text:
    In the MATTER OF the Parental Rights of K.J.B., Minor.
    Joyce E.B., Appellant, v. The State of Nevada; and K.J.B., Minor, Respondents.
    No. 77816
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    Joyce E.B.
    Clark County District Attorney/Juvenile Division
    Legal Aid Center of Southern Nevada, Inc.
    ORDER OF AFFIRMANCE
   This is a pro se appeal from a district court order terminating appellant's parental rights as to the minor child. Eighth Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge.

To terminate parental rights, the district court must find clear and convincing evidence that (1) at least one ground of parental fault exists, and (2) termination is in the child's best interest. NRS 128.105(1) ; In re Termination of Parental Rights as to N.J. , 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000). Evidence of parental fault may include neglect, unfitness, risk of serious injury to the child if the child is returned to the parent, failure of parental adjustment, and demonstration of only token efforts. NRS 128.105(1)(b). On appeal, this court reviews questions of law de novo and the district court's factual findings for substantial evidence. In re Parental Rights as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014).

Appellant contends that substantial evidence does not support the district court's findings of parental fault. Specifically, she argues that she complied with the case plan and her constitutional rights were violated when she was required to admit to abusing or neglecting the child in order for the child to be returned to her care.

We conclude that substantial evidence supports the district court's findings that appellant neglected the child, is an unfit parent, and failed to adjust the circumstances that led to the child's removal. NRS 128.105(1)(b) ; NRS 128.0126 (providing that failure of parental adjustment occurs when a parent is unable or unwilling to substantially correct the circumstances that led to the child's placement outside of the home within a reasonable time); NRS 128.014(1) (explaining that a child is neglected when the child lacks "proper parental care by reason of the fault or habits of his or her parent"); NRS 128.018 (providing that a parent is unfit when "by reason of the parent's fault or habit or conduct toward the child or other persons, [the parent] fails to provide such child with proper care, guidance and support"). In determining a parent's neglect or unfitness, the court must consider conduct toward the child of a physically abusive nature. NRS 128.106(1)(b).

Appellant pleaded guilty to misdemeanor child abuse, neglect, or endangerment after the child sustained injuries from appellant hitting the child with a ruler. Appellant then failed to meaningfully participate in therapy to address the abuse as she refused to admit to the abuse in therapy. Appellant's Fifth Amendment right against self-incrimination was not violated by the requirement that she admit to the abuse in therapy because she pleaded guilty to the abuse and because substantial evidence supports the district court's findings that therapy would not be meaningful unless appellant admitted to the abuse and accepted therapeutic intervention. See Reina v. U.S., 364 U.S. 507, 513 (1960) (explaining that if a person is convicted of a crime, he or she no longer has the privilege against self-incrimination); In re Parental Rights as to S.L., 134 Nev., Adv. Op. 59, 422 P.3d 1253, 1258 (2018) (explaining that a parent's Fifth Amendment rights are not violated when a parent's failure to admit to abuse prevents meaningful therapy). Further, substantial evidence demonstrates that appellant failed to complete her case plan. Thus, substantial evidence in the record supports the district court's parental fault findings that appellant neglected the child, is an unfit parent, and failed to adjust the circumstances that led to the child's removal.

While appellant does not specifically challenge the district court's findings that termination of her parental rights was in the child's best interest, we conclude that substantial evidence supports those findings. The child has been out of appellant's care for 55 months and appellant did not rebut the presumption that termination was in the child's best interest. NRS 128.109(2) (providing that termination is presumed to be in the child's best interest if the child has been out of the parent's care for 14 of any 20 consecutive months). Further, there was evidence that appellant was inappropriate during visitations with the child, the child asked not to be returned to appellant's care, the child felt uncomfortable testifying before appellant, and the child has improved in foster care. Thus, substantial evidence supports the district court's finding that termination was in the child's best interest. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

      Because only one ground of parental fault is required to support the termination of parental rights, see NRS 128.105(1)(b) (requiring a finding of at least one ground of parental fault), it is unnecessary for us to review the district court's other findings of parental fault.

      To the extent appellant's additional arguments are not addressed herein, we have considered them and conclude they do not warrant reversal.


source: Caselaw Access Project

license: Public Domain

text:
    Carla DELL'ORO, an Individual, Appellant, v. Lynette KEMP, Respondent.
    No. 78850
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Carla Dell'Oro
    McMahon Law Offices, Ltd.
    ORDER DISMISSING APPEAL
    This is a pro se appeal from an order titled "Acceptance of Arbitrator's Decision." Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.
    Review of the documents submitted to this court pursuant to NRAP 3(g) reveals a jurisdictional defect. Specifically, the order designated in the notice of appeal is not substantively appealable. See NRAP 3A(b). This court has jurisdiction to consider an appeal only when the appeal is authorized by statute or court rule. Taylor Constr. Co. v. Hilton Hotels , 100 Nev. 207, 678 P.2d 1152 (1984). No statute or court rule provides for an appeal from an acceptance of arbitrator's decision. Moreover, this court notes that appellant's appeal from the final judgment on the arbitration award is currently pending in this court in Dell'Oro v. Kemp, Docket No. 78852. This court lacks jurisdiction, and therefore
    ORDERS this appeal DISMISSED.


text:
    Sabrina ZAVALA, Individually, Appellant, v. Mario QUESADA, M.D., Individually, Respondent.
    No. 76592
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Sabrina Zavala
    John H. Cotton & Associates, Ltd.
    ORDER DISMISSING APPEAL
    This is a pro se appeal from an order denying a motion for new trial and order regarding a motion to retax costs. Eighth Judicial District Court, Clark County; Jerry A. Wiese, Judge.
    This appeal was docketed in this court on August 3, 2018. Counsel for appellant's motion to withdraw was granted on January 24, 2019, and this court directed appellant to retain new counsel or to inform this court that she intended to proceed in pro se. Appellant failed to respond; accordingly, on March 26, 2019, this court entered an order reinstating the briefing schedule, and directing appellant to file her opening brief or informal brief for pro se parties within 30 days. Appellant failed to respond and failed to file the opening brief, and on June 4, 2019, this court entered another order directing appellant to file the opening brief within 14 days. This court's orders further cautioned appellant that failure to respond timely could result in the dismissal of this appeal as abandoned. Pursuant to the order, the brief was due by June 18, 2019. To date appellant has failed to file the opening brief or otherwise communicate with this court. Accordingly, this court concludes that appellant has abandoned this appeal, and
    ORDERS this appeal DISMISSED.


text:
    Karen Y. TERRY, Appellant, v. John Kevin SONNIER, Respondent.
    No. 78378
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Karen Y. Terry
    John Kevin Sonnier
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a district court's March 13, 2019, decision regarding an objection to a hearing master's recommendation in a matter related to child support arrears. Eighth Judicial District Court, Family Court Division, Clark County; T. Arthur Ritchie, Jr., Judge.
    Review of the notice of appeal and documents before this court reveals a jurisdictional defect. The district court's March 13, 2019, oral decision and minute order are of no effect and cannot be appealed. See State, Div. Child & Fam. Services v. Eighth Judicial Dist. Court , 120 Nev. 445,454, 92 P.3d 1239, 1245 (2004) ("[D]ispositional court orders that are not administrative in nature, but deal with the procedural posture or merits of the underlying controversy, must be written, signed, and filed before they become effective."). Accordingly, this court lacks jurisdiction and
    ORDERS this appeal DISMISSED.


text:
    Gaston Gonzalo MARTINEZ, Appellant, v. The STATE of Nevada, Respondent.
    No. 76292
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Clark County Public Defender
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This is a direct appeal from a judgment of conviction. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.
    Counsel for appellant has filed a motion to withdraw this appeal voluntarily. In the motion, counsel advises that she has informed appellant of the legal effects and consequences of voluntarily withdrawing this appeal, including that appellant cannot hereafter seek to reinstate this appeal, and that any issues that were or could have been brought in this appeal are forever waived. Having been so informed, appellant consents to a voluntary dismissal of this appeal. Cause appearing, the motion is granted and this court
    ORDERS this appeal DISMISSED.

