concurring-in-part-and-dissenting-in-part">HASELTON, C. J.,

concurring in part, dissenting in part.

For nearly 40 years, beginning with State v. Willy, 36 Or App 853, 585 P2d 762 (1978), our court has addressed — or declined to address and correct — unpreserved challenges to the sufficiency of evidence supporting criminal convictions. As with all other plain error decisions, our holdings have, ultimately, depended on our resolution of two subsidiary questions: (1) Did the trial court commit plain error by entering a conviction based on legally insufficient evidence, notwithstanding the absence of a motion for judgment of acquittal (MJOA) or its functional equivalent? And (2) if so, should we exercise our discretion under Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991), to correct that error?

Our answers to those questions — which we have, not infrequently, conflated — have been diffuse and obtuse. Even allowing for case-specific circumstantial variability, our analysis, viewed collectively, has been inscrutable at best— and whimsical at worst.1

*529This case is the most recent of the genre. By that, I imply no criticism of the majority’s analysis, which is considered and thoughtful, though I disagree with some of its particulars and ultimately dissent from the positive exercise of Ailesdiscretion. Rather, as the latest of this incorrigible genus, this case provides at least some opportunity to try to identify a few coherent and durable principles that may inform our approach going forward.

Toward that end, I write separately. Consistently with the principles posited below, I conclude that (1) in this case, the entry of a judgment of conviction on Count 13 did constitute plain error, but (2) in the totality of the circumstances here, the exercise of Ailesdiscretion is unwarranted — and, in fact, constitutes an abuse of that discretion. Accordingly, I dissent from the majority’s disposition as to Count 13 but concur in the affirmance of defendant’s other convictions.

Before turning to putative principles and their application, a quick “deck-clearing” observation: There was no legally cognizable MJOA here. To be sure, defendant’s counsel uttered the term, but a “motion for judgment of acquittal” proffered generically and expressly without “any argument,” much less without any differentiation among 14 counts involving multiple victims and distinct criminal conduct, is a nonmotion. It is meaningless and, ultimately, an abdication of counsel’s obligation to identify for the court’s consideration purported deficiencies — that is, legal insufficiency — of the state’s proof as to particular elements of particular charges. See, e.g., State v. Paragon, 195 Or App 265, 268, 97 P3d 691 (2004) (“A motion for judgment of acquittal does not automatically encompass a challenge to the sufficiency of the evidence. The motion must state the specific theory on which the state’s proof was insufficient.”). For purposes of our present consideration, such a “motion” preserved nothing — and is immaterial to the proper exercise of Ailesdiscretion.

Thus, given that posture, this case is no different from any other plain error case — that is, a case in which the appellant seeks to have us correct a trial court’s action (or inaction) notwithstanding the failure to raise that matter, in *530any cogent fashion, before the trial court. That is the essential construct of any plain error challenge, including, as here, challenges based on the purported legal insufficiency of evidence to support a criminal conviction notwithstanding the defendant’s failure to make an MJOA or functional equivalent before the trial court. And, as with any other invocation of plain error review, our analysis and disposition depends on two cumulative inquiries: (1) Did the challenged judicial action or inaction constitute an “error of law apparent on the record,” ORAP 5.45(1), under the classic formulation prescribed in State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990)? And (2) if so, should the court exercise its discretion under Ailesto correct that error?

A. “Plain error”?

So much for abstract methodology. The devil is in the details, jurisprudential and prudential. And the first of those bedeviling details with respect to unpreserved challenges to the sufficiency of evidence supporting criminal convictions pertains to the first, “Was it plain error?” question — and, specifically, to the proper characterization of the purported error.

