error to be plain error in Oregon

81 Oregon opinions name it 2 courts 2013–2026 74 in the last five years

The cases below were cited by Oregon courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (12)

Case	Followed	Cited
State v. Vanornumgreen or · 2013 · cited in 73 Oregon opinions naming this issue, 2014–2026 2 sentences 2026See State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (explaining that, 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”). 2026See State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (explaining that, 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”).	27	73
State v. Chitwoodgreen or · 2022 · cited in 15 Oregon opinions naming this issue, 2024–2025 2 sentences 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 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	2	15
State v. Pierpointgreen orctapp · 2023 · cited in 2 Oregon opinions naming this issue, 2025–2025 2 sentences 2025“In other words, the prosecutor’s comments must have been so prej- udicial that an instruction by the trial court to the jury to disregard the comments ‘would not have been sufficiently curative’ to ensure that the defendant received a fair trial.” Perez, 373 Or at 605 (quoting Chitwood, 370 Or at 312 ); see also State v. Pierpoint, 325 Or App 298, 302 , 528 P3d 1199 (2023) (even if improper, a prosecutorial comment does not constitute plain error unless it was “so prejudicial that an instruction to disregard [it] would not have been sufficient[ ]” to ensure that the defendant received a fair 2025“In other words, the prosecutor’s comments must have been so prej- udicial that an instruction by the trial court to the jury to disregard the comments ‘would not have been sufficiently curative’ to ensure that the defendant received a fair trial.” Perez, 373 Or at 605 (quoting Chitwood, 370 Or at 312 ); see also State v. Pierpoint, 325 Or App 298, 302 , 528 P3d 1199 (2023) (even if improper, a prosecutorial comment does not constitute plain error unless it was “so prejudicial that an instruction to disregard [it] would not have been sufficient[ ]” to ensure that the defendant received a fair	2	2
State v. Ulerygreen or · 2020 · cited in 2 Oregon opinions naming this issue, 2022–2022 2 sentences 2022“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. Ulery, 366 Or 500, 503 , 464 P3d 1123 (2020) (internal quota- tion marks omitted). 2022“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. Ulery, 366 Or 500, 503 , 464 P3d 1123 (2020) (internal quota- tion marks omitted).	1	2
State v. Gornickgreen or · 2006 · cited in 2 Oregon opinions naming this issue, 2013–2020 2 sentences 2020“If all the requirements of the first step are satisfied, then the court proceeds to the second step, where it must decide whether to ‘exercise its discretion to consider or not to consider the error[.]’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780, 783 (2006) (quoting Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991) (alteration in Gornick)). 2020“If all the requirements of the first step are satisfied, then the court proceeds to the second step, where it must decide whether to ‘exercise its discretion to consider or not to consider the error[.]’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780, 783 (2006) (quoting Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991) (alteration in Gornick)).	1	2
State v. Towgreen orctapp · 2022 · cited in 1 Oregon opinions naming this issue, 2026–2026 2 sentences 2026In State v. Prophet, 318 Or App 330, 350 , 507 P3d 735 , rev den, 370 Or 472 (2022), we concluded that Nonprecedential Memo Op: 350 Or App 878 (2026) 881 “the element of creating a substantial risk of injury is a material element that necessarily requires a mental state.”2 (Internal quotation marks omitted.) We agree with the parties that the trial court’s fail- ure to include an instruction regarding a culpable mental state for the creating a substantial risk of physical injury element of resisting arrest constitutes plain error, see State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“F 2026In State v. Prophet, 318 Or App 330, 350 , 507 P3d 735 , rev den, 370 Or 472 (2022), we concluded that Nonprecedential Memo Op: 350 Or App 878 (2026) 881 “the element of creating a substantial risk of injury is a material element that necessarily requires a mental state.”2 (Internal quotation marks omitted.) We agree with the parties that the trial court’s fail- ure to include an instruction regarding a culpable mental state for the creating a substantial risk of physical injury element of resisting arrest constitutes plain error, see State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“F	1	1
