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In re R. W. G.

Court of Appeals of Oregon

October 18, 2017

In the Matter of R. W. G., a Youth.
v.
R. W. G., Appellant. STATE OF OREGON, Respondent,

          Argued and Submitted April 4, 2017

         Washington County Circuit Court J150210; Ricardo J. Menchaca, Judge.

          Paula Johnson Lawrence argued the cause and fled 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.

         Case Summary:

         Youth appeals a juvenile court delinquency judgment finding him within the 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 assigns error to the juvenile court's finding that he fell under that court's jurisdiction on Count 2, relating to victim A, beyond a reasonable doubt. Held: Youth did not preserve the claim of error raised here and it would not be appropriate for the Court of Appeals to address the claim on a "plain error" basis.

         [288 Or.App. 239] Affirmed

          HADLOCK, C.J.

         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 As out-of-court statements to come in through other witnesses, primarily As 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) (court exercises discretion to review de novo "only in exceptional cases"). Accordingly, if we set out to review youth's challenge to the sufficiency [288 Or.App. 240] 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. McCantsi '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) ("in a bench trial, a defendant may * * * preserve a challenge to the legal sufficiency of the evidence by clearly raising the issue in closing argument"). 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 ("whether by way of a motion for judgment of acquittal or in closing argument, a defendant must sufficiently identify the asserted legal insufficiency of the state's proof" (emphasis added)); State v. Forrester. 203 Or.App. 151, 155, 125 P.3d 47 (2005), rev den,341 Or. 141 (2006) ("To preserve a claim [288 Or.App. 241] of error concerning the legal sufficiency of the state's evidence, a defendant must-even in a case tried to the court- challenge the legal sufficiency of the evidence at trial."); see also State v. Gonzalez-Valenzuela,358 Or. 451, 454 n 1, 365 P.3d 116 (2015) (the defendant adequately preserved an "insufficient evidence" argument by "challenging] the legal sufficiency of the ...


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