The state seeks review of a Court of Appeals’ decision reversing defendant’s convictions for rape, sexual abuse, and delivery of a controlled substance. The Court of Appeals held that the trial court committed reversible error in excluding the testimony of defendant’s expert witness as a sanction for a violation of the reciprocal criminal discovery statutes.
State v. Wyatt,
In preparation for defendant’s trial, the prosecution obtained a written report and notes regarding certain physical evidence from Hormann, the state’s DNA expert. The prosecution timely disclosed the report and notes to defense counsel, and its intention to call Hormann as a witness. After Hormann had testified on the second day of trial, defense counsel told the prosecutor that he might call Grimsbo, a forensic scientist, as an expert witness. He did not then disclose the nature of Grimsbo’s anticipated testimony. Defense counsel had not listed Grimsbo on the defense witness list that he had provided to the state.
Early on the third day of trial, the prosecutor asked defense counsel whether he intended to call Grimsbo as a witness. Dеfense counsel responded that he did not think that he would call Grimsbo, but that he was “not certain.” Later that evening, defense counsel left a recorded telephone message at the prosecutor’s office to the effect that he would call Grimsbo as a witness. The prosecutor listened to that message at about 6:30 a.m. on the fourth day of trial.
When the trial resumed that morning, the prosecutor objected to Grimsbo’s testimony “on the basis that it’s a violation of discovery.” 1 The prosecutor noted that, because *340 the state timely had disclosed Hormann’s report and notes, as well as its intent to call her as a witness at trial, defense counsel had had ample time to prepare to cross-examine Hormann and to rebut her testimony. The prosecutor continued:
“And for us to adequately prepare for Mr. Grimsbo’s testimony, it would necessitate having Mrs. Hormann here, at a minimum, and we have not prepared to do that because we didn’t have anything but a possibility that [Grimsbo] may be called as a witness.”
Defense counsel responded that, notwithstanding his receipt of Hormann’s report and notes, “the clarity of the issue and the need for Mr. Grimsbo’s testimony was not clear to me until after [Hormann] testified.” At that time, defense counsel did not argue that there was no discovery violation or that there was no prejudice to the state. Defense counsel then made an offer of proof concerning Grimsbo’s anticipated testimony. Thereafter, the court excluded Grimsbo’s testimony as a sanction for defendant’s discovery violation, explaining:
“[G]iven the stage of the proceedings, that the potential for Mr. Grimsbo’s testimony should have been obvious earlier in the proceeding, there’s a lack of notice to the State, and that evidence would be excluded.” 2
Defense counsel did not ask the trial court to consider alternatives to precluding Grimsbo’s testimony. Defendant was ultimately convicted.
After judgment was entered, defendant moved for a new trial. That motion was based, in part, on the exclusion of Grimsbo’s testimony. At the hearing on the motion, defendant asserted for the first time that the trial court had erred *341 by not first considering alternatives to exclusion. The trial court denied defendant’s motion.
On appeal, defendant assigned error tо the exclusion of Grimsbo’s testimony. He argued that there was no discovery violation, that there was no prejudice to the state, and that the trial court erred in failing to consider alternatives to exclusion. In the Court of Appeals, the state agreed that defendant had preserved the sanction issue at trial. The Court of Appeals assumed, without deciding, that defendant had committed a discovery violation and that the state would have suffered actual prejudice from Grimsbo’s testimony.
Wyatt,
On review, the state argues that, rather than remanding for a new trial, the Corut of Appeals should have remandеd the case to the trial court for findings regarding whether a less onerous sanction was available. Defendant responds that the trial court could not conduct a suitable inquiry regarding the existence of a less onerous sanction at this time and, therefore, a new trial is the only appropriate remedy.
In so arguing, defendant primarily relies on two decisions of this court.
State v. Mai,
“[T]he preclusion sanction of ORS 135.865 is not inconsistent with Article I, section 11, of the Oregon Constitution, [3] *342 provided that the court finds that the prosecution is prejudiced by the defendant’s failure to comply with the reciprocal discovery statutes, and provided further, that it appеars that no sanction short of preclusion effectively will avoid the prejudice which the defendant’s lack of compliance created.”
Id. at 280. Thus, the court determined that two predicates are necessary for ORS 135.865 to be applied consistently with the Oregon Constitution: The trial court was obligated to make determinations regarding the existence of prejudice and the necessity of the preclusion sanction.
In
State v. Ben,
“[I]t does not appear from the record, and the trial court made no pertinent findings, that a lesser sanction — such as a saving instruction to the witnesses plus a continuance tо give the prosecutor time to renew her request, or requiring defense counsel to disclose the anticipated substance of the witnesses’ testimony — would not avoid the prejudice. Accordingly, the trial court erred.”
