State v. Brown

46

Submitted March 30, 2022, reversed and remanded May 17, petition for review

denied August 31, 2023 (371 Or 332)

STATE OF OREGON,

Plaintiff-Respondent,

v.

RANDALL TODD BROWN,

Defendant-Appellant.

Washington County Circuit Court

18CR75115, 18CR85116;

A171078 (Control), A171079

531 P3d 178

Defendant appealed a judgment of conviction for 13 offenses, challenging

the consolidation of two indictments under ORS 136.560(2). The first indictment

arose out of a traffic accident and charged four offenses directly related to that

accident—driving under the influence of intoxicants, reckless driving, assault in

the fourth degree, and criminal mischief in the second degree—as well as four

additional offenses discovered in the resulting investigation—unlawful use of a

vehicle (UUV), possession of methamphetamine, felon in possession of a firearm,

and identity theft. The second indictment arose out of a separate arrest several

months later, and charged UUV, possession of methamphetamine, felon in posses-

sion of a restricted weapon, and delivery of methamphetamine. Held: The indict-

ments were misjoined because the offenses directly related to the traffic accident

in the first indictment and the offenses in the second indictment did not satisfy

any of the statutory bases for joinder in ORS 135.560(1)(b)(A) to (C). Although

joinder of the additional offenses in the first indictment with the offenses in the

second indictment may have been proper, consolidation was improper because

there must be a basis for joining all of the indicted offenses, not just some of them.

Reversed and remanded.

Theodore E. Sims, Judge.

Frances J. Gray filed the briefs for appellant. Randall

Todd Brown filed supplemental briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Timothy A. Sylwester, Assistant

Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Kamins, Judge, and

Joyce, Judge.

KAMINS, J.

Reversed and remanded.

Cite as 326 Or App 46 (2023) 47

KAMINS, J.

Defendant appeals a judgment of conviction for 13

offenses, described below, for which he was charged in two

separate indictments that were later consolidated for trial.

Defendant assigns 21 errors, eight of them in a supplemental

brief pro se. Because it is dispositive, we focus on defendant’s

fifth assignment of error, which challenges the joinder of the

two charging instruments. We reverse and remand.

I. BACKGROUND

We begin by briefly describing the circumstances of

each indictment, as well as the material procedural facts.

The first indictment arose out of a traffic accident that

occurred on September 1, 2018, in which defendant drove

into the opposite lane and collided with an oncoming vehi-

cle, injuring its two occupants (the September incident).

Defendant was taken to the hospital, where tests revealed

acute methamphetamine intoxication. In the subsequent

investigation, police discovered that the car defendant was

driving had been stolen. Inside the car, police also found

two firearms, stolen personal identification, and a glass pipe

with residue that tested positive for methamphetamine.

Defendant had previously been convicted of a felony. As a

result, defendant was indicted for nine offenses: felon in pos-

session of a firearm, ORS 166.270(1) (Count 1); unauthorized

use of a vehicle (UUV), ORS 164.135 (Count 2); identity

theft, ORS 165.800 (Count 3); driving under the influence of

intoxicants (DUII), ORS 813.010 (Count 4); unlawful posses-

sion of methamphetamine, ORS 475.894 (Count 5); reckless

driving, ORS 811.140 (Count 6); two counts of assault in the

fourth degree, ORS 163.160 (Counts 7 and 8); and criminal

mischief in the second degree, ORS 164.354 (Count 9).1

The second indictment arose out of a separate

arrest that occurred on December 21, 2018 (the December

incident). A police officer stopped defendant for a traffic vio-

lation and discovered that the vehicle defendant was driving

had been stolen. During a search incident to arrest, police

1

ORS 164.135, ORS 165.800, ORS 813.010, ORS 475.894, and ORS 163.160

have all been amended since September 1, 2018; however, because none of those

amendments affect our analysis, in this opinion, we refer to the current versions

of those statutes.

