State v. Brown

624 March 27, 2024 No. 192

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MICHAEL ALLEN BROWN,

Defendant-Appellant.

Clackamas County Circuit Court

21CR58025; A179104

Jeffrey S. Jones, Judge.

Submitted February 26, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Emily P. Seltzer, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jeff J. Payne, Assistant Attorney

General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

Nonprecedential Memo Op: 331 Or App 624 (2024) 625

ORTEGA, P. J.

Defendant was convicted of multiple offenses,

including one count of driving under the influence of intox-

icants, ORS 813.010(4), and one count of recklessly endan-

gering another person, ORS 163.195. On appeal, he seeks

reversal as to those two counts on the ground that the trial

court erred in giving what is known as the “Miles instruc-

tion.” See UCrJI 2708; State v. Miles, 8 Or App 189, 196-97,

492 P2d 497 (1972) (the genesis of the instruction in Oregon).

That instruction provides:

“If you find from the evidence that [defendant] was in such

a physical condition that [he] w[as] more susceptible to the

influence of intoxicants than [he] would otherwise be, and

as a result of being in that physical condition, [defendant]

became under the influence by a lesser quantity of intoxi-

cants than it would otherwise take, [defendant] is never-

theless under the influence of intoxicants.”

Relying on our decision in State v. Avila, 318 Or App 284, 507

P3d 704 (2022), defendant argues that the instruction was

improper for two reasons: (1) the Miles instruction is limited

to cases in which alcohol is involved, and there was no evi-

dence that defendant was under the influence of alcohol as

opposed to methamphetamine or cocaine; and (2) defendant’s

purported susceptibility to the influence of intoxicants was

due to fatigue, which is not the type of “physical condition”

to which the instruction applies.

The state responds that defendant did not object to

giving the instruction until after the jury had left to delib-

erate and, in fact, invited any error by acquiescing to giv-

ing the instruction. Having reviewed the trial transcript,

we conclude that, at the very least, defendant’s arguments

on appeal are not preserved. Defendant had an opportunity

to address the instruction before it was given, but he did

not object until after the court instructed the jury and the

prosecutor gave a closing argument that referred to it as

an “important jury instruction”; and even then, when defen-

dant later did object to the instruction, he simply pointed

the trial court to Avila, without any additional argument.

Under those circumstances, defendant’s belated objection

did not serve the purposes of preservation. See Peeples v.

626 State v. Brown

Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008) (explain-

ing that the preservation requirement serves several pur-

poses, including providing the trial court the chance to con-

sider and rule on an issue, ensuring fairness to the opposing

party by giving that party an opportunity to respond, and

fostering full development of the record).

Thus, in order to prevail on his claim, defendant

must demonstrate that the trial court plainly erred in giv-

ing the Miles instruction. However, we recently rejected the

same plain-error arguments in State v. Carter, 330 Or App

629, 631, ___ P3d ___ (2024). In that case, the defendant

argued, first, “that she consumed no alcohol, and the Miles

instruction is only appropriate in cases of intoxication by

alcohol consumption”; and, second, “that under [Avila], the

‘physical condition’ referenced in the Miles instruction does

not include ‘non-drug related physical conditions,’ such as

[the] defendant’s purported physical conditions * * *: illness

and fatigue.” We concluded that “[n]either of those argu-

ments are persuasive on plain error review because neither

of those arguments identify a rule of Oregon law that the

trial court apparently or obviously violated”; we then went

on to explain why that was the case. Carter, 330 Or App at

631-32. For the reasons explained in Carter, we reach the

same conclusion here and reject defendant’s assignment of

error.

Affirmed.