      Because no remittitur will issue in this matter, see NRAP 42(b), the one-year period for filing a post-conviction habeas corpus petition under NRS 34.726(1) shall commence to run from the date of this order.


text:
    Marcus Roy COPELAND, Appellant, v. The STATE of Nevada, Respondent.
    No. 78838
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Marcus Roy Copeland
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This is a pro se appeal from a district court order denying a motion to correct an illegal sentence. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.
    Appellant has filed a motion to voluntarily dismiss this appeal. Cause appearing, the motion is granted. NRAP 42(b). Accordingly, this court
    ORDERS this appeal DISMISSED.


text:
    In the MATTER OF: C. R. P., DOB: XX/XX/XX, a Minor Child.
    Trevor Rick Powell, Appellant, v. The State of Nevad a Division of Child and Family Services, Respondent.
    No. 78898
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Hylin Legal, Chtd.
    Mineral County District Attorney
    ORDER DISMISSING APPEAL
    This appeal was docketed in this court on June 4, 2019, without payment of the requisite filing fee. On that same day a notice was issued directing appellants to pay the filing fee within ten days. The notice further advised that failure to pay the filing fee within ten days would result in the dismissal of this appeal. Accordingly, cause appearing, this appeal is dismissed.
    It is so ORDERED.


author: VIGIL, Justice.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. Jason COMITZ, Defendant-Appellant.
    NO. S-1-SC-36060
    Supreme Court of New Mexico.
    Filing Date: May 23, 2019 Released for Publication July 2, 2019
    Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant
    Hector H. Balderas, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee
   VIGIL, Justice.

{1} Defendant Jason Comitz appeals from his convictions of first-degree felony murder (by shooting at a dwelling) and second-degree murder for the death of the same person, four counts of aggravated battery of two other victims, two counts of aggravated assault of the same two victims, two counts of conspiracy to commit aggravated battery of the same two victims, and one count each of conspiracy to commit aggravated assault, shooting at a dwelling, conspiracy to shoot at the same dwelling, and child abuse. We discuss (1) whether the State's evidence was sufficient to prove the crime of shooting at a dwelling and conspiracy to shoot at a dwelling, (2) whether multiple convictions violate Defendant's right under the United States Constitution to be free from double jeopardy, and (3) whether the district court erred in failing to declare a mistrial on grounds that the State allegedly elicited bad-act evidence in violation of its pretrial ruling. We affirm in part and reverse in part.

I. BACKGROUND

{2} On January 28, 2015, Defendant went to the home of his friend Paul Randy Rael (Randy) to pick up $30 that Randy owed him for drugs. When Defendant arrived at the Raels' home, he came into contact with Randy's stepson, Manuel Ramirez (Manuel)-who was just getting home-in front of the house. They argued about the $30 Defendant claimed Randy owed him, which escalated into a fist fight after Manuel saw Defendant reaching for what looked to him like a gun. Manuel punched Defendant multiple times and knocked him to the ground. Randy, his wife Sita Rael (Sita), and their sons Paul Rael Junior (Paul) and Andrew Rael intervened and stopped the fight. Defendant collected the belongings that he had dropped during the fight and left. As Defendant drove off, he held his fingers like a gun and made a shooting gesture at the family.

{3} Four days later, on February 1, 2015, Defendant and two companions, each armed with a hand gun, returned to the Raels' home. Defendant parked his truck across the street from the house, and the three men jumped out of Defendant's truck and started toward the Raels' home. Randy, Sita, Manuel, Paul, and Paul's ten-year-old daughter were at the house.

{4} Paul saw that Defendant and his companions were walking toward the front door, that Defendant had an angry look on his face, and that Defendant was "fidgeting" with something that appeared to be metal. Paul alerted Manuel that Defendant was outside. Paul and Manuel also alerted Sita that Defendant was outside and told Paul's daughter to go into Sita's bedroom.

{5} From the sidewalk in front of the Raels' home, Defendant began calling for Manuel to come outside. Paul and Manuel came out and stood in the doorway on the porch steps in front of the house, with Randy standing next to Paul and Manuel.

{6} While in their respective positions, the two groups argued and exchanged insults. During the argument, Manuel called Defendant a "bitch" for showing up with two men to try to hurt his family. Defendant and his companions responded by drawing their pistols and pointing them at the Raels. One of Defendant's companions moved forward onto the Raels' porch and hit Paul on the head with the handle of his pistol, causing the gun to fire and shoot Paul. This prompted Manuel to reach for his shotgun, which was located inside the front door of the house, whereupon Defendant and his companions started shooting at the Raels. Manuel fired a single shotgun round at Defendant and his companions.

{7} After Manuel fired the shotgun, Defendant and his companions stopped shooting and "disappeared." Manuel testified that he fired the shotgun at Defendant and his companions after they started firing at him and his family. Defendant testified in his own defense and acknowledged that he and his companions shot at the Raels but insisted that it was only after Manuel shot at them first.

{8} As a result of the gunfight, Randy was shot in the neck and died from his injuries. Paul was shot in the head and lived. Manuel was shot in the leg and lived. Sita and Paul's daughter were unharmed. The ballistic evidence presented at trial indicated that the bullet that killed Randy was not fired from Defendant's gun.

{9} The State charged Defendant with committing twenty offenses, together with enhancements, in an eleven-count indictment as follows:

• Count 1, first-degree murder (willful and deliberate) of Randy or the lesser included offenses of second-degree murder (firearm enhancement) or voluntary manslaughter (firearm enhancement), or alternatively, felony murder,
• Count 2, conspiracy to commit first-degree murder, or alternatively, to commit felony murder,
• Count 3, attempt to commit first-degree murder of Paul (willful and deliberate) (firearm enhancement), or alternatively, either aggravated battery (great bodily harm) (firearm enhancement) or aggravated battery (deadly weapon) (firearm enhancement),
• Count 4, attempt to commit first-degree murder of Manuel (willful and deliberate) (firearm enhancement), or alternatively, either aggravated battery (great bodily harm) (firearm enhancement) or aggravated battery (deadly weapon) (firearm enhancement),
• Count 5, conspiracy to commit aggravated battery (great bodily harm), or alternatively, conspiracy to commit aggravated battery (deadly weapon),
• Count 6, aggravated assault (deadly weapon) (firearm enhancement) of Paul,
• Count 7, aggravated assault (deadly weapon) (firearm enhancement) of Manuel,
• Count 8, conspiracy to commit aggravated assault (deadly weapon),
• Count 9, child abuse (no death or great bodily harm) (firearm enhancement),
• Count 10, shooting at a dwelling or occupied building resulting in injury, and
• Count 11, conspiracy to commit shooting at a dwelling or occupied building.

{10} Defendant claimed self-defense. The jury rejected the claim and returned guilty verdicts for first-degree felony murder and second-degree murder of Randy, four counts of aggravated battery of Paul and Manuel, two counts of aggravated assault of Paul and Manuel, one count of conspiracy to commit aggravated assault, two counts of conspiracy to commit aggravated battery, one count of child abuse, one count of conspiracy to shoot at a dwelling or occupied building, and one count of shooting at a dwelling or occupied building. The district court sentenced Defendant to a term of life imprisonment for the felony-murder conviction and additional terms of incarceration for the remaining convictions and associated firearm enhancements.

{11} Defendant appeals directly to this Court. N.M. Const. art VI, § 2 ("Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court."); Rule 12-102(A)(1) NMRA.

II. DISCUSSION

A. Defendant's Felony-Murder Conviction

{12} First-degree murder in New Mexico includes murder committed "in the commission of or attempt to commit any felony[.]" NMSA 1978, § 30-2-1(A)(2) (1994). This is commonly referred to as felony murder. State v. Frazier , 2007-NMSC-032, ¶ 22, 142 N.M. 120, 164 P.3d 1. Notwithstanding the broad statutory language, we have repeatedly stated that, owing to legislative intent, there are many limitations to this crime. See State v. Marquez , 2016-NMSC-025, ¶ 14, 376 P.3d 815 (listing cases that have limited the scope of the felony-murder rule). One such limitation is "the collateral-felony rule." Id. Under the collateral-felony rule, the predicate felony must "be independent of or collateral to the homicide." Id. (internal quotation marks and citation omitted).

{13} Challenging his felony-murder conviction, Defendant argues that shooting at a dwelling or occupied building, as defined in NMSA 1978, Section 30-3-8(A) (1993), cannot serve as a predicate felony for felony murder.

Defendant relies on this Court's rationale in Marquez , 2016-NMSC-025, ¶¶ 23-25, 376 P.3d 815, in which we held that the offense of shooting at or from a motor vehicle as defined in Section 30-3-8(B) cannot serve as the predicate felony for a felony-murder conviction because "shooting at or from a motor vehicle is an elevated form of aggravated battery" and does not have a felonious purpose independent from the purpose of injuring the victim. Marquez , 2016-NMSC-025, ¶ 23, 376 P.3d 815 (internal quotation marks and citation omitted). Defendant asserts that, likewise, the crime of shooting at a dwelling does not have a felonious purpose independent from the purpose of injuring another. He argues that, under the collateral-felony limitation, shooting at a dwelling cannot serve as a predicate felony for felony murder. See State v. O'Kelly , 2004-NMCA-013, ¶ 24, 135 N.M. 40, 84 P.3d 88 ("[T]he 'collateral-felony' limitation dictates that the predicate felony may not be a lesser included offense of second degree murder." (citation omitted)). In light of Marquez , Defendant also contends that this Court should overrule State v. Varela , 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280. In Varela we held that shooting at a dwelling is not a lesser included offense of second-degree murder under a strict elements test and therefore that the collateral-felony limitation does not preclude shooting at a dwelling as a predicate felony to felony murder. See id. ¶¶ 18, 20-21.

