State v. Dries

Under ORCP 59 H, a party must “state with particularity” the trial court’s alleged error in order to preserve an appellate challenge to the error.

Appellant Andrew Dries appealed his conviction for first-degree theft by receiving. Appellant contended the trial court erred in providing jury instructions that included the phrase “knowing or having good reason to know.” Appellant argued State v. Thomas held that a conviction of first-degree theft by receiving requires a finding of defendant’s actual knowledge or belief that the property was stolen. However, at the trial level, Appellant objected that the indictment only alleged the defendant “knowingly commit[ted] theft by receiving,” and the trial court should not instruct the jury using a different intent. The Court affirmed the conviction, holding appellant failed to state his objections with sufficient particularity at the trial court level. The Court relied on ORCP 59 H, which sets forth the means by which a party must preserve an appellate challenge to an alleged instructional error, holding that the exception appellant stated failed to alert the trial court to the alleged error. Affirmed.