294
Argued and submitted December 18, 2020, affirmed December 15, 2021
In the Matter of G. E. S.,
a Youth.
STATE OF OREGON,
Respondent,
v.
G. E. S.,
Appellant.
Douglas County Circuit Court
19JU01951; A172103
504 P3d 61
A petition alleged that youth was within the juvenile court’s jurisdiction for
an act that, had it been committed by an adult, would have constituted second-degree theft. Youth moved to dismiss that petition, arguing that ORS 419A.190
barred the petition because youth had already been adjudicated in a prior proceeding on a probation violation that, he argued, arose out of the same conduct.
The juvenile court denied the motion to dismiss and adjudicated youth on the
petition. Youth appeals, assigning error to the denial of his motion to dismiss.
Youth was on probation for other conduct. A condition of that probation required
youth to report to his probation officer any contacts that he had with law enforcement officers. After the theft was discovered, officers contacted youth. Youth did
not report that contact and was adjudicated for the probation violation. Held: The
juvenile court correctly denied the motion to dismiss the petition. Youth’s act of
failing to report the law-enforcement contact was not the same act as, nor did it
arise from the same conduct as, the theft, within the meaning of ORS 419A.190.
Affirmed.
Jason R. Thomas, Judge.
Christa Obold Eshleman argued the cause for appellant.
On the brief were Matthew J. Steven and Youth, Rights &
Justice.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
Cite as 316 Or App 294 (2021) 295
ARMSTRONG, P. J.
Affirmed.
296 State v. G. E. S.
ARMSTRONG, P. J.
The state filed a petition in this case alleging that
youth was within the jurisdiction of the juvenile court for
committing an act that would constitute second-degree theft
if committed by an adult. The petition alleged:
“The above-named [youth] is alleged to have committed the offense of Theft in the Second Degree, as follows,
to-wit: that the said [youth] on or about February 8, 2019 in
Douglas County, Oregon, then and there being, did unlawfully and knowingly commit theft of cell phone, of the total
value of one hundred dollars or more, the property of [the
victim], contrary to ORS 164.045 and against the peace
and dignity of the State of Oregon.”
Youth moved to dismiss the petition, arguing that the prosecution of youth for that offense was barred by ORS 419A.190
because youth had already been adjudicated in a prior proceeding on a probation violation that, he argued, arose out
of the same conduct. The juvenile court denied the motion
to dismiss and adjudicated youth on the petition. Youth
appeals, assigning error to the denial of youth’s motion to
dismiss. We affirm.
We summarize the facts, which are mostly procedural and not in dispute. Youth was on probation for other
conduct. A condition of that probation required youth to
report to his probation officer any contacts that he had with
law enforcement officers. On February 8, 2019, a mobile
phone was stolen. Youth was suspected of stealing it. On
February 9, law enforcement officers contacted youth concerning that theft. Youth did not report the contact to his
probation officer. Youth later admitted several probation violations, including the failure to report the law-enforcement
contact, and he was adjudicated for those probation violations. Subsequently, the state filed the petition alleging
the theft. Youth moved to dismiss that petition under ORS
419A.190. He asserted that he had already been adjudicated
in the probation-violation hearing for allegations arising
from the same conduct. The juvenile court denied the motion
to dismiss the petition and adjudicated youth for the theft.
Youth appeals, assigning error to the denial of his motion to
dismiss.
Cite as 316 Or App 294 (2021) 297
We examine the juvenile court’s ruling applying
ORS 419A.190 for legal error. ORS 419A.190 provides:
“Except as provided in ORS 153.108 (1), proceedings in
adult criminal court and other juvenile court adjudicatory
proceedings based on an act alleged in a petition or citation
to have been committed by a child, ward, youth or youth
offender or allegations arising out of the same conduct
are barred when the juvenile court judge or referee has
begun taking evidence in an adjudicatory hearing or has
accepted a child, ward, youth or youth offender’s admission
or answer of no contest to the allegations of the petition or
citation. This section does not prevent appeal of any preadjudicatory order of the court that could be appealed in a
criminal case, including, but not limited to, an order suppressing evidence.”1
We have previously determined that ORS 419A.190 is “the
juvenile code’s former jeopardy provision.” State v. Lyons,
161 Or App 355, 359,
985 P2d 204 (1999).
On appeal, both parties agree that ORS 419A.190
determines the outcome of this case. The parties disagree
about whether the proceedings were barred by that statute
because they arose “out of the same conduct” as the allegations that were adjudicated in the probation-violation
proceeding. Neither party has developed a statutoryconstruction argument. Rather, each has simply argued
that the facts here do, or do not, fall within the meaning of
that phrase. Because the outcome of the case depends upon
the meaning of ORS 419A.190 and, specifically, the words
“based on an act … or allegations arising out of the same
conduct,” we must determine what the legislature intended
by them.
In State v. S.-Q. K., 292 Or App 836,
426 P3d 659
(2018), we examined ORS 419A.190 to determine whether
it applied to a probation-violation adjudication. In determining that it did, we noted that the legislature intended
the statute to provide broad protection for juveniles from
successive adjudications. S.-Q. K.,
292 Or App at 845-46.
1
The legislature has enacted legislation that will change the references to
“youth offender” in ORS 419A.190 to “adjudicated youth.” Or Laws 2021, ch 489.
