Opinion
A180478
06-12-2024
STATE OF OREGON, Plaintiff-Respondent, v. PHILLIP DEE JACQUES, aka Phil Dee Jacques, aka Phillip D. Jaques, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emma McDermott, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kyleigh Gray, 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This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 May 14, 2024
Deschutes County Circuit Court 22CR02359; Michelle A. McIver, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emma McDermott, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kyleigh Gray, Assistant Attorney General, fled the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins, Judge.
TOOKEY, P. J.
Defendant challenges his conviction for harassment, arguing that the state failed to present legally sufficient evidence that he subjected the victim to "offensive physical contact" when he slapped the victim's cellphone out of her hand. Because we conclude that defendant failed to preserve that argument, we affirm.
To prove harassment as charged, the state had to prove that defendant intentionally "harasse[d] or annoy[ed] another person by" "Subjecting such other person to offensive physical contact[.]" ORS 166.065(1). To do so, the state called the victim to the stand, where she testified that defendant "reached forward and slapped [my cellphone] out of my hand, and it flew across the parking lot." In a motion for judgment of acquittal, defendant argued that the state needed to prove that defendant actually touched a part of the victim's body and that it failed to do so. The trial court disagreed, concluding that a rational factfinder could conclude that defendant touched the victim's body.
On appeal, defendant takes a different tack. Citing State v. Keller, 40 Or.App. 143, 147, 594 P.2d 1250 (1979) (en banc), defendant acknowledges that the state need not prove that flesh-to-flesh contact occurred. Instead, he argues that the state failed to present evidence sufficient to establish that a reasonable person in the victim's circumstances would have found the contact at issue "offensive." The state responds that defendant did not preserve that argument.
We agree with the state. "As a rule, an objection as to the legal insufficiency of evidence to prove a claim on one theory does not have the effect of preserving all other possible theories of insufficiency; rather, parties must explain to the court and opposing party a specific reason for the asserted legal insufficiency." State v. K. J. B., 362 Or. 777, 791, 416 P.3d 291 (2018). Here, defendant's argument on appeal is materially different from the one made at trial, and he does not ask us for plain-error review under ORAP 5.45(1). See State v. Ardizzone, 270 Or.App. 666, 673, 349 P.3d 597, rev den, 358 Or. 145 (2015) ("[W]e ordinarily will not proceed to the question of plain error unless an appellant has explicitly asked us to do so[.]"X
Affirmed.