and submitted April 30, 2018
Washington County Circuit Court C152825CR, 16CR17498 Donald
R. Letourneau, Judge.
Fujita Munsey, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Robert M. Wilsey, Assistant Attorney General.
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
Or.App. 652] PER CURIAM.
appeals judgments of conviction for unlawful delivery of
methamphetamine to a minor, ORS 475.890(3), application of a
schedule II controlled substance to the body of a minor, ORS
475.910(1)(a), and felon in possession of a firearm, ORS
166.270. Of defendant's three assignments of error, we
reject his second and third without discussion and write to
address only the first assignment, in which defendant argues
that the trial court erred in admitting incriminating
statements made by the victim. Because we conclude that
defendant failed to preserve his challenge to one of the
bases for the trial court's ruling, we affirm.
statements at issue came from a videotape of a CARES
interview of the victim. Before introducing the tape, the
state laid foundation with testimony from witnesses who
observed or participated in the interview. The state then
dismissed those witnesses and offered the tape into evidence.
Defense counsel objected, arguing that the tape was
inadmissible hearsay and did not fall under the exception
under OEC 803(4). In response, the prosecutor expressed
concern that he might not have laid enough foundation and
that necessary witnesses had been dismissed. The trial court
asked defense counsel whether he wished to "respond to
[the state's] concern about * * * timeliness."
Defense counsel replied that he understood those concerns,
agreed that his timing was not ideal, and apologized. Defense
counsel made no further argument.
trial court admitted the tape on two grounds: first, that
defendant's objection was untimely, and second, that the
hearsay statements in the interview satisfied the hearsay
exception under OEC 803(4). The jury found defendant guilty
on all counts.
appeal, defendant argues that his objection was not untimely
and that the evidence was inadmissible hearsay. As to
timeliness, defendant asserts that he timely objected before
the evidence was introduced and that the state had the burden
to lay sufficient foundation before introducing its evidence.
Or. 653] Defendant failed to preserve that argument.
Defendant advanced no argument at trial as to why his
objection was timely; rather, when the court expressly gave
defense counsel the opportunity to make an argument, counsel
only acknowledged that his timing was not "ideal."
Because neither the court nor the state had the opportunity
at trial to consider and respond to the argument that
defendant now asserts, it is unpreserved. See Peeples v.
Lampert, 345 Or. 209, 219-20, 191 P.3d 637 (2008)
(purposes of preservation are to (1) ensure fairness to trial
court, (2) ensure fairness to opposing party, and (3) foster
development of record); State v. Rennells, 253
Or.App. 580, 585, 291 P.3d 777 (2012) (claim of error not
preserved, and, arguably, error was invited when defendant
"appeared to agree" to the contested fact).
does not develop an argument but the trial court's
timeliness ruling is plain error. Because defendant has
failed to properly challenge all bases for the ruling, we
reject his first assignment of error. See State v.
Stoudamire,198 Or.App. 399, 403, 108 P.3d 615 (2005)
(appellant must challenge all bases of trial court's