Frequently, the asserted error is cast as “the trial court erred in failing sua sponte to enter a judgment of acquittal.” See, e.g., State v. Hockersmith, 181 Or App 554, 556, 47 P3d 61 (2002); see also State v. Ford, 245 Or App 500, 501, 263 P3d 1110 (2011) (the defendant asserted that “the trial court erred in failing to grant a motion for judgment of acquittal * * * sua sponte”)', Willy, 36 Or App at 856 (addressing assignment of error relating to “the trial court’s failure to give a verdict for defendant, sua sponte”). That is, the “error” addressed in some of our cases has been cast in terms of the trial court failing to grant relief that was never requested. In other cases, criminal defendant appellants have, apparently, phrased their challenges more broadly (or less precisely) as simply pertaining to the insufficiency of evidence to support the conviction — that is, at least implicitly, that the trial court erred in entering the judgment of conviction. See, e.g., State v. Hurst, 147 Or App 385, 936 P2d 396 (1997), rev den, 327 Or 521 (1998); State v. Lindsey, 45 Or App 607, 609 P2d 386 (1980).

*531The distinction transcends form. Consistently with deference to the dynamics of the adversarial system, the universe of circumstances in which a trial court is compelled to act, in the absence of a motion or objection by a party, is extremely limited.2See, e.g., State v. Milbradt, 305 Or 621, 625, 630, 756 P2d 620 (1988) (directing trial courts, with respect to certain testimony tantamount to a “comment on the credibility” of another witness, to “sua sponte * * * summarily cut off the inquiry before a jury is contaminated by it”); see also State v. Lowell, 249 Or App 364, 277 P3d 588 (2012) (reversing criminal conviction based on trial court’s plain error in failing to preclude testimony sua sponte in accordance with Milbradt). At least — at the very least — in the context of a jury trial, it is a highly debatable proposition that the court is obligated to direct acquittal in the absence of a predicate motion. Indeed, in Ford, where the defendant, for the first time on appeal, argued that a conviction based on a purportedly uncorroborated confession must be reversed, we held that “[t]he trial court had no duty to rule, sua sponte, on the sufficiency of the state’s evidence.” 245 Or App at 501.

Conversely, casting and viewing the purported error in terms of the court’s action in entering the judgment of conviction more comfortably comports with our treatment of other species of plain error, including, most consistently, sentencing error, in which we have held that, even in the absence of an objection, a trial court exceeded its authority in undertaking a particular act. See, e.g., State v. Gutierrez, 243 Or App 285, 259 P3d 951 (2011) (reversing, as plain error, court’s imposition of sentence that exceeded statutory maximum); State v. Ryder, 230 Or App 432, 216 P3d 895 (2009) (court committed plain error in entering multiple convictions on counts that should have been merged). Bluntly: If a trial *532court commits plain error by imposing a sentence exceeding the statutorily prescribed maximum, why isn’t it similarly erroneous for a court to enter a judgment of conviction based on legally insufficient evidence?

Either of the contending formulations of the predicate error is imperfect, but the latter most closely corresponds to the essential concern, viz., that the defendant has been wrongly convicted of, and sentenced for, a crime. The inquiry focuses not on whether the trial court erred in failing to act sua sponte but, instead, on whether the action that the court did undertake was plainly contrary to law.

With the first, “Was it plain error?” question so focused, the answer is straightforward: In every case in which, viewing the evidence and disputed inferences in the light most favorable to the state, the legal insufficiency of the state’s proof is “not reasonably in dispute,” Brown, 310 Or at 355, the entry of the judgment of conviction is plain error. The critical qualification is, of course — as it is in many plain error cases — the “not reasonably in dispute” requirement. To satisfy that requirement, the appellant must, in turn, demonstrate both that (1) the operative legal principles governing sufficiency of the evidence as to the pertinent element(s) of the crime are “obvious,” id.-, and (2) it is beyond reasonable dispute that, applying those “obvious” legal principles to the evidence adduced at trial, that proof was legally insufficient.