Id. at 318. Ben illustrates this court’s willingness to determine from the record, and in the absence of pertinent findings, that the trial court had failed to meet the requirements of Mai.
As the quoted material from Mai and Ben illustrates, defendant’s reliance on those cases is understandable. Howеver, an examination of the briefing in those cases establishes that a preliminary question — preservation—was not at issue in either case. That preliminary question is present here. Accordingly, before allowing the state’s petition for review here, we requested briefing regarding whether defendant preserved at trial the issue whether the trial court considered the availability of a less onerous sanction and, assuming that that issue was not prеserved, the effect of the state’s failure to raise preservation as an issue to the Court of Appeals. We address those issues first.
*343
Generally, an issue not preserved in the trial court will not be considered on appeal.
Ailes v. Portland Meadows, Inc.,
In
State v. Hitz,
“We have previously drawn attention tо the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. * * * The first ordinarily is essential, the second less so, the third least.”
(Emphasis in original.)
*344
Defendant relies on
Stull v. Hoke,
“[T]he issue was preserved sufficiently under the standards set out in State v. Hitz, * * * because [the inmate] raised and preserved the broader legal issue — whether the trial court erred in holding that his claims were barred by the statute of limitations. Under the rationale in Hitz, a specific alternate argument regarding that issue can be raised for the first time in this court.”
Stull,
The state relies on
State v. Stevens,
“[F]or purposes of preserving error, it is essential to raise the relevant issue at trial, but less important to make a specific argument or identify a specific legal source with respect to the issue raised. [Citing] Hitz. Although that principle imparts some degree of liberality to the preservation requirement, it does not transform that requirement into a cursory search for some common thread, however remote, between аn issue on appeal and a position that was advanced at trial. Instead, in considering whether an objection at trial raised the ‘issue’ being advanced on appeal, an appellate court must view the facts in light of the purposes of fairness and efficiency that underlie the requirement.”
The state also relies on
State v. Wilson,
“At trial, defendant did not cite OEC 804(2) and did not argue that [the witnesses absence was ‘due to the * * * wrongdоing of the [state] for the purpose of preventing the witness from attending or testifying.’ ”
Id.
at 512 (second set of brackets in original). This court held that the OEC 804(2) argument was not preserved below and, therefore, would not be considered.
Id.
(citing
State v. Isom,
The foregoing cases demonstrate that a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted. When, as here, a party subject to a sanction for a discovery violation does not deny at trial that it is subject to some sanction, its failure to object to the particular sanction imposed by the judge or, in the alternative, to argue for some other sanction, 7 fails to preserve a claim on appeal that the judge erred in failing to consider the availability of a less onerous sanction. Defendant’s arguments and offer of proof here did not identify adequately for the judge the issue of alternatives to precluding Grimsbo’s testimony during the trial. Accordingly, defendant did not preserve the issue.
*346 Defendant contends, in the alternative, that the duty to raise the issue of a less onerous sanction rested on the state. He argues:
“[I]t was the State that moved for the exclusion of Grimsbo on the basis of a discovery violation. As the moving party, the State carried the burden of asserting the basis for the motion. See Pacific Eng. Corp. v. Evans Products Co.,280 Or 257 , 262-63,570 P2d 655 (1977) (‘[Olbjections to evidence must ordinarily be stated with sufficient specificity to disclose to the trial court the defects in the proposed evidence which it expects to urge in the event of an appeal and to give the trial court and counsel an opportunity to remedy any such defects.’)”
(Emphasis in original.) Defendant’s citation to Pacific Eng. Corp. is inapposite. That case placed the burden of asserting the basis for an objection to evidence on the moving party. Here, the state met that requirement. As the party objecting to evidence on the basis of a discovery violation, the state’s burden was to demonstrate that a discovery violation had occurred. It is clear from the record that the trial judge found that defendant had committed a discovery violation.
Finally, defendant argues that the trial court had an affirmative duty to inquire,
sua sponte,
about whether any prejudice to the state could have been remedied through a less onerous sanction. Defendant cites no authority for that proposition and we are aware of none. Moreover, we are aware of no reason, and defendant points to none, to except these circumstances from the general rule that the party that is adversely affected by a ruling must preserve an alleged error in the trial court.
Ailes,
Having concluded that the issue of a less onerous sanction was not preserved at trial, we proceed to consider the effect of the state’s failure to raise preservation as an issue in the Court of Appeals and, further, the state’s concession on appeal that defendant had preserved the sanction issue at trial. Specifically, we must determine whether that failure or that concession made it permissible for the Court of Appeals to consider defendant’s sanction argument.
