734 December 17, 2025 No. 1087
This is a nonprecedential memorandum opinion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 WAYNE MISKELL,
aka Michael Wayne Miskill,
Defendant-Appellant.
Polk County Circuit Court
22CR52961, 22CR50697, 22CR31097;
A181717 (Control), A181718, A181719
Monte S. Campbell, Judge.
Argued and submitted November 25, 2024.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
ORTEGA, P. J.
In Case No. 22CR52961, affirmed. In Case No. 22CR31097,
appeal dismissed as moot. In Case No. 22CR50697, appeal
dismissed as moot.
______________
* Lagesen, Chief Judge, vice Mooney, Senior Judge.
Nonprecedential Memo Op: 345 Or App 734 (2025) 735
ORTEGA, P. J.
In this consolidated appeal, defendant appeals from
judgments of conviction for felon in possession of a firearm (Case No. 22CR31097), first-degree failure to appear
(Case No. 22CR50697), and first-degree robbery, unlawful
use of a weapon, coercion, felon in possession of a firearm,
and unauthorized use of a vehicle (Case No. 22CR52961).
In his first assignment of error, which affects only Case No.
22CR52961, defendant asserts that the trial court plainly
erred in basing its verdict after a bench trial, in part, on
courtroom observations of defendant. In his second assignment of error, defendant seeks a remand for resentencing
for all the consolidated cases based on the trial court entering a judgment in Case No. 22CR50697 that imposed fees
not pronounced at sentencing. Since submission of this case,
the trial court has entered an amended judgment in Case
No. 22CR50697, which defendant concedes moots his second assignment of error. We agree and thus dismiss as moot
defendant’s appeals of Case No. 22CR31097 and Case No.
22CR50697. As to his first assignment of error, we conclude
that the trial court did not plainly err and affirm.
Because the parties are familiar with the case, we
do not recite the background facts in this nonprecedential
memorandum opinion. Instead, we focus on the portion of
the trial court’s speaking verdict that defendant alleges is
reversible plain error. In addressing the charge of felon in
possession of a firearm, the trial court stated:
“One thing I’m very sure of is that firearm in the back
of that car in the shop was not kept there, and the reason
I say that is because I saw the materials that the officers
moved from the hood [sic], and they were quite dusty. They
would have had to have been there for a very long time
to have that much dust on them. There was—took them
probably—probably over a minute, I didn’t time it—to get
everything off of that, and there’s no way that somebody is
putting the gun in the trunk, putting that stuff on, leaving
it there, and that gun is in that kind of shape.
“So that gun went in through the inside of the car—the
trunk through the back seat. And so did [defendant]. That
back seat was—I saw the officer almost retch that it was so
736 State v. Miskell
bad for him, and [defendant] was in there hiding, and he
hid that gun.
“Another interesting thing is when they had him come
out, it was only one hand, and it was his right hand. People
who are right handed typically move with their right hand
first, but I’ve deserved Mr.—I’ve observed [defendant]
through this trial. He writes left handed. So my guess is
he was trying to hide that gun because he decided he didn’t
want to use it at this time, but there’s no doubt in my mind
that he took it into the trunk with him.
“So he is guilty of Felon in Possession of a Firearm.”
(Bracketed [sic] in original.) The trial court also stated
that it believed that that firearm likely was the same one
defendant used in the course of the other crimes, stating:
“But there is no doubt in my mind that [defendant] pulled
a gun out, and I think it was the same gun that was in the
back seat of the car, but if it wasn’t, it was the gun that [he]
got from Ms. Lupoli when she was loaning him firearms.”
Defendant did not object to any of the trial court’s speaking
verdict.
On appeal, defendant acknowledges that his assignment of error is not preserved but argues that the trial court
plainly erred in relying on facts not in evidence—i.e., the
trial court’s observation that defendant wrote with his left
hand—in rendering its verdict. See State v. McDougal, 299
Or App 96,
449 P3d 919 (2019) (accepting state’s concession
that the trial court erred in relying on its own knowledge
about cell phone technology, which was a fact not in evidence,
when it found defendant guilty). We reject defendant’s argument because the trial court’s observation does not qualify
as plain error.
A plain error must be an error of law; obvious, and
not reasonably in dispute; and it must appear on the face of
the record. Ailes v. Portland Meadows, Inc., 312 Or 376, 381-
82,
823 P2d 956 (1991). Here, the alleged error is that the
court relied on its in-court observation of defendant writing with his left hand, which was a fact not in evidence.
We conclude that the court’s observation does not constitute plain error primarily for the reason that the trial court
only referred to that observation with respect to the court’s
Nonprecedential Memo Op:
345 Or App 734 (2025) 737
“guess” as to what defendant was doing with his left hand
when he raised only his right hand for the police when the
police confronted him in the trunk of the car. It is not obvious, and thus not plain, that the court’s “guess” about what
defendant was doing at that moment in time was a basis for
the court’s verdict. The trial court stated directly after that
guess that “there’s no doubt in my mind that he took [the
gun] into the trunk with him.” The court’s stated in-court
observation of defendant does not plainly demonstrate that
the court improperly relied on facts not in evidence.
In Case No. 22CR52961, affirmed. In Case No.
22CR31097, appeal dismissed as moot. In Case No.
22CR50697, appeal dismissed as moot.
