plain error in Oregon

2026In doing so, we consider a nonexclusive list of factors that may be relevant in deciding whether to exer- cise our discretion to correct a plain error: “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.” Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991). 86 State v. Reamer In light of the record in this case, we conclude that the gravity of the e

2026In doing so, we consider a nonexclusive list of factors that may be relevant in deciding whether to exer- cise our discretion to correct a plain error: “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.” Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991). 86 State v. Reamer In light of the record in this case, we conclude that the gravity of the e

2026See State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (stating the standard for plain error review).

2026See State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (stating the standard for plain error review).

2026But, as we have explained, determining that an error is plain “does not mean that [the] defendant is entitled to a reversal.” State v. Wiltse, 373 Or 1, 4 , 559 P3d 380 (2024).1 Appellate courts have discretion to reverse a conviction based on a plain error in some cases.

2025See State v. Wiltse, 373 Or 1, 10 , 559 P3d 380 (2024) (“To constitute a plain error, an error must be (1) an error of law; (2) obvious, not reasonably in dispute; and (3) apparent on the record, meaning that the appellate court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” (Internal quotation marks omitted.)).

2026State v. Horton, 327 Or App 256, 264-65 , 535 P3d 338 (2023) (explaining that “our assessment of where [a plain error] falls on the spectrum of ‘likelihood’ of having affected the verdict * * * goes to its ‘gravity’ and to ‘the ends of justice’ ”).

2026State v. Horton, 327 Or App 256, 264-65 , 535 P3d 338 (2023) (explaining that “our assessment of where [a plain error] falls on the spectrum of ‘likelihood’ of having affected the verdict * * * goes to its ‘gravity’ and to ‘the ends of justice’ ”).

2026For a prosecutor’s statements in closing to rise to the level of plain error, the statements must be “so prejudicial that they deprived the defendant of a fair trial.” State v. Chitwood, 370 Or 305, 314 , 518 P3d 903 (2022).

2026For a prosecutor’s statements in closing to rise to the level of plain error, the statements must be “so prejudicial that they deprived the defendant of a fair trial.” State v. Chitwood, 370 Or 305, 314 , 518 P3d 903 (2022).

2020See State v. Coverstone, 260 Or App 714, 716 , 320 P3d 670 (2014) (concluding that the trial court committed plain error in imposing court-appointed attorney fees where the record was silent as to the defendant’s ability to pay those fees).

2020See State v. Coverstone, 260 Or App 714, 716 , 320 P3d 670 (2014) (concluding that the trial court committed plain error in imposing court-appointed attorney fees where the record was silent as to the defendant’s ability to pay those fees).

2026Finally, even if there were plain error, we would not exercise our discretion to correct it, see State v. Ortiz, 372 Or 658, 672 , 554 P3d 796 (2024) (it is discretionary whether to correct a plain error), given that defendant agreed to the sentences as part of a larger plea agreement that resulted in the dismissal of 10 other charges.

2026Finally, even if there were plain error, we would not exercise our discretion to correct it, see State v. Ortiz, 372 Or 658, 672 , 554 P3d 796 (2024) (it is discretionary whether to correct a plain error), given that defendant agreed to the sentences as part of a larger plea agreement that resulted in the dismissal of 10 other charges.

2026The Supreme Court’s recent decision in State v. Perez clarified the framework for our review of a plain error challenge to a prosecutor’s allegedly improper arguments. 373 Or 591 , 604-05, 568 P3d 940 (2025).

2025“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.” Id. at 629 . “[A]n unpreserved challenge to prosecutorial state- ments must demonstrate that the statements were so prej- udicial that they deprived defendant of a fair trial”; that is, “if the defendant had made a motion for a mistrial, the trial court would have erred, as a matter of law, in deny- ing it.” State v. Chitwood, 370 Or 305, 312-14 , 518 P3d 903 (2022). “[T]o satisfy the plain-error requir

2025See State v. McKinney/Shiffer, 369 Or 325, 333 , 505 P3d 946 (2022) (stating that “utmost caution” must be exercised when deciding to correct a plain error); see also Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991) (“A court’s decision to recognize unpreserved or unraised error in this manner should be made with utmost caution.”).

2025See State v. McKinney/Shiffer, 369 Or 325, 333 , 505 P3d 946 (2022) (stating that “utmost caution” must be exercised when deciding to correct a plain error); see also Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991) (“A court’s decision to recognize unpreserved or unraised error in this manner should be made with utmost caution.”).