The touchstone is not whether, as a substantive/ merits matter, the appellant’s position as to the law and its proper application is correct; rather, it is whether that position is correct beyond reasonable dispute. Thus — to invoke a quintessentially contentious issue of criminal proof — it could well be that a preserved challenge as to the sufficiency of proof based on the multiplicity or strength of inferences could result in a reversal, but an unpreserved challenge on the same grounds would be unavailing because the asserted legal insufficiency was “reasonably in dispute.” Id.

Such concerns are inapposite to this case. For purposes of our review, the circumstances of defendant’s conviction for third-degree assault on Count 13 are undisputed. The applicable law, as announced in State v. Merida-Medina, 221 Or App 614, 191 P3d 708 (2008), rev den, 345 Or 690 (2009), *533is precise. And the proper application of the latter to the former is straightforward — almost arithmetical in its simplicity. The legal insufficiency of the proof on which the challenged conviction was based is patent.3

B. A digression to discretion

Before turning to Ailesdiscretion, a pause for some historical perspective — a sort of entr’acte — is in order. That is so because of the convolutions of our treatment of discretion, including some apparent conflation of the “plain error” and “exercise of discretion” determinations.

It all began with Willy, where the defendant raised an unpreserved challenge to the sufficiency of evidence underlying a conviction for unlawfully obtaining food stamps. 36 Or App at 856-57. We noted that we “normally [would] not take cognizance of matters not called to the attention of the trial court,” but, nevertheless, “[b]ecause * * * the allegation is that there was absolutely no evidence from which the defendant could have been convicted,” we “considered] the issue” and rejected it because the record did, in fact, include evidence that the defendant had unlawfully obtained food stamps. Id.In so holding, we made no reference to discretion — or even, for that matter, to “plain error” (or its requisite characteristics) — which is unsurprising because Willyantedated Brownby 12 years and Ailesby 13.

The first reference to “discretion” in this context appears in Lindsey, which we decided two years after Willy. There, the defendant, who was convicted of fourth-degree assault after a trial to the court, appealed, asserting that “there was no evidence to support that conviction.” 45 Or App at 609. Specifically, the defendant contended — and the state conceded — that “the only injury the victim suffered was a *534torn shirt.” Id.We reversed. In so holding, we referred to Willyand cautioned:

“Willy should not be read as establishing any general rule that we will always consider challenges to the sufficiency of the evidence when such challenges were not raised in the trial court. The rule is that we may consider such assignments in our discretion. Willywas a case in which we exercised that discretion.”

45 Or App at 609 n 1 (emphasis in original).

Thus, in Lindsey, we phrased and framed the exercise of discretion as pertaining to our “consideration]” of the unpreserved challenge, but we did not identify any principles informing or constraining that discretion. See also State v. Dennison, 55 Or App 939, 944, 640 P2d 669, rev den, 293 Or 104 (1982) (characterizing Lindsey as having been “decided on the theory that a defendant ought not be convicted if there [is] no evidence of the substantive elements of the offense” and further describing Lindsey and Willy as “representing] a very narrow exception to a general rule” of preservation).

In State v. Wagner, 67 Or App 75, 77, 676 P2d 937 (1984), the defendant contended, for the first time on appeal, that his conviction for witness tampering must be reversed because “there was no evidence that [the putative witnesses] had been legally summoned to an official proceeding at the time [the defendant] allegedly induced them to leave.” Invoking Lindseyand Willy— and notwithstanding the state’s non-preservation objection — we reversed, observing that, where “there [is] absolutely no evidence to support [a] conviction, we will usually exercise our discretion to consider that issue.” Id.(emphasis added). Again — at that point seven years before Brown— we referred only to “discretion to consider” the purported error, and the only consideration that we identified as bearing on that discretion was whether “there was absolutely no evidence to support” the challenged conviction.4Id.Thus, it appears that, in the pre-Brown /Ailes age, we embraced an *535approach that, if a conviction was based on legally insufficient evidence, we would, regardless of nonpreservation, presumptively (albeit not necessarily) correct that error and reverse the conviction.

