470
Argued and submitted September 30, 2019, affirmed February 26, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
RAY WILLIAM STACEY,
Defendant-Appellant.
Lake County Circuit Court
15CR46674; A167612
459 P3d 261
Defendant appeals a judgment of conviction for one count of false application
for vehicle registration and two counts of false statement on title or transfer of
vehicle. Defendant waived his right to a jury trial and was tried to the court.
When the state waived its initial closing argument, defendant requested that the
state not be allowed to rebut defendant’s closing or, alternatively, that defendant
be allowed surrebuttal. The trial court denied both requests. On appeal, defendant argues that the court abused its discretion in conducting closing arguments
in the manner that it did, because the court relied on the erroneous legal premise
that, under ORS 136.330, ORCP 58 B(6)—a civil rule regarding the manner and
order of closing arguments—applies to criminal bench trials. In response, the
state argues that petitioner’s claim of error is unpreserved and that any error is
not plain. Held: Defendant did not preserve his claim of error. Although defendant challenged the fairness of the court’s intended manner of conducting closing arguments, defendant never raised the statutory issue that he now raises on
appeal, which is a fundamentally different issue. As for plain error, the Court
of Appeals agreed with the state that any error was not plain, both because the
legal issue was not “obvious” and because it was not clear from the record that the
trial court actually relied on ORCP 58 B(6).
Affirmed.
Robert F. Nichols, Jr., Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Hannah K. Hoffman, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
Cite as 302 Or App 470 (2020) 471
AOYAGI, J.
Affirmed.
472 State v. Stacey
AOYAGI, J.
Defendant appeals a judgment convicting him of
one count of false application for vehicle registration, ORS
803.375, and two counts of false statement on title or transfer of vehicle, ORS 803.070. He raises two assignments of
error, both relating to the manner in which closing arguments were conducted at his trial. For the reasons that follow, we affirm.
The only relevant facts are procedural. Defendant
was charged with making a false statement—specifically,
providing an Oregon residence address when he in fact
resided in California—on applications for motor vehicle registration and title.1 Defendant waived jury, and the charges
were tried to the court. After the close of evidence, the following exchange occurred, which goes to the heart of defendant’s arguments on appeal, so we quote it in full:
“THE COURT: Closing arguments?
“[PROSECUTOR]: No.
“THE COURT: Okay, [defense counsel]?
“[DEFENSE COUNSEL]: Is the State going to waive any
rebuttal to mine, then?
“THE COURT: I don’t know; I asked her if she wanted to
do closing and she said no.
“[DEFENSE COUNSEL]: So she’s waiving all closing?
“[PROSECUTOR]: I didn’t say that.
“[DEFENSE COUNSEL]: Okay. I object to the State trying to sandbag me on this by not allowing me to respond to
her arguments. So if she wants to make an argument, she
makes it now; if she waives it, she waives all of it.
“THE COURT: I think she has a right to waive her closing and do rebuttal; I guess it might depend on what your
argument is, [defense counsel].
“[DEFENSE COUNSEL]: Then do I get to rebut hers?
“THE COURT: No.
“[DEFENSE COUNSEL]: Why not?
1
Several other charges were dismissed before trial.
Cite as 302 Or App 470 (2020) 473
“[PROSECUTOR]: That’s the way it works.
“THE COURT: They have the burden of proof.
“[DEFENSE COUNSEL]: Okay. The reason how this
works –
“THE COURT: Do you know a case that says if you waive
your first one you can’t make a second one, is there a case
that says that?
“[PROSECUTOR]: No, there is not.
“[DEFENSE COUNSEL]: Let’s just think it through,
okay? The State makes an opening argument, okay? I make
an opening argument, I respond to hers. She has a limited
opportunity after that to respond to mine, she can’t bring
up new matter. So the trick here is, she wants to not allow
me to respond to her argument by saying, well, I’ll waive
the first one, and then, well, I’ll make that comment but—
and what the Court is saying, I can’t respond to hers. So if
she wants to do it this way I’ll do the first and the third.
“THE COURT: So she waived her first opening. So you
may make your closing argument, [defense counsel].”