48 State v. Brown

found in defendant’s pockets 18 grams of methamphetamine

and a knife that opened with centrifugal force. As a result,

defendant was indicted for unlawful delivery of metham-

phetamine, ORS 475.890 (Count 1); unlawful possession

of methamphetamine, ORS 475.894 (Count 2); UUV, ORS

164.135 (Count 3); and felon in possession of a restricted

weapon, ORS 166.270(2) (Count 4). In sum, the two indict-

ments charged the following offenses:

The September Incident The December Incident

UUV UUV

Possession of Possession of

methamphetamine methamphetamine

Felon in possession of a Felon in possession of a

firearm restricted weapon

Identity theft Delivery of

methamphetamine

DUII

Reckless driving

Assault in the fourth

degree

(2 counts)

Criminal mischief in the

second degree

The state filed a motion to consolidate the two cases,

which the trial court granted the same day.2 Defendant sub-

sequently filed three motions to sever—two challenging the

joinder of offenses within each indictment and one chal-

lenging the joinder of the two indictments. In the motion

challenging the joinder of the two indictments, defendant

asserted that many of the charges were not of the same or

similar character and were not sufficiently connected to be

part of a common scheme or plan. The trial court denied

those motions, and the case proceeded to a consolidated

trial. The jury rendered guilty verdicts on all counts.

2

Defendant did not have an opportunity to oppose consolidation until filing

the motion to sever, a practice that, at a minimum, hampers appellate review.

Cite as 326 Or App 46 (2023) 49

II. DISCUSSION

ORS 132.560 governs the joinder and severance of

criminal offenses. ORS 132.560(1) “creates a general rule

that a charging instrument must not charge more than one

offense.” State v. Warren, 364 Or 105, 113, 430 P3d 1036

(2018). However, ORS 132.560(1)(b)(A) to (C) identifies three

circumstances in which multiple offenses may be charged

in a single indictment or other charging instrument, as dis-

cussed further below. “[I]f an indictment charges more than

one offense, it must allege the basis for joining the charges.”

Warren, 364 Or at 122. The defendant may challenge the

joinder of charges by demurrer, in which case the state

must establish that the charging instrument on its face

complies with the pleading requirements for joinder. See

ORS 135.630(2); Warren, 364 Or at 122 (“The issue at the

demurrer stage is whether the allegations in the indictment

are sufficient to support joinder, and the demurrer must be

decided based solely on the face of the indictment.”). Or, the

defendant may challenge the joinder of charges by moving

to sever, arguing that the joinder requirements are not met,

ORS 132.560(1), or that the defendant is substantially prej-

udiced by joinder, ORS 132.560(3).

Charges also may be joined through the consolida-

tion of two or more charging instruments. ORS 132.560(2). If

the state moves to consolidate two or more charging instru-

ments, the trial court must “determine whether the charges

meet any of the independently sufficient bases for joinder

listed in ORS 132.560(1)(b)(A) to (C).” State v. Dewhitt, 276

Or App 373, 380, 368 P3d 27, rev den, 369 Or 667 (2016). The

defendant may oppose consolidation, if given the opportu-

nity, or may move to sever once the charging instruments

are consolidated. As with joinder in a single charging

instrument, the defendant may argue that joinder by con-

solidation of charging instruments is improper because the

joinder requirements are not met, ORS 132.560(1), or that

the defendant is substantially prejudiced by the joinder,

ORS 132.560(3).

Where multiple charges are properly joined under

ORS 132.560(1), “a defendant seeking severance under ORS

132.560(3) must identify a case-specific theory of substantial

50 State v. Brown

prejudice that is more than the prejudice that is inherent

whenever joined charges allow the jury to hear that the

defendant may have committed other bad acts.” State v.

Delaney, 370 Or 554, 556, 522 P3d 855 (2022). Such theories

“include but are not limited to: (1) that the jury will confuse

or cumulate the evidence; (2) that the defendant may be con-

founded in presenting conflicting defenses; and (3) that the

jury will conclude that the defendant is guilty of one crime

and therefore guilty of others.” Id. at 575. If it appears that

the defendant is substantially prejudiced by the joinder, the

court may order separate trials of counts or “provide what-

ever other relief justice requires.” ORS 132.560(3).

Joinder of criminal offenses implicates competing

interests, and ORS 132.560 reflects a balancing of those

interests. On one hand, an accused’s right to a fair trial

means the exclusion of unfairly prejudicial evidence of other

crimes. See Warren, 364 Or at 114-15 (“Just as the admis-

sion of evidence of other crimes can be unfairly prejudicial

when a defendant is charged with a single crime, the joinder

of charges for multiple crimes can be unfairly prejudicial.”).