{14} The State responds that shooting at a dwelling is a proper predicate for Defendant's felony-murder conviction. Specifically, the State argues that a determination that shooting at a dwelling or occupied building may serve as the predicate felony for felony murder is consistent with the Marquez "felonious purpose" analysis under the collateral felony doctrine and does not require overruling Varela .

{15} However, a felony-murder conviction rests upon proof beyond a reasonable doubt that the predicate felony was committed. See UJI 14-202 NMRA. A failure of proof is fundamental error. See State v. Vance , 2009-NMCA-024, ¶ 6, 145 N.M. 706, 204 P.3d 31 (" 'If the evidence is insufficient to legally sustain one of the elements of a crime, the error is fundamental.' " (alteration omitted) (citation omitted)). We may review an issue of the sufficiency of the evidence on appeal even if the issue is not argued by the parties. See State v. Doe , 1978-NMSC-072, ¶ 4, 92 N.M. 100, 583 P.2d 464. Based on our review of the facts of this case, we conclude that a significant issue exists as to whether the State proved the essential elements of the predicate felony used to obtain Defendant's felony-murder conviction-shooting at a dwelling. Therefore, on our own motion, we consider whether sufficient evidence supports Defendant's conviction for shooting at a dwelling. We also consider whether the evidence supports Defendant's conviction for conspiring to commit shooting at a dwelling.

{16} "In reviewing the sufficiency of the evidence, 'the reviewing court views the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.' " State v. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (alterations omitted) (citation omitted). " 'The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.' " Id. (citation omitted). " 'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.' " Id. ¶ 53 (alteration omitted) (citation omitted). "We do 'not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence,' and we do 'not weigh the evidence or substitute our judgment for that of the fact finder so long as there is sufficient evidence to support the verdict.' " Id. ¶ 52 (alterations omitted) (citation omitted); see also State v. Torrez , 2013-NMSC-034, ¶ 40, 305 P.3d 944 (discussing the standard of review for sufficiency of the evidence).

{17} The jury was instructed that in order to find Defendant guilty of felony murder, the State was required to prove beyond a reasonable doubt, in pertinent part, that "[D]efendant committed the crime of Shooting at a Dwelling resulting in great bodily harm under circumstances or in a manner dangerous to human life" and "caused the death of [Randy] during the commission of Shooting at a Dwelling resulting in great bodily harm." The crime of shooting at a dwelling or occupied building is substantively defined as "willfully discharging a firearm at a dwelling or occupied building." Section 30-3-8(A). Consistent with Section 30-3-8(A), the elements instruction given to the jury required the State to prove beyond a reasonable doubt that "[D]efendant willfully shot a firearm at a dwelling."

{18} Viewing the evidence in the light most favorable to the guilty verdict and indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict, we conclude that the State failed to prove that Defendant committed the felony of shooting at a dwelling. No evidence supports a finding that when Defendant fired his pistol he willfully shot at the Raels' home as required both by Section 30-3-8(A) and by the elements instruction to the jury for shooting at a dwelling. See Webster's Third New International Dictionary 136 (3d ed. 1993) (defining "at" as "a function word to indicate that which is the goal of an action or that toward which an action or motion is directed"); see also Fleming v. Commonwealth , 13 Va.App. 349, 412 S.E.2d 180, 183-84 (1991) (stating that the word "at," for purposes of a statute prohibiting discharge of a firearm at an occupied dwelling, is defined as "a function word used to indicate that toward which an action is directed" (alterations omitted) (internal quotation marks and citation omitted)). Instead, the only reasonable inference from the evidence is that Defendant and his companions specifically and primarily targeted the Raels themselves in the course of a gunfight that took place in front of the dwelling. In other words, the evidence was that the goal of Defendant and his companions was to shoot at the Raels, not at the house. The fact that the Raels were standing in front of the house during the gunfight did not shift Defendant's target from the Raels to the house.

{19} The facts of this case stand in stark contrast to other cases in which we have upheld convictions, based on challenges to the sufficiency of the evidence, for shooting at a dwelling or occupied building in violation of Section 30-3-8(A). In those cases, the facts clearly support a finding that the target of the defendants' gunfire was the dwelling or occupied building itself. In Torrez , following an altercation at a party, the defendant left the house, armed himself, and then returned to the house. See 2013-NMSC-034, ¶¶ 2-4, 305 P.3d 944. From the street, the defendant took out his firearm and fired at the house. See id. ¶¶ 3-4. There was no evidence presented that the defendant was aiming at any particular individual during his assault. See id. ¶¶ 2-4, 42-43 ("[S]everal witnesses ... testified that when [the d]efendant returned to the house where the party was taking place, he opened fire on the house without anyone else firing back at him." Id. ¶ 42.). As a result of the defendant's indiscriminate gunfire, one partygoer was injured and another was killed. See id. ¶ 4. Under these facts, we concluded that there was sufficient evidence to support the defendant's conviction of felony murder based on the predicate felony of shooting at a dwelling. See id. ¶¶ 41-42.

{20} Similarly, in State v. Arrendondo , we affirmed the defendant's conviction of shooting at a dwelling, noting three pieces of evidence upon which the jury could have relied to reasonably infer that the defendant intentionally shot into the house. See 2012-NMSC-013, ¶¶ 36-37, 278 P.3d 517. First, there was evidence that the defendant "was expressing hostility towards" an occupant of the house who was not the ultimate and intended murder victim. Id. ¶ 37. Second, there was "evidence that at least two bullets entered the house." Id. Finally, there was "evidence that the trajectory of the bullets that entered the house was different from the trajectory of the bullets that entered [the victim's] body." Id. In reference to the trajectories, there was testimony that "the trajectory of the bullets that landed in the house indicate[d] that the shooter was aiming directly at the house." Id. ¶¶ 12, 36.

{21} Finally, in Varela , we concluded that the facts supported a conviction of accessory to felony murder by shooting at a dwelling when, just before midnight, one of the defendant's companions fired several shots into a dark mobile home before speeding away. See 1999-NMSC-045, ¶¶ 1-2, 7, 9, 21, 128 N.M. 454, 993 P.2d 1280. The companion who admitted to firing the gun testified that the motive behind the attack was to "get even" with a rival gang member whose father owned the mobile home. See id. ¶¶ 2, 4, 7. The rival gang member's father was killed when he was struck by one of the fired rounds while asleep in the mobile home. Id. ¶¶ 2, 4. We held that this evidence was sufficient to support a conviction of felony murder predicated on shooting at a dwelling. Id. ¶¶ 1, 21.

{22} By contrast, the evidence in the instant case is not sufficient to support a conviction of felony murder predicated on the felony of shooting at a dwelling. Unlike the defendants in Torrez , Arrendondo , and Varela , Defendant and his companions did not target the house in their attack. They did not fire indiscriminately at the house from the street like the defendants in Torrez and Varela . The objects of Defendant's assault were individual Raels. This is supported by the facts that Defendant's group specifically urged Manuel to come outside the house and that Paul was targeted at close range when one of Defendant's companions moved onto the porch before striking him and shooting him in the head. In contrast to the evidence in Arrendondo , there was no bullet trajectory evidence presented at Defendant's trial to show that Defendant's group directly aimed at the house. Absent sufficient evidence that the dwelling was the principal target of Defendant's gunfire, we will not permit Defendant's conviction of second-degree murder to be elevated to a conviction of felony murder simply because the second-degree murder occurred in front of a dwelling.

{23} Because the State failed to prove the felony used as the predicate for Defendant's felony-murder conviction, it follows that Defendant's conviction of felony murder (Count 1 alternative) as well as Defendant's conviction of shooting at a dwelling (Count 10) must be vacated for a failure of proof. Therefore we do not need to address Defendant's argument that his felony-murder conviction must be vacated on grounds that a flaw in the felony-murder jury instruction constituted fundamental error.

{24} In addition, and for largely the same reasons, the State failed to present sufficient evidence that Defendant conspired to shoot at a dwelling or occupied building. The jury was instructed in pertinent part that in order for it to find Defendant guilty of conspiracy to commit shooting at a dwelling or occupied building, the State was required to prove beyond a reasonable doubt that Defendant "and another person by words or acts agreed together to commit Shooting at a Dwelling" and that Defendant "and the other person intended to commit Shooting at a Dwelling." The evidence presented by the State and the inferences from that evidence fail to prove that Defendant and his companions at any time formed an agreement to shoot at the Raels' home or that they intended to shoot at the Raels' home. The fact that there was a gunfight in which Defendant and his companions were shooting at the Raels does not equate, by itself, to an agreement to shoot at the Raels' home. Defendant's conviction of conspiracy to commit shooting at a dwelling or occupied building (Count 11) must also be set aside for a failure of proof.

