State v. Sweeney

71 P.3d 168, 188 Or. App. 255, 2003 Ore. App. LEXIS 716

• Court: Court of Appeals of Oregon
• Decided: June 12, 2003
• Docket: 010342410, A115028
• Status: Published

Opinions

KISTLER, J.

Defendant appeals from a judgment of conviction for second-degree trespass. He argues that the court erred in denying his motion for judgment of acquittal. We reverse.

Defendant received multiple orders excluding him from being on Tri-Met property. On March 4,2001, a Tri-Met officer saw defendant arriving on a westbound MAX train. When defendant saw the officer, he jumped off the train and started running away from the officer and toward the elevators at the MAX station. Before defendant could get away, the officer stopped and arrested him for violating the exclusion orders. After trial, defendant was convicted of second-degree trespass.

On appeal, defendant argues that the trial court should have granted his motion for judgment of acquittal because, under our decision in State v. Collins, 179 Or App 384, 39 P3d 925, rev allowed, 334 Or 491 (2002), the state failed to prove that he refused to leave Tri-Met property after being told to do so. The state does not dispute that, if this issue were preserved, the motion for a judgment of acquittal should have been granted. It argues instead that defendant did not preserve the issue. Defendant, for his part, acknowledges that he did not raise this theory below in support of his motion for judgment of acquittal.¹ He contends, however, that we should reach this issue under the plain error doctrine. See State v. Jury, 185 Or App 132, 57 P3d 970 (2002).²

The state responds that the plain error doctrine does not apply here for two reasons. First, it notes that the doctrine is available only if the error is apparent on the face of the record—i.e., the “legal point is obvious, not reasonably in dispute.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). The state reasons that, because the Supreme Court has allowed review in Collins, the legal point is still reasonably in dispute. Second, the state reasons that, even if the error is apparent, we should not exercise our discretion to reach it. It argues that, if the issue had been raised below, it is possible that it could have introduced evidence to satisfy the rule that we announced in Collins.

On the first issue, we explained injury that “[e]rror, in general, must be determined by the law existing at the time the appeal is decided” and that the same principle applies to error apparent on the face of the record. Jury, 185 Or App at 136. Under that reasoning, the state’s first argument fails. Our opinion in Collins is binding on this court and lower courts until the Supreme Court issues its opinion in that case. For our purposes, after Collins, the correct legal rule in this case is obvious and not reasonably in dispute even though the Supreme Court may reach a different result in the future. Accord Rodriguez v. Board of Parole, 187 Or App 282, 292, 67 P3d 970 (2003).³

The state also argues that, even if the error is apparent, we should not exercise our discretion to reach the issue because the record might have been developed differently if Collins had been raised below. In this case, the record shows that defendant attempted to flee and leave Tri-Met property as soon as he saw the officer. The state has not identified any basis for saying that, if this issue had been raised, the state could have introduced evidence to comply with the rule in Collins. That is, there is no suggestion that the state could have introduced evidence that defendant either entered onto premises not open to the public or refused to leave premises open to the public after being directed to do so. See Collins, 185 Or App at 390-95 (interpreting ORS 164.205(3)). We accordingly exercise our discretion to reach this issue and reverse. Under the rule in Collins, no reasonable trier of fact could have convicted defendant of second-degree trespass.

Reversed.

1 Collins had not been decided when the trial court ruled on defendant’s motion.

2 We explained injury:

“For error to be considered apparent on the face of the record for purposes of ORAP 5.45, it must satisfy three criteria: (1) it must be legal error; (2) it must be ‘apparent,’ such that ‘the legal point is obvious, not reasonably in dispute’; and (3) it must appear on the face of the record, such that we ‘need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.’ State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). If the asserted error satisfies those criteria, we then must exercise our discretion in deciding whether to correct the error. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991).”

185 Or App at 135.

3 In Rodriguez, we interpreted a statute that permits a petitioner to seek review of an order of the Board of Parole and Post-Prison Supervision if the appeal presents a “substantial question of law.” We explained that, as a general rule, an appeal did not present a substantial question of law if the “disposition of a question of law is resolved contrary to the petitioner’s position by a * * * Court of Appeals decision.” 187 Or App at 292. We added that “we will consider our published opinion to control the disposition of a question notwithstanding that * * * the Supreme Court has allowed review to address the question.” Id.; see also SAIF v. Azorr, 182 Or App 90, 97, 47 P3d 542, rev den, 335 Or 90 (2002) (explaining that our opinions, even those that may be subject to review, control in deciding whether a penalty may be assessed against an employer for unreasonably refusing to process a workers’ compensation claim).