At that point, defense counsel made his closing
argument. When he finished, the prosecutor gave a rebuttal
argument. Defense counsel then asked if he could “respond
to an argument that [he] never heard before.” The prosecutor interjected, “That is not the state of the law; we don’t
have surrebuttal.” The trial court implicitly denied defendant’s request to argue further and took the case under
advisement. The next day, it found defendant guilty of the
three counts previously noted.
Defendant appeals, assigning error, first, to the
trial court “allowing the state to make a rebuttal argument”
and, second, to the trial court “refusing to let defendant
make a surrebuttal argument.” Defendant recognizes that
the court’s handling of closing argument was a matter of
discretion,2 but he argues that the court abused its discretion here because it relied on a mistaken legal premise. See
2
See State v. Manning, 290 Or App 846, 848,
417 P3d 509, rev den,
363 Or
224 (2018) (applying abuse-of-discretion standard to claim regarding closing
argument); State v. Goodin,
8 Or App 15, 23-24,
492 P2d 287 (1971) (“Absent
abuse, the control of closing arguments is left to the trial court judge, who has
broad authority to control the conduct of the trial.”).
474 State v. Stacey
State v. Romero,
236 Or App 640, 643-44,
237 P3d 894 (2010)
(“Where … a trial court’s purported exercise of discretion
flows from a mistaken legal premise, its decision does not fall
within the range of legally correct choices and does not produce a permissible, legally correct outcome.”). Specifically,
he argues that the court wrongly relied on ORCP 58 B(6)
to conclude that the state had a right to make a rebuttal
argument, even if it waived its initial closing, as well as the
right to the last word.3 In defendant’s view, that legal premise is mistaken because ORS 136.330 makes ORCP 58 B(6)
applicable to criminal jury trials but not criminal bench
trials.
As a threshold matter, we address whether defendant’s claim of error is preserved. Defendant asserts that it
is preserved because, in the trial court, he “argued that the
state’s decision to waive closing argument should preclude it
from rebutting his argument” or that, at the least, “he should
have the opportunity to respond to the state’s rebuttal.” The
state contests preservation, asserting that “defendant did
not preserve the legal argument that appears in his brief,
which relies on a novel interpretation of the Oregon Rules of
Civil Procedure.”
To be raised and considered on appeal, an issue
“ordinarily must first be presented to the trial court.” Peeples
v. Lampert, 345 Or 209, 219,
191 P3d 637 (2008). “No matter claimed as error will be considered on appeal unless the
claim of error was preserved in the lower court …, provided
that the appellate court may, in its discretion, consider a
plain error.” ORAP 5.45(1). “Preservation gives a trial court
the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already
made, which in turn may obviate the need for an appeal.”
Peeples,
345 Or at 219. It “also ensures fairness to an opposing party, by permitting the opposing party to respond to a
contention and by otherwise not taking the opposing party
by surprise.”
Id. Finally, it “fosters full development of the
3
ORCP 58 B(6) provides: “When the evidence is concluded, unless the case
is submitted by both sides to the jury without argument, the plaintiff shall commence and conclude the argument to the jury. The plaintiff may waive the opening argument, and if the defendant then argues the case to the jury, the plaintiff
shall have the right to reply to the argument of the defendant, but not otherwise.”
Cite as 302 Or App 470 (2020) 475
record, which aids the trial court in making a decision and
the appellate court in reviewing it.” Id. at 219-20.
“Preservation rules are pragmatic as well as prudential,” and “[w]hat is required of a party to adequately
present a contention to the trial court can vary depending
on the nature of the claim or argument; the touchstone in
that regard, ultimately, is procedural fairness to the parties
and to the trial court.” Id. at 220.
In this case, we agree with the state that defendant’s
claim of error is unpreserved. Defendant certainly made
clear to the trial court that he disagreed with the state’s
intended approach to closing argument. In doing so, however, he argued only that conducting closing in that manner
would be unfair. He never argued that a bench trial was subject to different rules than a jury trial with respect to closing
arguments. He never argued that the state or the court was
relying on inapt legal authority. He never challenged the
correctness of the state’s assertion about “the way it works”
or the court’s view of the significance of the state having
the burden of proof. When the trial court expressly asked if
there was any authority for the proposition that, if the state
waived its initial closing, it “can’t make a second one,” the
state said no, and defendant said nothing. Thus, the only
argument that the trial court reasonably would have understood defendant to be making was that, regardless of the
trial court’s legal authority to conduct closing argument in
the manner that it intended, defendant considered that procedure inherently unfair and was asking the court to vary
it. The court declined that request.