We entered the Brown/Ailes era with Hurst. There, the defendant, who had been convicted for unlawful possession of a short-barreled shotgun, raised an unpreserved challenge, contending that the state had failed to prove that the rifle she possessed was not, in fact, registered as required under federal law.5Hurst, 147 Or App at 387. We reversed the conviction after determining, by reference to Ailes, that the error was “apparent.” Id.We further stated that “we exercise[d] our discretion to review it” — but offered no explanation or justification for the positive exercise of Ailesdiscretion. Id.

Our most recent reference to Willy— until today— was in Hooker smith, where we declined to review the defendant’s unpreserved contention that his conviction for possession of a controlled substance must be reversed because certain documents evincing the nature of the substance had, inadvertently, never been received into evidence. In so holding, we observed:

“[Djefendant does not contend that the error is one of law apparent on the face of the record. Even assuming that it is, however, he offers no justification for exercising our discretion to consider it. Particularly in light of the fact that defendant stipulated to the facts contained in the police report and the laboratory reports, was shown them at trial, and then stood idly by as the trial court ruled without formally admitting them into evidence, we are not inclined to address his complaints about the failure to admit those reports for the first time on appeal.”

181 Or App at 558.

*536Thus, our refusal to exercise Ailesdiscretion in Hockersmithturned on the consideration that, if the deficiency in the proof had been raised by way of a timely MJOA, the trial court would (almost certainly) have permitted the state to reopen to remedy that deficiency and the necessary proof would readily have been adduced. To permit the defendant in Hockersmithto prevail on his unpreserved claim of error and, thus, obtain an outright reversal of his conviction, would have placed him in a better position than if trial counsel had timely raised the purported error. Accord State v. Caldwell, 187 Or App 720, 726, 69 P3d 830 (2003), rev den, 336 Or 376 (2004) (declining to remedy alleged “plain error” defect in indictment because, given that the statute of limitations had run during the pendency of the appeal, the defendant would secure an outright reversal, rather than a remand — which would, effectively, “reward defendant for not making a timely challenge at trial”).

Finally, and most recently, in State v. Inloes, 239 Or App 49, 243 P3d 862 (2010), we addressed the application of Ailes’s discretionary criteria, where the belated challenge to the sufficiency of evidence underlying the defendant’s conviction for criminal mistreatment was predicated on a post-trial change in decisional law, viz., State v. Baker-Krofft, 348 Or 655, 239 P3d 226 (2010). We predicated our exercise of discretion on two considerations:

“First, given the intervening material change in the law, correcting the asserted error here will not subvert the judicial system’s interest in requiring preservation of error. Second, the gravity of the error — the imposition of four felony convictions based on legally insufficient evidence — -is extreme.”

Inloes, 239 Or App at 54-55 (internal quotation marks and citations omitted).

In sum, to paraphrase Ecclesiastes, “Better is the end of [the] thing than the beginning.” But not much. For nearly 40 years we have referred to our “discretion” to review and correct unpreserved error of this sort — but, in doing so, we have variously conflated or equated the clarity of the error (e.g., “absolutely no evidence”) with the appropriate exercise of discretion, exercised discretion without any explanation *537(even as prescribed in Ailes, 312 Or at 382), or attempted to explain the exercise or nonexercise of discretion by reference to some of Ailes’s nonexclusive criteria or to criteria developed and applied in other plain error contexts. See, e.g., Inloes, 239 Or App 49; Hockersmith, 181 Or App 554.

To be sure, some case-specific variability is inevitable and, indeed, desirable. And, given the mix-and-match interplay of various Ailesdiscretionary considerations, see Ailes, 312 Or at 382 n 6, precision is a fool’s errand. It is, after all, discretion. But still, in the end, the judicious exercise of discretion must be cabined and guided by some consistent prudential principles.

