No. 482 June 4, 2025 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ELLIOT MAXWELL BOLLET,
Defendant-Appellant.
Beaverton Municipal Court
2210308; A181096
Edward A. Kroll, Judge pro tempore.
Submitted January 21, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
ORTEGA, P. J.
Affirmed.
______________
* Lagesen, Chief Judge, vice Mooney, Senior Judge.
2 State v. Bollet
ORTEGA, P. J.
Defendant appeals from a judgment of conviction for
misdemeanor driving while using a mobile electronic device,
ORS 811.507(2), (5)(d). He assigns error to the trial court’s
ruling allowing his stipulation to two prior infraction-level
violations of the statute to be presented to the jury pursuant
to ORS 136.433(3). Because defendant’s stipulation did not
function to relieve the state of its burden of proof on defendant’s prior convictions in accordance with ORS 136.433(1),
evidence of those convictions was admissible, and the trial
court did not err by allowing the stipulation to be presented
to the jury. Accordingly, we affirm.
The relevant facts are procedural. Defendant was
charged with driving while using a mobile electronic device,
ORS 811.507(2), a traffic violation that is elevated to a
Class B misdemeanor if a person had been convicted of that
offense twice in the previous 10 years. ORS 811.507(5)(d).
The state alleged in the complaint that defendant “has been
convicted twice of this offense within the past 10 years.”
Defendant filed a motion in limine seeking to exclude testimony and other evidence related to his previous convictions.
That written motion included an offer to stipulate to the two
previous convictions. At the pretrial hearing, the trial court
conducted an oral colloquy with defendant and indicated
that it would accept defendant’s stipulation.
The state objected and moved to admit the judgments
of conviction, arguing that defendant and the court were not
following the process set out in ORS 136.433(1) for stipulating
to a prior-conviction element. That statute lays out a procedure
by which a defendant may stipulate to a previous conviction
and relieve the state of its burden of proof on that issue when
the state alleges in the accusatory instrument that the defendant has previously been convicted of an offense. That procedure includes the requirements the stipulation must meet:
“… The stipulation must:
“(a) Be in writing;
“(b) Admit without qualification that the defendant
previously was convicted of the offense and that the conviction is valid;
Cite as 341 Or App 1 (2025) 3
“(c) Include an express waiver of the defendant’s right
to a jury trial on the fact of the previous conviction; and
“(d) Be filed with the court and served on the district
attorney.”
ORS 136.433(1)(a) - (d). When a defendant files such a stipulation, the court is directed to accept it, and the statute sets
out the conditions under which information about a previous
conviction is either kept from or disclosed to the jury. ORS
136.433(2).
One of those conditions is specified in ORS 136.433
(3)(a)(A): a stipulation “must be presented to the jury” when
“[t]he statute that defines the charged offense includes as
a material element that the defendant previously was convicted of the offense that is the subject of the stipulation and
the charged conduct does not constitute a criminal offense
except with that element.” The state argued that any stipulation would necessarily be presented to the jury pursuant to that provision because the charged conduct—driving
while using a mobile electronic device—is a traffic violation
and that conduct only constitutes a criminal offense when
a defendant has two previous convictions for violating that
statute.
Defendant argued below that, given his stipulation,
admitting any evidence of prior convictions would violate his
due process right to a fair trial. He argued that his stipulation operated as conclusive proof of the element of his previous convictions, rendering evidence of those convictions
irrelevant to a fact at issue in the case, and that admitting
evidence of those convictions would therefore be unduly prejudicial. OEC 403.
The court expressed a concern that the previous conviction evidence was inadmissible propensity evidence, OEC
404(4), and that admitting it may pose a due process issue,
OEC 403. Ultimately, it concluded that it was bound by ORS
136.433, and that subsection (3) of that statute required the
court to present the stipulation to the jury. The court then
memorialized defendant’s offered stipulation in writing by
preparing a document stating that “[defendant] has stipulated that he has two prior infraction-level convictions in
4 State v. Bollet
the past 10 years for violating ORS 811.507.” Defendant,
defense counsel, and the prosecutor signed it. The state
again objected that the stipulation did not meet the criteria
set in ORS 136.433(1) and moved to admit certified copies of
defendant’s judgments of conviction into evidence.
