State v. Litscher

In order to qualify for plain error review, an unpreserved argument must establish three elements: the argument must (1) identify an error “of law”; (2) the error must be “obvious and not reasonably in dispute; (3) the error must be “apparent on the record without requiring the court to choose among competing inferences.” Even when error is plain, an appellate court may still determine whether or not to exercise its discretion to review it. State v. Vanornum, 354 Or 614, 629-30 (2013).

Defendant appealed the trial court's judgment convicting him of first-degree kidnapping, ORS 163.225. Defendant assigned error to the trial court's denial of his motion for acquittal. On appeal, Defendant made an unpreserved argument that the record lacked sufficient evidence that he “confined” the victim “in a place where [she was] not likely to be found.” ORS 163.225(1)(b). In order to qualify for plain error review, an unpreserved argument must establish three elements: the argument must (1) identify an error “of law”; (2) the error must be “obvious and not reasonably in dispute; (3) the error must be “apparent on the record without requiring the court to choose among competing inferences.” Even when error is plain, an appellate court may still determine whether or not to exercise its discretion to review it. State v. Vanornum, 354 Or 614, 629-30 (2013). In this case, because a reasonable person could plausibly argue that the cabin’s yard was a “place where [defendant’s mother was] not likely to be found” while the Defendant held her captive; And reasonable person could plausibly argue that defendant “secretly confined” his mother outside the cabin by holding her there at gun-point, and preventing her from leaving. Therefore, the trial court cannot be found to have plainly erred in its judgment. Affirmed.