That legislation has not yet taken effect. All references in this opinion are to the
current version of the statute.
298 State v. G. E. S.
We determined that the broad terms of the law, combined
with the context and purposes of the juvenile code, showed
that, in the juvenile context, the protection did extend to a
probation-violation adjudication. Id. That does not answer
the question in this case, however, because there was a
closer relationship in S.-Q. K. between the acts at issue in
the petition and the probation violation than there is in this
case.
In this case, youth argues for a broad understanding of the phrase “arising out of the same conduct.” He
argues that the conduct at issue is the theft, and that it gave
rise both to the contact with law enforcement and the theft
allegation in the subsequent petition. The state argues for
a narrower construction, distinguishing between the specific conduct by youth alleged in the probation violation—
failure to report the law enforcement contact—and the conduct alleged in the petition—theft of the mobile phone.
For youth’s argument to prevail, we would have
to construe the words “based on an act … or allegations
arising out of the same conduct” to amount to a strict but-for test, where any act that would not have occurred but-for some earlier act could not be alleged in a later petition.
Or, we would have to view the word “act” or “conduct” as
potentially applying to a third party. That is, youth argues
that the officers’ act of contacting him arose out of the same
conduct—the theft—as is alleged in the subsequent petition.
The state argues that the contact with law enforcement is not the relevant conduct by youth; that was conduct
of law-enforcement officers. The relevant conduct by youth
was his failure to report the contact. That conduct is not an
act that was alleged in the later petition, nor is it dependent
on youth’s earlier act. We agree with the state.
We begin by noting that the conduct by youth that
is at issue in the probation violation and the theft petition is
not the same act. The question then is, as the parties recognize, whether the act of not reporting the law-enforcement
contact is an act “arising out of the same conduct” as the
theft. “Arising” is the present participle of “arise” which
means, in its context of an act “arising from” conduct, that
Cite as 316 Or App 294 (2021) 299
the earlier conduct was the origin of the subsequent act.
See Webster’s Third New Int’l Dictionary 117 (unabridged ed
2002) (defining “arise” as relevant here as “to originate from
a specified source” or “to come about.”).
Youth’s failure to report the law-enforcement contact is an independent act from the theft, and his act did
not arise from, or originate from, the same conduct as
that alleged in the subsequent petition. As a factual matter, the theft may have prompted the law-enforcement contact, but youth’s failure to report the contact did not arise
from his earlier conduct. The theft is not the origin of the
failure to report, because youth could have reported or not
reported the contact to his probation officer, independently
of whether he had committed the theft. There may be but-for
causation for the law-enforcement decision to contact youth,
but there is not the kind of causal connection between the
theft and youth’s decision whether to report the contact with
law enforcement to his probation officer that the statute
encompasses.
In S.-Q. K., we said the following regarding the
legislative history of former ORS 419.578, repealed by Or
Laws 1993, ch 33, § 373, and recodified as ORS 419A.190
by Or Laws 1993, ch 33, § 46, a statute that the legislature repealed and re-enacted as what would become ORS
419A.190 as part of a reorganization of the juvenile code.
“[T]he legislative history reflects an overarching concern
that juveniles be spared successive dispositions for the same
conduct. The drafters wanted to make clear that the juvenile court had ‘one shot’ and could not first give one disposition and later give another for the same act, stating a range
of possible dispositions are available to the court upon first
try and the court just has to choose the right one.” S.-Q. K.,
292 Or App at 845.
Our decision here is consistent with that purpose.
The legislative history does not indicate that the legislature
intended for a youth to be protected from all proceedings
alleging acts that can be connected, however tenuously, or
via the conduct of third parties, to some past conduct on
which the youth has been adjudicated.
300 State v. G. E. S.
In summary, the act by youth that was alleged and
proved for the probation violation is the failure to report the
law-enforcement contact. Although it is true that the theft
is what prompted police to contact youth, the origin of the
police conduct is not the question. Youth’s decision not to
report the law-enforcement contact to his probation officer
is not related to the act of taking the cell phone in such a
way that the theft can be viewed as the origin of the former
act. The two adjudications, therefore, did not “aris[e] from
the same conduct” within the meaning of ORS 419A.190.
By contrast, in S.-Q. K, the youth’s probation from
a prior adjudication required him to attend school regularly
and to obey all school rules. 292 Or App at 837. The youth
was involved in a fight at school and later admitted to a probation violation that alleged that he had been expelled for
fighting.
Id. Subsequently, the state filed a petition alleging
that the youth had engaged in conduct that, had it been committed by an adult, would constitute the crime of riot, ORS
166.015, and the youth was adjudicated on that petition as
well.
Id. at 838. On appeal, we held that the expulsion was
the school’s conduct, whereas the youth’s conduct that was
alleged in the probation violation was fighting, which then
led to his expulsion.
Id. at 847-48. Thus, the youth’s conduct
that was necessary to be proven in the probation-violation
proceeding was that youth had engaged in fighting. That
was the same conduct that was necessary to prove the riot
allegation. Thus, we concluded in S.-Q. K. that the subsequent petition should have been dismissed.
Id.
Here, youth’s act of failing to report the law-enforcement contact was not the same act as, nor did it arise
from the same conduct as, the theft of the mobile phone,
within the meaning of ORS 419A.190. Thus, the trial court
did not err in denying youth’s motion to dismiss the petition
in this case.
Affirmed.