State v. Prophetgreen orctapp · 2022 · cited in 1 Oregon opinions naming this issue, 2026–2026 2 sentences 2026In State v. Prophet, 318 Or App 330, 350 , 507 P3d 735 , rev den, 370 Or 472 (2022), we concluded that Nonprecedential Memo Op: 350 Or App 878 (2026) 881 “the element of creating a substantial risk of injury is a material element that necessarily requires a mental state.”2 (Internal quotation marks omitted.) We agree with the parties that the trial court’s fail- ure to include an instruction regarding a culpable mental state for the creating a substantial risk of physical injury element of resisting arrest constitutes plain error, see State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“F 2026In State v. Prophet, 318 Or App 330, 350 , 507 P3d 735 , rev den, 370 Or 472 (2022), we concluded that Nonprecedential Memo Op: 350 Or App 878 (2026) 881 “the element of creating a substantial risk of injury is a material element that necessarily requires a mental state.”2 (Internal quotation marks omitted.) We agree with the parties that the trial court’s fail- ure to include an instruction regarding a culpable mental state for the creating a substantial risk of physical injury element of resisting arrest constitutes plain error, see State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“F	1	1
State v. Lovelessgreen or · 2009 · cited in 1 Oregon opinions naming this issue, 2026–2026 2 sentences 2026See State v. Kammeyer, 226 Or App 210, 214, 203 P3d 274, rev den, 346 Or 590 (2009) (“Under the invited error doctrine, a party who was actively instrumen- tal in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” (Internal quotation marks omitted.)); see also State v. Harris, 362 Or 55, 67, 404 P3d 926 (2017) (“As this court has long held, invited error is no basis for reversal.”). 2026See State v. Kammeyer, 226 Or App 210, 214 , 203 P3d 274 , rev den, 346 Or 590 (2009) (“Under the invited error doctrine, a party who was actively instrumen- tal in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” (Internal quotation marks omitted.)); see also State v. Harris, 362 Or 55 , 67, 404 P3d 926 (2017) (“As this court has long held, invited error is no basis for reversal.”).	1	1
State v. Kammeyergreen orctapp · 2009 · cited in 1 Oregon opinions naming this issue, 2026–2026 2 sentences 2026See State v. Kammeyer, 226 Or App 210, 214 , 203 P3d 274 , rev den, 346 Or 590 (2009) (“Under the invited error doctrine, a party who was actively instrumen- tal in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” (Internal quotation marks omitted.)); see also State v. Harris, 362 Or 55 , 67, 404 P3d 926 (2017) (“As this court has long held, invited error is no basis for reversal.”). 2026See State v. Kammeyer, 226 Or App 210, 214 , 203 P3d 274 , rev den, 346 Or 590 (2009) (“Under the invited error doctrine, a party who was actively instrumen- tal in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” (Internal quotation marks omitted.)); see also State v. Harris, 362 Or 55 , 67, 404 P3d 926 (2017) (“As this court has long held, invited error is no basis for reversal.”).	1	1
State v. Smithgreen orctapp · 2020 · cited in 1 Oregon opinions naming this issue, 2022–2022 2 sentences 2022See State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“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. Smith, 302 Or App 787, 790-91 , 462 P3d 310 , rev den, 366 Or 731 (2020) (“Plain- error review involves a two-step inquiry in which we deter- mine, first, whether the error is plain, and second, whether to exercise our discretion to consider the error.”). 2022See State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“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. Smith, 302 Or App 787, 790-91 , 462 P3d 310 , rev den, 366 Or 731 (2020) (“Plain- error review involves a two-step inquiry in which we deter- mine, first, whether the error is plain, and second, whether to exercise our discretion to consider the error.”).	1	1
State v. Jordangreen orctapp · 2012 · cited in 1 Oregon opinions naming this issue, 2021–2021 1 sentence 2021See ORAP 5.45(1) (“No matter claimed as error will be 292 State v. Skeen considered on appeal unless the claim of error was pre- served in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may, in its discretion, consider a plain error.”); State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“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 com- peting inferences.”); see also Jordan, 249 Or App a	1	1
State v. Ramirezgreen or · 2007 · cited in 1 Oregon opinions naming this issue, 2013–2013 2 sentences 2013See, e.g., State v. Ramirez, 343 Or 505, 511-12 , 173 P3d 817 (2007), amended on recons, 344 Or 195 , 179 P3d 673 (2008) (stating requirements for plain error review); State v. Gornick, 340 Or 160, 166 , 130 P3d 780 (2006) (same); Ailes v. Portland Meadows, 312 Or 376, 381-82 , 823 P2d 956 (1991) (same). 2013See, e.g., State v. Ramirez, 343 Or 505, 511-12 , 173 P3d 817 (2007), amended on recons, 344 Or 195 , 179 P3d 673 (2008) (stating requirements for plain error review); State v. Gornick, 340 Or 160, 166 , 130 P3d 780 (2006) (same); Ailes v. Portland Meadows, 312 Or 376, 381-82 , 823 P2d 956 (1991) (same).	1	1

