Opinion
A162690
08-07-2019
STATE of Oregon, Plaintiff-Respondent, v. Jeremy Michael STEELE, Defendant-Appellant.
Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
Egan, C. J., vice Garrett, J. pro tempore.
ORTEGA, P. J. Defendant appeals from a judgment of conviction for first-degree failure to appear, ORS 162.205, and second-degree failure to appear, ORS 162.195, for violating the terms of release agreements stemming from two separate cases. He argues that the state "implicitly elected" to try him for violating a particular release agreement, among several that were admitted into evidence, and that the trial court then erred by convicting him for violating different release agreements that were not the focus of the state’s case. We conclude that defendant’s argument is unpreserved and does not constitute plain error, and we therefore affirm.
We reject defendant’s remaining assignments of error without discussion.
Defendant was charged with crimes in two separate cases: a felony in case number 15CR53510, and a misdemeanor in case number 12FE0120. On December 3, 2015, the trial court released defendant pursuant to a conditional release agreement in the felony case; on December 9, 2015, the trial court released defendant pursuant to a conditional release agreement in the misdemeanor case. Collectively, we refer to those as the December release agreements. Although the record is unclear why, a warrant was issued for defendant on December 14, 2015, and he was arrested and taken into custody. At a hearing on January 13, 2016, the trial court set a future appearance date for both cases for March 16, 2016, and ordered defendant "to comply with your release agreement." Defendant was then again released from jail on January 31, 2016, pursuant to a third conditional release agreement, for both the misdemeanor and felony cases, with a future appearance date of March 16, 2016 (hereinafter referred to as the January release agreement).
Defendant did not appear at the March 16 hearing, in violation of all three release agreements. The trial court issued a bench warrant in both cases. The state later charged defendant with one count of first-degree failure to appear in the felony case and one count of second-degree failure to appear in the misdemeanor case. At defendant’s bench trial on those charges, the trial court, at the state’s request, took judicial notice of "the underlying proceedings and documents contained in" both cases. Included in those documents were defendant’s December release agreements, but not the January release agreement. The prosecutor referenced the January release agreement but not the December release agreements in his opening statement, and the state admitted the January release agreement into evidence in its case in chief and called Deputy Curfman to testify about its issuance. At the close of the state’s case, defendant made a motion for judgment of acquittal on the charges of both first- and second-degree failure to appear, arguing that the state had failed to present evidence of a valid release agreement because, in his view, Curfman was not authorized to execute an enforceable release agreement. The court asked the state if it had any proof that the deputy had authority to execute the January release agreement, and the state responded that it did not have any direct evidence of such authority but noted that, during its case in chief, the state had played an audio recording of the January 13, 2016, hearing and a separate "release agreement was referenced in the January 13th court proceeding." Presumably, the state was referring to the December release agreements. The court responded that no evidence had "been tendered to the court to support that." The state then pointed out that the court files, which had been admitted into evidence through judicial notice, contained the December release agreements. The court asked that the parties take a recess and return with an argument as to whether the deputy was authorized to execute the January release agreement. After returning and hearing arguments on the issue, the court denied defendant’s motion for a judgment of acquittal.
Defendant again argued in his closing statement that the state had not satisfied its burden of proof as to the existence of a valid release agreement because Curfman was not authorized to execute a "sworn writing" as required by ORS 135.230(9). Therefore, according to defendant, the January release agreement was not valid or enforceable against defendant. The court then noted that there was "no objection to [the court] taking judicial notice of the underlying case[s]" and found, among other things, that defendant was subject to the December release agreements, that, at the January 13, 2016, hearing, the trial court continued those release agreements, and that the January release agreement which defendant signed was "superfluous to" the "original" (that is, the December) release agreements. The court then found defendant guilty of both counts of failure to appear.
Defendant objected to the ruling, contending that the state had not presented evidence of the December release agreements. The court responded that such evidence had been admitted when the court took judicial notice of the documents in both underlying cases, and that it had "reviewed that and * * * identified the prior release agreement that was signed by the defendant on December 9th of 2015 as indicated by the Court." The following colloquy then took place:
"[Defense Counsel]: Can we submit—can we submit that into evidence, Your Honor, as part of this record?
"THE COURT: I have for judicial notice purposes. Do you want the documents themselves?
"[Defense Counsel]: Yes, Your Honor.
"THE COURT: Okay."
The release agreements were then admitted as Defendant’s Exhibit 101, and the court made further findings about those agreements in sentencing defendant.
On appeal, defendant argues that by focusing its case on the January release agreement, the state implicitly elected to prosecute him for violating that agreement only. According to defendant, that implicit election prohibited the trial court from considering the December release agreements when determining defendant’s guilt. Defendant thus concludes that the trial court erred by "ignor[ing] the state’s election and [finding] defendant guilty of committing a different criminal offense." The state responds that defendant’s argument was not preserved and that defendant’s claimed error does not merit plain error review. The state is correct that defendant’s argument is not preserved. To preserve an issue for appeal, "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 its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000). Below, defendant’s objection was based solely on the sufficiency of the evidence to convict defendant, including that the December release agreements were not in the record. He argues on appeal that, as a legal matter, the state made an implicit election to prosecute defendant for violating the January release agreement, and the trial court was prohibited from using the December release agreements as the basis for a conviction, regardless of whether they were properly admitted into evidence (which defendant no longer contests). Put simply, defendant made a factual and record-based argument below and, on appeal, he raises a purely legal argument. Therefore, the issue was not preserved for appeal and may only be reviewed for plain error. ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *, provided that the appellate court may, in its discretion, consider a plain error.").