B. Defendant's Double Jeopardy Claims

{25} Defendant argues that several of his convictions violate his right to be free from double jeopardy and must be vacated. The State agrees with Defendant that some convictions violate double jeopardy and must be vacated. However, we are not bound by the State's concession, and we independently assess Defendant's claims. See State v. Martinez , 1999-NMSC-018, ¶ 26, 127 N.M. 207, 979 P.2d 718 (stating that the appellate courts are not bound by the State's concession of an issue in a criminal appeal).

{26} "This Court reviews claims involving alleged violations of a defendant's right to be free from double jeopardy de novo." State v. Loza , 2018-NMSC-034, ¶ 4, 426 P.3d 34. The Fifth Amendment, made applicable to the states by the Fourteenth Amendment, prohibits double jeopardy and "functions in part to protect a criminal defendant against multiple punishments for the same offense."

State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal quotation marks and citation omitted). There are two classes of double jeopardy multiple-punishment cases: (1) the "double-description case, where the same conduct results in multiple convictions under different statutes," and (2) the "unit-of-prosecution case, where a defendant challenges multiple convictions under the same statute." Id. Defendant's arguments raise both double-description and unit-of-prosecution claims, and we proceed to analyze each double jeopardy argument.

1. Defendant's felony-murder and second-degree-murder convictions

{27} Defendant argues that double jeopardy was violated because his felony-murder and second-degree-murder convictions both result from Randy's killing. Because we have concluded that Defendant's felony-murder conviction must be vacated for a failure of proof, Defendant's argument is moot, and Defendant's second-degree-murder conviction stands.

2. Defendant's conviction for shooting at a dwelling

{28} Defendant argues that his conviction for shooting at a dwelling must be vacated on double jeopardy grounds. Again, Defendant's double jeopardy argument is moot because we vacate Defendant's conviction for shooting at a dwelling on the basis of insufficient evidence.

3. Defendant's convictions for the aggravated batteries of Paul and Manuel

{29} Defendant argues that his two convictions for the aggravated battery of Manuel (Count 4) and two convictions for the aggravated battery of Paul (Count 3), where each count was charged in the alternative as aggravated battery with a deadly weapon and aggravated battery resulting in great bodily harm, both result in multiple punishments in violation of his double jeopardy rights. The State concedes that one aggravated battery conviction per victim must be vacated.

{30} In State v. Cooper , this Court reviewed whether multiple convictions for a single count of aggravated battery charged under multiple theories of the crime violated double jeopardy. See 1997-NMSC-058, ¶ 53, 124 N.M. 277, 949 P.2d 660. We held that the defendant's two convictions for one count of aggravated battery charged under two theories-"battery with a deadly weapon and battery in a manner that could cause great bodily harm"-constituted a violation of double jeopardy. Id. Therefore, the Court vacated one of the defendant's aggravated battery convictions. Id. ¶¶ 53, 63.

{31} Under the circumstances of this case, Cooper is on point. Defendant was charged with two counts of attempt to commit deliberate first-degree murder, relating to the shooting of Manuel and Paul, respectively. Each attempted murder count included as alternatives two aggravated battery charges brought under theories of use of a deadly weapon and resulting in great bodily injury. The jury was further instructed that it could find Defendant guilty of the attempted murder of Manuel and of Paul, or alternatively of the aggravated battery of each. The jury received separate instructions for aggravated battery as to each victim, Manuel and Paul, under both theories: battery with a deadly weapon and battery resulting in great bodily harm. The jury returned four aggravated battery convictions against Defendant-two for the shooting of Manuel under each of the two charged theories and two for the shooting of Paul under each of the two charged theories. Because the indictment and jury instructions reflect that Defendant was charged in Counts 3 and 4 with only one act of battering each of the two victims-Manuel and Paul-under two theories of the crime, we conclude following Cooper that one aggravated battery conviction per count must be vacated. See also State v. Garcia , 2009-NMCA-107, ¶¶ 9, 16-17, 147 N.M. 150, 217 P.3d 1048 (determining that the defendant's aggravated-battery and simple-battery convictions arising from the same conduct violated his double jeopardy rights).

4. Defendant's conspiracy convictions

{32} Defendant argues that the State failed to establish the existence of distinct conspiracies at trial, and as a result, three of his four conspiracy convictions must be vacated. The State agrees.

{33} In State v. Gallegos , we concluded that based on "the text, history, and purpose of our conspiracy statute ... the Legislature established ... a rebuttable presumption that multiple crimes are the object of only one, overarching, conspiratorial agreement subject to one, severe punishment set at the highest crime conspired to be committed." 2011-NMSC-027, ¶ 55, 149 N.M. 704, 254 P.3d 655. "At trial, the state has an opportunity to overcome the Legislature's presumption of singularity, but doing so requires the state to carry a heavy burden." Id.

{34} In determining whether the State has overcome the Legislature's presumption of singularity and demonstrated the existence of more than one conspiracy, this Court has adopted a multifactor totality of circumstances test used by federal courts. Id. ¶¶ 42, 56. The factors used to determine the number of agreements where more than one conspiracy is alleged include whether the alleged conspiracies (1) have the same location, (2) overlap significantly in time, (3) involve the same or overlapping personnel, (4) involve similar overt acts charged against the defendant, and (5) involve the defendant performing a similar role. Id. ¶ 42. "While New Mexico law does not require the existence of an overt act, our courts may still rely on this factor to help determine whether a defendant entered into one or more conspiratorial agreements." Id. ¶ 56 n.3.

{35} The jury returned four conspiracy convictions against Defendant arising from the shooting: (1) conspiracy to commit aggravated battery (great bodily harm), as charged in Count 5, (2) conspiracy to commit aggravated battery (deadly weapon), charged as an alternate in Count 5, (3) conspiracy to commit aggravated assault (deadly weapon), as charged in Count 8, and (4) conspiracy to commit shooting at a dwelling (great bodily harm), as charged in Count 11. However, because we have already concluded that the evidence fails to prove a conspiracy to shoot at a dwelling, we limit our discussion to the remaining three conspiracy convictions. Applying the totality of circumstances test, we conclude that the evidence at trial established the existence of only one conspiracy. First, the location and time of the alleged conspiracies were the same, and they overlapped temporally. The direct and circumstantial evidence showed that the agreement to shoot at the Rael family was formed between Defendant and his companions while they were on the way to the Raels' home or during the verbal exchange that preceded the exchange of gunfire. See State v. Trujillo , 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814 ("The agreement [necessary to establish conspiracy] may be established by circumstantial evidence."). Second, the personnel involved in the several charged conspiracies, Defendant and his two companions, were the same. Finally, the overt acts and Defendant's role in the several charged conspiracies were the same. Specifically, Defendant's role in the charged conspiracies was to call the Raels outside and shoot at them.

{36} Because Defendant's actions were all part of one, overarching conspiratorial agreement, Defendant's multiple conspiracy convictions violate double jeopardy. Because the highest crime conspired to be committed was aggravated battery, this conspiracy conviction is affirmed. Compare NMSA 1978, § 30-3-5(C) (1969) ("Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon ... is guilty of a third degree felony.") with NMSA 1978, § 30-3-2 (1963) ("Whoever commits aggravated assault is guilty of a fourth degree felony.").

5. Defendant's aggravated-battery and aggravated-assault convictions

{37} Defendant argues that his aggravated-assault convictions (Counts 6 and 7) must be vacated on double jeopardy grounds because they are subsumed in his aggravated-battery convictions (Counts 3 and 4). The State responds that "[b]ecause Defendant's aggravated-assault convictions and aggravated-battery convictions are not based on unitary conduct, they do not result in a double jeopardy violation." We agree with the State.

{38} The double jeopardy analysis for double-description cases applies to this argument because Defendant's aggravated-assault and aggravated-battery convictions arise under different statutes. "In reviewing a double-description double jeopardy challenge, ... we must first determine whether the defendant's conduct was unitary, requiring an analysis of whether or not a defendant's acts are separated by sufficient 'indicia of distinctness'." State v. Torres , 2018-NMSC-013, ¶ 18, 413 P.3d 467 (citation omitted). "If the conduct is not unitary, then there is no double jeopardy violation." Id. "If the conduct is unitary, we must determine whether the Legislature intended multiple punishments for the unitary action." Id.

{39} "Conduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished." State v. Silvas , 2015-NMSC-006, ¶ 10, 343 P.3d 616. In considering whether conduct is unitary, the courts "have looked for an identifiable point at which one of the charged crimes had been completed and the other not yet committed." State v. DeGraff , 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61. The courts have also "looked for an event that intervened between" the crimes at issue, distinguishing the crimes from one another. Id.

