794
On appellant’s petition for reconsideration filed January 15; reconsideration
allowed, former opinion (
300 Or App 666,
455 P3d 1014 (2019)) adhered to
March 11, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHARLES TIRY McCURRY,
Defendant-Appellant.
Washington County Circuit Court
17CR01344; A165882
462 P3d 786
Oscar Garcia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender, Office
of Public Defense Services, for petition.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
PER CURIAM
Reconsideration allowed; former opinion adhered to.
Cite as
302 Or App 794 (2020) 795
PER CURIAM
Defendant petitions for reconsideration of our decision in State v. McCurry, 300 Or App 666,
455 P3d 1014
(2019). We allow reconsideration to address defendant’s contention that we made a factual error, and we adhere to our
prior decision.
Defendant raised two assignments of error in his
corrected opening brief, both of which related to unpreserved
claims that the trial court had erred when it “allowed” prosecutorial misconduct. In our opinion, we characterized
defendant’s arguments in support of those assignments as
contending “that the trial court erred by not declaring a
mistrial sua sponte on the basis of prosecutorial misconduct”
and “that the statements were so prejudicial that the trial
court had a duty to declare a mistrial on its own motion.”
McCurry, 300 Or App at 669. In his petition for reconsideration, defendant contends that we made a factual error in
describing his arguments, because he expressly stated that
he was not asking us “to … enforce a sua sponte duty of the
trial court.” He explains, “Defendant did not assign error
to the trial court’s failure to declare a mistrial sua sponte.
Defendant assigned error to the trial court’s allowance of
prosecutorial misconduct in closing argument.” His position
was that we could recognize, as a part of plain-error discretion, “that an illegality occurred, and the gravity of the illegality and the ends of justice warrant[ed] … righting that
wrong.” Defendant cites Article VII (Amended), section 3,
of the Oregon Constitution as providing authority for us to
remand his case for retrial without having decided that the
trial court erred by failing to act sua sponte.
Article VII (Amended), section 3, may, among other
things, define the scope of our potential dispositions of a
case, but, in context it is clear that those options are subject to laws and rules that constrain our review, such as the
requirement to first determine that a trial court has made
a legal error before overturning a criminal conviction. See,
e.g., ORS 138.105(2) (in criminal case, appellate court has
authority to review only questions of law appearing on the
record); ORAP 5.45(3) (“Each assignment of error must identify precisely the legal, procedural, factual, or other ruling
796 State v. McCurry
that is being challenged.” (Emphasis added.)). Although we
did characterize defendant’s arguments in a way that he
had attempted to distinguish in his brief, we did so because,
in order to address whether a trial court committed plain
error in those circumstances, we must first determine—and
defendant is required to identify precisely—the ruling of the
trial court that is being challenged on appeal. ORAP 5.45(3).
In response to an assigned error, we determine whether the
trial court erred in making the identified ruling. Sometimes,
as in this case, an assignment of error is framed as the trial
court having allowed something, even though the litigant
did not object before the trial court, and therefore, there was
no express ruling “allowing” anything. In that instance, the
identified error of the trial court can only be the failure of
the trial court to act on its own motion under circumstances
in which it was required to act. Thus, we did recharacterize
defendant’s assignment of error, but we did so to frame it in
the only way that allowed us to address it—as the failure to
act, sua sponte, in response to what defendant identified as
prosecutorial misconduct.
Reconsideration allowed; former opinion adhered to.