The court ruled that defendant’s stipulation
complied with each of the requirements of ORS 136.433
(1)(a) to (d), that the stipulation would be presented to the
jury under ORS 136.433(3)(a), “because the statute says it is
a material element,” and that it was admitted only to prove
the prior-conviction element of misdemeanor driving while
using a mobile electronic device.
On appeal, defendant challenges the court’s ruling
allowing the stipulation to go to the jury. Defendant contends, as he did before the trial court, that the effect of his
stipulation was to “establish the fact of the prior convictions
conclusively and to relieve the state of its burden to prove
the existence of the prior convictions.” State v. Hess, 342 Or
647, 662,
159 P3d 309 (2007). Therefore, in defendant’s view,
it was error to let the stipulation go to the jury as evidence
of the prior convictions. See id.; State v. Brostrom,
214 Or
App 604, 607,
167 P3d 460 (2007), rev den,
344 Or 109 (2008)
(the trial court erred in admitting evidence of a prior conviction when the stipulation “established the fact of the prior
conviction conclusively and, under Hess, relieved the state of
its burden to prove that element of the charges”). Defendant
argues further that the trial court should have excluded the
stipulation because it was propensity evidence and because
the prejudicial effect of evidence of the convictions substantially outweighed any probative value. OEC 404(4); OEC 403.
The state argues, as it did below, that the stipulation did not comply with ORS 136.433(1) and so did not
relieve the state of its burden to prove the previous convictions. It also contends that the trial court properly presented
the stipulation to the jury under ORS 136.433(3)(a) because
defendant’s conduct would not be a criminal offense but for
the element of the previous convictions.
The state’s argument presupposes that ORS 136.433
is the only mechanism by which a defendant may stipulate
Cite as 341 Or App 1 (2025) 5
to a prior-conviction element, at least where, as here, the
accusatory instrument alleges that the defendant has previously been convicted of an offense. Defendant’s due process and evidentiary arguments presume, instead, that his
stipulation is governed by the rules of evidence as applied
in Hess.
342 Or at 662 (a stipulation is conclusive proof of a
prior conviction that relieves the state of its burden of proof
and is inadmissible as evidence of that conviction). Their
arguments require us to determine whether ORS 136.433
is the only mechanism by which a defendant may stipulate
to a previous conviction when it is an element of the offense,
which is a legal question of statutory construction that we
answer with our familiar methodology to determine the legislature’s intent by examining the text in context, along with
relevant legislative history. State v. Neff,
246 Or App 186,
190-91,
265 P3d 62 (2011) (citing PGE v. Bureau of Labor
and Industries,
317 Or 606, 610-12,
859 P2d 1143 (1993), and
State v. Gaines,
346 Or 160, 171-73,
206 P3d 1042 (2009)).
As we explain below, we conclude that the legislature intended ORS 136.433 to supplant Hess, and it applies
where, as here, the state alleges in the accusatory instrument that defendant has previously been convicted of an
offense. We conclude further that defendant’s stipulation did
not meet the requirements set out in ORS 136.433(1) and, as
a result of that shortcoming, the stipulation did not relieve
the state of its burden of proof on the element of the previous
convictions. Evidence of defendant’s convictions was therefore relevant to a fact at issue and could be presented to the
jury to establish that element.
