Submitted November 27, 2013
Marion County Circuit Court, 10C49012, John B. Wilson, Judge.
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Raymond Campbell filed the supplemental brief Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[266 Or.App. 118] DUNCAN, P. J.
Defendant, who was convicted after a bench trial of a number of offenses arising from multiple incidents involving the victim, his girlfriend, appeals and asserts that the trial court erred in not acquitting him, based on insufficient evidence, of the charges of witness tampering, ORS 162.285, and second-degree assault constituting domestic violence, ORS 163.175 and ORS 132.586. He also challenges his sentence. We affirm the convictions and sentence. We write only to address why we decline to correct plain error with respect to the witness tampering charge and why we conclude that the error asserted with respect to the second-degree assault charge is not plain.
We first address defendant's contention that the evidence is insufficient to support his conviction of witness tampering. As an initial matter, we conclude that the contention is not preserved. At the close of the state's evidence, defense counsel and the trial court engaged in the following colloquy:
" [DEFENSE COUNSEL]: Your Honor, ordinarily I would be making a motion for directed verdict of acquittal at this time before we go to the defense case, but that would be when we have a jury. It's just the judge in this case as the trier of fact I think I will forego [ sic ] that and move on to the defense case.
" [THE COURT]: Why don't we note that a judgment of acquittal motion was made generally. * * * [W]e don't know what the findings are going to be. But, ultimately, if we should get to that issue down the road and there was not sufficient evidence to submit the matter to the trier of fact, then the appeals court could review that.
" [DEFENSE COUNSEL]: Absolutely.
" [THE COURT]: Okay. Let's do ...