State v. Chitwood

“[T]he ease with which any error could have been avoided or corrected should be a significant factor in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error.” State v. Inman, 275 Or App 920, 935, 366 P3d 721 (2015).

Defendant appealed a unanimous conviction of sexual abuse, sodomy, and rape and argued the lower court erred by failing to grant a mistrial or initiate a curative instruction after the prosecutor stated “if you determined that [Defendant] should not reside with an adolescent girl, that’s your moral certainty and I have proven my case beyond a reasonable doubt.” “[T]he ease with which any error could have been avoided or corrected should be a significant factor in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error.” State v. Inman, 275 Or App 920, 935, 366 P3d 721 (2015). The Court held that Defendant could have fixed the error if he would have brought the desire to obtain a curative instruction to the court’s attention.  As such, the Court reasoned finding plain error here would allow the potential for parties to sandbag the Court by failing to raise issues before the lower court. Affirmed.