No. 403 June 12, 2024 257
This is a nonprecedential memorandum opinion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.
PHILLIP DEE JACQUES,
aka Phil Dee Jacques, aka Phillip D. Jaques,
Defendant-Appellant.
Deschutes County Circuit Court
22CR02359; A180478
Michelle A. McIver, Judge.
Submitted May 14, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emma McDermott, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kyleigh Gray, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
258 State v. Jacques
TOOKEY, P. J.
Defendant challenges his conviction for harassment, arguing that the state failed to present legally sufficient evidence that he subjected the victim to “offensive
physical contact” when he slapped the victim’s cellphone out
of her hand. Because we conclude that defendant failed to
preserve that argument, we affirm.
To prove harassment as charged, the state had to
prove that defendant intentionally “harasse[d] or annoy[ed]
another person by” “[s]ubjecting such other person to offensive physical contact[.]” ORS 166.065(1). To do so, the state
called the victim to the stand, where she testified that
defendant “reached forward and slapped [my cellphone] out
of my hand, and it flew across the parking lot.” In a motion
for judgment of acquittal, defendant argued that the state
needed to prove that defendant actually touched a part of
the victim’s body and that it failed to do so. The trial court
disagreed, concluding that a rational factfinder could conclude that defendant touched the victim’s body.
On appeal, defendant takes a different tack. Citing
State v. Keller,
(1979) (en
banc), defendant acknowledges that the state need not prove
that flesh-to-flesh contact occurred. Instead, he argues that
the state failed to present evidence sufficient to establish
that a reasonable person in the victim’s circumstances
would have found the contact at issue “offensive.” The state
responds that defendant did not preserve that argument.
We agree with the state. “As a rule, an objection as
to the legal insufficiency of evidence to prove a claim on one
theory does not have the effect of preserving all other possible theories of insufficiency; rather, parties must explain
to the court and opposing party a specific reason for the
asserted legal insufficiency.” State v. K. J. B.,
(2018). Here, defendant’s argument on
appeal is materially different from the one made at trial,
and he does not ask us for plain-error review under ORAP
5.45(1). See State v. Ardizzone,
