State v. Herrington

An error is subject to review, regardless of whether it was preserved, if it is a plain error; an error is not plain if it is necessary to choose between competing inferences to find it. When the record does not contain a written jury waiver, competing inferences do not exist.

Herrington appealed the trial court’s judgment convicting him of delivery of methamphetamine and unlawful possession of methamphetamine. Specifically, Herrington asserted that the trial court plainly erred when it conducted a bench trial without a written jury waiver from Herrington. Although he failed to preserve that argument, it is subject to review if it is a plain error. An error is not plain if it is necessary to choose between competing inferences to find it. State v. Jeanty, 231 Or App 341 (2009). However, when the record does not contain a written jury waiver, competing inferences do not exist. State v. Gilbert, 255 Or. App 203 (2013). The Court held that Herrington’s written waiver expressly waived only his right to a 12-person jury and stipulated, instead, to a six-person jury. There was no waiver of his right to a jury trial at all. Rather, the written waiver indicated that Herrington was actually invoking his right to a jury trial by stipulating that the trial be conducted before a six-person jury. As such, competing inferences did not exist and therefore, the trial court’s error was plain. Reversed and remanded.