State v. Durando, III

Ordinary preservation analysis asks whether an appellant gave “the trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made.”

Defendant petitioned the Court for reconsideration of its opinion which reversed his conviction for unlawful possession of marijuana, but otherwise affirmed his convictions. Defendant argued the Court applied an overly severe standard when it rejected defendant’s argument that the trial court erred by granting the state’s motion to exclude one of his exhibits. In this case, defendant specifically objects to the Court’s conclusion that “[b]ecause we cannot say that every reasonable judge would have understood defendant's statement as requesting that the judge visit the website in question, we reject defendant's contention that he adequately authenticated the document by making such a request.” Defendant contends the Court should have used its ordinary preservation analysis. The Court held that, while this phrase does not accurately reflect the standard that ordinarily applies, application of the ordinary standard would have achieved the same result. Reconsideration allowed; former opinion modified and adhered to as modified.