State v. Brown

624                    March 27, 2024               No. 192

   This is a nonprecedential memorandum opinion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.
                MICHAEL ALLEN BROWN,
                    Defendant-Appellant.
               Clackamas County Circuit Court
                    21CR58025; A179104

   Jeffrey S. Jones, Judge.
   Submitted February 26, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)               625

        ORTEGA, P. J.
         Defendant was convicted of multiple offenses,
including one count of driving under the influence of intoxicants, ORS 813.010(4), and one count of recklessly endangering another person, ORS 163.195. On appeal, he seeks
reversal as to those two counts on the ground that the trial
court erred in giving what is known as the “Miles instruction.” See UCrJI 2708; State v. Miles, 

,

 (1972) (the genesis of the instruction in Oregon).
That instruction provides:
   “If you find from the evidence that [defendant] was in such
   a physical condition that [he] w[as] more susceptible to the
   influence of intoxicants than [he] would otherwise be, and
   as a result of being in that physical condition, [defendant]
   became under the influence by a lesser quantity of intoxicants than it would otherwise take, [defendant] is nevertheless under the influence of intoxicants.”
Relying on our decision in State v. Avila, 

, 

 (2022), defendant argues that the instruction was
improper for two reasons: (1) the Miles instruction is limited
to cases in which alcohol is involved, and there was no evidence that defendant was under the influence of alcohol as
opposed to methamphetamine or cocaine; and (2) defendant’s
purported susceptibility to the influence of intoxicants was
due to fatigue, which is not the type of “physical condition”
to which the instruction applies.
         The state responds that defendant did not object to
giving the instruction until after the jury had left to deliberate and, in fact, invited any error by acquiescing to giving the instruction. Having reviewed the trial transcript,
we conclude that, at the very least, defendant’s arguments
on appeal are not preserved. Defendant had an opportunity
to address the instruction before it was given, but he did
not object until after the court instructed the jury and the
prosecutor gave a closing argument that referred to it as
an “important jury instruction”; and even then, when defendant later did object to the instruction, he simply pointed
the trial court to Avila, without any additional argument.
Under those circumstances, defendant’s belated objection
did not serve the purposes of preservation. See Peeples v.
626                                           State v. Brown

Lampert, 

, 

 (2008) (explaining that the preservation requirement serves several purposes, including providing the trial court the chance to consider and rule on an issue, ensuring fairness to the opposing
party by giving that party an opportunity to respond, and
fostering full development of the record).
         Thus, in order to prevail on his claim, defendant
must demonstrate that the trial court plainly erred in giving the Miles instruction. However, we recently rejected the
same plain-error arguments in State v. Carter, 

, ___ P3d ___ (2024). In that case, the defendant
argued, first, “that she consumed no alcohol, and the Miles
instruction is only appropriate in cases of intoxication by
alcohol consumption”; and, second, “that under [Avila], the
‘physical condition’ referenced in the Miles instruction does
not include ‘non-drug related physical conditions,’ such as
[the] defendant’s purported physical conditions …: illness
and fatigue.” We concluded that “[n]either of those arguments are persuasive on plain error review because neither
of those arguments identify a rule of Oregon law that the
trial court apparently or obviously violated”; we then went
on to explain why that was the case. Carter, 

. For the reasons explained in Carter, we reach the
same conclusion here and reject defendant’s assignment of
error.
        Affirmed.