State v. Hambrick

75 P.3d 462, 189 Or. App. 310, 2003 Ore. App. LEXIS 1155

• Court: Court of Appeals of Oregon
• Decided: August 20, 2003
• Docket: 200117739; A117314
• Status: Published

Opinions

ARMSTRONG, J.

Defendant was charged by indictment with two counts of fourth-degree assault, ORS 163.160. Each count alleged all of the elements of that crime, which is ordinarily a misdemeanor. Each count also alleged an additional element that enhanced the crime to a felony. In count one, that element was a prior conviction for assaulting the same victim. ORS IRS.ldCKSXa).¹ Defendant made a written judicial admission to that element, stipulating “that he has been convicted of Assault in the Fourth Degree * * * with the victim being [the same victim as in this case].” He coupled that admission with a motion in limine to exclude all evidence of the prior conviction, conceding that, if the jury returned a guilty verdict on the elements of “ordinary” fourth-degree assault, then the trial court would enter the conviction as a felony. The state agreed to accept defendant’s admission but only on the condition that it be read to the jury. It also opposed the motion in limine. The trial court accepted defendant’s admission and granted his motion to exclude the evidence. The state appeals, ORS 138.060(l)(c), and we reverse.

In State v. Garrett, 187 Or App 201, 66 P3d 554 (2003), decided after this case was argued, we held that, unless a statute provides otherwise, the trial court could not compel the state to accept the defendant’s stipulation to the “prior assault conviction, same victim” element of the same crime involved in this case. There, as here, the defendant sought not only to use the stipulation to exclude evidence of t prior conviction for assaulting the same victim but also to remove from the jury the factual issue whether he previously had been convicted of that crime, so that the jury would not know of the prior conviction and would not be required to decide whether the state had proved the prior-conviction, same-victim element of the charged crime. Because the state did not agree to the stipulation, we concluded that the trial court did not err in admitting evidence of the prior conviction. Id. at 206.

Although Garrett held that the trial court did not err in admitting the evidence and this case presents the question whether the trial court erred in suppressing the evidence, that difference does not make the cases distinguishable. The necessary premise for the holding in Garrett is that

“the state was not required to accept defendant’s offer to stipulate to his prior conviction. * * * In the absence of a stipulation, it was necessary for the state to prove defendant’s prior conviction in order to prove defendant’s guilt. Thus, evidence of the prior conviction was essential in order to prove the crime charged, and any prejudice in introducing the record of defendant’s prior conviction was outweighed by the probative value of the evidence.”

Id. at 205 (citation and footnote omitted).

The premise necessarily underlying the affirmance in Garrett also requires reversal here. The trial court here suppressed all evidence of the prior conviction because, given the admission, the evidence had no probative value relative to any issue that the jury needed to decide. However, the admission was operative only because the trial court accepted it. We see no distinction between the court accepting the admission over the state’s objection and the court compelling the state to accept it as a stipulation. It cannot do either. Under Garrett, therefore, the court erred in taking the prior conviction element from the jury, and, that being the case, it also erred in granting defendant’s motion to preclude the state from introducing evidence to prove that element.

The dissent agrees that Garrett controls the decision in this case. It contends, however, that Garrett was wrongly decided. It relies on State v. Zimmerlee, 261 Or 49, 54, 492 P2d 795 (1972), as support for its position. We explained in Garrett why Zimmerlee does not support the dissent’s position:

“[T[he state sought to prove [in Zimmerlee] that the defendant was armed with a gun when he committed a robbery by offering evidence that he was armed with a gun when he committed an assault later the same day. The defendant offered to stipulate that he was armed when he committed the robbery, thereby making it unnecessary for the state to offer evidence about the later incident in order to prove that he was armed. The state refused to accept the stipulation, and the trial court admitted the disputed evidence. The Supreme Court reversed, holding that the state was required to accept the stipulation because the stipulation would allow the state to prove the fact that it needed to prove[—that the defendant was armed—[without the need to introduce evidence about the later incident that was unfairly prejudicial to the defendant. * * *

“Here, the evidence that defendant sought to exclude— the record of his conviction of assaulting the victim—is indistinguishable in its prejudicial effect from the fact to which he agreed to stipulate—that he had been convicted of assaulting the victim. What defendant wanted was not just to keep the record of his conviction from being presented to the jury .but the fact of his conviction as well. Zimmerlee does not support that proposition. There, the fact that the defendant was armed would be presented to the jury to prove one of the elements of the charged crime. All Zimmerlee held was that, in light of the proffered stipulation, it was improper to admit unfairly prejudicial evidence to prove that fact. * * * Zimmerlee is not support for the relief that defendant seeks here, which is to exclude thefact of his prior conviction even though that fact is necessary to prove one of the elements of the charged crime.”

Id. at 205-06 (emphasis in original).

