dissenting.
I respectfully disagree with the majority’s conclusion that a claim of insufficient proof of one element of a crime— that defendant had “custody or control” of S — was preserved by defendant’s objection that the state failed to prove a different element of the crime — that the defendant had “allowed [S] * * * to stay” in proximity to the drug enterprise. That lack of preservation was the reason why neither the prosecutor nor the trial court addressed the issue in the proceedings below. Because defendant’s objection to the sufficiency of the proof of this discrete element of the crime was not clearly raised, I dissent from the reversal of defendant’s conviction for insufficiency of evidence on that element of the crime.
*130At the time of the incident, ORS 163.547(l)(a)(B) provided:
“A person having custody or control of a child under 16 years of age commits the crime of child neglect in the first degree if the person knowingly leaves the child, or allows the child to stay:
‡ ‡ ‡ ‡
“(B) On premises and in the immediate proximity where controlled substances are criminally delivered or manufactured for consideration * * *[.]”1
The statute requires proof both that defendant had “custody or control” of [S] and that he knowingly left [S] or “allow [ed] [S] to stay” on the premises and in immediate proximity of drug activities.
The requirement of “custody or control” over the child is part of what distinguishes the crime of child neglect in the first degree from the crime of endangering the welfare of a minor under ORS 163.575(1). With respect to proximity to drug activities, the latter crime requires only that a person “[p]ermit[ ] a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted.” ORS 163.575(l)(b). What makes the crime of first-degree child neglect a Class B felony compared with the Class A misdemeanor of endangering the welfare of a child is the required proof that a person have “custody or control” of a child in addition to evidence that the child was allowed or permitted to stay on drug premises. ORS 163.547(l)(a)(B).
The state argues that defendant confined his argument before the trial court to the contention that there was insufficient evidence to show that he “allowed [S] to stay” on the premises and that he did not preserve the argument that he makes on appeal, specifically that there was insufficient evidence that he had “custody or control” over S. At the stipulated facts trial, defendant’s counsel stated:
*131“On the child neglect charge, * * * I’m not going to argue that things happening in the residence are not — don’t meet the immediate proximity standard, because I think they do * * ❖
“* * * [j]f y0U agree with the state that the children are in the immediate proximity of the delivery, the other thing the state has to prove is that [defendant] has allowed the child to be there. The child is not [defendant’s] child. * * * He doesn’t have any control to say: You can’t be here [child]. It’s not his child. * * *
“* * * [T]he statute says he has to allow the child to be there. And him being there and doing what the state claims he’s doing when he doesn’t have enough control over the child to be, if you will, exclude the child means he — he’s not allowed in the — he’s not allowing the child to be there; it’s not under his ability to do.”
In the trial court proceedings, the state conceded that defendant “could not exclude the child,” but said that he could exclude himself and the drug enterprise from the household and the children. The trial court agreed with the state and found that defendant “did knowingly allow a child to stay in premises in the immediate proximity of the controlled substances and other materials [.]” The trial corut went on to find that,
“even if [defendant] did not have the authority to remove the child from the premises, he knew that the child was there. He knew that the drugs and other paraphernalia were there. And by failing to remove the drugs and the paraphernalia, he thereby allowed the child to be at the residence in close proximity to where controlled substances were being constructively delivered.”
Thus, the state, defendant, and the trial court focused below on whether the evidence was sufficient to show that defendant “allow [ed] [S] to stay” at the home, rather than whether he had “custody or control” over S. On appeal, the issue is whether defendant preserved the claim that the evidence was insufficient to prove “custody or control” over S.
Generally, an issue not preserved in the trial court will not be considered on appeal. Ailes v. Portland Meadows, *132Inc., 312 Or 376, 380, 823 P2d 956 (1991). Therefore, a challenge to the sufficiency of the evidence must be preserved to be considered on appeal, unless it is plain error. State v. Paragon, 195 Or App 265, 268, 97 P3d 691 (2004); State v. Hockersmith, 181 Or App 554, 557-58, 47 P3d 61 (2002). “To preserve an issue for appellate review, a defendant must provide an explanation of his or her position to the trial court that is specific enough to permit the trial court to address and correct the error.” State v. Liviu, 209 Or App 249, 252, 147 P3d 371 (2006); see also State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000); Paragon, 195 Or App at 268 (when challenging the sufficiency of the evidence, a defendant must state the “specific theory on which the state’s proof was insufficient” in order to preserve it for appeal).
The purposes of preservation requirements imposed as part of judicial review are to promote both fairness to the parties in making and responding to arguments asserted in a case and efficient judicial administration. Peiffer v. Hoyt, 339 Or 649,656,125 P3d 734 (2005). To these ends, ORAP 5.45(1) formalizes the requirement of preservation of error in the Oregon appellate courts and provides, in part:
“No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the face of the record.”
