gravity error in Oregon

2026In deciding whether to correct a plain error, we consider factors such as: “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.” Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991); see Vanornum, 354 Or at 630 (whether to exercise discretion “entails making a prudential call” after considering the Ailes factors).

2026In deciding whether to correct a plain error, we consider factors such as: “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.” Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991); see Vanornum, 354 Or at 630 (whether to exercise discretion “entails making a prudential call” after considering the Ailes factors).

2026In deciding whether to correct a plain error, we consider factors such as: “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.” Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991); see Vanornum, 354 Or at 630 (whether to exercise discretion “entails making a prudential call” after considering the Ailes factors).

2026In deciding whether to correct a plain error, we consider factors such as: “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.” Ailes v. Portland Meadows, Inc., 312 Or 376 , 382 n 6, 823 P2d 956 (1991); see Vanornum, 354 Or at 630 (whether to exercise discretion “entails making a prudential call” after considering the Ailes factors).

2025Consequently, “viewing the record as a whole and in the context of the jury’s other findings, 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.” Horton, 327 Or App at 266 (emphasis in original). “[W]e are ultimately unpersuaded that the gravity of the error, the ends of justice, or the other relevant considerations warrant exercising our discretion to reverse” defendant’s conviction on Count 4.

2025When deciding whether to exercise our discretion to consider a plain error, we may consider, but are not limited to, the following factors: “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. Portlan

2025See State v. Reynolds, 250 Or App 516, 520-21 , 280 P3d 1046, rev den, 352 Or 666 (2012) (even when plain error conditions are satisfied, we may exercise our discretion to reach the error and correct it by considering relevant factors, including “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 * * *.” (Quoting Ailes v. Portland Meadows, Inc.,

2025See State v. Reynolds, 250 Or App 516, 520-21 , 280 P3d 1046, rev den, 352 Or 666 (2012) (even when plain error conditions are satisfied, we may exercise our discretion to reach the error and correct it by considering relevant factors, including “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 * * *.” (Quoting Ailes v. Portland Meadows, Inc.,

2025Consequently, “because * * * defendant’s conviction [was] for serious felonies, and the error was not harmless, the gravity of the error compel[s] us to exercise our discretion to correct the error.” Id.; see also State v. Stowell, 304 Or App 1, 7 , 466 P3d 1009 (2020), abrogated on other grounds by State v. Prophet, 318 Or App 330 , 507 P3d 735 (2022), and abrogated on other ground by State v. Shedrick, 370 Or 255 , 518 P3d 559 (2022) (exercising our discretion to correct the plain error due to “lack of harmlessness, gravity of the error, and little chance that counsel made a strategic choice

2025Consequently, “because * * * defendant’s conviction [was] for serious felonies, and the error was not harmless, the gravity of the error compel[s] us to exercise our discretion to correct the error.” Id.; see also State v. Stowell, 304 Or App 1, 7 , 466 P3d 1009 (2020), abrogated on other grounds by State v. Prophet, 318 Or App 330 , 507 P3d 735 (2022), and abrogated on other ground by State v. Shedrick, 370 Or 255 , 518 P3d 559 (2022) (exercising our discretion to correct the plain error due to “lack of harmlessness, gravity of the error, and little chance that counsel made a strategic choice

2019App. at 716 -17 , 320 P.3d 670 ("When a plain error is established, we still must determine if it is appropriate to exercise our discretion to correct the error, considering, among other things, '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 *152 way.' " (Quoting Ailes v. Portland Meadows, Inc. , 312 Or. 376 , 382 n. 6, 823 P.2d 956 (1991) )).

2018We accept the state's concession and conclude that it is appropriate to exercise our discretion to correct the plain error in this case for the reasons stated in State v. Coverstone , 260 Or.App. 714 , 716-17, 320 P.3d 670 (2014) - viz. , the gravity of the error, the length of defendant's prison term, and the lack of any evidence of financial resources.

2026In addition, in considering the gravity of the error, the court stated that “ ‘this is not the kind of expert vouching testimony that most often has prompted [the court] to reverse a criminal conviction[.]’ ” Id. (quoting State v. Inman, 275 Or App 920, 932 , 366 P3d 721 (2015), rev den, 359 Or 525 (2016)).

2026In addition, in considering the gravity of the error, the court stated that “ ‘this is not the kind of expert vouching testimony that most often has prompted [the court] to reverse a criminal conviction[.]’ ” Id. (quoting State v. Inman, 275 Or App 920, 932 , 366 P3d 721 (2015), rev den, 359 Or 525 (2016)).

2016Furthermore, for the reasons stated in State v. Hunt, 271 Or App 347, 352-53 , 350 P3d 521 (2015)—viz., the gravity of the error, the length of defendant’s prison term, and the lack of any evidence of financial resources—we conclude that it is appropriate for us to exercise our discretion to correct the error in this case.