C. Deconstructing discretion

Toward that end, I respectfully submit that several salient principles, which comport with our diffuse precedents, can and should inform and channel our exercise of Ailesdiscretion with respect to consideration of criminal convictions based on legally insufficient evidence.

First, the exercise of Ailesdiscretion in such circumstances is presumptive. That premise harkens to some of our pre-Ailes opinions, e.g., Wagner, 67 Or App at 77 (“[W]e will usually exercise our discretion to consider that issue.”), and partakes of notions of fundamental fairness. In general, in the absence of compelling countervailing considerations, affirming a criminal conviction based on insufficient evidence is unjust.

Second, that presumption is not absolute or conclusive. Given Ailes, it cannot be. Ailesemphasizes, and subsequent Supreme Court decisions have reiterated, that plain error review and correction is a “rare and exceptional” deviation from the rule of preservation. State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006) (internal quotation marks omitted). That premise is grounded in the recognition that the rule of preservation promotes not only systemic “efficiency” but also, and far more importantly, the principled and evenhanded operation of our adversarial system of justice. That is, the rule of preservation is not some mere mindless dictate of form over substance; rather, it is itself designed to promote fairness. See, e.g., Peeples v. Lampert, 345 Or 209, 220, 191 *538P3d 637 (2008) (describing rationale for preservation requirements). That, in turn, necessitates an explicit explanation of why, in the totality of material circumstances, such an extraordinary departure from the rule is warranted. Ailes, 312 Or at 382. Ailesdiscretion is not a “one size fits all” proposition.

Third, consistently with the second principle, considerations bearing materially on our exercise of discretion in cases of this type should include the following:

(1) “The ends of justice in the particular case.” This is, of course, a quintessential Ailescriterion, 312 Or at 382 n 6, and is almost reflexively dovetailed with the “gravity of the error” consideration. See, e.g., Merrimon, 234 Or App at 522; State v. Lovern, 234 Or App 502, 513-14, 228 P3d 688 (2010). In this context, the latter is, effectively, a makeweight, in that it is captured and effectuated in the first, presumptive principle above. That is, entering a criminal conviction based on legally insufficient evidence is an extremely serious error, and that is so regardless of the nature of the underlying charge. At first blush, the same might seem to be true of the “ends of justice” consideration — that is, that it can never comport with the ends of justice to fail to reverse a conviction based on legally insufficient evidence — and, thus, that consideration is already given effect by the initial presumption.

That, however, is not always true — in some circumstances, as a practical matter, the “ends of justice” may not militate in favor of overriding the rule of preservation. In particular, our “ends of justice” assessment should be informed by: (a) consideration of the functional role of the defendant’s challenged conviction and sentence in the totality of his or her circumstances (including other convictions and sentences); and (b) the availability of other mechanisms (e.g., post-conviction relief) to address and remedy the asserted error.

With respect to the first inquiry, the classic “ends of justice” scenario is one in which a defendant has been erroneously convicted of a single, very serious crime and is incarcerated even as we review the claim of the plain error. In that *539circumstance, every day we delay plain error review and correction is another day of unjust confinement. But not every case is so stark; indeed, few are. Consider, for example, a case in which a defendant has been convicted on over a dozen criminal counts, many more serious than the single count that was based on insufficient evidence — and the sentence on that count is much shorter than, and concurrent with, those on his or her myriad unchallenged convictions. The “ends of justice” assessment in the two cases is qualitatively different.

So too with respect to the potential availability of collateral relief — which, after all, is designed to (ultimately) achieve the ends of justice. Presumably, in virtually every case in which counsel, without reasonable explanation, has failed to move for a judgment of acquittal whose allowance would have been required under law existing as of the time of trial, the wrongly convicted defendant will be able to obtain post-conviction relief, reversing the conviction.6 The question, practically, becomes whether the error should be remedied by plain error review on direct appeal or left to post-conviction correction — that is, whether to act sooner rather than later. In the first scenario outlined above, the answer is clear. But it is not so clear with respect to the second, in which the defendant is suffering no present detriment from the purported wrongful conviction — and, in fact, may not suffer cognizable prejudice from that conviction for years (if ever), by which time any collateral proceedings will long be concluded. In the latter scenario, the ends of justice will not, in any real sense, be subverted by the court declining plain error review and correction and consigning the defendant to collateral proceedings — and the prudential policies underlying the rule of preservation may well be concomitantly served.