In this case, defendant’s advancement of a “specific theory” on the sufficiency of the evidence on the “allow * * * to stay” element of the child neglect crime was insufficient to “clearly challenge” the sufficiency of the evidence on a different element, the “custody or control” part of the crime. Both the prosecutor and the defense counsel focused their arguments exclusively on the “allow * * * to stay” element. Defense counsel in fact stated that, apart from proximity to drug activity, “the other thing the state has to prove is that [defendant] has allowed the child to be there.” The parties’ arguments to the court, at best, show different perspectives on the meaning of the “allow * * * to stay” element of the crime. Defendant viewed the issue as one of functional control over the actions of S; the state presented the question as *133one of functional control over the location of the drug enterprise. But defendant never advanced the theory that he did not have “custody or control” over S in the sense of a legal right or duty to regulate the actions of S. Instead, defendant argued that he had insufficient “control” to “allow” S to do anything. The arguments of the parties never joined on the “custody or control” issue.
For all that we know, the stipulated facts were framed by the prosecutor and defense counsel solely to set the context for deciding the core issue that both thought to be material — whether defendant allowed S to stay on the premises and in immediate proximity of drug activity. It would be unfair to the state to allow defendant to make his contention for the first time on appeal, and, in so doing, divest the state of the opportunity to present its arguments on that topic to the trial court or to frame the stipulated facts differently.
The trial court viewed the issue presented as solely whether defendant allowed S to remain in proximity to the controlled substances activities. The trial court found:
“On Count 5, the Child Neglect in the First Degree, I find that [defendant] is guilty of that crime beyond a reasonable doubt. I find that he did knowingly allow a child to stay in premises in the immediate proximity of the controlled substances and other materials that I mentioned that amounted to constructive delivery in Count 3.”
(Emphasis added.) Had defendant explicitly objected to the sufficiency of proof on the custody or control element of the child neglect crime, and had the trial court agreed with that objection, the court might have convicted defendant on the lesser included offense of endangering the welfare of a child. ORS 136.465 (verdict where crime or attempt included within charge). Defendant’s silence inhibits the administration of justice in that regard.
The majority recognizes that defense counsel never explicitly argued that the evidence was insufficient to show the lack of “custody or control” under the statute. The majority, however, contends that the argument was implicit and preserved because defense counsel twice mentioned lack of *134“control” in the context of arguments about whether defendant “allow [ed] * * * [S] to stay” in proximity to drug activities. It is quite true that both the “custody or control” and “allow * * * to stay” elements of the crime could have overlapping proof about functional control of the child. Some persons with sufficient “control” over a child could be deemed to “allow * * * [the child] to stay” near the drug operations. Because of this potential, the majority concludes that defense counsel’s argument that the evidence was insufficient to prove the “allow * * * to stay” element because “defendant doesn’t have enough control over the child to * * * exclude the child” was also an argument that the evidence was insufficient to prove a lack of “custody or control.”
But it is also true that proof of the different elements of this crime could have different evidentiary bases. A person with custodial obligations to a child may not necessarily “allow * * * [the child] to stay” in proximity to drug activities. Indeed, if the reasoning of the trial court is correct (which we need not decide), a person with no control over a child could violate ORS 163.547(l)(a)(B) by a showing of custodial obligations to the child and proof that the defendant did not remove the drug activities from their proximity to the child. Suffice it to say that an argument about a failure of proof on the “allow * * * to stay” element because of lack of control is not necessarily an argument that there is no proof of “custody or control.”
A motion for a judgment of acquittal is the best method of challenging the sufficiency of the state’s evidence. We allow such a challenge in defense counsel’s closing argument “as long as a defendant clearly raises the issue in closing argument.” State v. Forrester, 203 Or App 151, 155, 125 P3d 47 (2005), rev den, 341 Or 141 (2006). A closing argument about the insufficiency of proof on one element of a crime does not “clearly raise” an argument of insufficient proof of another element, merely because proof of both elements could overlap.
In my view, defendant’s appeal fails because he did not preserve the sufficiency of the evidence contention that he now advances on appeal. Defendant’s newly articulated position is too late to permit meaningful rejoinder by the *135prosecutor and full consideration by the trial court, including a conviction for the lesser included offense of endangering the welfare of a child.
For the above reasons, I dissent.
ORS 163.547(l)(a)(B) was amended in 2005 to change the word “on” to “in or upon” in subparagraph (B) and to add other language not relevant to this case. Or Laws 2005, ch 708, § 2.