State v. Tilden

The Court of Appeals may review for plain error, despite the fact that the defendant did not make an explicit request for review for plain error, when the requirements in ORAP 5.45 are met in the brief

Defendant appealed a conviction of Encouraging Child Abuse in the Second Degree. Defendant was found to have sexually explicit images of children on an unallocated portion of his hard drive as a result of his web browser's automatic caching function. The State argued Defendant possessed and controlled the images by viewing them in his web browser because of his ability to save the image. The State did not have any evidence Defendant actually saved the image. Defendant objected, claiming the ability to save was not relevant because he had not actually saved any images and the trial court agreed. However, the State used the fact Defendant knew he was able to save to show he did have control over the images. The issue on appeal was whether the Defendant properly preserved the assignment of error that the ability to save the image should not have been sufficient for showing control within the meaning of the statute. The State argued Defendant did not preserve the assignment of error because he did not make the argument that the ability to save did not equal control. The Court of Appeals agreed, finding Defendant did not properly preserve the issue. The issue then became whether the Court could review for plain error. Defendant's brief did not explicitly request review for plain error as is required. However, the Court proceeded to review the claim for plain error because the brief contained the requisites required by ORAP 5.45. The Court found plain error and chose to exercise its discretion to correct the error. Reversed.