On appeal, defendant raises a much different issue.
Defendant argues that, as a matter of law, ORCP 58 B(6)
applies only to criminal jury trials, not to criminal bench
trials. Defendant points out that ORCP 58 B sets outs procedures for jury trials only; it begins, “Trial by a jury shall
proceed in the following manner unless the court, for good
cause stated in the record, otherwise directs[.]” (Emphasis
added.) Meanwhile, ORCP 58 A adopts certain subsections of
ORCP 58 B for purposes of civil bench trials, including ORCP
58 B(6). ORCP 58 A provides, “Trial by the court shall proceed in the manner prescribed in subsections (3) through (6)
476 State v. Stacey
of section B of this rule, unless the court, for good cause
stated in the record, otherwise directs.” (Emphasis added.)
Finally, ORS 136.330(1) extends the application of ORCP
58 B to criminal actions, providing, as relevant here, that
“ORCP 58 B, C and D and 59 B through F and G(1), (3),
(4) and (5), apply to and regulate the conduct of the trial of
criminal actions.”
Defendant does not seem to argue that the references to the “jury” in ORCP 58 B(6) preclude its application
to bench trials, and he would be hard pressed to do so given
ORCP 58 A’s express adoption of ORCP 58 B(6) for civil
bench trials. Nor does he seem to contest that ORS 136.330
applies to criminal actions generally. Rather, as we understand it, the crux of defendant’s argument is that, because
ORCP 58 B specifies how “[t]rial by a jury shall proceed,”
while ORCP 58 A specifies how “[t]rial by the court shall
proceed,” and because ORS 136.330 adopts only ORCP 58 B,
not ORCP 58 A, ORS 136.330 has necessarily adopted the
closing-argument procedures in ORCP 58 B(6) only for criminal jury trials, not for criminal bench trials. In defendant’s
view, the trial court has complete discretion in conducting
closing argument in a criminal bench trial, except that it
must allow the defendant to make closing argument for constitutional reasons.
Given the substantial difference between defendant’s
claim of error on appeal and the argument that he made to
the trial court, we conclude that defendant’s claim of error
is unpreserved. The very limited argument that defendant
made in the trial court did not give that court an adequate
opportunity to consider the issue that defendant now raises
on appeal, nor did the state have an opportunity to address
that issue in the trial court. Defendant now claims that the
trial court misconstrued ORS 136.330 and ORCP 58, but
he never even mentioned ORS 136.330 or ORCP 58 to the
trial court, let alone raised the specific issue that he now
raises on appeal. At least partially as a result of that circumstance, it is unclear from the record whether the trial
court was even relying on ORCP 58 B(6)—a point that likely
would have been clarified if defendant had ever challenged
the applicability of ORCP 58 B(6) in the trial court.
Cite as 302 Or App 470 (2020) 477
To the extent that it is the standard practice of
Oregon trial courts to apply ORCP 58 B(6) in criminal bench
trials—as at least defendant seems to suggest—such that it
is reasonable to assume that the trial court relied on ORCP
58 B(6) in this case, that only makes it more apparent that
the court would not have discerned from what defendant said
that he was proposing a new construction of ORS 136.330
and the applicability of ORCP 58 B(6) in criminal bench trials as distinguished from criminal jury trials. A party can
sometimes use shorthand to reference well-established legal
principles and still satisfy the purposes of preservation. See
State v. Walker, 350 Or 540, 550,
258 P3d 1228 (2011) (recognizing that “fairly abbreviated shorthand references” are
sometimes sufficient “to put all on notice about the nature of
a party’s arguments”). But defendant does not dispute that
his argument on appeal is a novel one for which there is no
existing precedent, nor does he meaningfully explain how
his fairness argument to the trial court could possibly have
been understood as a “shorthand” reference to the statutory
construction issue that he now raises.