2016Furthermore, for the reasons stated in State v. Hunt, 271 Or App 347, 352-53 , 350 P3d 521 (2015)—viz., the gravity of the error, the length of defendant’s prison term, and the lack of any evidence of financial resources—we conclude that it is appropriate for us to exercise our discretion to correct the error in this case.

2026State v. Vanornum, 273 Or App 263, 269 , 356 P3d 1161 (2015) (“In analyzing the gravity of an error, we consider if the issue was critical to the outcome of the case.”).

2026State v. Vanornum, 273 Or App 263, 269 , 356 P3d 1161 (2015) (“In analyzing the gravity of an error, we consider if the issue was critical to the outcome of the case.”).

2025See State v. Johnson, 220 Or App 504, 507-08 , 187 P3d 742 (2008) (exercising our discretion to correct an unpreserved sentencing error when the parties agreed that we should correct the error, the defendant had no strategic reason not to object, and the gravity of error resulted in sentences that were greater than the statutory maximums for each offense).

2025See State v. Johnson, 220 Or App 504, 507-08 , 187 P3d 742 (2008) (exercising our discretion to correct an unpreserved sentencing error when the parties agreed that we should correct the error, the defendant had no strategic reason not to object, and the gravity of error resulted in sentences that were greater than the statutory maximums for each offense).

2024Dept. v. S.P., 346 Or 592, 606 , 215 P3d 847 (2009) (stating that whether a party “encouraged commission of the error in question or made a strategic choice not to object” are relevant to whether this court will “exercise its discretion” to reverse an asserted plain error); see, e.g., State v. Serrano, 355 Or 172, 188 , 324 P3d 1274 (2014), cert den, 576 US 1037 (2015) (assuming that, by giving certain jury instructions, the trial court committed plain error, but declining to reverse because the defendant had made “an explicit decision to endorse” the instructions).10 Here, the gravity of the

2024Dept. v. S.P., 346 Or 592, 606 , 215 P3d 847 (2009) (stating that whether a party “encouraged commission of the error in question or made a strategic choice not to object” are relevant to whether this court will “exercise its discretion” to reverse an asserted plain error); see, e.g., State v. Serrano, 355 Or 172, 188 , 324 P3d 1274 (2014), cert den, 576 US 1037 (2015) (assuming that, by giving certain jury instructions, the trial court committed plain error, but declining to reverse because the defendant had made “an explicit decision to endorse” the instructions).10 Here, the gravity of the

2008The court noted the factors listed in Ailes v. Portland Meadows, Inc., 312 Or 376 , 823 P2d 956 (1991), that bear on our exercise of discretion: “ ‘[T]he 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.’ ” 343 O

2008Finally, in light of the existence of the concurrent, unchallenged 36-month probationary sentence on the felon-in-possession conviction, we conclude that the gravity of the error as to the MCS conviction is slight and that it is highly unlikely that a remand would make any practical difference — rather, a remand would merely result in “unnecessary repetitive sentencing proceedings.” Fults, 343 Or at 523 .

2026Specifically, the court may consider “ ‘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 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.’ ” Id. at 11 (quoting Ailes, 312 Or at 382 n 6).

2025When deciding whether to exercise our discretion to correct plain error, we consider a range of factors, including the competing interests of the parties, the gravity of the error, the ends of justice, whether the trial court was given a chance to correct any error in some manner, and whether “the party alleging the plain error encouraged the error or made a strategic choice not to object to it.” Id. (internal citations omitted).

2024The explanation for doing so is the same: “We therefore exercise our discretion to correct it for all the same reasons we have done so in our prior cases: ‘the nature of civil commitment proceedings, the relative interests of the parties in those proceedings, the gravity of the violation, and the ends of justice.’ State v S. J .F., 247 Or App 321, 325 , 269 P3d 83 (2011).

2024The explanation for doing so is the same: “We therefore exercise our discretion to correct it for all the same reasons we have done so in our prior cases: ‘the nature of civil commitment proceedings, the relative interests of the parties in those proceedings, the gravity of the violation, and the ends of justice.’ State v S. J .F., 247 Or App 321, 325 , 269 P3d 83 (2011).

2019App. at 62 , 349 P.3d 655 (concluding that "the interests of the parties, the gravity of the error, and the ends of justice" weighed in favor of correcting erroneously imposed term of probation, where the erroneous term exposed the defendant to the risk of sanctions and further proceedings to which he would not otherwise be subject). *486 Portions of judgment (1) imposing determinate term of probation, with stay of imposition of six months jail, and (2) imposing *481 supervision fee reversed and remanded; otherwise affirmed.

2018Id . at 62, 349 P.3d 655 (concluding that the interests of the parties, the gravity of the error, and the ends of justice required correction of the error).

