State v. Dennison

640 P.2d 669, 55 Or. App. 939, 1982 Ore. App. LEXIS 2323

• Court: Court of Appeals of Oregon
• Decided: February 8, 1982
• Docket: No. 80-8-99, CA 18904
• Status: Published

Opinions

GILLETTE, J.

Defendant appeals from an order declaring him to be an habitual traffic offender. ORS 484.705(1)(a). He contends that the state failed to comply with the notice requirements of ORS 484.715¹ and that the giving of such a notice by the state is a condition precedent to a determination that he is an habitual traffic offender. He further argues that he was denied both his right to counsel and his right to trial by jury. We affirm.

When defendant appeared in response to the District Attorney’s habitual traffic offender complaint,² he entered into a colloquy with the trial judge which indicated that he did not understand the purpose of his appearance. The trial judge finally said,

“Why don’t you go to a lawyer. I’m just the judge, I can’t advise you. Go to a lawyer and have him straighten this out. I can’t sit here and be your lawyer.”

The court expressed an intention to set the matter over for three weeks, but the deputy district attorney then intervened and gave defendant a short, verbal synopsis of the habitual traffic offender law. Defendant then acknowledged that he had been convicted of three major traffic infractions in the past five years, which is one of the grounds for revocation of a license pursuant to ORS 484.705(1)(a). The court then entered an order finding defendant to be an habitual traffic offender. This appeal followed.

None of the contentions now advanced by defendant was urged in the trial court.

“* * * [I]t is only in rare cases that this court will notice an alleged erroneous ruling of the trial court to which no exception was taken or objection made by the appellant. From a very early date the rule has been that it is not error only, but error legally excepted to, which afford grounds for reversal. The rule applies in criminal as well as civil cases.” State v. Avent, 209 Or 181, 183, 302 P2d 549 (1956).

The familiar rule is applicable in this case.

That would settle the matter, were it not for the dissent’s apparent insistence that this case falls within a very narrow exception to the “no reversal except for preserved error” rule. (We say “apparent,” because the dissent never does set out a clear legal basis for ruling the way it wishes to rule.) The law is that we require that an objection be made at trial before the matter will be considered on appeal. None was made here but, the dissent apparently believes, certain of our precedents indicate that under one argument that defendant makes here, i.e., that there is no evidence to support the trial judge’s finding, no exception was necessary.

Defendant’s lack of evidence claim is not concerned with the substantive question of whether he has been convicted of at least three major traffic offenses. Rather, he claims that there is no proof that the state followed the procedural steps required by the habitual traffic offender statute prior to charging him. At trial, the state offered no evidence it had complied with the notice requirements of ORS 484.715. In State v. Wells, 27 Or App 537, 556 P2d 727 (1976), we held that the giving of the notice required by ORS 484.715 is a condition precedent to the court’s authority to declare a person an habitual traffic offender. In State v. Carlile, 31 Or App 1065, 1069, 572 P2d 629 (1977), we held that notice must be sent by registered mail, addressee only, return receipt requested. Even though the state need not allege compliance with the notice requirement in its complaint, it must prove at trial it gave the notice. State ex rel MVD v. Conforth, 52 Or App 617, 620, 628 P2d 781 (1981). The dissent apparently views this omitted proof as justifying invocation of the “no evidence of guilt” exception.

Our previous cases do not support the dissent’s position. The first is State v. Willy, 36 Or App 853, 585 P2d 762 (1978). In Willy, we were asked to reverse in part the defendant’s conviction for a series of charges in connection with the unlawful use of food stamps on the ground that there was no evidence to support her conviction. We said,

“Defendant acknowledges that this contention [that there was no evidence to support her conviction] was not advanced in the trial court, and that normally this court will not first take cognizance of matters not called to the attention of the trial court. See State v. Frye, 2 Or App 192, 465 P2d 736 (1970). Because, however, the allegation is that there was absolutely no evidence from which the defendant could have been convicted, we consider the issue presented by the defendant. * * * ” 36 Or App at 856-57.

The language in Willy was concerned with a far narrower set of circumstances than those existing here. The missing evidence in the present case is evidence that the state followed a procedural step prior to charging the defendant. The state is required to prove that it took that procedural step, but there could exist a variety of reasons for its failure to produce that evidence, including an agreement with defendant off the record that it was unnecessary to provide such evidence.³ In any event, the substance of the charge against defendant was not that he had received a procedural notice, but that he was an habitual traffic offender. The absence of proof under these circumstances is the equivalent of absence of proof of venue in a case in which the defendant was charged with murder. We might very well consider an unpreserved claim in the murder case that there was no evidence the defendant committed the homicide, but we would not give any consideration to a claim that there had been no proof of venue, absent some showing that objection on the venue point had been made at trial.

Our limited view of the effect of the opinion in Willy appears in a later opinion, State v. Lindsey, 45 Or App 607, 609 P2d 386 (1980), where we said, at p 609, n 1:

“In State v. Willy, * * *, one of defendant’s claims of error was that there was absolutely no evidence to support the verdict rendered by the court. Defendant conceded that that contention was not raised at trial. We noted that normally appellate courts will not review matters which have not been called to the attention of the trial court. * * * We then said: ‘Because, however, the allegation is that there was absolutely no evidence from which the defendant could have been convicted, we consider the issue presented by the defendant.’ 36 Or App at 857.

“The language from Willy should not be used as establishing any general rule that we will always consider challenges to the sufficiency of the evidence when such challenges were not raised in the trial court. The rule is that we may consider such assignments in our discretion. Willy was a case in which we exercised that discretion.” (Emphasis in original.)

In Lindsey, we took an action consistent with Willy in that we considered a claim that there was no evidence to support a verdict. In fact, in Willy we held that there was some evidence to support the verdict, so the quoted matter from Willy is, strictly speaking, dictum. In Lindsey, by contrast, we found that there was no evidence to support defendant’s conviction for assault in the fourth degree. However, we took that step on the basis of the state’s concession that there was no evidence to support the verdict. Thus, Lindsey was again decided on the theory that a defendant ought not be convicted if there was no evidence of the substantive elements of the offense. Lindsey and Willy represent a very narrow exception to a general rule, and we decline the dissent’s invitation to expand the exception.

Affirmed.

1 ORS 484.715 provides:

“When the division receives an abstract of the conviction or bail forfeiture, under ORS 484.240, and the conviction or bail forfeiture is the second one of those described by paragraph (a) of subsection (1) of ORS 484.705 for the convicted person, the division immediately shall notify the licensee and offer him an opportunity of an advisory meeting with a representative of the division in the county wherein the licensee resides. At such a meeting, the division shall advise the licensee of the provisions of ORS 484.700 to 484.750 and of the availability of education programs for driver improvement.”

2 The record contains neither proof of service on defendant nor any other explanation as to how defendant knew he was to appear. We note, however, that defendant did appear on the date set on the summons — August 18, 1980.

3 Contrary to the dissent’s view, we do not suggest that our agreement was the basis in this case. We merely note that there can be reasons for the omission of such evidence aside from its unavailability.