{40} The evidence at trial was that Defendant and his companions drew and pointed their guns at the Raels after the argument involving Defendant, his two companions, and the Raels began. The men argued and yelled at one another, and Defendant and his companions continued to point their guns at the Raels until they heard the sound of a siren. At that point, Defendant and his companions lowered their guns to their sides, and everyone stopped arguing. After the passing of the vehicle with the siren, which turned out to be an ambulance and not a police car, one of Defendant's companions moved onto the Raels' porch, and the violence between the two groups ensued, culminating in the injuries to Paul and Manuel.

{41} Defendant argues that the conduct underlying his aggravated-assault and aggravated-battery convictions was unitary. He contends that "the pointing of the firearms occurred in the same place as the firing of them and occurred within a matter of seconds or, at most, minutes. Moreover, the nature and quality of the alleged acts demonstrate that they are necessarily related: pointing guns at the targets was an essential antecedent to firing them at the targets."

{42} The State responds, and we agree, that "[a]fter lowering their guns at the sound of a siren, Defendant and his companions had an opportunity to walk away, having made their threats without harming anyone. But they chose, instead, to do more." The passing siren and subsequent brief moment of repose stand as identifiable points marking the completion of the assaults (the initial pointing of guns) and the forthcoming batteries. Once the ambulance passed, Defendant and his companions again raised their guns in a second, distinct act of aggression before firing at Paul and Manuel. Under these circumstances, the conduct underlying Defendant's aggravated-assault convictions and the conduct underlying his aggravated-battery convictions were separated by sufficient indicia of distinctness. Because Defendant's conduct was not unitary, there is no double jeopardy violation in Defendant's aggravated-battery and aggravated-assault convictions. See Torres , 2018-NMSC-013, ¶ 18, 413 P.3d 467 ("If the conduct is not unitary, then there is no double jeopardy violation.").

6. Defendant's sentence enhancements for using a firearm in committing aggravated battery and aggravated assault

{43} Defendant argues that "aggravation" of the sentences for his assault and battery "charges based upon the presence of a firearm" results in double jeopardy, "requiring that the firearm enhancements be vacated." The State responds that this Court recently rejected this argument in State v. Baroz , 2017-NMSC-030, 404 P.3d 769. We agree. In Baroz , the Court held,

The legislative policy behind the firearm sentence enhancement[, NMSA 1978, § 31-18-16(A) (1993),] is that a noncapital felony, committed with a firearm, should be subject to greater punishment than a noncapital felony committed without a firearm because it is more reprehensible. The very nature of a firearm enhancement is to require the sentencing judge to increase or enhance the basic sentence that applies to the crime. By enacting the enhancement, the Legislature intended to authorize greater punishment for noncapital felonies committed with a firearm. We conclude the Legislature intended to authorize an enhanced punishment when a firearm is used in the commission of aggravated assault. The sentence enhancement does not run afoul of double jeopardy[.]

Id. ¶ 27 (footnote omitted). Similarly, following Baroz in State v. Branch , the Court of Appeals concluded that the sentences for the defendant's aggravated-assault and aggravated-battery convictions, which were each increased by the firearm enhancement, did not violate double jeopardy. See 2018-NMCA-031, ¶¶ 32-34, 417 P.3d 1141.

{44} Baroz and Branch are directly applicable here. The basic sentences of three years for Defendant's third-degree aggravated-battery conviction and eighteen months for his fourth-degree aggravated-assault conviction, see NMSA 1978, § 31-18-15(A)(9)-(10) (2007), were each increased by one year, to four years and to thirty months respectively, consistent with the firearm enhancement statute, § 31-18-16(A). Because the Legislature intended to authorize an enhanced punishment when a firearm is used in the commission of aggravated assault and aggravated battery, the firearm enhancement of the sentences for these convictions did not violate double jeopardy.

C. The district court ruling when the State elicited testimony about Defendant's affiliation with the Black Berets Motorcycle Club

{45} Finally, Defendant argues that the district court erred in failing to declare a mistrial when the State elicited testimony regarding the motorcycle club with which Defendant and his companions were affiliated, in violation of the district court's pretrial ruling. The State responds that "[t]he prosecutor's questions were permissible under the doctrine of curative admissibility and, therefore, did not amount to prosecutorial misconduct." Further, the State asserts that the district court's "curative instruction was sufficient to prevent prejudice from the prosecutor's questioning." We agree with the State.

{46} We review the district court's evidentiary rulings for an abuse of discretion. State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829. Further, the appellate courts "review the denial of [a d]efendant's motion for mistrial based on prosecutorial misconduct for an abuse of discretion." State v. Sena , 2018-NMCA-037, ¶ 7, 419 P.3d 1240. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).

{47} If the district court determines that a prosecutor's comment or questioning of a witness "is substantially likely to cause a miscarriage of justice, the judge should grant a defendant's motion for a mistrial." See State v. Reynolds , 1990-NMCA-122, ¶ 12, 111 N.M. 263, 804 P.2d 1082. However, when a defendant gives testimony "that 'opens the door' to inadmissible evidence, the doctrine of curative admissibility in some circumstances may permit the State to rebut that claim with otherwise inadmissible evidence." State v. Tollardo , 2012-NMSC-008, ¶ 22, 275 P.3d 110.

{48} For example, in State v. Andrade , where the defendant physically attacked the victim while committing aggravated burglary, the district court granted the defendant's motion to exclude evidence of his prior arrests for battery and shoplifting pursuant to Rule 11-404 NMRA (1993). See 1998-NMCA-031, ¶¶ 2, 12-14, 124 N.M. 690, 954 P.2d 755. In her cross-examination by the defense, the victim testified about the defendant's prior arrests for battery and shoplifting. Id. ¶ 14. When the defendant subsequently took the stand on his own behalf, he testified that during his relationship with the victim, she often beat him and forced him to shoplift for her. Id. ¶ 17. On cross-examination of the defendant, the prosecutor asked the defendant about his history of shoplifting and prior arrests for battery. Id. ¶ 21. The Court of Appeals determined that no prosecutorial misconduct occurred as a result of the prosecutor's cross-examination of the defendant because the defendant's testimony opened the door to the prosecutor's questioning. Id. ¶ 21. The Court reasoned that "[g]iven that [the d]efendant opened the door regarding prior violent episodes between [the d]efendant and [the v]ictim, he cannot complain that the State questioned him regarding who really beat whom. Such responsive evidence is admissible under the doctrine of curative admissibility[.]" Id. Therefore, the Court concluded, although the evidence concerning the defendant's prior arrests for shoplifting and battery had initially been excluded, when the defendant "contended on direct examination that he was shoplifting to satisfy [the v]ictim's demands, the State could properly pursue cross-examination" to rebut the defendant's statements. Id.

{49} Prior to trial in this case, the State filed notice of intent to introduce other acts evidence under Rule 11-404(B). In pertinent part, the State sought to introduce evidence that Defendant was affiliated with the Black Berets Motorcycle Gang. The State asserted that

Defendant has affiliations with the Black Beret's Motorcycle Gang. He was allegedly stripped of his membership for trafficking narcotics. Simultaneously, a group of "rogue" Black Beret members had become increasingly violent and had originated by an agreement that each of these members in this "rogue" crew were willing to commit murder for the club. Two of these "rogue" members are co-Defendants Ricardo Romero, and David Ulibarri.... This information is relevant to show that the Defendant knew his co-defendant's would resort to deadly violence on Defendant's behalf, and that they acted in concert on February 1, 201[5] when they came to the Rael house to shoot the victims.

The district court addressed the admissibility of this evidence on the first day of trial. The State argued concerning the proffered evidence as follows: "I think it's important to the conspiracy charge that Mr. Comitz knows if he brings these two guys, they're, you know, they're brothers. That means something, that they would fight on behalf of Mr. Comitz. And I think that's pertinent to the conspiracy charges in this case." Defense counsel objected to the State being able to reference the group with which Defendant and his companions were affiliated as a "motorcycle club." The district court ruled that the State could reference the affiliation as with a "club" but not a "motorcycle club," which would tend to reinforce the inference the State sought to elicit-that Defendant and his companions "have this brotherhood going on."

{50} At trial, when defense counsel asked Defendant whether he was "a member of any clubs or groups[,]" Defendant answered that he was a member of the "Black B[e]rets Motorcycle Club." Defendant proceeded to describe the club as a support club for POW/MIA veterans that raises money for "toys and stuff" for veterans' families. Defendant also testified that the two men who accompanied him to the Raels' home on the day of the shooting were also part of that club.