Distinguished, questioned or overruled (0)

Case	Negative	Cited
No negative-treatment citations attached to this issue in Oregon. Read the followed side critically anyway.

Also cited on this issue (10)

Case	Cited	Years
State v. Brown green or · 1990 2 sentences 2024At the time, ORAP 5.45(2) provided that “the appellate court may con- sider errors of law apparent on the face of the record.”5 Based on the text of ORAP 5.45(2) (1990), we held that, to qualify as an “error[ ] of law apparent on the face of the record,” (1) an error must be “of law”; (2) the error must be “appar- ent,” that is, “the legal point is obvious, not reasonably in 5 In 2017, ORAP 5.45 was amended to its current form, and the plain-error review provisions are now in ORAP 5.45(1), which provides that “the appellate court may, in its discretion, consider a plain error.” In keeping with 2024At the time, ORAP 5.45(2) provided that “the appellate court may con- sider errors of law apparent on the face of the record.”5 Based on the text of ORAP 5.45(2) (1990), we held that, to qualify as an “error[ ] of law apparent on the face of the record,” (1) an error must be “of law”; (2) the error must be “appar- ent,” that is, “the legal point is obvious, not reasonably in 5 In 2017, ORAP 5.45 was amended to its current form, and the plain-error review provisions are now in ORAP 5.45(1), which provides that “the appellate court may, in its discretion, consider a plain error.” In keeping with	5	2017–2024
State v. Perez green or · 2025 2 sentences 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 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	2	2025–2025
State v. Licence green orctapp · 2025 2 sentences 2025Imposing an unconsti- tutionally disproportionate sentence is a legal error, under both Article I, section 16, and the Eighth Amendment, so Cite as 340 Or App 716 (2025) 721 the alleged error is one of law. 2025Imposing an unconsti- tutionally disproportionate sentence is a legal error, under both Article I, section 16, and the Eighth Amendment, so Cite as 340 Or App 716 (2025) 721 the alleged error is one of law.	2	2025–2025
State v. Johnson neutral orctapp · 2025 2 sentences 2025Nonprecedential Memo Op: 342 Or App 134 (2025) 137 Defendant identifies three statements made by the prosecutor during closing and rebuttal that he argues were improper. 2025Nonprecedential Memo Op: 342 Or App 134 (2025) 137 Defendant identifies three statements made by the prosecutor during closing and rebuttal that he argues were improper.	2	2025–2025
State v. Jacobs green orctapp · 2005 2 sentences 2025We review a claim that the trial court erred in imposing a sentence outside the defendant’s presence for errors of law, State v. Jacobs, 200 Or App 665, 670 , 117 P3d 290 (2005), and affirm. 2025We review a claim that the trial court erred in imposing a sentence outside the defendant’s presence for errors of law, State v. Jacobs, 200 Or App 665, 670 , 117 P3d 290 (2005), and affirm.	2	2025–2025
Ailes v. Portland Meadows, Inc. green or · 1991 2 sentences 2020“If all the requirements of the first step are satisfied, then the court proceeds to the second step, where it must decide whether to ‘exercise its discretion to consider or not to consider the error[.]’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780, 783 (2006) (quoting Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991) (alteration in Gornick)). 2020“If all the requirements of the first step are satisfied, then the court proceeds to the second step, where it must decide whether to ‘exercise its discretion to consider or not to consider the error[.]’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780, 783 (2006) (quoting Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991) (alteration in Gornick)).	2	2013–2020
