a written waiver. Nevertheless, we decline to exercise our Ailes discretion to correct that statutory error for at least two compelling reasons. First, defendant repeatedly told the court that he wanted the court — and not the jury — to try the enhancement factors. 263 Or App at 409-16. Then, when the court asked whether defendant’s oral waiver of the jury right needed to be memorialized in writing and the state responded that no written waiver was required, defendant and his legal advisor remained silent. Given those circumstances, a positive exercise of Ailes discretion would very substantially subvert “the policies behind the general rule requiring preservation of error.” Ailes, 312 Or at 382 n 6; cf. State v. Kammeyer, 226 Or App 210, 214, 203 P3d 274, rev den, 346 Or 590 (2009) (<HOLDING>). Second, given the evidence substantiating the
holding that an error is harmless where it is highly probably that the error did not affect the outcome of the case holding that the defendant was precluded from seeking reversal on a specific error because although the defendant did not urge or advise the trial court to commit the asserted error he nevertheless was actively instrumental in causing that error because he did not oppose the erroneous action and instead indicated his willingness to accept the outcome of that action holding that the trial courts failure to dismiss the action to quiet title was error because the plaintiff was not in possession of the land in question but the error was not fatal to the claim because the superior court could sua sponte amend the pleadings to include an action in ejectment holding that defendant may not complain of error he invited and further holding that reversal cannot be based on such error holding that the trial court did not abuse its discretion by refusing to accept the defendants guilty pleas to two counts of the indictment and stating that even if the trial court erred the error had not prejudiced the defendant because he was found guilty by the jury of the charges to which he intended to plead and the evidence of the other crimes would have been admissible in the trial for the first degree murder charge