State v. Clarke

Because defendant expressly acknowledged to the court that his argument did mischaracterize the evidence, his contention on appeal is not preserved. See State v. Craigen, 296 Or App 772, 777, 439 P3d 1048 (2019); An error is “plain” if it is (1) of law, (2) “obvious and not reasonably in dispute,” and (3) it appears on the record such that there is no need to “choose among competing inferences.” ORAP 5.45 n 1; Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).

Defendant appealed a jury conviction of driving under the influence of intoxicants, ORS 813.010(4). During Defendant's closing argument at trial, the trial court sustained the State's objection to Defendant's mischaracterization of the evidence, then offered a clarifying instruction to the jury. Defendant assigned three errors to the trial court’s ruling. First, that the trial court erred in sustaining the State's objection. Second, that the trial court erred in its comments to the jury that Defendant had mischaracterized the evidence. Lastly, the trial court erred in its instruction that the arresting officer's testimony was admissible because the officer was unable to offer expert opinion on Defendant's state of intoxication. On appeal, Defendant requested plain error review of assignments two and three; because Defendant expressly acknowledged to the court that his argument did mischaracterize the evidence, his contention on appeal is not preserved. See State v. Craigen, 296 Or App 772, 777, 439 P3d 1048 (2019); An error is “plain” if it is (1) of law, (2) “obvious and not reasonably in dispute,” and (3) it appears on the record such that there is no need to “choose among competing inferences.” ORAP 5.45 n 1; Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). The Court held Defendant's first assignment of error was not preserved and Defendant's second assignment of error was not plain. The Court declined to exercise its discretion to review the third assignment of error because Defendant played an active role in bringing about the alleged error. Affirmed.