State v. Freeman

736                 February 14, 2024               No. 96

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               TYLER DANIEL FREEMAN,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   21CN03345; A178160

  Kelly Skye, Judge.
  Submitted January 19, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  SHORR, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)                                 737

           SHORR, P. J.
         Defendant appeals from a judgment of contempt
for two counts of violating a restraining order. Defendant
raises two assignments of error, assigning error to the trial
court’s denial of his motion to dismiss and to the denial of
his motion for judgment of acquittal (MJOA) on Count 1 of
the indictment. As we briefly explain below, we reject both
assignments. As a result, we affirm the judgment.
         Defendant contends that the trial court erred
because it should have dismissed, rather than postponed,
the case after the state purportedly failed to appear for a
trial date. The parties agree that although the court drafted
a written order setting over the trial for November 17, 2021,
there was a clerical error that resulted in that new trial
date not being docketed. Assuming, without deciding, that
the case was set for trial within the meaning of ORS 136.120
under those circumstances, there was a sufficient objective
basis to postpone the trial due to the court’s own docketing
error.1 See State v. Sondenna, 

, 

 (2008) (stating that sufficient cause for postponement
depends on whether the prosecutor has shown reasons that
objectively justify the postponement).
         Defendant also assigns error to the trial court’s
denial of his MJOA, which he made when the case ultimately
proceeded to a bench trial. Defendant contends that the
court should have acquitted him of Count 1, which alleged
that defendant had violated the restraining order as to L,
the mother of defendant’s two children. Count 1 alleged that
defendant contacted L through a third person. Defendant
argues that there was no evidence that he directed a third
person to contact L on his behalf. Therefore, he contends,
the trial court should have acquitted him of that count.
         We conclude that defendant did not preserve his
argument for appeal, and we therefore reject it. Defendant
initially moved for a judgment of acquittal based on the
    1
      ORS 136.120(1) provides that the court shall dismiss the accusatory instrument if defendant appears at the time set for trial and the prosecutor is not ready
and does not show “sufficient cause” for postponing trial. Even if those conditions
are met, the court can refuse dismissal if “dismissal is not in the public interest.”

738                                                      State v. Freeman

theory that there was insufficient proof that he was served
with the restraining order. That motion was denied. Defense
counsel then mistakenly proceeded with defendant’s closing
argument first before the state had an opportunity to present its closing argument. In so doing, defendant started to
make a number of arguments, including that there was not
proof that defendant directed the third party to make any
comments to L. At that point, the court specifically asked
whether defendant was making arguments “towards your
MJOA still?” Defendant then disavowed that the argument
was in support of an MJOA. When defense counsel later proceeded during her turn for closing argument, she framed the
issue of the third-party contact as one of reasonable doubt.
         Under circumstances where defendant disavows
to the trial court that defendant is making an argument
in support of an MJOA, we cannot conclude that the same
argument is preserved for us on appeal.2 It would not serve
either the prudential or pragmatic principles underlying
preservation to consider defendant’s argument to be preserved here. See Peeples v. Lampert, 

, 

 (2008) (noting that preservation principles give a
trial court a chance to consider and rule on a contention
and are dependent on the circumstances in which a claim
or argument is made). The trial court would not have understood it was being asked to rule on a motion when defendant
confirmed for the court that defendant was not, in fact, raising a motion.
       For the reasons discussed above, we reject both of
defendant’s assignments of error.
            Affirmed.




   2
       Defendant does not raise a plain error argument so we do not address one.