Opinion
A179104
03-27-2024
STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL ALLEN BROWN, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted February 26, 2024
Clackamas County Circuit Court No. 21CR58025, Jeffrey S. Jones, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge.
ORTEGA, P. J.
Defendant was convicted of multiple offenses, including one count of driving under the influence of intoxicants, ORS 813.010(4), and one count of recklessly endangering 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 instruction." See UCrJI 2708; State v. Miles, 8 Or.App. 189, 196-97, 492 P.2d 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 intoxicants than it would otherwise take, [defendant] is nevertheless under the influence of intoxicants."
Relying on our decision in State v. Avila, 318 Or.App. 284, 507 P.3d 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 evidence 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 deliberate and, in fact, invited any error by acquiescing to giving 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 defendant later did object to the instruction, he simply pointed the trial court to State v. Avila, without any additional argument. Under those circumstances, defendant's belated objection did not serve the purposes of preservation. See Peeples v. Lampert, 345 Or. 209, 219-20,191 P.3d 637 (2008) (explaining that the preservation requirement serves several purposes, including providing the trial court the chance to consider 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 giving the Miles instruction. However, we recently rejected the same plain-error arguments in State v. Carter, 330 Or.App. 629, 631,__P.3d__(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 arguments 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.