T. L. A., Petitioner-Respondent,
Nelson L. VIERRA, Jr., Respondent-Appellant.
Submitted November 2, 2018
Clackamas County Circuit Court 17SK01865; Michael C. Wetzel,
M. Kim, Kevin T. Lafky, and Lafky & Lafky fled the
opening brief for appellant. Leslie D. Howell and Kevin T.
Lafky fled the reply brief for appellant.
A. fled the brief for respondent pro se.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Or.App.] PER CURIAM
an appeal of a judgment granting a stalking protective order
(SPO) in a dispute between neighbors. In his sole assignment
of error, respondent challenges the entry of the SPO on the
basis that there was insufficient evidence as a matter of law
to prove each element required to obtain an SPO.
argues that he preserved the alleged error in his closing
argument. Petitioner, appearing pro se, does not
contest preservation. We have an independent obligation,
however, to determine whether an issue was preserved in the
trial court. Harrison v. Hall, 211 Or.App. 697, 701,
156 P.3d 141, rev den, 343 Or. 159 (2007).
"Generally, an issue not preserved in the trial court
will not be considered on appeal." State v.
Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000); see
ORAP 5.45(1) (except for discretionary plain error review,
"[n]o matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
preserve a claim 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." State v. Forrester, 203
Or.App. 151, 155, 125 P.3d 47 (2005), rev den, 341
Or. 141 (2006). "In a bench trial, a defendant can
preserve a challenge to the sufficiency of the evidence if
the 'defendant clearly raises the issue in closing
argument.'" State v. Taylor, 271 Or.App.
292, 296, 350 P.3d 525 (2015) (quoting Forrester,
203 Or.App. at 155).
review of the record, we conclude that respondent's
closing argument did not "clearly raise  the
issue" of the legal sufficiency of the evidence.
Id. "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." State v. R. W. G., 288 Or.App.
238, 240, 404 P.3d 1131 (2017) (emphasis in original).
"[T]o preserve an [295 Or.App 578] 'insufficiency of
the evidence' claim for appeal, a party must present the
trial court with the latter type of argument."
arguing that he preserved the issue of the legal sufficiency
of the evidence, respondent points to a few individual
statements from his closing argument that could be construed
as sufficiency arguments. However, the bulk and the thrust of
his closing argument was clearly directed at persuading the
trial court as fact finder. To the extent that respondent
intended to challenge the legal sufficiency of the evidence,
closing argument did not give petitioner or the trial court
"enough information to be able to understand [that]
contention and to fairly respond to it." State v.
Walker, 350 Or. 540, 552, 258 P.3d 1228 (2011).
Accordingly, respondent failed to preserve his only claim of
error on appeal. For that reason, we do not reach the merits.