We first address the intended scope of ORS 136.433,
that is, whether it is intended to govern all stipulations to
prior convictions. We begin with the text of the statute in
context. Subsection (1) defines the scope of ORS 136.433:
Absent exceptions not applicable here, it applies “if the accusatory instrument … alleges that the defendant has previously been convicted of an offense.”1 In those circumstances,
1
ORS 136.433 also applies when “the written notice described in ORS
136.765(2) [governing sentencing enhancement facts] alleges that the defendant
has previously been convicted of an offense,” and it expressly does not apply in
the context of aggravated murder or felony driving while under the influence of
intoxicants.
6 State v. Bollet
“the state has the burden of proving the previous conviction
unless the defendant stipulates to that fact.” ORS 136.433(1)
(emphasis added). ORS 136.433(1)(a) to (d) then set out the
requirements for a defendant’s stipulation to a previous conviction under the applicable circumstances to trigger the
legal consequences in ORS 136.433(2) to (4): that it admit
to the previous conviction “without qualification … and
that the conviction is valid”; expressly waive the “right to a
jury trial on the fact of the previous conviction”; and that it
be “in writing” and “filed with the court and served on the
district attorney.” Crucially, the text stating that “the state
has the burden of proving the previous conviction unless the
defendant stipulates to that fact,” ORS 136.433(1), strongly
suggests that a stipulation that does not meet the statutory
conditions does not trigger the legal consequences set out
ORS 136.433(2) to (4).
We turn to the relevant context. A written jury
waiver is required as part of the Oregon Constitution’s guarantee of a defendant’s right to a jury trial. State v. Barber,
343 Or 525, 530,
173 P3d 827 (2007) (Article I, section 11,
of the Oregon Constitution, which provides that a defendant “ ‘may elect to waive trial by jury … such election
to be in writing,’ … prescribes the only way in which an
accused person may waive his or her right to a jury trial”
(first emphasis in Barber)). That state constitutional context
supports construing ORS 136.433 to require a written stipulation that includes the waiver to the right to a jury trial
on an element of the offense before the state is relieved of its
burden of proof as to that element.
Finally, legislative history shows that ORS 136.433
was enacted in 2009 in response to an increasing number
of criminal offenses that include a prior-conviction element and appellate court rulings on how those convictions
are pleaded and proved. Or Laws 2009, ch 180, § 2; Audio
Recording, Senate Committee on Judiciary, SB 242, Jan 27,
2009, at 11:48-14:30 (testimony of Tim Sylwester on behalf
of Oregon State Bar Criminal Law Section), https://olis.
oregonlegislature.gov (accessed May 28, 2025). It creates a
“specific procedure that governs the pleading and proof of all
previous-conviction offenses.” Exhibit 3, Senate Committee
Cite as 341 Or App 1 (2025) 7
on Judiciary, SB 242, Jan 27, 2009 (written testimony of
Tim Sylwester). Its goal was to “merely codify” the holdings
in Hess and other cases regarding the pleading and proof of
previous convictions.
Id.
As to pleading, the statute codified State v. Reynolds,
183 Or App 245,
51 P3d 684, rev den,
335 Or 90 (2002),
requiring that a previous conviction must be alleged in an
accusatory instrument when it constitutes a material element of the charged offense. Exhibit 3, Senate Committee
on Judiciary, SB 242, January 27, 2009. As to proof, the
statute codified the holding in Hess, insofar as a stipulation
to a previous-conviction element renders that element conclusively proven such that it can be removed from the jury’s
consideration unless that evidence is otherwise admissible
for a purpose other than establishing the fact of that conviction. Id.; ORS 136.433(1), (4).
However, the statute departs from Hess in two
important respects. First, it allows a defendant to unilaterally stipulate to a previous-conviction element by filing
a written stipulation with the court. ORS 136.433(1). The
state is given notice, but it is otherwise not involved in the
stipulation process.2 When a stipulation meets the criteria
set out by the statute, the court is directed to accept it and
treat it as a judicial admission. ORS 136.433(2). Second, the
statutory scheme distinguishes between a previous conviction that is a material element of a criminal offense and
a previous conviction that serves other purposes. When a
previous conviction is a material element, a defendant’s
stipulation removes that issue from the jury’s consideration
and precludes the state from presenting extrinsic evidence
to prove that element, unless the “charged conduct does
not constitute a criminal offense except with that element.”