{51} The prosecutor asked on cross-examination whether the Black Berets are a motorcycle gang, to which Defendant responded, "No." The prosecutor proceeded by saying, "You're telling me that the Black B[e]rets are not affiliated with the Banditos organized motorcycle gang?" Again, Defendant answered, "No." Defendant further testified that he was still a member of the Black Berets, and in response the prosecutor asked, "It's not true that you were kicked out of that club for selling methamphetamine?" Defense counsel objected and requested a mistrial based on the district court's pretrial ruling, which the district court denied. However, in response to the objection, the district court instructed the jury that "[t]he last question asked by the State and the answer given by the witness will be stricken. I ask you to disregard it and do not consider it in your deliberations[.]"

{52} Under the circumstances, we conclude that the district court did not abuse its discretion in denying Defendant's motion for a mistrial based on the prosecutor's cross-examination of Defendant. Similar to Andrade , when Defendant testified on direct examination that he was part of the Black Berets Motorcycle Club and that it was a charitable club, he opened the door to cross-examination on these issues under the doctrine of curative admissibility. Assuming the prosecutor's specific question to Defendant about whether he was kicked out of the Black Berets for selling methamphetamine was improper, the district court effectively addressed the potential of prejudice to Defendant by instructing the jury to disregard the question and Defendant's answer. See State v. Smith , 2016-NMSC-007, ¶ 46, 367 P.3d 420 ("An error committed by admitting inadmissible evidence is generally cured by a ruling of the court striking the evidence and admonishing the jury to disregard such evidence."). Accordingly, we conclude that the district court did not abuse its discretion in denying Defendant's motion for a mistrial.

III. CONCLUSION

{53} We affirm Defendant's convictions of second-degree murder under Count 1, one count of aggravated battery under Count 3 (Paul), one count of aggravated battery under Count 4 (Manuel), one count of conspiracy to commit aggravated battery under Count 5, one count of aggravated assault under Count 6 (Paul), one count of aggravated assault under Count 7 (Manuel), and one count of child abuse under Count 9, together with the associated firearm enhancements as decided by the jury. We vacate Defendant's other convictions. We remand this case to the district court for further proceedings in accordance with this opinion.

{54} IT IS SO ORDERED.

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

PETRA JIMENEZ MAES, Justice, Retired, Sitting by designation

CHARLES W. DANIELS, Justice, Retired, Sitting by designation


author: OPINION BY JERRY L. GOODMAN, JUDGE:

text:
    LUCKY DUCK DRILLING, LLC and Wayne Clark, each in their Capacity as Limited Partners of American Oil for Americans, LP, an Oklahoma Limited Partnership, Running Springs Oil and Gas, LP, an Oklahoma Limited Partnership, and Joy Oil, LP, an Oklahoma Limited Partnership; and Richard & Barbara Barney 2009 Family Trust, in its Capacity as Limited Partner of American Oil for Americans, LP, an Oklahoma Limited Partnership, and Running Springs Oil and Gas, LP, an Oklahoma Limited Partnership, Plaintiffs/Appellees, v. AMERICAN OIL FOR AMERICANS, LP, an Oklahoma Limited Partnership; American Oil for Americans, Inc., a Managing General Partner of American Oil for Americans, LP ; Running Springs Oil & Gas, LP, an Oklahoma Limited Partnership; RS Oil Corp., as Managing General Partner of Running Springs Oil & Gas, LP ; Joy Oil, LP, an Oklahoma Limited Partnership; Joy Oil & Gas Corp., as Managing General Partner of Joy Oil LP ; and Paralee Obele, Defendants/Appellants.
    Case No. 116,744
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED MAY 31, 2019 Mandate Issued: June 26, 2019
    Bradley E. Davenport, CENTER FOR ECONOMIC DEVELOPMENT LAW, Oklahoma City, Oklahoma, for Plaintiffs/Appellees
    Ryan A. Pittman, GABLEGOTWALS, Tulsa, Oklahoma, for Defendants/Appellants
   OPINION BY JERRY L. GOODMAN, JUDGE:

¶1 American Oil for Americans, LP, American Oil for Americans, Inc., Running Springs Oil and Gas, LP, RS Oil Corp., Joy Oil, LP, and Joy Oil & Gas Corp. (collectively, "Appellants") appeal a June 1, 2018, order denying their motion to vacate a January 9, 2018, default judgment entered against them. Based upon our review of the record and applicable law, we find all proceedings and orders entered in violation of the stay entered on December 8, 2017, to be of no effect, unenforceable, and void. Accordingly, all orders entered after the entry of the stay are vacated.

BACKGROUND

¶2 Lucky Duck Drilling, LLC, Wayne Clark, and the Richard & Barbara Barney 2009 Family Trust (collectively, "Appellees") are limited partners in American Oil for Americans, LP, Running Springs Oil and Gas, LP, and Joy Oil, LP (collectively, "Limited Partnerships"). Each Limited Partnership has a managing general partner that is a corporate entity.

¶3 Appellees filed a petition for declaratory judgment in Oklahoma County District Court on July 24, 2017, seeking to inspect and examine the Limited Partnerships' books and records pursuant to the Oklahoma Uniform Limited Partnership Act of 2010, 54 O.S.2011, § 500-304A. On September 5, 2017, Appellees filed a motion to shorten time for response to requests for production of documents and inspection, requesting the court shorten Appellants' time to respond to ten days. Appellants objected to the motion, asserting Appellees were seeking the documents and information that were the subject of the declaratory action.

¶4 Appellants filed a motion to stay proceedings and to compel arbitration on September 12, 2017, asserting Appellees had executed Limited Partnership Agreements that contained arbitration clauses covering their dispute. Appellees filed a response, objecting to arbitration. Appellees asserted their declaratory judgment action was not a "dispute" within the arbitration clause, they never signed the agreements, inter alia .

¶5 By order entered on September 19, 2017, Judge Patricia G. Parrish, sitting on behalf of Judge Roger Stuart, granted Appellees' motion to shorten time. The order provides, in relevant part:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that each of the Defendant Limited Partnerships shall produce to [Appellees] the "required information" referenced in 54 O.S. § 500-304A(a) and defined in 54 O.S. § 500-111A on or before Monday, October 2, 2017.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that each of the Defendant Limited Partnerships shall provide its written responses to [Appellees'] Requests For Production of Documents and Inspection that was addressed to each Defendant Limited Partnerships, respectively, on or before Monday, October 2, 2017.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Order shall not prejudice Defendants' pending Motion to Stay Proceedings and Compel Arbitration, which is set separately for hearing on October 6, 2017 at 9:00 a.m.

Appellees filed a motion for indirect contempt on October 3, 2017, asserting the Limited Partnerships had willfully failed and refused to comply with the court's September 19, 2017, order.

¶6 By minute order entered on October 6, 2017, Judge Thomas E. Prince, sitting on behalf of retired Judge Stuart, sustained Appellants' motion to stay and to compel arbitration. A journal entry was subsequently entered on December 8, 2017, staying the proceedings in court pending the outcome of arbitration.

¶7 Appellants filed an objection to the motion for indirect contempt on November 29, 2017, asserting the case had been stayed. A hearing on the motion for indirect contempt was held on November 30, 2017. By journal entry entered on December 8, 2017, Judge Parrish granted in part and denied in part Appellees' motion. Judge Parrish held Appellants had failed to fully comply with the court's September 19, 2017, order, finding Appellants had produced only part of the required information. Judge Parrish rejected Appellants' assertion that Judge Prince's minute order deprived her of the authority or jurisdiction to enforce the September 19, 2017, order. Judge Parrish further ordered Appellants to produce the required information and documents identified in 54 O.S.2011, § 500-111A. Finally, the journal entry provides:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that should [Appellants] fail to produce the documents to [Appellees] as ordered ... on or before December 31, 2017, this Court will enter default judgment in favor of [Appellees] and against [Appellants] without further hearing on all relief sought in [Appellees'] petition.

¶8 On January 5, 2018, counsel for Appellees sent Judge Parrish a letter, asserting Appellants had failed to fully comply with the December 8, 2017, journal entry and requesting Judge Parrish enter default judgment against Appellants without further hearing. By journal entry entered on January 9, 2018, and based on Appellees' letter, Judge Parrish entered default judgment against Appellants. On February 2, 2018, Appellants filed a motion to set aside ex parte default judgment, asserting the case had been stayed and arbitration ordered. They further asserted the default judgment was entered without any prior notice to them. Appellants further filed a motion to stay enforcement of the default judgment pending reconsideration and appeal.

¶9 By journal entry entered on June 1, 2018, Judge Trevor Pemberton denied Appellants' motion to set aside ex parte default judgment and motion to stay enforcement of judgment pending appeal. Appellants appeal.