On the other hand, “[t]he purpose of the joinder statute is to

reduce the occurrence of multiple trials for multiple related

crimes committed by a single defendant.” State v. Smith,

308 Or App 639, 644, 481 P3d 363 (2021) (internal quotation

marks omitted). Thus, judicial efficiency counsels in favor

of more permissive joinder. See Dewhitt, 276 Or App at 382

(noting that the legislature expanded the bases for joinder

in 1989 “to promote the goals of trial economy and judicial

efficiency”). ORS 132.560 balances those interests by allow-

ing for joinder where the charges are related in one or more

of the ways outlined in subsection (1)(b)(A) to (C).

“We review a trial court’s determination that the

state met the statutory requirements for joinder of charges

for legal error. We also review a trial court’s determination

whether the facts stated in a defendant’s motion to sever

to show the existence of prejudice for legal error.” State v.

Keith, 294 Or App 265, 268, 431 P3d 94 (2018), adh’d to as

modified on recons, 299 Or App 355, 450 P3d 1034 (2019)

(citation and brackets omitted). “We limit our review to the

state of the record at the time of the court’s ruling on the

Cite as 326 Or App 46 (2023) 51

motion to sever.” State v. Buyes, 280 Or App 564, 565, 382

P3d 562 (2016) (citation omitted).

Here, the state’s motion to consolidate argued that

the two indictments were joinable on the bases of “same

or similar character” and “common scheme or plan.” ORS

132.560(1)(b).3 The state relied on the fact that defendant

committed some of the same or similar crimes in each

incident—UUV, felon in possession, and possession of meth-

amphetamine. In an attached affidavit, the state added to

the allegations in the indictment that in both cases, defen-

dant was driving “an older model from a Japanese manu-

facturer (Honda Accord and Subaru Impreza) with easily

defeatable ignition systems” and that investigators discov-

ered text messages on defendant’s phone, which the state

intended to offer as evidence that defendant knew both vehi-

cles were stolen and knowingly possessed a firearm in the

September incident. The state reprises those arguments on

appeal. Defendant, on the other hand, points out that there

were also offenses in each indictment that did not appear

in the other indictment—the September incident (unlike

the December incident) also involved identity theft, DUII,

reckless driving, assault, and criminal mischief, while the

December incident (unlike the September incident) also

involved the delivery of methamphetamine.

3

ORS 132.560 provides, in relevant part:

“(1) A charging instrument must charge but one offense, and in one form

only, except that:

“* * * * *

“(b) Two or more offenses may be charged in the same charging instru-

ment in a separate count for each offense if the offenses charged are alleged

to have been committed by the same person or persons and are:

“(A) Of the same or similar character;

“(B) Based on the same act or transaction; or

“(C) Based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan.

“(2) If two or more charging instruments are found in circumstances

described in subsection (1)(b) of this section, the court may order them to be

consolidated.

“(3) If it appears, upon motion, that the state or defendant is substan-

tially prejudiced by a joinder of offenses under subsection (1) or (2) of this

section, the court may order an election or separate trials of counts or provide

whatever other relief justice requires.”

52 State v. Brown

As noted, the indictments were consolidated under

both the “same or similar character” exception and the

“common scheme or plan” exception. Beginning with “same

or similar character,” our approach has been to conduct a

“comprehensive review,” considering “factors such as the

temporal proximity of the acts, similarities in the elements

of the offenses, whether there will be similar evidence or

evidentiary overlap, and whether the charges involve the

same or similar victims, locations, intent, modus operandi,

or acts.” State v. Garrett, 300 Or App 671, 682, 684, 455 P3d

979 (2019), rev den, 366 Or 827 (2020).

We have previously applied that analysis to con-

clude that sodomy and sexual abuse of a child were not sim-

ilar to encouraging child sex abuse because the elements of

each crime were different, they were alleged to have been

committed several months apart, the victims and modes

of operation were different, and there was no evidentiary

overlap. Id. at 685-90 (Police discovered child pornography

on the defendant’s thumb drive while investigating him for

abusing his niece.). We have likewise determined that pub-

lic indecency charges were not similar to rape because the

elements of each offense were different and the indictment

did not allege that they were committed at the same time

or place, nor that there was any evidentiary overlap. State

v. Gialloreto, 301 Or App 585, 593-95, 457 P3d 1105 (2019),

rev den, 366 Or 827 (2020).

