State v. Savage

                                       339

Argued and submitted December 6, 2018, reversed and remanded July 8, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  WILLIAM MARTIN SAVAGE,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      C132332CR; A163866
                                   

     Defendant appeals from a judgment of conviction for theft, raising two
assignments of error and two supplemental assignments of error. The state concedes to defendant’s second supplemental assignment of error, that under Ramos
v. Louisiana, 

, 

, 

 (2020), defendant’s
conviction by a nonunanimous jury verdict violated the Sixth Amendment, which
obviates the need to address defendant’s other assignments of error. Defendant
requests, however, that the Court of Appeals nevertheless address his first
assignment of error, that at his first retrial for his theft charge, the trial court
erroneously admitted evidence related to his burglary charge, of which he was
acquitted. Although defendant raised an evidentiary exclusion argument at his
first retrial, primarily related to prior bad acts, defendant now makes an unrelated constitutional argument on appeal that double jeopardy principles prevent
the state from relying on facts, and evidence, related to a previous acquittal.
Held: Defendant’s first assignment of error was rejected on preservation
grounds; thus, the Court of Appeals did not address the merits of that argument.
Defendant’s conviction was nevertheless reversed, based on a nonunanimous verdict, obviating the need to address defendant’s other assignments of error.
    Reversed and remanded.



    Theodore E. Sims, Judge.
   Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Rolf Moan, Assistant Attorney General, argued the cause
for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before DeHoog, Presiding Judge, and James, Judge, and
Aoyagi, Judge.*
______________
   * James, J., vice Hadlock, J. pro tempore.
340                        State v. Savage

  JAMES, J.
  Reversed and remanded.
Cite as 

 (2020)                             341

        JAMES, J.
        In 2014 defendant was tried for a residential break-in
where property was stolen. The jury acquitted him of burglary and robbery but convicted him of aggravated first-degree theft. Defendant appealed the theft conviction and
prevailed. Before retrial in 2016 for theft, defendant moved,
in limine, to exclude evidence related to, and suggestive of,
the 2014 burglary and robbery charges against defendant
in proving the theft count, arguing that its introduction violated the Oregon Evidence Code (OEC) in multiple respects,
primarily that such evidence constituted impermissible
prior bad acts. The court excluded the robbery evidence
but allowed the burglary evidence, and defendant was ultimately convicted of aggravated first-degree theft.
         Defendant appeals from the most recent judgment
of conviction, raising two assignments of error and two supplemental assignments of error. In defendant’s second supplemental assignment of error, he challenges his conviction
by less than a unanimous verdict and that the court accepted
the jury’s 10 to 2 guilty verdict. In Ramos v. Louisiana, 

, 

, 

 (2020), the Court
concluded that nonunanimous jury verdicts violated the
Sixth Amendment. In State v. Ulery, 

, ___
P3d ___ (2020), the Oregon Supreme Court concluded that
a trial court’s acceptance of a nonunanimous verdict constituted plain error and, in light of the gravity of the error,
exercised discretion to correct that error, considering that
failure to raise the issue in the trial court did not weigh
heavily against correction, as the trial court would not have
been able to correct the error under controlling law.
         The state concedes that the trial court’s acceptance
of a nonunanimous verdict in this case constitutes plain
error. For the reasons set forth in Ulery, we exercise our
discretion to correct the error in this case. That disposition
obviates our need to address defendant’s first supplemental assignment of error or his second assignment of error,
raised in the opening brief.
        However, defendant has filed a memorandum of
additional authorities requesting that, despite the state’s
concession, we address his first assignment of error because
342                                             State v. Savage

the legal issue is likely to arise on remand. Ordinarily, we
will consider issues likely to arise on remand when the trial
court or agency has determined a question of law that will
still be at issue after the case is remanded. See, e.g., Westwood
Construction Co. v. Hallmark Inns, 

, 

, rev den, 

 (2002) (addressing ruling concerning the availability of certain type of attorney fees under
ORS 87.060 as likely to arise on remand). Defendant’s first
assignment of error might, arguably, fall under that ambit.
Notwithstanding that possibility, however, we do not reach
the merits of defendant’s first assignment of error because,
as we explain below, we conclude that it is unpreserved.
        In defendant’s first assignment of error he challenges the trial court’s denial of his motion in limine,
advancing on appeal a constitutional double jeopardy argument concerning issue preclusion—specifically, that double
jeopardy principles prevent the state from relying on facts,
and evidence, related to a previous acquittal, relying primarily on Ashe v. Swenson, 

, 

, 

 (1970), and Oregon cases that have adopted Ashe’s
reasoning.
         The state does not dispute preservation in its briefing in this case. Nevertheless, we have an “independent
obligation to determine whether an argument advanced
on appeal was preserved at trial.” Vokoun v. City of Lake
Oswego, 

, 

 (2003), rev den,

 (2004) (citing State v. Wyatt, 

,

 (2000)).
         In Ashe, the case principally relied upon by defendant on appeal, the United States Supreme Court held that
double jeopardy also encompassed certain principles of issue
preclusion. 

. Ashe was first applied in Oregon
in State v. Mozorosky, 

, 

 (1977). There,
the Oregon Supreme Court emphasized the analytical
framework set forth in Ashe:
   “Where a previous judgment of acquittal was based upon
   a general verdict, as is usually the case, this approach
   requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge,
   and other relevant matter, and conclude whether a rational
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 (2020)                                              343

    jury could have grounded its verdict upon an issue other
    than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame
    and viewed with an eye to all the circumstances of the
    proceedings.’ ”

 at 498 (quoting Ashe, 

) (internal citations
omitted).
         For purposes of assessing preservation then, we
must ask whether the trial court here was ever asked to
undertake the record review contemplated by Ashe, or asked
to assess the prior trial record to determine if “it would have
been irrational” for the jury in the first trial to acquit without finding in favor of defendant on a fact essential to a conviction in the new trial. Currier v. Virginia, ___ US ___, 

, 

 (2018) (discussing the Ashe
inquiry). We conclude that it was not.
         Upon review of the trial record here, it is apparent
that before the trial court, defendant was making an evidentiary exclusion argument, not an argument seeking suppression of evidence based on a constitutional right.1 That
is further reinforced when we view that argument in the
context of defendant’s written motion in limine. Nowhere in
that motion does defendant cite the federal or state constitutions, Ashe, or any Oregon case adopting Ashe, or otherwise
advance any argument that constitutional double jeopardy
principles prohibit the admission of certain evidence.
         While defendant did, in one sentence in oral argument before the trial court, reference double jeopardy, he
did not orally inform the court or opposing counsel of Ashe,
Ashe’s requirement for a record review, Ashe’s analytical
test, or how double jeopardy would change the analysis in
any way from the OEC prior bad acts cases upon which he
relied. Accordingly, we reject defendant’s first assignment of
error on preservation grounds. We reverse defendant’s conviction based on a nonunanimous verdict.
           Reversed and remanded.

   1
     At least one court has indicated that issue preclusion arguments based in
double jeopardy might be properly categorized as a motion to suppress. See, e.g.,
United States v. Mock, 604 F2d 336, 338 (5th Cir 1979).