State v. Stephenson

                                189

           Submitted September 2, reversed October 7, 2020


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
            DANIEL JAMES STEPHENSON,
                  Defendant-Appellant.
             Tillamook County Circuit Court
                  18CR26353; A169724
                            

  Jonathan R. Hill, Judge.
  Kenneth A. Kreuscher filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  PER CURIAM
  Reversed.
190                                      State v. Stephenson

        PER CURIAM
         Defendant appeals from a judgment of conviction
for second-degree criminal mischief. On appeal, he argues
that the trial court erred in denying his motion to dismiss
on double jeopardy grounds after his first trial ended in a
mistrial. The state concedes the error. We agree, accept the
state’s concession, and reverse the judgment of conviction.
         After a jury had been impaneled and the state presented two of its witnesses, a third state witness failed to
appear despite being under subpoena and telling the prosecutor she would appear. The state was aware before trial
started that the witness might not appear but still opted
to refer to the witness’s testimony in opening statements.
Ultimately, the state asked for a mistrial because of the
witness’s failure to appear. The state represented that it
could proceed without the witness in a new trial by taking
a different approach but did not answer the court’s question whether it could currently proceed and hedged as
to whether the witness was “necessary.” The trial court
granted the mistrial over defendant’s objection. Before he
was retried, defendant moved to dismiss on double jeopardy
grounds, which the trial court denied. During the second
trial, the same state witness failed to appear; however, the
state decided to proceed with the trial. Defendant renewed
his motion to dismiss, which the trial court denied.
         On appeal, defendant assigns error to the trial
court’s denial of his motion to dismiss, renewing his arguments that his retrial was barred by ORS 131.525, Article I,
section 12, of the Oregon Constitution, and the Fifth
Amendment to the United States Constitution. The state
concedes that the trial court erred.
         We accept the state’s concession and decide this
case under Article I, section 12, because the parties have
not developed an argument under ORS 131.525. State v.
Moore, 

, 210 n 2, 

 (2017). We review
a motion to dismiss following a mistrial for legal error. State
v. Gillespie, 

, 

 (2019). “When
a trial court orders a mistrial in a criminal case over the
defendant’s objection, double jeopardy principles preclude a
second trial unless the mistrial was the result of ‘manifest
Cite as 

 (2020)                                191

necessity.’ ” Id. at 814. Under Article I, section 12, “manifest
necessity” is a “high degree” of necessity to declare the mistrial, and it is the state’s burden to demonstrate it. Id. at 817.
Whether the “manifest necessity” standard is met depends
on the unique circumstances of each individual case. Moore,

.
         Here, the state did not demonstrate manifest necessity. The state did not show that the witness was necessary
to proceed in the first trial; rather, the state represented only
that it would have presented its case differently without the
witness. However, the state was aware of a risk that the witness would not appear before the trial began but chose not
to proceed differently. The state did not meet its burden to
show a high degree of necessity for the mistrial, particularly
given the stage to which the trial had already proceeded. As
a result, the trial court erred in denying defendant’s motion
to dismiss.
         Reversed.