Here, we conclude that some of the offenses in the

two indictments were of the same or similar character,

but others were not. The offenses which appeared in both

indictments—UUV and possession of methamphetamine—

were of the same or similar character because the elements

of each offense are identical and there were no material dif-

ferences in defendant’s intent or acts. The UUV offenses are

particularly so because the state alleged that the cars were

stolen using a similar modus operandi—“easily defeatable

ignition systems”—and that there was evidentiary overlap

in the form of text messages. We reach the same conclu-

sion with respect to the felon in possession offenses because

the only difference between the two offenses was that in the

September incident the possessed item was a firearm, while

Cite as 326 Or App 46 (2023) 53

in the December incident it was a “restricted weapon,” that

is, a knife that opened with centrifugal force. Compare ORS

166.270(1) with ORS 166.270(2). Regarding both charged

offenses, defendant had in his possession a weapon that was

prohibited to him because of his prior conviction.

We cannot conclude the same, however, as to the

remaining offenses—in the September incident, identity

theft, DUII, reckless driving, fourth-degree assault, and

second-degree criminal mischief, and in the December inci-

dent, delivery of methamphetamine. Beginning with the

offenses’ elements, the crimes of fourth-degree assault and

second-degree criminal mischief charged in the September

incident have no material elements in common with any of

the offenses in the December incident. The only possible

similar crime in the December incident to the September

incident’s DUII and reckless driving is UUV, because the

crimes all involve the operation of a vehicle; however, DUII

requires that the person be under the influence of a con-

trolled substance and reckless driving requires that the per-

son drive in a manner that endangers the safety of persons

or property, while UUV requires that the vehicle belong to

another person who did not consent to its use. Compare ORS

813.010 and ORS 811.140 with ORS 164.135. And although

identify theft (September incident) and UUV (the most

similar offense in the December incident) both involve the

wrongful possession of another’s property, for identity theft

the property must be personal identification and possessed

with the intent to deceive or defraud, while for UUV the

property must be a vehicle. Compare ORS 165.800 with ORS

164.135. Finally, at the risk of stating the obvious, although

possession of methamphetamine (September incident) and

delivery of methamphetamine (December incident) both

involve methamphetamine, the former merely requires that

defendant possessed it while the latter requires that he

delivered it. Compare ORS 475.894 with ORS 475.890.

As for the factors other than a comparison of the

offense’s elements, the offenses in each incident were alleged

to have been committed several months apart. They also

were not alleged to have been committed in the same loca-

tion, other than being in the same county. See Garrett, 300

54 State v. Brown

Or App at 688 (noting that “the similar, but general, location

of the alleged acts, Lane County, does not assist us a great

deal in our analysis”). Nor was there any alleged eviden-

tiary overlap between the incidents.

In sum, we conclude that UUV, possession of meth-

amphetamine, and felon in possession in the September

incident are of the same or similar character as UUV, pos-

session of methamphetamine, and felon in possession in the

December incident. However, identity theft, DUII, reckless

driving, fourth-degree assault, and second-degree criminal

mischief in the September incident are not of the same or

similar character as any of the offenses in the December

incident, and the delivery of methamphetamine in the

December incident is not of the same or similar character as

any of the offenses in the September incident.

Turning to the other basis for joinder in this case,

offenses are “connected together or constituting parts of a

common scheme or plan” when they are “logically related,

and there is a large area of overlapping proof between them.”

Dewhitt, 276 Or App at 383 (citation and quotation marks

omitted). In Smith, the defendant committed criminal mis-

chief and harassment against his girlfriend’s son, then,

about a month later, kidnapped, strangled, and assaulted

his girlfriend. 308 Or App at 641-42. We concluded that the

offenses were not connected together or constituting parts of

a common scheme or plan because there were no interlock-

ing facts suggesting a logical relationship between the two

incidents, and any overlapping evidence was slight. Id. at

645-46. Similarly, in Keith, the defendant was jointly tried

for several acts of domestic violence as well as possession of

methamphetamine that the police found when they arrested

him the day after the last domestic violence incident. 294

Or App at 267-68. We concluded that the methamphetamine

charge was insufficiently connected to the other offenses

because it was not the result of a perpetuation of the other

criminal activity, nor was there any overlapping proof. Id. at

270-71.

