the error (e.g., “absolutely no evidence”) with the appropriate exercise of discretion, exercised discretion without any explanation (even as prescribed in Ailes,
To be sure, some case-specific variability is inevitable and, indeed, desirable. And, given the mix-and-match interplay of various Ailes discretionary considerations, see Ailes,
C. Deconstructing discretion
Toward that end, I respectfully submit that several salient principles, which comport with our diffuse precedents, can and should inform and channel our exercise of Ailes discretion with respect to consideration of criminal convictions based on legally insufficient evidence.
First, the exercise of Ailes discretion in such circumstances is presumptive. That premise harkens to some of our pre-Ailes opinions, e.g., Wagner,
Second, that presumption is not absolute or conclusive. Given Ailes, it cannot be. Ailes emphasizes, and subsequent Supreme Court decisions have reiterated, that plain error review and correction is a “rare and exceptional” deviation from the rule of preservation. State v. Gornick,
Third, consistently with the second principle, considerations bearing materially on our exercise of discretion in cases of this type should include the following:
(1) “The ends of justice in the particular case.” This is, of course, a quintessential Ailes criterion,
That, however, is not always true — in some circumstances, as a practical matter, the “ends of justice” may not militate in favor of overriding the rule of preservation. In particular, our “ends of justice” assessment should be informed by: (a) consideration of the functional role of the defendant’s challenged conviction and sentence in the totality of his or her circumstances (including other convictions and sentences); and (b) the availability of other mechanisms (e.g., post-conviction relief) to address and remedy the asserted error.
With respect to the first inquiry, the classic “ends of justice” scenario is one in which a defendant has been erroneously convicted of a single, very serious crime and is incarcerated even as we review the claim of the plain error. In that circumstance, every day we delay plain error review and correction is another day of unjust confinement. But not every case is so stark; indeed, few are. Consider, for example, a case in which a defendant has been convicted on over a dozen criminal counts, many more serious than the single count that was based on insufficient evidence — and the sentence on that count is much shorter than, and concurrent with, those on his or her myriad unchallenged convictions. The “ends of justice” assessment in the two cases is qualitatively different.
So too with respect to the potential availability of collateral relief — which, after all, is designed to (ultimately) achieve the ends of justice. Presumably, in virtually every case in which counsel, without reasonable explanation, has failed to move for a judgment of acquittal whose allowance would have been required under law existing as of the time of trial, the wrongly convicted defendant will be able to obtain post-conviction relief, reversing the conviction.
(2) Post-trial developments in law pertaining to proof of the disputed offense. This State v. Jury-based consideration can have cross-cutting implications with respect to the application of Ailes discretion. On one hand, in many cases, trial counsel cannot be faulted for failing to have anticipated the change of law — and, even if counsel had, the MJOA would have been denied under then-extant law — and, thus, plain error review will not subvert policies underlying the rule of preservation. See, e.g., Inloes,
(3) The potential record-development effect of a contemporaneous MJOA. At the risk of reiteration and overlap with the preceding
D. Application and conclusion
The application of the foregoing principles to this case is straightforward. Notwithstanding the generic presumption in criminal cases favoring the exercise of Ailes discretion when the evidence is insufficient, defendant’s particular circumstances do not correspond with those in the generality of such cases. Further, nothing in the circumstances here suggests that this is such a “rare and exceptional case[ ],” Gornick,
The point of departure is the totality of defendant’s convictions and consequent sentences. Defendant was convicted, after a jury trial, on 14 criminal counts, including six Class A felonies involving two different victims, four Class B felonies involving the same two victims, and four Class C felonies (including Count 13) involving the same two victims. The trial court (a) merged the guilty verdicts on the first two counts and imposed a 40-month sentence on the resulting conviction; (b) imposed a 90-month sentence on each of the other Class A felony convictions to be served concurrently with one another, with 80 months to be served consecutively to the 40-month sentence — i.e., a total of 120 months’ incarceration; (c) imposed 70-month sentences on each of the four Class B felony convictions, to be served concurrently with one another and with the sentences described in (b); and (d) imposed a dispositional upward departure sentence of six months with respect to each of the four Class B felony convictions, to be served concurrently with one another and with the sentences described in (b) and (c).
The upshot is that, regardless of the asserted plain error, defendant — like the defendant in the hypothetical posited above, see
Nor is this a case in which some subsequent, reasonably unforeseen change in the law mitigates or excuses the failure to make a contemporaneous MJOA. Accord Inloes,
In the end, nothing in this case justifies the exercise of Ailes discretion. Accordingly, the majority’s disposition as to Count 13 represents an abuse of that discretion. I respectfully dissent from that disposition and concur in the balance of the majority’s disposition.
And that is just in our published dispositions, without reference to those cases in which we have rejected such challenges and affirmed without opinion.
That otherwise constricted universe can be, and has been, existentially expanded by our application of State v. Jury,
The state acknowledges as much — while at the same time vehemently contending that the court should not exercise its Ailes discretion to correct the error.
The state’s “concession” as to plain error is largely — and perhaps entirely— immaterial. Each of the three cumulative Brown requisites is objective. Consequently, as a matter of law, the asserted error either satisfies those objective requisites or it doesn’t, and the state’s ostensible concession cannot alter our obligation under Brown to render that legal determination correctly. But cf. Inloes,
None of our post -Willy cases explains the meaning of “absolutely no evidence” — as opposed to “no evidence” or “legally insufficient evidence.”
That contention was, in turn, based on State v. Vasquez-Rubio,
One exception, addressed below, see
Concurrence Opinion
concurring.
Although I ultimately agree with the outcome that the majority reaches, there is much to admire in both the majority and dissenting opinions. Both attempt, not without success, to impose rationality on this court’s treatment of unpreserved claims of error in some kinds of criminal cases. At the same time, however, I find that each opinion contains analyses and proceeds from premises with which I disagree. For several reasons, including its age and the fact that not all members of this court can participate in its resolution, this case is not an appropriate occasion for me to present my own fully developed treatment of preservation; therefore, I simply (and respectfully) concur.