(2) Post-trial developments in law pertaining to proof of the disputed offense. This State v. Jury-based consideration can have cross-cutting implications with respect to the application of Ailesdiscretion. On one hand, in many *540cases, trial counsel cannot be faulted for failing to have anticipated the change of law — and, even if counsel had, the MJOA would have been denied under then-extant law — and, thus, plain error review will not subvert policies underlying the rule of preservation. See, e.g., Inloes, 239 Or App at 54. On the other hand, that is true only if we can be fully confident that the evidentiary record would not have been materially different if the subsequent developments in the law had been extant as of the time of trial. Otherwise, the record-development policies of preservation will be subverted — with the consequence that the defendant, by securing an outright reversal, may have obtained a better result than if he or she had raised a contemporaneous challenge.

(3) The potential record-development effect of a contemporaneous MJOA. At the risk of reiteration and overlap with the preceding discussion, which pertained to Jury-predicated challenges, this consideration applies to our review of every unpreserved challenge to the legal insufficiency of evidence. That is so because of the patent potential for tactical sandbagging — or, in all events, the potential for contemporaneous cure. Because of the underlying potential for bait-and-switch manipulation yielding an outright reversal, see, e.g., Hockersmith, 181 Or App 554, this consideration can militate powerfully, indeed, decisively, against the exercise of Ailesdiscretion in this context. Nevertheless, its application is, not infrequently, unsatisfying because of the constraints of the record on appeal: In their briefing on Ailesdiscretion, even the most skilled advocates are reduced to hypothesizing about what proof might (or might not) have been adduced if a timely MJOA had been made (and if the trial court had permitted reopening) — and we, as the referees and judges of that shadowboxing contest, are regularly reduced to rendering what amounts to a “we know it when we see it” determination as to what would have occurred at trial if something that never occurred had occurred. Still, in the dynamics of Ailesdiscretion, this, among the various considerations, comes closest to being a “tie goes to the runner” factor — with the state being the “runner,” “safe” for now, unless or until the defendant can develop a fuller, more favorable record in the post-conviction proceedings as to putative prejudice.

*541D. Application and conclusion

The application of the foregoing principles to this case is straightforward. Notwithstanding the generic presumption in criminal cases favoring the exercise of Ailesdiscretion when the evidence is insufficient, defendant’s particular circumstances do not correspond with those in the generality of such cases. Further, nothing in the circumstances here suggests that this is such a “rare and exceptional case[ ],” Gornick, 340 Or at 166, as to warrant, much less compel, the extraordinary exercise oí Ailes discretion.

The point of departure is the totality of defendant’s convictions and consequent sentences. Defendant was convicted, after a jury trial, on 14 criminal counts, including six Class A felonies involving two different victims, four Class B felonies involving the same two victims, and four Class C felonies (including Count 13) involving the same two victims. The trial court (a) merged the guilty verdicts on the first two counts and imposed a 40-month sentence on the resulting conviction; (b) imposed a 90-month sentence on each of the other Class A felony convictions to be served concurrently with one another, with 80 months to be served consecutively to the 40-month sentence — i.e., a total of 120 months’ incarceration; (c) imposed 70-month sentences on each of the four Class B felony convictions, to be served concurrently with one another and with the sentences described in (b); and (d) imposed a dispositional upward departure sentence of six months with respect to each of the four Class B felony convictions, to be served concurrently with one another and with the sentences described in (b) and (c).

