State v. Toste

100 P.3d 738, 196 Or. App. 11, 2004 Ore. App. LEXIS 1393

• Court: Court of Appeals of Oregon
• Decided: October 27, 2004
• Docket: 007169; A115472
• Status: Published

Opinions

LANDAU, P. J.

In this criminal appeal, defendant challenges on double jeopardy grounds his conviction for driving under the influence of intoxicants (DUII). We affirm.

The relevant facts are few and undisputed. Defendant was stopped while driving on a state highway and arrested for DUII. Defendant disclosed to the arresting officer that he had consumed hydrocodone, the generic form of the analgesic Vicodin, shortly before his arrest. The state initially charged defendant with driving under the influence of alcohol only. ORS 813.010(l)(a). The jury was unable to reach a verdict on that charge, however. The trial court declared a mistrial and discharged the jury.

The state then filed an amended complaint, charging defendant with driving under the influence of a combination of alcohol and a controlled substance. Defendant moved to dismiss that charge on double jeopardy grounds. He argued that, because jeopardy already had attached to his DUII charge, which was based on alcohol alone, he could not now be subject to a DUII charge based on alcohol and a controlled substance. Because preservation is a key issue on appeal, we pause to consider in some detail the nature of defendant’s double jeopardy arguments.

Defendant filed a written motion to dismiss. The entirety of the written analysis was as follows:

“Authorities:

“ORS 131.505, etseq.

“ORS 135.470

“Article I, § 12, Oregon Constitution

“Amendment V, United States Constitution

“State ex rel Turner v. Frankel, 322 Or 363 (1995)

“State v. Martin, 288 Or 643 (1980)”

At the hearing on the motion, defendant advanced what he characterized as two different arguments. His first argument was purely statutory. He began by asking the court “to look at ORS 131.505 and statutes following, because I think the answer to my motion is found actually within the statutory language itself.” He then quoted the statute and discussed in some detail how the statute barred the state from bringing the new charge based on the combination of alcohol and controlled substances. Throughout the discussion, defendant did not once use the word “constitution.” He did not cite Article I, section 12, of the Oregon Constitution, much less argue that the new charge was barred by that provision of the constitution. His argument rested exclusively upon the statute.

At that point, defendant informed the court that “[t]he second argument I would make, Your Honor, is pursuant to two cases.” He then cited Turner and Martin. According to defendant, in both of those cases, the defendants had asserted double jeopardy arguments, but the court disposed of the arguments on other — non-double-jeopardy—grounds. Defendant referred to the grounds as “procedural fairness.” Defendant described the facts and holdings of each of the two cases and emphasized that “what the court said is, listen, we aren’t going to find this really on former jeopardy grounds,” but rather, on other grounds. Defendant then closed his argument with the following statement:

“So for those two reasons, Your Honor, just, I think, reading the statute, I don’t know that you even have to get into the Martin / Turner analysis, but simply by reading the statute, if you just look at that statute, read it carefully and slowly, I think it very clearly indicates, as I’ve stated, he can be re-prosecuted for the same offense, alcohol only, but beyond that, no. That’s No. 1.

“And No. 2, that failing that, Martin / Turner analysis applies.”

Again, the transcript of the hearing contains no mention of a contention that the state’s amended complaint was barred by Article I, section 12.

The trial court denied the motion. Defendant then entered a conditional plea of guilty pursuant to ORS 135.335(3) and initiated this appeal.

Defendant first argues that the state’s amended complaint violates ORS 131.515. That statute provides, in part:

“Except as provided in ORS 131.525 * * *

“(1) No person shall be prosecuted twice for the same offense.

“(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”

Defendant focuses his argument on subsection (2), the mandatory joinder provision, characterizing the charges in the original complaint and in the amended complaint as different offenses. The state, for its part, concedes that the relevant facts concerning defendant’s possession and use of hydrocodone were known to the state before the commencement of the initial prosecution, and it likewise concedes that the original venue was appropriate for the charges that were brought in the second prosecution. It argues that the different charges in the original and the amended complaints did not violate the statute because they concern two separate offenses. Defendant insists that the complaints concern the same offense.

We need not address that contention because, even if defendant is correct that the charges in the original and the amended complaints concerned the same offense, the second prosecution is barred by subsection (2) only if no exceptions to that subsection apply. In this case just such an exception does apply.

As we have noted, ORS 131.515 begins with the express condition “[e]xcept as provided in ORS 131.525.” ORS 131.525, in turn, provides, in part:

“(1) A previous prosecution is not a bar to a subsequent prosecution when the previous prosecution was properly terminated under any of the following circumstances:

‡ % * %

“(b) The trial court finds that a termination, other than by judgment of acquittal, is necessary because:

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“(D) The jury is unable to agree upon a verdict.”