Determining whether to review for plain error involves a two-step inquiry. Ailes v. Portland Meadows Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991). First, "[f]or an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences." State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013). Second, we must decide whether to exercise our discretion to consider the error and, if we do, articulate our reasons for doing so. Ailes , 312 Or. at 382, 823 P.2d 956.
Here, the claimed error of law is not an "obvious" one. To address it would require us to answer several questions that are unresolved in our case law: (1) whether, as a matter of law, the state can make an "implicit election" through attorney arguments; (2) if so, whether the state did in fact make such an election here by focusing the majority of its argument on a single theory; and (3) if it did, whether the trial court was bound by that election. We begin and end our discussion with the first question.
Our case law does not provide a clear answer to the question of whether the state could make an implicit election. Cutting against defendant’s contention is State v. Addicks , 30 Or. App. 249, 566 P.2d 1212, rev. den. , 280 Or. 521 (1977). In that case, the defendant was charged with murdering his business partner. Id. at 251, 566 P.2d 1212. Another individual, Cartwright, testified that he had planned and carried out the murder with the defendant. Id. Throughout the trial, the state’s theory of the case was that the defendant specifically, rather than Cartwright, killed the victim. Id. at 254, 566 P.2d 1212. The jury was instructed that it could find defendant guilty if he aided or abetted Cartwright in killing the victim. Id. The defendant was found guilty and appealed, arguing that it was error to instruct the jury on an aid and abet theory of liability when the state’s theory during trial was limited to principal liability. Id. at 254-55, 566 P.2d 1212. We affirmed the conviction and held that
"[a] jury does not resolve the question of guilt or innocence simply by deciding whether the state’s ‘theory of the case’ has been proved beyond a reasonable doubt. It determines whether a defendant is guilty or innocent by applying the law—as explained by the judge—to what it finds the ultimate facts of the case to be . The state did produce evidence tending to show that defendant and Cartwright had entered into an agreement to commit the murder charged. It was not error to instruct the jury upon all legal theories of guilt within the framework of the accusatory instrument which might have been applicable to the facts ultimately found."
Id. at 255, 566 P.2d 1212 (emphasis added); see also State v. Moriarty , 87 Or. App 465, 469, 742 P.2d 704, rev. den. , 304 Or. 547, 747 P.2d 998 (1987) ("The fact that aiding and abetting theory of the crime was not the state’s main theory does not preclude an instruction on that theory.").
We applied the reasoning in Addicks to our review of a trial court’s denial of a motion for judgment of acquittal in State v. Goddard , 178 Or. App 538, 37 P.3d 1046, rev. den. , 334 Or. 121, 47 P.3d 484 (2002). In that case, the state focused on a particular theory of guilt. Id. at 540, 37 P.3d 1046. The defendant was found guilty and appealed the denial of his motion for judgment of acquittal. Id . On appeal, the state conceded that the theory it had argued below was legally unsound but argued that we should affirm based on a separate and distinct factual theory. Id . The defendant argued that the "state should not be permitted to shift its theory of the case" on appeal. Id. at 541, 37 P.3d 1046. We held that on appeal, when reviewing the denial of a motion for judgment of acquittal, "we must examine the entire record to determine whether it contains evidence from which a jury could have found all of the necessary elements, regardless of which items of evidence the state or the defendant chose to emphasize in their arguments at trial. Id. (emphasis in original).
On the other hand, two recent cases provide some support for defendant’s view. In State v. Burgess , 352 Or. 499, 501, 287 P.3d 1093 (2012), "[a]t trial, the state proceeded solely under the theory that defendant had aided and abetted his codefendant’s initial assault on the victim." The defendant was found guilty. Id . We reversed, holding that the "evidence was not sufficient to support" a conviction as an accomplice. Id. at 503, 287 P.3d 1093. On review in the Supreme Court, the state argued that, because it presented sufficient evidence at trial to permit the jury to convict defendant as a principal actor, it was permissible to shift its theory of the case on appeal. Id. at 504, 287 P.3d 1093. The defendant responded that, "at trial, the prosecutor ‘elected’ as a matter of law to confine the state’s prosecution under the indictment to accomplice liability, and for that reason the state is barred on appeal from arguing a separate theory of criminal liability." Id. The Supreme Court explicitly did not answer the question of whether the state did, or could, implicitly elect a theory of criminal liability through its arguments. Id. Nevertheless, the court concluded that, under the circumstances, "it would be fundamentally unfair to defendant to sustain defendant’s conviction on a separate factual and legal theory that has been proffered by the state for the first time on appeal." Id . Thus, Burgess suggests that, at some point during the litigation and appellate process, the state does become bound to the theory it argued during trial, but it does not provide guidance as to when that may be the case.
In State v. Sippel , 288 Or. App 391, 394, 406 P.3d 207 (2017), we also left open the question of whether it is permissible for a trial court to allow the state to introduce a new factual theory of guilt during closing arguments. There, we resolved the case by holding that, whether or not such action was permissible, the trial court was required to provide the jury with a concurrence instruction. Id . These cases demonstrate that any error that the trial court may have committed here by convicting defendant based on a factual theory not robustly argued below by the state was not obvious and was "reasonably in dispute." Therefore, it is not reversible as plain error.
Sippel is consistent with our recent decision in State v. Payne , 298 Or. App 411, 427-28, 447 P.3d 515 (2019), which explained that, to bind a factfinder to the state’s election, the court must explicitly charge the factfinder in some way. Thus, while Payne does not answer the questions presented in this case, it does lend support for the idea that, to be effective, an election must be explicit in order to ensure that both parties, the court, and the factfinder all proceed under the same theory of the case.
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Affirmed.