State v. Toste
| Decision Date | 27 October 2004 |
| Citation | 196 Or. App. 11,100 P.3d 738 |
| Parties | STATE of Oregon, Respondent, v. Paul R. TOSTE, Appellant. |
| Court | Oregon Court of Appeals |
Kevin T. Lafky, Salem, argued the cause for appellant. On the brief were Elizabeth A. Baldwin, Van Nuys, CA, and Stephen L. Roman.
Kaye Ellen McDonald, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
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(1)(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:
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—nondouble-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:
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:
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:
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(1)(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(1)(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 P.3d 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 P.2d 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:
rev. den., 325 Or. 247, 936 P.2d 363 (1997) ( ).
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 defen...
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