State v. Dilallo

Considerations that may weigh in the balance in examining preservation of an assignment of error include: “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.” Ailes v. Portland Meadows, Inc., 312 Or at 382 n 6.

Defendant appealed a conviction and assigned error to the trial court’s jury instructions, which permit the jury to return nonunanimous guilty verdicts. At trial, Defendant did not object to these instructions. Defendent argued that the Court should exercise its discretion and recognize that the trial court erred. Defendant argued that, although there is no indication of whether the jury’s verdicts were unanimous, this factor does not affect the case, and even if it does, it was the State’s responsibility to object to the jury instructions. The Court has previously addressed the factors that a court must take into consideration. Those factors take into account the practical importance of the preservation requirement, as well as other important considerations that may weigh in the balance: “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.” Ailes v. Portland Meadows, Inc., 312 Or at 382 n 6. The Court concluded that its exercise of discretion would reward a failure to preserve an assignment of error and it would create expectations in future cases. Affirmed.