In summary, Zimmerlee does not support the principle that an element of a crime can be removed from a jury’s consideration at a defendant’s behest. However, the principle for which it does stand—that a defendant’s agreement to stipulate or admit to a fact can prevent the state from introducing prejudicial evidence to prove the fact—has been applied by a number of courts, including the United States Supreme Court.² The principle can fairly be described as one of three alternatives that courts in the United States have applied in the circumstances presented in Garrett and in this case.

One of the other two alternatives is the one for which the dissent contends: that an admission or stipulation to a fact can remove an element of a crime from a July’s consideration. That alternative principle appears to be limited to so-called status elements, such as the prior-conviction, same-victim element at issue in this case. Among the cases that have applied the principle, State v. Nichols, 208 W Va 432, 541 SE2d 310 (1999), is exemplary. The crime at issue in Nichols required the state to prove that the defendant had two prior convictions for driving under the influence of intoxicants. The defendant offered to stipulate that he had two prior convictions for driving under the influence of intoxicants, and, based on the stipulation, he sought to remove the prior-conviction element from the jury’s consideration. The West Virginia Supreme Court held that the defendant was entitled to that relief.³

The third alternative is one that rej'ects the proposition for which Zimmerlee stands: that a state can be required to accept a stipulation to a fact in order to prevent the introduction of prejudicial evidence to prove the fact. Among the cases that have applied the principle, People v. Hills, 140 AD2d 71, 532 NYS2d 269 (1988), is exemplary. The crime at issue in Hills was first-degree assault, which required the state to prove that the victim had suffered a serious physical injury. The defendant offered to stipulate that the victim had suffered such an injury, and, on that basis, he sought to prevent the state from introducing medical evidence about the victim’s injuries that the defendant believed would be highly prejudicial to the jury’s proper consideration of his guilt of the charged crime. The New York court held that the state was not required to accept the stipulation and, hence, that the medical evidence was properly admitted. The crime element at issue in Hills was not a status element, but the discussion of the principle in Hills does not suggest that the court would draw a distinction among different elements of crimes.⁴

In summary, our decision in Garrett applied one of three alternative approaches to the use of stipulations to control the submission to a jury of information that could be prejudicial to a defendant in a criminal case. We also recognized in Garrett that the Oregon legislature has addressed the treatment of status elements in two other crimes, felony driving under the influence of intoxicants, see ORS 813.326(1), and aggravated murder, see ORS 163.103(1). For both of those crimes, the legislature adopted a policy that excludes from jury consideration status elements in those crimes if the defendant stipulates to facts that establish those elements. In other words, the legislature expressly adopted by statute in those two instances the policy that the dissent claims that we erroneously rejected in Garrett.

In light of the alternative approaches in Oregon and other states on the use of stipulations to control the submission of information and issues to juries in criminal cases, and in light of the Oregon legislature’s adoption of statutes that bear on that issue for crimes other than fourth-degree assault, good arguments can be marshaled in support of the application in Oregon of two of the three alternative approaches—the one that we applied in Garrett and the one for which the dissent contends. However, principles of stare decisis require us to adhere to our decision in Garrett unless we are persuaded that we clearly erred in reaching the conclusion that we did. See, e.g., Newell v. Weston, 156 Or App 371, 380, 965 P2d 1039 (1998), rev den, 329 Or 318 (1999). Under that standard, we adhere to our decision in Garrett.⁵

Reversed and remanded.

1 ORS 163.160 provides, in part:

“(1) A person commits the crime of assault in the fourth degree if the jerson:

“(a) Intentionally, knowingly or recklessly causes physical injury to mother; * * *

‡ ‡ ‡

“(2) Assault in the fourth degree is a Class A misdemeanor.

“(3) Notwithstanding subsection (2) of this section, assault in the fourth legree is a Class C felony if the person commits the crime of assault in the jurth degree and:

“(a) The person has previously been convicted of assaulting the same victim!.]”

2 See, e.g., Old Chief v. United States, 519 US 172, 117 S Ct 644, 136 L Ed 2d 574 (1997); People v. District Court, 953 P2d 184 (Colo 1998); State v. Lee, 266 Kan 804, 977 P2d 263 (1999); State v. Harvey, 318 NJ Super 167, 723 A2d 107 (1999).

3 See also, e.g., People v. Hall, 67 Cal App 4th 128, 79 Cal Rptr 2d 690 (1998); Brown v. State, 719 So 2d 882 (Fla 1998); State v. Berkelman, 355 NW2d 394 (Minn 1984).

4 See also, e.g., State ex rel Romley v. Galati, 193 Ariz 437, 973 P2d 1198 (1999); Norris v. State, 227 Ga App 616, 489 SE2d 875 (1997); Glover v. Commonwealth, 3 Va App 152, 348 SE2d 434 (1986).

5 The dissent also contends that we can affirm the trial court by treating the defendant’s motion as a motion to make a partial waiver of his right to a jury trial on the prior-conviction, same-victim element of the charged crime, which the trial court accepted. The short answer to that suggestion is that there is no written jury waiver in the record in this case, so we could not affirm the ruling on that basis. State v. Lemon, 162 Or App 640, 642, 986 P2d 705 (1999).