In State v. Bowling, 1 Or. App. 103, 459 P.2d 454 (1969), we held that an individual is not placed in double jeopardy when punished by the prison disciplinary board and then by a court for an escape or attempted escape from official detention. Accord State v. Eckley, 34 Or. App. 563, 579 P.2d 291 (1978) (probation revocation hearing); State ex rel Vandenberg v. Vandenberg, 48 Or. App. 609, 617 P.2d 675 (1980) rev den 290 Or. 449, dismissed for want of a substantial federal question, sub nom Vandenborg v. Oregon, 454 U.S. 805, (1981) (mental commitment proceeding). Similarly, in State v. Jacobs, 55 Or. App. 406, 637 P.2d 1377 (1981), this court held that a district attorney was not barred from prosecuting a defendant for selling unregistered securities because the State Corporation Commission obtained the defendant's consent to an administrative cease and desist order by promising to discontinue his investigation of the whole matter.
After the jurisdictional hearing, in a thoughtful and thorough written opinion, the juvenile court addressed father's issue preclusion argument. The court turned for guidance to this court's opinion in State ex rel Juv. Dept. v. Newman , 49 Or. App. 221, 227, 619 P.2d 901 (1980), rev. den. , 290 Or. 449 (1981). In that case, the juvenile court had terminated a father's parental rights to his three children, but this court reversed, determining that the evidence was insufficient.
For that reason, this case is distinguishable from previous cases in which we required a party who wishes to present a closing argument to speak up when asked. See State v. Green, 49 Or.App. 949, 951, 621 P.2d 67 (1980) (concluding that the defendant failed to preserve error where, after the state presented its case in rebuttal, the trial court asked if there was “[a]nything more”; the prosecutor and defense counsel both answered no, and the trial court proceeded, without objection, to make its ruling); State ex rel. Vandenberg v. Vandenberg, 48 Or.App. 609, 611 n. 2, 617 P.2d 675 (1980), rev. den., 290 Or. 449, appeal dismissed, 454 U.S. 805, 102 S.Ct. 77, 70 L.Ed.2d 74 (1981) (concluding that the defendant failed to preserve error concerning the trial court's failure to allow closing argument where the court asked whether there would be anything further, defense counsel answered in the negative, and the court then ruled; “Whatever misunderstanding this may evidence, defense counsel made no objection at the time.”). This case also differs from the factual scenarios presented by the federal cases that the state contends are persuasive. In none of those cases did a trial court say that it was waiving closing argument and then immediately announce its decision.
It is axiomatic that an appellant has the responsibility of providing a sufficient record for review of the claims of error. H.N.M. Enterprises, Inc. v. Hamilton, 49 Or App 613, 617, 621 P2d 57 (1980), rev den, 290 Or 449 (1981). If the record is insufficient for review, a claim of error will be disregarded. Id. Necessarily, under these rules, our inquiry is fact specific to the circumstances of this case.
Again, plaintiff bore the burden of providing an adequate record for review of his claim of error. H.N.M. Enterprises, Inc. v. Hamilton, 49 Or App 613, 617, 621 P2d 57 (1980), rev den, 290 Or 449 (1981). As we said before, responsibility for the failure to do that rests on his shoulders.
"[t]he burden of creating and providing a record rests with the party seeking to alter the decision. Cf. H.N.M. Enterprises, Inc. v. Hamilton, 49 Or App 613, 617, 621 P2d 57 (1980), rev den, 290 Or 449 (1981) ('An appellant has the responsibility of providing a sufficient record for review of the claims of error. If the record is insufficient for review, the unreviewable claims of error will be disregarded.').
The state is correct that defendant, as the appellant, had the obligation to ensure that all pertinent exhibits were made part of the record. H.N.M. Enterprises, Inc. v. Hamilton, 49 Or App 613, 617, 621 P2d 57 (1980), rev den, 290 Or 449 (1981). As we explained in York v. Bailey, 159 Or App 341, 347, 976 P2d 1181, rev den, 329 Or 287 (1999), "to modify a judgment on the basis of an evidentiary error, we must have before us a record that affirmatively establishes prejudice.
The burden of creating and providing a record rests with the party seeking to alter the decision. Cf. H.N.M. Enterprises, Inc. v. Hamilton, 49 Or. App. 613, 617, 621 P.2d 57 (1980), rev den, 290 Or. 449 (1981) ("An appellant has the responsibility of providing a sufficient record for review of the claims of error. If the record is insufficient for review, the unreviewable claims of error will be disregarded."). Responsibility for the failure to create a record of the arbitration hearing and make it part of the trial court record rests on plaintiff's shoulders.
Thus, in instances where two unmarried persons are listed as co-owners on a vehicle's certificate of title, that notation constitutes prima facie evidence that both named individuals are cotenants in the vehicle with each owning an equal interest. See Rogelis v. Pettis, 49 Or. App. 537, 540-41, 619 P.2d 1339 (1980), rev den 290 Or. 449 (1981) (in absence of evidence to the contrary, cotenants are presumed to have equal interests in property). Nonmarried persons can co-own personal property either as tenants in common or as joint tenants with right of survivorship.
The Bennetts assert that the failure to provide the transcript is attributable to the court reporter's failure to make appropriate arrangements with them to prepare and file the transcript within the required time, and their decision not to pay for the transcript without an assurance that the court would permit the late filing of it. Without regard to fault, the lack of a transcript prevents our review of the affected assignments of error. See, e.g., H.N.M. Enterprises, Inc. v. Hamilton, 49 Or. App. 613, 617, 621 P.2d 57 (1980), rev den 290 Or. 449 (1981). The Bennetts attempt to avoid the problem created by the lack of a trial transcript by arguing that the errors that they raise can be established through the pleadings and facts that appear elsewhere in the record.