Integrity Properties of Oregon, LLC v. Elkins

An unpreserved error may be reviewed as plain error if “(1) the error is one of law; (2) the error is apparent, that is, the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record, in that we need not go outside the record or choose between competing inferences to find it.” After meeting those requirements, the Court may decide whether to use its discretionary power based on the totality of the circumstances. State v. Loving, 290 Or App 805, 809, 417 P3d 470 (2018).

Defendant appealed a judgment of restitution in a residential forcible entry and unlawful detainer proceeding. Defendant assigned error to the trial court’s admitting evidence, for impeachment purposes, of a witness' prior criminal conviction when the conviction date and release date elapsed over 15 years ago. On appeal, Defendant argued that the admittance violated OEC 609(3)(a), which barred evidence if a “period of more than 15 years has elapsed since the date of conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.” The Court found that the error was unpreserved. However, an unpreserved error may be reviewed as plain error if “(1) the error is one of law; (2) the error is apparent, that is, the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record, in that we need not go outside the record or choose between competing inferences to find it.” After meeting those requirements, the Court may decide whether to use its discretionary power based on the totality of the circumstances. State v. Loving, 290 Or App 805, 809, 417 P3d 470 (2018). The Court held that the plain error conditions were satisfied because deciding on the admissibility of the OER statute is a legal question, the legal point is obvious and unambiguous, and the error is apparent on the record. Reversed and remanded.