*347 Defendant contends that, under ORAP 9.20(2), 8 this court does not have authority to review the question whether the less onerous sanction issue was preserved. Defendant argues that, because the state conceded on appeal that he had preserved thе sanction issue, the issue of preservation was not “before” the Court of Appeals. That argument ignores the threshold question whether the sanction issue was, in the words of ORAP 9.20(2), “properly before the Court of Appeals.” ORAP 9.20(2) (emphasis added). We conclude that, because it was not preserved, and because the trial court’s ruling was not error on the face of the record, the sanction issue was not “properly before the Court of Appeаls.”
This court’s case law supports that conclusion. In
State v. Bucholz,
“Defendant would have an appellate court reverse for absence of findings even though, had the matter been called to the sentencing court’s attention, applicability of [the statute at issue] might easily have been established. To preserve an error * * * a defendant who objects to lack of express findings * * * must place that objection on the record at the time of sentencing. The Court of Appeals was not required to consider the error and should not have done so. Defendant’s claim of error is rejected.”
Id.
at 321. Similarly, in
State v. Jensen,
*348
In
State v. Farmer,
“The unpreserved claim of error cannot be reviewed on appeal because it was not preserved at trial and because it does not qualify for the exception in ORAP 5.45(2) permitting discretionary review of unpreserved ‘error of law apparent on the face of the record.’ * * *
“In addition, this court recently held that it would not review an unpreserved claim of error merely because the Court of Appeals did so, if the Court of Appeals failed expressly to justify its review as discretionary review of an error of law apparent on the face of the record. State v. Castrejon,317 Or 202 , 212,856 P2d 616 (1993).”
Id.
at 224 (emphasis in original). In
Castrejon,
The foregoing cases demonstrate the necessity of preserving claims of error at trial. We hold that the rule of Castrejon, which permits this court to review only those unpreserved issues that qualify as errors apparent on the face of the record, applies to cases in which the lack of preservation was not raised to the Court of Appeals and to cases in which the opposing party wrongly conceded that the issue had been preserved in the trial court.
On this record, neither the state’s failure to raise preservation as an issue in the Court of Appeals, nor the state’s erroneous concession that the sanction issue had been preserved at trial, conferred authority on that court to consider defendant’s unpreserved claim of error.
Castrejon,
Defendant also assigned error on appeal to an alleged error in polling the jury. The Court of Appeals did not reach that mаtter. Accordingly, we remand the case to that court to consider defendant’s second assignment of error.
The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings.
Notes
ORS 135.835 provides, in part:
“Except as otherwise provided in ORS 135.855 and 135.873, the defense shall disclose to the district attorney the following material and information within the possession or control of the defense:
“(1) The names and addresses of persons, including the defendant, whom the defense intends to call as witnesses at the trial, together with relevant written or recorded statements or memoranda of any oral statements of such persons other than the defendant.”
*340 ORS 135.845 provides, in part:
“(1) The obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in the circuit court[.l”
ORS 135.865 provides:
“Upon being apprised of any breach of thе duty imposed by the provisions of ORS 135.805 to 135.873 [reciprocal discovery] and 135.970, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.”
3 Article I, section 11, of the Oregon Constitution, provides, in part:
“In all criminal prosecutions, the accused shall have the right * * * to have compulsory process for obtaining witnesses in his favorM”
ORAP 5.45(2) provides:
“No matter assigned as error will be considered on appeal unless it was preserved in the lower court and assigned as error in the party’s opening brief; provided that the appellate court may consider errors of law apparent on the face of the record.”
Defendant does not argue that the triаl court’s ruling constituted an error of law apparent on the face of the record. Moreover, the fact that defendant raised an issue for the first time in a motion for a new trial does not cure his earlier failure to preserve an issue at trial.
Yates v. Stading,
The state concedes that the law requires a trial court, if asked, to consider available alternative sanctions.
Other decisions of this court also have emphasized the importance of the preservation of an issue for appeal.
See, e.g., Davis v. O’Brien,
By contrast, in
State v. Ben,
ORAP 9.20(2) provides:
“If the Supreme Court allows a petition for review, the court may limit the questions on review. If review is not so limited, the questions before the Supreme Court include all questions properly before the Court of Appeals that the petition or the response claims were erroneously decided by that court. The Supreme Court’s opinion need not address each such question. The court may consider other issues that were before the Court of Appeals.”
(Emphasis added.)