The upshot is that, regardless of the asserted plain error, defendant — like the defendant in the hypothetical posited above, see 250 Or App at 538-39 (Haselton, C. J., dissenting in part, concurring in part) — stands convicted of a very large number of felonies, many of which are much more serious than the challenged conviction, and her sentence on the challenged conviction is dwarfed by and subsumed within her sentences on the other, indisputably lawful convictions. Defendant identifies no meaningful collateral consequence from her conviction and sentence on Count 13 — and, given the totality of the circumstances, none is manifest. The “ends *542of justice” in this case hardly compel plain error correction on direct appeal.

Nor is this a case in which some subsequent, reasonably unforeseen change in the law mitigates or excuses the failure to make a contemporaneous MJOA. Accord Inloes, 239 Or App at 54-55 (addressing exercise of Ailesdiscretion in context in which substantive law changed between trial and appeal). Further, although this does not appear to be a case in which the evidentiary record might have developed differently if a timely MJOA had been made, it is at least plausible that defense counsel made a tactical choice to pursue a holistic “all-or-nothing” strategy with respect to Count 13, as he did with respect to all of the charges, and to forgo an MJOA predicated on Merida-Medina, which would have focused the court’s (and the state’s) attention on the availability and propriety of a conviction for fourth-degree assault. Of course, that is speculative — but it is also plausible. And on this record, pending any further elucidation in collateral proceedings, that, too, cuts against the exercise of Ailesdiscretion.

In the end, nothing in this case justifies the exercise of Ailesdiscretion. Accordingly, the majority’s disposition as to Count 13 represents an abuse of that discretion. I respectfully dissent from that disposition and concur in the balance of the majority’s disposition.

And that is just in our published dispositions, without reference to those cases in which we have rejected such challenges and affirmed without opinion.

That otherwise constricted universe can be, and has been, existentially expanded by our application of State v. Jury, 185 Or App 132, 57 P3d 970 (2002), rev den, 335 Or 504 (2003), by which the temporal benchmark for determination of plain error is by reference to the law existing as of the time the appeal is decided, and not as of the time of trial. See, e.g., State v. Inloes, 239 Or App 49, 243 P3d 862 (2010) (reviewing unpreserved contention as to purported insufficiency of evidence to support criminal conviction by reference to appellate decisions that issued after the date of trial and conviction); State v. Merrimon, 234 Or App 515, 522, 228 P3d 666 (2010) (holding that admission of evidence of diagnosis of child sex abuse constituted plain error in the light of State v. Southard, 347 Or 127, 218 P3d 104 (2009), which issued after the date of the defendant’s conviction).

The state acknowledges as much — while at the same time vehemently contending that the court should not exercise its Ailesdiscretion to correct the error.

The state’s “concession” as to plain error is largely — and perhaps entirely— immaterial. Each of the three cumulative Brownrequisites is objective. Consequently, as a matter of law, the asserted error either satisfies those objective requisites or it doesn’t, and the state’s ostensible concession cannot alter our obligation under Brownto render that legal determination correctly. But cf. Inloes, 239 Or App at 53 (noting state’s concession that insufficiency of evidence was no longer in reasonable dispute).

None of our post -Willy cases explains the meaning of “absolutely no evidence” — as opposed to “no evidence” or “legally insufficient evidence.”

That contention was, in turn, based on State v. Vasquez-Rubio, 323 Or 275, 917 P2d 494 (1996), which was decided after the defendant’s trial and conviction. Thus, Hurst effectively anticipated Jury and Inloes in that we assessed the sufficiency of the state’s proof by reference to the standards prescribed in decisions that issued after the defendant’s trial.

One exception, addressed below, see 250 Or App at 540 (Haselton, C. J., dissenting in part, concurring in part), is where, if a timely MJOA had been made, the trial court would likely, and properly, have permitted the state to rectify the defect in its proof. See, e.g.,Hooker smith, 181 Or App at 558.

Citation profile

How this case has been treated — in progress