STANDARD OF REVIEW

¶10 Appellants filed their motion to set aside ex parte default judgment more than ten days but less than thirty days after the trial court's journal entry. Appellants' motion is therefore the functional equivalent of a motion to vacate. We review a trial court's order refusing to vacate a default judgment for abuse of discretion. Ferguson Enters. Inc. v. H Webb Enters. Inc. , 2000 OK 78, ¶ 5, 13 P.3d 480, 482. "An abuse of discretion takes place when the decision is based on an erroneous interpretation of the law, on factual findings that are unsupported by proof, or represents an unreasonable judgment in weighing relevant factors." Oklahoma City Zoological Trust v. State ex rel. Pub. Employees Relations Bd. , 2007 OK 21, ¶ 5, 158 P.3d 461, 464. When an appellate court reviews an order refusing to vacate a final judgment, "the appellate court's inquiry does not focus on the underlying judgment, but rather on the correctness of the trial court's response to the motion to vacate." Central Plastics Co. v. Barton Indus. Inc. , 1991 OK 103, ¶ 2, 818 P.2d 900.

ANALYSIS

¶11 On appeal, Appellants assert the trial court erred in refusing to vacate the default judgment. Appellants contend the case had been stayed and ordered to arbitration prior to entry of the ex parte default judgment. Appellees disagree, asserting the court retained jurisdiction to enforce its previously issued discovery order through a collateral contempt proceeding.

¶12 The record provides the parties signed Limited Partnership Agreements containing arbitration clauses. The clauses provided the parties will resolve any dispute regarding the Limited Partnership Agreements by binding arbitration in accordance with the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq . The FAA applies to contracts affecting interstate commerce. See 9 U.S.C. § 2 ; Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 273, 115 S.Ct. 834, 839, 130 L.Ed.2d 753 (1995). Oklahoma has adopted a modified version of the Uniform Arbitration Act, the Oklahoma Uniform Arbitration Act (OUAA). See 12 O.S.2011, §§ 1851 - 1881, originally effective on October 1, 1978, at 15 O.S. § 801 et seq . ; Wilbanks Sec., Inc. v. McFarland , 2010 OK CIV APP 17, ¶ 8, 231 P.3d 714, 718. The record on appeal does not provide whether the trial court determined that the Limited Partnership Agreements involve interstate commerce. Regardless of whether the proceedings before the trial court are analyzed under the FAA or under the OUAA, the result is the same.

¶13 Pursuant to 9 U.S.C. § 3, when the court finds the parties have entered into a valid and enforceable agreement to arbitrate their disputes and the dispute at issue falls within the scope of that agreement, the FAA requires the court to stay judicial proceedings and compel arbitration in accordance with the agreement's terms. The plain language specifies the court "shall" stay proceedings pending arbitration. Oklahoma state law is consistent with the FAA. Title 12 O.S.2011, § 1858(G) provides, in relevant part: "If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration." Accordingly, under both the FAA and the OUAA, the trial court was required to stay the proceedings once it determined the parties' claim was subject to arbitration.

¶14 In the present case, the record provides Judge Prince determined the Appellees' claim was subject to arbitration and issued a final appealable order on December 8, 2017, staying the proceedings and ordering the parties to arbitration. Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc. , 2007 OK 12, ¶ 17, 160 P.3d 936, 943. This order was not appealed and is now final.

¶15 Although the trial court retains jurisdiction when it grants a stay, Oklahoma Orders Compelling Arbitration , 5 Okla. Prac., Appellate Practice § 4:31 (2018 Ed.), the power of the court to issue or modify orders is suspended. See e.g. , In re G.C. , 2012 OK CIV APP 40, ¶ 16, 275 P.3d 150, 154 (addressing a stay pending appellate review) (A stay preserves the status quo and generally suspends the power of the lower court to issue or modify orders.). A stay is in effect an injunction, preventing any further steps in the court action during the period of stay. 6 C.J.S. Arbitration § 59. The stay arrests further action by the court until the arbitration is completed. 6 C.J.S. Arbitration § 53. "The effect of a stay of proceedings is to prevent the taking of any further steps in the action during the period of the stay. ..." 1 Alt. Disp. Resol. § 25:19 (4th ed.)(citing A.P. Brown Co. v. Superior Court , 16 Ariz.App. 38, 490 P.2d 867, 869 (1971) ). Accordingly, any subsequent trial court order inconsistent with the intent of the stay is ineffective, unenforceable, and a nullity.

¶16 The record provides three orders were issued after the stay was entered. Judge Parrish issued a journal entry on December 8, 2017, granting Appellees' motion for indirect contempt. A review of the docket sheet reveals Judge Prince's order staying the proceedings and ordering the parties to arbitration was filed immediately prior to Judge Parrish's order.

¶17 The record further provides on January 5, 2018, counsel for Appellees sent Judge Parrish a letter asserting Appellants had failed to fully comply with her December 8, 2017, journal entry and requesting Judge Parrish enter default judgment against Appellants without further hearing. By journal entry entered on January 9, 2018, and based on Appellees' letter, Judge Parrish entered default judgment against Appellants.

¶18 Finally, by order entered on June 1, 2018, Judge Pemberton denied Appellants'

motion to set aside ex parte default judgment and motion to stay enforcement of judgment pending appeal.

¶19 Accordingly, Judge Parrish's December 8, 2017, and January 9, 2018, orders, and Judge Pemberton's June 1, 2018, order, are in violation of the stay and are therefore of no effect, are unenforceable, and void. The orders are therefore vacated. Upon remand, the matter is to be placed on Judge Prince's docket, subject to the supervisory power of the Chief Judge pursuant to Oklahoma County District Court Rules.

¶20 VACATED AND REMANDED.

FISCHER, P.J., and THORNBRUGH, J., concur.

      The Richard & Barbara Barney 2009 Family Trust is only a limited partner in American Oil for Americans, LP and Running Springs Oil and Gas, LP.

      American Oil for Americans, Inc. is the Managing General Partner of American Oil for Americans, LP; RS Oil Corp. is the Managing General Partner of Running Springs Oil and Gas, LP; and Joy Oil & Gas Corp. is the Managing General Partner of Joy Oil, LP.

      Appellees served Appellants with Requests for Production of Documents on September 5, 2017.

      Judge Stuart retired on October 1, 2017.

      Appellees filed a motion to reconsider on December 8, 2017, requesting Judge Prince reconsider his ruling due to conflicting orders by two judges. The motion was deemed moot by order entered on June 1, 2018.

      Appellants further noted a protective order was entered on November 14, 2017, and that they subsequently produced 877 documents.

      9 U.S.C.A. § 3 provides:
      If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

      Notably, § 1858(F) also provides:
      If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

      The letter was also sent to Appellants' counsel.

      The Court further notes that Judge Parrish's January 9, 2018, order granting default judgment was based on Appellees' unfiled and unverified letter of January 5, 2018. The trial court did not permit Appellants the opportunity to respond to the allegations made therein. Due process requires an orderly proceeding in which the parties are given an opportunity to be heard and to defend, enforce, and protect their rights. In re Estate of Bleeker , 2007 OK 68, ¶ 26 fn. 36, 168 P.3d 774, 783 fn. 36. In addition, Oklahoma County District Court Rule 16 requires a motion for default judgment be filed, a hearing be set, and notice provided to the defaulting party.

      The entry of conflicting orders in the present case could have been prevented if the trial court followed Oklahoma County District Court Rule 6.
      RULE NO. 6 ASSIGNMENT OF CASES AND TRANSFER OF CASES FOR TRIAL:
      A. ASSIGNMENT OF CASES
      ***
      2. If, after a case has been assigned, the assigned judge becomes disqualified or unable to hear it, it shall be transferred to the Chief Judge for random reassignment. ...


text:
    PULITO v. OREGON STATE BOARD OF NURSING
    A165993(S066569)
    Supreme Court of Oregon.
    June 6, 2019
    Review Allowed


text:
    CASEBEER, Konrad v. KELLY
    A163896(S066577)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    CITY OF EUGENE v. HEJAZI
    A167205(S066618)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    DAWAFI PENSION TRUST v. BOUNDS
    A165739(S066604)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    DELAROSA, Anthony Michael v. STATE of Oregon
    A164417(S066661)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    DEPARTMENT OF HUMAN SERVICES v. H. D. S.
    A168669(S066608)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    DEPARTMENT OF HUMAN SERVICES v. J. R.
    A168906(S066669)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    DEPARTMENT OF HUMAN SERVICES v. K. C.
    A168193(A168194)(A168195)(S066609)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    EASTON v. DRIVER AND MOTOR VEHICLE SERVICES DIVISION
    DMV(A167537)(S066619)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    EMERY, Robert Lee, Jr. v. BOWSER
    A167492(S066681)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    HATHAWAY, Darius J. v. CAIN
    A165442(S066699)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    MCCRAE, Orlando v. AMSBERRY
    A164728(S066684)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    SALMON, Richard W. v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A160113(S066631)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. GRANT, John Houston
    A164975(S066599)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. HAYES, Michael C.
    A162664(S066436)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. KELLEY, David Ryan
    A164724(S066606)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. MAUS, Zachary Tyler
    A164896, (A164977), (S066682)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. MYERS, Stacey Marie
    A165437(A165438)(S066701)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. OVERTON, Rex Michael, Jr.
    A164286(S066582)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. REDMOND, Brian Keith
    A160665(S066579)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied
    Walters, C. J., and Nelson, J., would allow.