ORS 136.433(3)(a)(A). The rationale for that provision is to
avoid jury confusion. Audio Recording, Senate Committee
on Judiciary, SB 242, Jan 27, 2009, at 26:20-26:55 (comments of Tim Sylwester), https://olis.oregonlegislature.gov
(accessed May 28, 2025).
2
In Hess, the defendant’s acknowledgment of his prior conviction was characterized “as a ‘stipulation’ that [the state] felt obligated under the circumstances
to accept.” 342 Or at 651.
8 State v. Bollet
The text, context, and legislative history lead us to
conclude that ORS 136.433 exclusively governs the process
for stipulating to previous convictions when the state alleges
in the accusatory instrument that the defendant has previously been convicted of an offense, supplanting the analysis
articulated in Hess, which held that a stipulation to a previous conviction serves as conclusive proof of the conviction,
and that evidence of a stipulated conviction is thereby rendered irrelevant and inadmissible absent an alternative
theory of admissibility advanced by the state.
Applying that framework here, we first conclude
that ORS 136.433 applies because the state alleged in the
complaint that defendant had previously been convicted
of the same offense twice in the past 10 years. We further
conclude that the stipulation did not meet the conditions
set out by ORS 136.433(1) and therefore did not relieve the
state of its burden of proof. In particular, the stipulation did
not contain an “express waiver of the defendant’s right to a
jury trial on the fact of the previous conviction” in writing.
ORS 136.433(1)(c). The stipulation also was not filed with
the court and served on the district attorney pursuant to
ORS 136.433(1)(d), and it lacks the substantive declarations
required by ORS 136.433(1)(b), stating only that “[defendant]
has stipulated that he has two prior infraction-level convictions in the past 10 years for violating ORS 811.507.” As a
result of those shortcomings, defendant’s stipulation did not
qualify as a judicial admission that relieved the state of the
burden of proof under the statute.
Because the state was not relieved of its burden of
proof, evidence of defendant’s convictions was admissible, as
the trial court correctly ruled. However, its findings that defendant’s stipulation satisfied the requirements in ORS 136.433
(1)(a) to (d) and resulting conclusion that subsection (3) of the
statute required that it be presented to the jury were erroneous. Rather, defendant’s putative stipulation did not relieve
the state of its burden of proof on the previous conviction
and so evidence of defendant’s convictions was admissible
because it was relevant to an element of the offense.
Defendant argues that evidence of his previous
convictions was not admissible under OEC 404(4) and was
Cite as 341 Or App 1 (2025) 9
unduly prejudicial under OEC 403. We reject those arguments because they are premised on the claim that the
stipulation was not relevant to a fact in issue. As we have
explained above, that premise is incorrect. Defendant’s
stipulation did not operate to relieve the state of its burden of proof and as a result defendant’s previous convictions
remained at issue. The trial court did not err when it presented defendant’s stipulation to the jury.3
Affirmed.
3
Although the trial court ruled that the prior-conviction evidence was
admissible based on its understanding of ORS 136.433(3), we affirm because that
evidence was admissible as a result of the stipulation’s failure to meet the conditions in ORS 136.433(1). That issue was raised by the state before the trial court
and we may affirm on that alternative basis. Sherertz v. Brownstein Rask, 314 Or
App 331, 341,
498 P3d 850 (2021), rev den,
369 Or 338 (2022) (we address an alternative basis for affirmance if it was made in the trial court, “is properly presented
again on appeal[,] and raises a question of law”). As such, we need not determine
whether it satisfies the requirements of Outdoor Media Dimensions, Inc. v. State
of Oregon,
331 Or 634, 659-60,
20 P3d 180 (2001) (noting additional requirements
and discretionary character of “right for the wrong reason” review).
