State v. Lusk

The Court of Appeals should exercise their discretion to correct plain error left unpreserved at trial when a defendant is convicted of a crime that the State did not sufficiently prove, and correcting the error would not undermine procedural fairness policy of the preservation rule.

Defendant appealed a judgement of a conviction for giving false information to a peace officer for service of an arrest warrant, Count 2. Defendant contends that there was insufficient evidence to allow a rational trier of fact to find that the officer asked for defendant’s identification for the purpose of arresting him as required under ORS 162.385(1)(b). Plaintiff did not bring this argument at trial, but argued on that it is plain error and that the Court of Appeals should use their discretion to correct it. The Court of Appeals held that they should exercise their discretion to correct this error because of the gravity of the error of a defendant convicted of a crime that the State did not sufficiently prove, and because correcting the error would not undermine procedural fairness policy of the preservation rule. Reversed and remand conviction on Count 2 for resentencing; otherwise affirmed.