cluster 10879756 neutral · 2 sentences 2026In State v. Prophet, 318 Or App 330, 350, 507 P3d 735, rev den, 370 Or 472 (2022), we concluded that Nonprecedential Memo Op: 350 Or App 878 (2026) 881 “the element of creating a substantial risk of injury is a material element that necessarily requires a mental state.”2 (Internal quotation marks omitted.) We agree with the parties that the trial court’s fail- ure to include an instruction regarding a culpable mental state for the creating a substantial risk of physical injury element of resisting arrest constitutes plain error, see State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (“For 2026In State v. Prophet, 318 Or App 330, 350 , 507 P3d 735 , rev den, 370 Or 472 (2022), we concluded that Nonprecedential Memo Op: 350 Or App 878 (2026) 881 “the element of creating a substantial risk of injury is a material element that necessarily requires a mental state.”2 (Internal quotation marks omitted.) We agree with the parties that the trial court’s fail- ure to include an instruction regarding a culpable mental state for the creating a substantial risk of physical injury element of resisting arrest constitutes plain error, see State v. Vanornum, 354 Or 614, 629 , 317 P3d 889 (2013) (“F	1	2026–2026
Dept. of Human Services v. M. D. neutral orctapp · 2022 1 sentence 2022Here, as noted above, the juvenile court ordered that mother undertake a psychological evaluation Cite as 316 Or App 820 (2022) 823 pursuant to ORS 419B.337(2), without considering the requirements imposed by ORS 419B.387.	1	2022–2022
State v. Sperou green or · 2019 2 sentences 2021We disagree that Lowe’s testimony was so obviously impermissible vouching testimony that the trial court was required to intervene absent an objection. “ ‘Vouching’ refers to the expression of one’s personal opinion about the credibility of a witness.” State v. Sperou, 365 Or 121, 128 , 442 P3d 581 (2019). 2021We disagree that Lowe’s testimony was so obviously impermissible vouching testimony that the trial court was required to intervene absent an objection. “ ‘Vouching’ refers to the expression of one’s personal opinion about the credibility of a witness.” State v. Sperou, 365 Or 121, 128 , 442 P3d 581 (2019).	1	2021–2021
Baker v. Board of Parole green orctapp · 2020 1 sentence 2021Baker, 305 Or App at 818-19 .	1	2021–2021

Statutes the citing opinions construe

OR § Or. Rev. Stat. § 163.175 (8) OR § Or. Rev. Stat. § 163.165 (7) OR § Or. Rev. Stat. § 163.427 (7) OR § Or. Rev. Stat. § 136.330 (6) OR § Or. Rev. Stat. § 161.015 (6) OR § Or. Rev. Stat. § 163.185 (6) OR § Or. Rev. Stat. § 163.375 (6) OR § Or. Rev. Stat. § 163.405 (6) OR § Or. Rev. Stat. § 166.220 (5) OR § Or. Rev. Stat. § 162.315 (4) OR § Or. Rev. Stat. § 164.354 (4) OR § Or. Rev. Stat. § 166.065 (4)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

Where else courts name it

OR 81 (2013–2026) AL 2 (1998–2010)

Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.

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