2026As we explained, the trial court had imposed that 36-month term of supervised probation on the MCS charge “to match the guidelines sentence” that applied “to one of [the] defendant’s 2 We referred to the “competing inferences” that could be drawn because, for an error to be “plain” at the first step of the plain-error analysis, the court must not need to “go outside the record to identify the error or choose between compet- ing inferences[.]” Gornick, 340 Or at 166 . 142 State v. Hutchings other convictions[.]” Id. at 517.

2026See Gornick, 340 Or at 167 (“[T]his court inquires whether the Court of Appeals abused its discretion in decid- ing to consider the error under the second step in the plain error analysis.”).

2025An additional factor that we may consider in exercis- ing our discretion to correct a plain error is “the possibility that defendant made a strategic choice not to object * * *.” State v. Fults, 343 Or 515, 523 , 173 P3d 822 (2007).

2025An additional factor that we may consider in exercis- ing our discretion to correct a plain error is “the possibility that defendant made a strategic choice not to object * * *.” State v. Fults, 343 Or 515, 523 , 173 P3d 822 (2007).

2025See, e.g., State v. Reynolds, 250 Or App 516, 522 , 280 P3d 1046 , rev den, 352 Or 666 (2012) (sim- ilarly concluding that it was appropriate to exercise discre- tion to correct a plain error where the evidence was legally insufficient to support the conviction).

2025See, e.g., State v. Reynolds, 250 Or App 516, 522 , 280 P3d 1046 , rev den, 352 Or 666 (2012) (sim- ilarly concluding that it was appropriate to exercise discre- tion to correct a plain error where the evidence was legally insufficient to support the conviction).

2024See Peeples v. Lampert, 345 Or 209, 219 , 191 P3d 637 (2008) (explaining 8 State v. Wiltse that the “principal exception” to the preservation require- ment is for “plain error”); ORAP 5.45(1) (providing for “plain error” review); see also Ailes, 312 Or at 381-82 (describing approach for determining whether to remedy a plain error); Brown, 310 Or at 355-56 (holding that incorrect jury instruc- tion was a plain error and exercising discretion to remedy the plain error).

2024To constitute a plain error, an error must be (1) an error of law; (2) “obvious, not reasonably in dispute”; and (3) apparent on the record, meaning that the appellate court “must not need to go outside the record to identify the error or choose between competing inferences, and the facts con- stituting the error must be irrefutable.” Id. (citing Brown, 310 Or at 355-56 ).

2025See Dumdei, 337 Or App at 256 (we would not exercise our dis- cretion to correct the trial court’s plain error in failing to instruct the jury on the durational component of substan- tial pain within the meaning of “physical injury” because the trial court was not given the opportunity to correct the error); State v. Inman, 275 Or App 920, 935-36 , 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (identifying the ease with Nonprecedential Memo Op: 343 Or App 481 (2025) 485 which any error could have been avoided or corrected as a “significant factor” and noting that “the judicial system has a st

2025See id. at 936 (concluding that the ends of justice do not weigh in favor of reversal in part because the error “was not particularly grave”); Horton, 327 Or App at 266 (declining to exercise our discretion to correct a plain error where “even though there is some likelihood that the verdict would have been different (such that the error was not legally harmless), it is an extremely low likelihood”).

2023See State v. Kerne, 289 Or App 345, 349 , 410 P3d 369 (2017), rev den, 363 Or 119 (2018) (“One circum- stance in which we will not and cannot exercise our discre- tion to correct a plain error is when the error is harmless, that is, when there is little likelihood that the error affected the jury’s verdict.”).

2023See State v. Kerne, 289 Or App 345, 349 , 410 P3d 369 (2017), rev den, 363 Or 119 (2018) (“One circum- stance in which we will not and cannot exercise our discre- tion to correct a plain error is when the error is harmless, that is, when there is little likelihood that the error affected the jury’s verdict.”).

2025See, e.g., State v. Reynolds, 250 Or App 516, 522 , 280 P3d 1046 , rev den, 352 Or 666 (2012) (sim- ilarly concluding that it was appropriate to exercise discre- tion to correct a plain error where the evidence was legally insufficient to support the conviction).

2025See, e.g., State v. Reynolds, 250 Or App 516, 522 , 280 P3d 1046 , rev den, 352 Or 666 (2012) (sim- ilarly concluding that it was appropriate to exercise discre- tion to correct a plain error where the evidence was legally insufficient to support the conviction).

2025Indeed, we understand the “cura- tive instructions” contemplated in the current plain error Cite as 337 Or App 246 (2025) 255 analysis to refer to instructions given immediately following the prosecutor’s improper statements which directly address the misconduct.