2024We follow suit and exercise our discretion here: “[B]ecause * * * defendant’s convictions were for serious felonies, and the error was not harmless, the gravity of the error compel[s] us to exercise our discretion to correct the error.” Gaines, 275 Or App at 750-51 (also noting that there was no “plausible strategic reason for defendant’s failure to seek a concurrence instruction”); see also Stowell, 304 Or App at 7 (exercising discretion to correct plain error due to “lack of harmlessness, gravity of the error, and little chance that counsel made a strategic choice in failing to request instr

2024We follow suit and exercise our discretion here: “[B]ecause * * * defendant’s convictions were for serious felonies, and the error was not harmless, the gravity of the error compel[s] us to exercise our discretion to correct the error.” Gaines, 275 Or App at 750-51 (also noting that there was no “plausible strategic reason for defendant’s failure to seek a concurrence instruction”); see also Stowell, 304 Or App at 7 (exercising discretion to correct plain error due to “lack of harmlessness, gravity of the error, and little chance that counsel made a strategic choice in failing to request instr

2012We explained that “the gravity of the error in admitting the erroneous testimonial hearsay was insignificant.” State v. Derschon, 206 Or App 574, 581 , 138 P3d 30 , rev den, 341 Or 312 (2006).

2012We explained that “the gravity of the error in admitting the erroneous testimonial hearsay was insignificant.” State v. Derschon, 206 Or App 574, 581 , 138 P3d 30 , rev den, 341 Or 312 (2006).

2016As a consequence, concerns about any disregard for preservation are reduced. 7 Further, we have previously concluded that, where a defendant’s convictions reflect serious felonies, and an error was not harmless, “the gravity of the error compel [s] us to exercise our discretion to correct the error.” Id. at 750 (citing State v. Gray, 261 Or App 121, 129 , 322 P3d 1094 (2014)); see also State v. Pervish, 202 Or App 442, 465-66 , 123 P3d 285 (2005), rev den, 340 Or 308 (2006) (exercising discretion to correct plain error, in part, because convictions reflected serious felonies).

2016Given the gravity of the error, we exercise our discretion to correct it.” Id. at 132 (internal citations omitted).

2019See State v. Ramirez, 343 Or 505, 513 , 173 P3d 817 (2007) (consideration of the likelihood that the error affected the outcome of the proceeding below for determination of the gravity of the error).39 That is especially true because Nelson’s and Nicol’s impermissible opinions were not ones that a juror was likely to overlook.

2019See State v. Ramirez, 343 Or 505, 513 , 173 P3d 817 (2007) (consideration of the likelihood that the error affected the outcome of the proceeding below for determination of the gravity of the error).39 That is especially true because Nelson’s and Nicol’s impermissible opinions were not ones that a juror was likely to overlook.

2023See, e.g., State v. Bowen, 280 Or App 514, 535-36 , 380 P3d 1054 (2016) (exercising discretion to correct plain error in failing to give a jury concurrence instruction where there was no plausible strategic reason for failure to request the instruction); State v. Medina, 234 Or App 684, 691 , 228 P3d 723 (2010) (accepting the state’s concession on a claim of plain error related to imposing multiple firearm minimums and explaining that given “the gravity of the potential consequences to defendant (60 months of incarceration), and the minimal cost to the judicial system of a simple resentencing

2023See, e.g., State v. Bowen, 280 Or App 514, 535-36 , 380 P3d 1054 (2016) (exercising discretion to correct plain error in failing to give a jury concurrence instruction where there was no plausible strategic reason for failure to request the instruction); State v. Medina, 234 Or App 684, 691 , 228 P3d 723 (2010) (accepting the state’s concession on a claim of plain error related to imposing multiple firearm minimums and explaining that given “the gravity of the potential consequences to defendant (60 months of incarceration), and the minimal cost to the judicial system of a simple resentencing

2022See State v. Digesti, 267 Or App 516, 524 , 340 P3d 762 (2014), rev den, 357 Or 111 (2015) (in deciding whether to exercise our discretion to correct plain error, we “consider whether the error was harmless—that is, whether there was little likelihood that the error affected the verdict”); see also, e.g., State v. Inman, 275 Or App 920, 936 , 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (“[T]he error in this case was not particularly grave, in terms of its likelihood of affecting the verdict.”).

2022See State v. Digesti, 267 Or App 516, 524 , 340 P3d 762 (2014), rev den, 357 Or 111 (2015) (in deciding whether to exercise our discretion to correct plain error, we “consider whether the error was harmless—that is, whether there was little likelihood that the error affected the verdict”); see also, e.g., State v. Inman, 275 Or App 920, 936 , 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (“[T]he error in this case was not particularly grave, in terms of its likelihood of affecting the verdict.”).