text:
    STATE v. RUMLEY, Robert Thomas
    A164006(S066567)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. TATE, Wendell Kenneth
    A165230(S066637)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. WENZELL, James Martin
    A166173(S066562)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. WILLIAMS, Mitchell Ray
    A165018(S066689)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. VANDRASEK, John Raymond
    A165571(S066617)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    WILLAMETTE OAKS, LLC v. CITY OF EUGENE
    A168657(S066623)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    WINCHESTER, Jon Charles, Jr. v. BROWN
    A167013(S066509)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied


text:
    STATE v. RAMOS-MASCOTE, Abel
    A166048 (S066552)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied.


text:
    STATE v. M. L.-R.
    A163695 (S066546)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied.


text:
    STATE v. STULL, Barry Joe
    A164155(S066583)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. J. W.
    A168407, (A168409), (S066611)
    Supreme Court of Oregon.
    June 6, 2019
    Review Denied.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Michael Scott WALTON, aka Michael Walton, Defendant-Appellant.
    A159620
    Court of Appeals of Oregon.
    Submitted January 19, 2017. May 30, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.
    EGAN, C. J.
    Defendant appeals a supplemental judgment ordering him to pay restitution, arguing that the trial court lacked authority to order restitution outside the procedural requirements set out in ORS 147.500 to 147.550, the statutes effectuating crime victims' rights under Article I, section 42, of the Oregon Constitution. Defendant presents this specific argument for the first time on appeal and requests that we review the trial court's order for plain error. The state responds that the trial court did not plainly err because the error was not "obvious." Furthermore, the state argues that, even if the trial court did plainly err, we should not exercise our discretion to correct the error. We need not decide whether the error was plain because even if we were to do so, we would decline to exercise our discretion to correct it. Accordingly, we affirm.
    Defendant pleaded guilty to one count of second-degree criminal mischief on July 15, 2014. Defendant stipulated to his liability for restitution but requested a hearing to contest the amount. The trial court sentenced defendant to bench probation and set a restitution hearing for October 7, 2014, 84 days later. However, the court failed to docket the hearing and the hearing did not take place. No one brought the error to the court's attention at that time.
    On November 20, 2014, 128 days after defendant was sentenced, the victim called the district attorney's office to inquire about the restitution. Due to the assigned prosecutor being "out of the office" at that time and other staffing issues, the district attorney waited until March 23, 2015-251 days after sentencing-to file a motion to extend the restitution deadline and to set a hearing.
    On April 17, 2015, the trial court held a hearing to address the restitution issue. The state made two arguments in support of its untimely restitution request. First, the state argued that good cause existed to authorize restitution under ORS 137.106(1)(a). Second, the state alternatively argued that, regardless of the untimely request, the court should still order that defendant pay restitution so as to avoid violating the victim's right "to receive prompt restitution" under Article I, section 42. Defendant responded that (1) no good cause existed to justify an extended deadline and (2) the trial court lacked authority to order restitution under Article I, section 42, because the state lacked standing to assert a claim on the victim's behalf. The victim spoke on his own behalf through an interpreter, and told the trial court that he was "seeking restitution * * * caused by the defendant[.]" Defendant agreed that the restitution amount that the victim sought was factually supported.
    The trial court agreed with defendant's argument as to ORS 137.106, determining that the state had not shown good cause for the delay past the 90-day deadline required by that statute. However, relying on our decision in State v. Thompson , 257 Or. App. 336, 306 P.3d 731, rev. den. , 354 Or. 390, 315 P.3d 421 (2013), the court concluded that the situation amounted to a violation of the victim's Article I, section 42, right to prompt restitution, and further, that it had authority to order defendant to pay restitution to remedy that violation. The court explained:
    "I don't think that it's really giving the victim a realistic remedy to suggest that I should not order restitution and then put [the victim] to the task, when he's done everything he needs to do, including being here twice for court hearings, to have to then initiate some sort of separate legal process to receive the remedy that he should have for violation of his rights.
    "* * * * *
    "And so where I come down with this is that there needs to be a remedy for this which-and there's no doubt that the defendant should pay restitution, because he admitted responsibility for it, and there's no dispute that it's reasonably related to the crime, and there's no dispute the amount is reasonable. * * *
    "And so I find that to remedy the constitutional violation that would occur if I were to deny restitution, I am going to re-sentence the defendant, if you will, and impose restitution at this time."
    The court issued a supplemental judgment on April 29, 2015, reflecting its conclusion and ordering defendant to pay $ 346 in restitution to the victim.
    On appeal, it is uncontested that good cause did not exist to justify the delay in holding the restitution hearing under ORS 137.106. Defendant argues, for the first time on appeal, that the court also lacked authority to order restitution under Article I, section 42, because, he asserts, neither the victim nor the court complied with ORS 147.500 to 147.550, the statutory procedures the legislature has provided for a victim to assert a violation of his or her Article I, section 42, rights. He asks us to review the restitution order as plain error and to exercise our discretion to correct it. The state responds that defendant's asserted error is not plain because it is not "obvious," as this was an open question of law. That is, whereas in Thompson , the victim followed the statutory procedures for asserting a constitutional violation of the right to receive prompt restitution, 257 Or. App at 339, 306 P.3d 731, in this case, the victim did not. The state also argues that even if plain error occurred, we should not exercise our discretion to review the error.
    As both parties correctly note, the particular statutory arguments defendant makes on appeal were not preserved below. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court[.]"). We do, however, have discretionary authority to review an unpreserved error that is plain; that is, an error that is of law, obvious and not reasonably in dispute, and apparent on the face of the record. ORAP 5.45(1) ; State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013). If the error is plain, we consider several factors in determining whether to exercise our discretion, including "the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e. , whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error." Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991).
    In this case, even assuming, without deciding, that the trial court erred in ordering defendant to pay restitution to the victim outside of the framework of ORS 147.500 to 147.550, we would not, in any event, exercise our discretion to correct the error because any such error was not grave. Defendant admitted that he intentionally damaged the property of the victim, having no right to do so. Furthermore, defendant expressly agreed that the restitution amount of $ 346 was factually supported. See State v. Morgan , 274 Or. App. 161, 165, 359 P.3d 1242 (2015) (exercising our discretion to correct a plain error in part because it "result[ed] in a restitution award unsupported by the record").
    Defendant argues that the trial court's actions in this case "reflect its disregard for the legislature's authority to determine how a victim's-rights claim may be initiated and adjudicated." We agree that there is an interest in trial courts following the procedures outlined by the legislature. That interest, however, would always favor the exercise of discretion in cases involving a trial court's adherence to statutory law in which we are asked to consider an error as plain. The error's lack of gravity and the interests of preservation outweigh any such interest here. Therefore, we conclude that, in light of defendant's admission that he caused the damage to the victim's window and of the relatively small restitution amount conceded by defendant as the correct amount, any error the trial court may have made was not grave.
    Affirmed.

      The state also maintains its argument that we lack jurisdiction over this appeal. After defendant filed his opening brief, the state moved to dismiss the appeal for lack of jurisdiction. The appellate commissioner granted the state's motion, concluding that the appeal was not authorized because defendant failed to make a cognizable showing of a colorable claim of error within the meaning of former ORS 138.050(1) (2015), repealed by Or. Laws 2017, ch. 529, § 26. Defendant filed a petition for reconsideration. The appellate commissioner vacated his order of dismissal because he determined that defendant's argument that the trial court "failed to comply with a number of statutes enacted by the legislature to implement the victims' rights provisions of the Oregon Constitution" was a claim that the trial court imposed a sentence that exceeds the maximum allowable by law. See State v. Easton , 204 Or. App. 1, 3-4, 126 P.3d 1256, rev. den. , 340 Or. 673, 136 P.3d 743 (2006). Because a sentence that exceeds the maximum allowable by law is a colorable claim of error within former ORS 138.050(1) (2015), the commissioner reinstated this appeal. We agree with the commissioner.

      ORS 137.106(1)(a) provides, in part, that "[w]hen a person is convicted of a crime * * * that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence of the nature and amount of the damages." (Emphasis added.)

      ORS 137.106(1)(a) also provides that a court may extend the district attorney's 90-day deadline for investigating and presenting to the court evidence of the nature and amount of damages if the state shows "good cause" for the extension.