In sum, with respect to preservation, if defendant
believed that the trial court was relying on an inapplicable
procedural rule in conducting his trial, he had to at least
point that out to the trial court. He might not have needed to
fully develop his argument, but he at least needed to tell the
court that he disagreed that ORCP 58 B(6) applied. Then
the state could have addressed that legal point, and the
trial court would have understood that it needed to decide
whether ORCP 58 B(6) applied (or explain that it was not
relying on ORCP 58 B(6)). Instead, defendant argued only
that the closing argument procedure was inherently unfair,
which is a fundamentally different issue than whether ORS
136.330 makes ORCP 58 B(6) applicable in a criminal bench
trial.
Because defendant’s claim of error is unpreserved,
that leaves only the question of plain error, see ORAP 5.45(1),
and we agree with the state that any error is not plain. There
are three requirements for plain-error review: “(1) the error
must be an error of law; (2) it must be ‘apparent,’ in that
the ‘legal point is obvious, not reasonably in dispute’; and
478 State v. Stacey
(3) it must appear on the record such that ‘[w]e need not go
outside the record or choose between competing inferences
to find it, and the facts that comprise the error are irrefutable.’ ” State v. Coverstone, 260 Or App 714, 715,
320 P3d 670
(2014) (quoting State v. Brown,
310 Or 347, 355,
800 P2d 259
(1990)). We must use “utmost caution” in exercising our discretion to consider plain error, because of the strong policy
reasons favoring preservation. Ailes v. Portland Meadows,
Inc.,
312 Or 376, 382,
823 P2d 956 (1991).
Here, it is not “obvious” that ORS 136.330 adopts
ORCP 58 B(6) only for purposes of criminal jury trials,
rather than all criminal trials. Defendant makes a persuasive argument on appeal, but a persuasive argument does
not necessarily equate to an “obvious” legal point that is
“not reasonably in dispute,” particularly on a matter of first
impression. Moreover, the alleged error is not apparent on
the record. As previously discussed, we cannot tell whether
the trial court actually relied on ORCP 58 B(6), given the
limited arguments that the parties made to the trial court
and the absence of any legal citation by anyone. That alone
precludes plain-error review.
Finally, if the trial court did rely on ORCP 58 B(6),
it presumably was aware that that rule gave it discretion
to vary the manner in which closing arguments were conducted “for good cause stated in the record.” ORCP 58 B; see
also State v. Ness, 54 Or App 530, 535,
635 P2d 1025 (1981),
aff’d on other grounds,
294 Or 8,
653 P2d 548 (1982) (recognizing trial court’s discretion under ORCP 58 B to vary who
made the last argument). On appeal, defendant essentially
asks us to infer that the court relied on ORCP 58 B(6) and
was familiar with its specifications for closing arguments,
but then also to infer that the court did not realize that it
had discretion under ORCP 58 B. Even if that combination
of inferences is reasonable, the contrary inference is that
the court realized that it had discretion—under ORCP 58 B
or otherwise—and was simply unpersuaded by defendant’s
fairness argument.4 The possibility of a contrary inference
precludes plain-error review.
4
Cf. State v. Stevens, 311 Or 119, 147-48,
806 P2d 92 (1991) (holding that
the trial court did not err in rejecting the defendant’s argument that it was
Cite as
302 Or App 470 (2020) 479
In sum, defendant did not preserve his claim of
error that the trial court mistakenly relied on ORCP 58 B(6)
in deciding to conduct closing arguments in the manner
that it did, and we agree with the state that any error is not
plain. Accordingly, we affirm.
Affirmed.
“fundamentally unfair to allow the prosecution to open final argument and close
final argument at the penalty phase”); State v. Ramsey, 215 Or App 434, 447-48,
173 P3d 142 (2007), rev den,
344 Or 194 (2008) (holding that the trial court did
not err in rejecting the defendant’s argument that, because he had the burden of
persuasion, it was “unfair” to follow ORCP 58 B(6) and allow the state to make a
rebuttal closing argument to the penalty-phase jury).
