State v. Smith

“When the record does include a written waiver, and the parties dispute whether the waiver was effective for the convictions a defendant challenges on appeal, the question before us on plain-error review is whether the record allows competing inferences about the ‘defendant's intent when he signed (the document in the record).’ State v. Akers, 221 Or App 29, 188 P3d 417 (2008).”

Defendant appealed a judgment of conviction for two counts of stalking, one count of first-degree criminal trespass, and one count of first-degree criminal trespass. On appeal, Defendant argued that the trial court plainly-erred when (1) it conducted a bench trial based on amended information, which added new charges, and (2) it failed to present Defendant with a jury waiver for the new charges. In response, the State argued that since Defendant completed a jury waiver form on the original information and because Defendant never moved to withdraw this waiver, any error by the court was not plain. “When the record does include a written waiver, and the parties dispute whether the waiver was effective for the convictions a defendant challenges on appeal, the question before us on plain-error review is whether the record allows competing inferences about the ‘defendant's intent when he signed (the document in the record).’ State v. Akers, 221 Or App 29, 188 P3d 417 (2008).” The Court held that the trial court plainly-erred by conducting a bench trial without a valid jury waiver because there was no indication that Defendant intended to waive his jury rights for the crimes in which he was convicted. The original jury waiver expressly referred to the “crimes charged”, therefore it cannot be inferred that this waiver would extend to the new charged crimes. Reversed and remanded.