State v. R. W. G. (In re R. W. G.)
| Decision Date | 18 October 2017 |
| Docket Number | A161324. |
| Parties | In the Matter of R. W. G., a Youth. STATE of Oregon, Respondent, v. R. W. G., Appellant. |
| Court | Oregon Court of Appeals |
Paula Johnson Lawrence argued the cause and filed the brief for appellant. With her on the brief was The Lawrence Law Firm.
Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Hadlock, Chief Judge, and Schuman, Senior Judge.
Youth appeals a delinquency judgment finding him within the juvenile court's jurisdiction based on conduct that, if committed by an adult, would constitute two counts of first-degree sexual abuse. The counts relate to youth's abuse of two victims, M and A. On appeal, youth raises four assignments of error, the first three of which we reject without discussion. In his fourth assignment of error, youth contends that the juvenile court erred "when it found the youth to be under the jurisdiction of the court on Count 2 [related to victim A] beyond a reasonable doubt." For the reasons set out below, we conclude that youth did not preserve that claim of error and that it would not be appropriate for us to address the claim on a "plain error" basis. Accordingly, we affirm.
An extended discussion of the facts is unnecessary. As relevant to youth's fourth assignment of error, the basic scenario is this: In a two-count petition, youth was alleged to have sexually abused M and A, who are sisters. Count 2 alleged that youth had abused three-year-old A by causing her to touch youth's testicles. The court found that A was not competent to testify and allowed evidence of A's out-of-court statements to come in through other witnesses, primarily A's mother. After a bench trial, the court found beyond a reasonable doubt that "youth *** got [A] to touch his testicles." Accordingly, the court concluded that youth was within the juvenile court's jurisdiction on Count 2. Based on facts not pertinent here, the court also found youth to be within the juvenile court's jurisdiction on Count 1.
As noted above, youth argues that the juvenile court erred when it found him "to be under the jurisdiction of the court on Count 2 beyond a reasonable doubt." Specifically, youth contends that the record does not include evidence from which a factfinder could reasonably infer that A did, in fact, touch his testicles. Youth asks us to review that determination de novo , but we decline to do so because this is not an exceptional case in which de novo review is warranted. See ORAP 5.40(8)(c) (). Accordingly, if we set out to review youth's challenge to the sufficiency of the evidence, our task would be "to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the [alleged act] beyond a reasonable doubt." State v. J. C. L. , 261 Or.App. 692, 700, 325 P.3d 740 (2014). In other words, we would review the record to determine whether the evidence is legally sufficient to support the adjudication.
We would set about that task, however, only if youth had preserved for appeal his contention that the evidence is legally insufficient to support the adjudication on Count 2. The state contends that he did not. Youth, on the other hand, asserts that he preserved the claim of error in his closing argument, implicitly relying on cases holding that, in certain circumstances, a party can preserve an insufficiency-of-the-evidence argument in a closing argument to the trial court. See, e.g. , State v. McCants/Walker , 231 Or.App. 570, 576, 220 P.3d 436 (2009), rev'd on other grounds , State v. Baker-Krofft , 348 Or. 655, 239 P.3d 226 (2010) (). Youth points specifically to the first sentence of his closing argument, in which he asserted that "it's our position that this did not happen."
Youth's argument in support of preservation implicitly assumes that nearly any closing argument in a bench trial will serve to preserve an argument that the evidence is legally insufficient to support a verdict favoring the party with the burden of proof. That is not correct. There is an important distinction between (1) an argument that seeks to convince a trial court, sitting as fact finder, not to be persuaded by the evidence favoring the other party, and (2) an argument that seeks to convince the trial court that the evidence is legally insufficient to support a verdict for that other party. And, to preserve an "insufficiency of the evidence" claim for appeal, a party must present the trial court with the latter type of argument. McCants , 231 Or.App. at 576, 220 P.3d 436 (); State v. Forrester , 203 Or.App. 151, 155, 125 P.3d 47 (2005), rev den , 341 Or. 141, 139 P.3d 259 (2006) (); see also State v. Gonzalez-Valenzuela , 358 Or. 451, 454 n. 1, 365 P.3d 116 (2015) (); State v. Habibullah , 278 Or.App. 239, 242 n. 1, 373 P.3d 1259 (2016) ().
In this case, youth's closing argument did not include any contention that the evidence was legally insufficient to support a finding that he was within the juvenile court's jurisdiction on Count 2. Nor did youth make that argument even obliquely; he did not assert, in closing, that the court could not find that he had committed the alleged acts, nor did he argue that the record did not include any evidence that would support such a...
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