In this case, the trial judge terminated the first prosecution “other than by judgment of acquittal” because the jury was unable to agree upon a verdict. Thus, this case falls squarely within the exception described in ORS 131.525(l)(b)(D).

Defendant argues that we should apply the “hung jury” exception only to subsequent prosecutions for the same offense, not to subsequent or concurrent prosecutions based on new charges in an amended complaint. In other words, he argues that the exception should operate to negate ORS 131.515(1) but not ORS 131.515(2).

The short answer to that contention is that it is defeated by the wording of the statute. ORS 131.525(l)(b)(D) exempts from ORS 131.515 all prosecutions after hung juries. It does not distinguish between second prosecutions based on the same charged offense and second prosecutions based on new charges or theories. We reject defendant’s statutory argument without further discussion.

Defendant next argues that the state’s amended complaint violates the double jeopardy provision of Article I, section 12, of the Oregon Constitution. The state argues that defendant failed to preserve that argument. We agree with the state.

In State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000), the Supreme Court held that “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify it’s alleged error with enough clarity to permit it to consider and correct the error immediately.” Merely citing a case or a constitutional provision is not sufficient. Directly on point in that regard is our opinion in State v. Talbert, 153 Or App 594, 958 P2d 902 (1998). In that case, the defendant cited Article I, section 12, in a memorandum to the trial court but otherwise did not develop the argument. We concluded that the mere citation to Article I, section 12, was insufficient to preserve a state constitutional double jeopardy contention on appeal:

“Defendant cited Article I, section 12, in his memorandum to the trial court, but cited no Article I, section 12, cases. All of defendant’s arguments, both in his trial memorandum and in his oral argument to the trial court, concerned ORS 131.515.Merely citing Article I, section 12, is not sufficient to preserve that issue.”

Id. at 600; see also State v. Riggs, 143 Or App 427,430-31, 923 P2d 683 (1996), rev den, 325 Or 247 (1997) (“By merely citing to Article I, section 12, * * * defendant did not clearly present the position he now takes on appeal. Furthermore, the state was denied the opportunity in the trial court to meet the state constitutional argument.”).

In this case, defendant asserted two arguments in support of his motion to dismiss. First, he invoked ORS 131.515. Second, he argued “procedural fairness,” citing Turner and Martin. Beyond the unadorned citation to Article I, section 12, tucked into his written submission, defendant did not so much as mention the state constitution as a basis for his motion.

Thus, the only difference between this case and Talbert is that, in this case, defendant asserted a “procedural fairness” argument in addition to his argument under ORS 131.515. However, citing the procedural fairness cases — in which the Supreme Court explained that it was not applying Article I, section 12 — did not serve to put the trial court on notice as to any Article I, section 12, contentions. We are left with the mere citation to the constitution, which, under Talbert, is insufficient. We conclude that defendant’s constitutional contention is unpreserved.

The dissent insists that defendant’s constitutional contention is preserved. It argues that, by asserting his statutory double jeopardy argument, defendant implicitly asserted a constitutional one as well. The dissent acknowledges that there is a substantial body of case law to the contrary; it argues that those cases are simply incorrect and should be overruled. We need not address that argument in this case, however. Whatever may be the merits of the dissent’s contention that, in some cases, a statutory contention could implicitly raise a constitutional one, in this case, defendant explicitly told the court that he was asserting two — and only two — arguments in support of his motion to dismiss, namely, the statute and the doctrine of procedural fairness.

That leaves defendant’s procedural fairness argument under State v. Turner, 247 Or 301, 429 P2d 565 (1967), and State v. Martin, 288 Or 643, 607 P2d 171 (1980). In Turner, the court held that a defendant who successfully appeals a conviction may not be sentenced for a greater term of imprisonment than was imposed after his or her first conviction. 247 Or at 315. In Martin, the court similarly held that a defendant who successfully moves for a new trial should not be subject to the risk of being prosecuted for additional charges in the new trial. 288 Or at 647.

We described the significance of those two cases in State v. Johnson (A104954), 172 Or App 29, 17 P3d 1087, rev den, 332 Or 240 (2001). We held that the “procedural fairness” rule that was applied in those cases applies only to cases involving retrials following proceedings initiated by the defendants to relieve them of their convictions. The critical issue, we explained, is the need to avoid requiring defendants to put themselves at a risk of additional charges if they exercise their procedural rights. Id. at 33.

In this case, the new charge was a result of a hung jury, not defendant exercising any procedural right. Defendant simply did not face the “Hobson’s choice” that we said was necessary in Johnson for the procedural fairness rule to apply. We therefore conclude that the trial court did not err in denying defendant’s motion to dismiss.

Affirmed.