State v. Steele

“For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record, without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).

Defendant appealed his convictions of Failure to Appear in the First Degree and in the Second Degree for violating the terms of release from two cases. On appeal, Defendant argued the State “implicitly elected” to bring the case for violating a particular agreement when multiple were admitted into evidence and the trial court erred in convicting him under different agreements which were not the focus of the State’s case. In response, the State argued that Defendant’s argument was not preserved, and the alleged error did not merit plain error review. “For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record, without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). The Court found that the claimed error by Defendant is not “obvious” as it would require answering “whether, as a matter of law, the state can make an ‘implicit election’ through attorney arguments.” The Court held there was a “reasonable dispute” as to Defendant’s clamed error and as such, it is not reversible as plain error. Affirmed.