2025See Dumdei, 337 Or App at 256 (we would not exercise our dis- cretion to correct the trial court’s plain error in failing to instruct the jury on the durational component of substan- tial pain within the meaning of “physical injury” because the trial court was not given the opportunity to correct the error); State v. Inman, 275 Or App 920, 935-36 , 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (identifying the ease with Nonprecedential Memo Op: 343 Or App 481 (2025) 485 which any error could have been avoided or corrected as a “significant factor” and noting that “the judicial system has a st

2024See Peeples v. Lampert, 345 Or 209, 219 , 191 P3d 637 (2008) (explaining 8 State v. Wiltse that the “principal exception” to the preservation require- ment is for “plain error”); ORAP 5.45(1) (providing for “plain error” review); see also Ailes, 312 Or at 381-82 (describing approach for determining whether to remedy a plain error); Brown, 310 Or at 355-56 (holding that incorrect jury instruc- tion was a plain error and exercising discretion to remedy the plain error).

2024See Peeples v. Lampert, 345 Or 209, 219 , 191 P3d 637 (2008) (explaining 8 State v. Wiltse that the “principal exception” to the preservation require- ment is for “plain error”); ORAP 5.45(1) (providing for “plain error” review); see also Ailes, 312 Or at 381-82 (describing approach for determining whether to remedy a plain error); Brown, 310 Or at 355-56 (holding that incorrect jury instruc- tion was a plain error and exercising discretion to remedy the plain error).

2023See State v. Kerne, 289 Or App 345, 349 , 410 P3d 369 (2017), rev den, 363 Or 119 (2018) (“One circum- stance in which we will not and cannot exercise our discre- tion to correct a plain error is when the error is harmless, that is, when there is little likelihood that the error affected the jury’s verdict.”).

2023See State v. Kerne, 289 Or App 345, 349 , 410 P3d 369 (2017), rev den, 363 Or 119 (2018) (“One circum- stance in which we will not and cannot exercise our discre- tion to correct a plain error is when the error is harmless, that is, when there is little likelihood that the error affected the jury’s verdict.”).

2020Although the nonunanimous jury instruction given by the trial court may qualify as a plain error, we decline to exercise our discretion to review that error, for reasons similar to those given in our decision in State v. Dilallo, 367 Or 340 , 478 P3d 509 (2020).

2020Although the nonunanimous jury instruction given by the trial court may qualify as a plain error, we decline to exercise our discretion to review that error, for reasons similar to those given in our decision in State v. Dilallo, 367 Or 340 , 478 P3d 509 (2020).

2025Cf. Mello, 332 Or App at 223 (the defendant may have had a strategic reason for failing to object to the scientific testimony about FSTs where the defendant argued during closing argu- ment that the FSTs “ ‘were not done scientifically’ ”); see Hall, 336 Or App at 825 n 9 (exercising our discretion to correct a plain error in part because we could not “discern a strategic reason for the failure to object”).

2025Cf. Mello, 332 Or App at 223 (the defendant may have had a strategic reason for failing to object to the scientific testimony about FSTs where the defendant argued during closing argu- ment that the FSTs “ ‘were not done scientifically’ ”); see Hall, 336 Or App at 825 n 9 (exercising our discretion to correct a plain error in part because we could not “discern a strategic reason for the failure to object”).

2024We agree with defendant that under Ortiz, the trial court committed plain error by allowing Ellis’s testimony about the HGN and VGN tests because that testimony “derive[d] its force from scientific principles.” 325 Or App at 139 .

2024We agree with defendant that under Ortiz, the trial court committed plain error by allowing Ellis’s testimony about the HGN and VGN tests because that testimony “derive[d] its force from scientific principles.” 325 Or App at 139 .

2021We further conclude that it is appro- priate to exercise our discretion to correct the plain error for the reasons stated in State v. Camacho-Alvarez, 225 Or App 215, 217 , 200 P3d 613 (2009).

2017We agree, accept the state’s concession, and conclude that it is appropriate to exercise our discretion to correct the plain error for the reasons stated in State v. Camacho-Alvarez, 225 Or App 215, 216 , 200 P3d 613 (2009).

2021We further conclude that it is appro- priate to exercise our discretion to correct the plain error for the reasons stated in State v. Camacho-Alvarez, 225 Or App 215, 217 , 200 P3d 613 (2009).

2019We further conclude that it is appropriate to exercise our discretion to correct the plain error for the reasons stated in State v. Camacho-Alvarez , 225 Or.

2025See State v. Reyes-Camarena, 330 Or 431, 435 , 7 P3d 522 (2000) (providing the plain error review standards).

2025See State v. Reyes-Camarena, 330 Or 431, 435 , 7 P3d 522 (2000) (providing the plain error review standards).