90 June 5, 2024 No. 378

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ETHAN SINCLAIR WOLCOTT,

Defendant-Appellant.

Lane County Circuit Court

21CR48912; A179823

Stephen W. Morgan, Judge.

Submitted April 24, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Kyle Krohn, 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 Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,

Judge.

JACQUOT, J.

Affirmed.
Cite as 333 Or App 90 (2024) 91

JACQUOT, J.

Defendant was found guilty except for insanity

(GEI) of first-degree assault, ORS 163.185. In his sole assignment of error, defendant argues that the trial court lacked 

the statutory authority to order him to provide a thumbprint to the Oregon State Police. Defendant concedes that 

his claim of error is not preserved but asks us to correct it 

as plain error. Because we conclude that the alleged error is 

not plain, we affirm.

We have discretion to correct an unpreserved error 

only if it is an error of law, the legal point is obvious and 

not reasonably in dispute, and it appears on the face of the 

record. ORAP 5.45(1); State v. Aitken, 255 Or App 17, 26, 

296 P3d 587, rev den, 353 Or 867 (2013). The first and third 

prerequisites are satisfied here. “The sentencing authority 

of a court must be expressly conferred by statute[,]” State v. 

Berglund, 311 Or App 424, 427, 491 P3d 820 (2021), and we 

review whether a court’s sentence is authorized by statute 

for legal error, State v. Koelzer, 327 Or App 143, 145, 534 P3d 

299 (2023). Any error also appears on the face of the record. 

The only question is whether the legal point is obvious and 

not reasonably in dispute.

Here, following the GEI finding, the trial court 

ordered defendant “to submit [a] blood or buccal sample and 

thumbprint pursuant to ORS 137.076.” (Emphasis added.) 

ORS 137.076 requires a sentencing court to order persons 

convicted of a felony or other enumerated crime to provide a 

blood or buccal sample:

“(2) When a person is convicted of an offense listed in 

subsection (1) of this section:

“** * * *

“(b) The court shall include in the judgment of conviction an order stating that a blood or buccal sample is 

required to be obtained at the request of the appropriate 

agency * **. If the judgment sentences the convicted person 

to probation, the court shall order the convicted person to 

submit to the obtaining of a blood or buccal sample as a 

condition of the probation.”
92 State v. Wolcott

The statute then requires the appropriate agency to collect 

the sample, to obtain a thumbprint, and to send both to the 

Department of State Police, along with the person’s identifying information:

“(c) The appropriate agency shall cause a blood or 

buccal sample to be obtained and transmitted to the 

Department of State Police. The agency shall cause the 

sample to be obtained as soon as practicable after conviction. The agency shall obtain the convicted person’s thumbprint at the same time the agency obtains the blood or buccal sample. The agency shall include the thumbprint with 

the identifying information that accompanies the sample.”

Id.

Defendant points out that ORS 137.076 is not 

directly applicable to him because he was found GEI and 

not “convicted” of a felony or any other crime enumerated by 

that statute. But he acknowledges that ORS 161.325(4) does 

apply:

“(4) *** whenever a defendant charged with any offense 

listed in ORS 137.076(1) has been found guilty of that 

offense except for insanity, the court shall *** direct the 

defendant to submit to the obtaining of a blood or buccal 

sample in the manner provided in ORS 137.076.”

Consequently, defendant does not dispute that the trial 

court lawfully ordered him to submit a blood or buccal sample. He argues only that the additional order to submit a 

thumbprint was not statutorily authorized. He reasons 

that, although ORS 137.076 generally allows the trial court 

to order the collection of a thumbprint, the terms of ORS 

161.325(4) do not. In other words, ORS 161.325(4) grants 

a trial court only a portion of the authority otherwise contained in ORS 137.076.

The problem with defendant’s argument is that neither ORS 137.076 nor ORS 161.325(4) explicitly authorize the 

trial court to order the collection of a thumbprint. Although 

ORS 137.076 authorizes—and even requires—the collecting 

agency to obtain a thumbprint, the statute does not require 

the trial court to expressly order that action. Thus, there is 

a reasonable argument that the statutory directive to obtain 

the thumbprint is simply part and parcel of the blood- or 
Cite as 333 Or App 90 (2024) 93

buccal-sample-collection process. Consequently, when ORS 

161.325(4) authorizes the collection of a blood or buccal sample “in the manner provided in ORS 137.076,” there is a reasonable argument that the “manner provided” includes—as 

a component part of that process—the collection of a thumbprint, even if the court’s order makes no mention of a thumbprint. If that is the case, then, at most, the court’s express 

mention of the thumbprint in this case was simply surplusage. Because there is a reasonable dispute as to whether 

the trial court erred, defendant’s assignment of error does 

not qualify as plain error.

Affirmed.