On the other hand, in State v. Taylor, 364 Or 364,

374, 434 P3d 331 (2019), the Supreme Court concluded that

offenses were connected together or constituting parts of

Cite as 326 Or App 46 (2023) 55

a common scheme or plan where the defendant planned

and committed two similar bank robberies and also com-

mitted kidnapping and murder in furtherance of the sec-

ond robbery. In State v. Strouse, 276 Or App 392, 402, 366

P3d 1185, rev den, 360 Or 236 (2016), unlawful possession of

marijuana was properly joined with firearm theft offenses

because evidence of both crimes was discovered in the same

search, and that search precipitated other criminal conduct

also charged in the same indictment. Likewise, in Dewhitt,

charges of harassment and possession of marijuana could

be joined because the criminal conduct occurred and was

investigated concurrently, so they were linked temporally

and spatially and had substantial overlapping proof. 276

Or App at 385-86.

Here, the state’s theory of “common scheme or plan,”

as we understand it, was that during both incidents, defen-

dant was engaged in the business of buying and selling con-

traband such as stolen vehicles, drugs, weapons, and per-

sonal identification. Assuming, for the sake of discussion,

that that theory is precise enough to satisfy the statute, join-

der of felon in possession, UUV, identify theft, and posses-

sion of methamphetamine in the September incident with

the offenses in the December incident—delivery of meth-

amphetamine, possession of methamphetamine, UUV, and

felon in possession—would be proper. When viewed as parts

of a scheme to trade contraband, those offenses are logically

related, and the ones in the December incident could be con-

sidered a perpetuation of the same criminal activity as in

the September incident. The state also alleged that there

was overlapping evidence in the form of text messages.

That, however, still does not account for joining

the offenses in the December incident with those in the

September incident related to the car crash—DUII, reckless

driving, fourth-degree assault, and second-degree criminal

mischief. As in Smith and Keith, there are no interlocking

facts suggesting a logical relationship between the crash

and contraband crimes committed several months later, nor

is there any overlapping proof. Unlike in Taylor, the state

does not argue that the car crash was part of defendant’s

scheme to trade contraband, rather, the allegations show

56 State v. Brown

that he just so happened to be in possession of contraband

when he caused the crash. Nor does the state argue that

the car crash somehow precipitated the later contraband

crimes, or that the later contraband crimes were the result

of perpetuation of defendant’s dangerous driving. All in all,

we fail to see how accidentally causing a car crash can be

seen as part of a scheme or plan to trade contraband several

months later.

In sum, we assume without deciding that UUV, pos-

session of methamphetamine, felon in possession, and iden-

tity theft in the September incident are part of a common

scheme or plan as UUV, possession of methamphetamine,

felon in possession, and delivery of methamphetamine in the

December incident, but conclude that the car crash offenses

in the September incident—DUII, reckless driving, fourth-

degree assault, and second-degree criminal mischief—are

not.

The state appears to argue that because some

offenses in the September incident were properly joined

with the offenses in the December incident, then any other

offenses in the September incident (i.e., the car crash offenses)

were also properly joined. In essence, the state argues that

it can make a “daisy chain” of offenses—if offense A is join-

able with offense B, and offense B is joinable with offense C,

then all three offenses may be joined, even if joinder of only

offenses A and C would not be proper. We disagree.

Such chaining of offenses is not consistent with

prior caselaw holding that the state must allege the basis for

joinder in the indictment. In State v. Poston, 277 Or App 137,

139, 370 P3d 904 (2016), adh’d to on recons, 285 Or App 750,

399 P3d 488, rev den, 361 Or 886 (2017), the defendant was

charged with six counts of promoting prostitution and 26

counts of identity theft in an indictment that did not allege

any bases for joinder. We reasoned that “the state permissi-

bly could charge all of the promoting-prostitution counts in a

single indictment and, in turn, all of the identity-theft counts

in a single indictment” but “[w]hat it could not do is join the

promoting-prostitution counts with the identity-theft counts

without alleging in the indictment the basis for the joinder

Cite as 326 Or App 46 (2023) 57

of those two groups of counts in a single indictment.” Id. at

145 n 4; see also Warren, 364 Or at 122 (holding that “if an

indictment charges more than one offense, it must allege the

basis for joining the charges”). Underlying both cases is an

assumption that there must be a basis for joining all of the

indicted offenses, not just some of them. Here, the state does

not even argue that there is a statutory basis for joining

the car crash offenses in the September incident with the

offenses in the December incident.

At the end of the day, allowing for daisy chains of

offenses would open the door to the joinder of an unlim-

ited number of offenses that “may somehow be tangentially

related, but, for all practical purposes, are factually alien to

each other.” Dewhitt, 276 Or App at 384 (internal quotation

marks omitted). Joinder in such circumstances would ele-

vate concerns of judicial efficiency too far above “protect[ing]

defendants from the prejudice that can result from trying

multiple, unrelated offenses at one time.” Warren, 364 Or at

114-15. As a result, in this case, the car crash offenses in the

September incident were misjoined with the offenses in the

December incident.

The next question is whether that error was harm-

less, i.e., whether there is little likelihood that it affected

the jury’s verdict. State v. Davis, 336 Or 19, 32, 77 P3d

1111 (2003).4 In making that determination, we consider

whether the misjoinder led to the admission of evidence that

would not have been admissible but for the joinder and, if

so, whether that evidence affected the verdict. Smith, 308

Or App at 647. That task can be difficult because, “by rely-

ing on multitiered assumptions about hypothetical trials,

we encounter increasing difficulty in determining the likely

effect of evidence and, accordingly, in concluding whether,

as a matter of law, there is little likelihood that the evidence

would have affected an imagined verdict.” State v. Walsh,

4

The harmless error standard on appellate review—whether there is little

likelihood that misjoinder affected the verdict—is less demanding than the sub-

stantial prejudice standard for a motion to sever in the trial court, which requires

the defendant to “identify a case-specific theory of substantial prejudice that is

more than the prejudice that is inherent whenever joined charges allow the jury

to hear that the defendant may have committed other bad acts.” Delaney, 370 Or

at 556.

58 State v. Brown

288 Or App 331, 337, 406 P3d 152 (2017), rev den, 364 Or 680

(2019).

Here, we cannot conclude, nor does the state argue,

that the error was harmless with respect to either case

because some prejudicial evidence would not have been

cross-admissible, and in these circumstances, may have

affected the outcome. In particular, evidence of the drug

charges in the December incident—a substantial quantity

of methamphetamine—would not have been admitted in a

trial solely about the offenses in the September incident, nor

would evidence of the car crash have been admitted in a

trial solely about the offenses in the December incident. See

Warren, 364 Or at 115 (“[E]vidence of other crimes usually

is very prejudicial to the defendant because such a fact is

often interpreted by the jury as evidence of bad criminal

character.” (Citing State v. Brown, 299 Or 143, 151, 699 P2d

1122 (1985).)). Because there is more than a little likelihood

that those pieces of evidence affected the jury’s verdict on

the other charges, misjoinder was not harmless.

Defendant also assigns error to the joinder of

offenses within each indictment. We conclude that the

offenses in each indictment were properly joined as “of the

same or similar character” because they were linked by tem-

poral proximity, location, and evidentiary overlap. We fur-

ther conclude that they were properly joined as “connected

together or constituting parts of a common scheme or plan”

because the criminal conduct in each incident occurred and

was investigated concurrently, so the offenses were linked

temporally and spatially and had substantial overlapping

proof. Dewhitt, 276 Or App at 385-86.5

5

Our disposition obviates the need to address the remaining assignments of

error, which challenge the acceptance of nonunanimous jury verdicts on two of

the counts. We reject defendant’s first supplemental assignment of error because

defendant was not denied a “speedy trial.” ORS 136.290. We reject defendant’s

second supplemental assignment of error, which challenges the denial of his

motion to suppress the fruits of his December arrest, because we conclude that

the arresting officer had probable cause to suspect that defendant committed

UUV. We reject defendant’s third supplemental assignment of error challenging

the admission of medical records because those records were prepared for treat-

ment purposes. Melendez-Diaz v. Massachusetts, 557 US 305, 312 n 2, 129 S Ct

2527, 174 L Ed 2d 314 (2009). We reject defendant’s arguments in his fourth, fifth,

and sixth supplemental assignments of error because they were not preserved

in the trial court and do not involve “plain error.” See State v. Brown, 310 Or

Cite as 326 Or App 46 (2023) 59

Reversed and remanded.

347, 355, 800 P2d 259 (1990) (an error is apparent on the face of the record if the

legal point is obvious and not reasonably in dispute, and if the reviewing court

need not look beyond the record or choose from competing inferences to find the

error). We reject defendant’s seventh supplemental assignment of error, which

challenges the trial court’s denial of his motion for judgment of acquittal, because

the evidence was legally sufficient. We reject defendant’s eighth supplemental

assignment of error because the trial court did not err in finding “good cause” to

extend the restitution deadline. ORS 137.106(1)(a) (2019), amended by Or Laws

2022, ch 57, § 1.