State v. Wilson, 920834764; A121457.

• Court: Court of Appeals of Oregon
• Citation: 173 P.3d 150
• Docket Number: 920834764; A121457.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Gregory Paul WILSON, Defendant-Appellant.
• Decision Date: 28 November 2007

173 P.3d 150 STATE of Oregon, Plaintiff-Respondent,
v.
Gregory Paul WILSON, Defendant-Appellant. 920834764; A121457. Court of Appeals of Oregon. Argued and Submitted June 8, 2007. Decided November 28, 2007.

[173 P.3d 151]

Richard L. Wolf, Portland, argued the cause and filed the briefs for appellant.

Anna M. Joyce, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Senior Assistant Attorney General.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

215 Or. App. 228

This is the third appeal of this case, which arises from defendant's involvement in the 1992 abduction and death of Misty Largo.¹ Defendant was convicted, on retrial, of five counts of attempted aggravated murder and one count of attempted murder. On appeal, defendant argues that the trial court erred in (1) giving an "acquittal first" instruction pursuant to ORS 136.420(2), (2) denying a mistrial based on alleged prosecutorial misconduct, (3) instructing the jury, based on the Oregon Supreme Court's affirmance of a prior appeal of defendant's conviction for other felonies arising from this same incident, that the state had proved those crimes for purposes of the jury's consideration of the aggravated murder charges, (4) refusing to merge the convictions on retrial with those previously affirmed felony convictions, and (5) imposing a consecutive sentence based on judicial findings. We reject all of defendant's contentions except the last, which is controlled by State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007). Accordingly, we reverse and remand for resentencing but otherwise affirm.

The circumstances material to our review are undisputed. In 1992, defendant was charged with, and convicted of, multiple crimes relating to Largo's kidnapping and murder. Specifically, as pertinent here, a jury convicted defendant of nine counts of aggravated murder, one count of murder, one count of second-degree kidnapping, two counts of first-degree kidnapping, and one count of third-degree assault. The trial court merged the murder conviction into one of the aggravated murder convictions and also merged the various underlying felony assault and kidnapping convictions into other aggravated murder counts and, based on requisite determinations by the jury, imposed a sentence of death on the aggravated murder counts. On direct review, the Oregon Supreme Court reversed defendant's convictions for murder and aggravated murder based on evidentiary error, but affirmed defendant's other convictions and remanded the case for further proceedings. State v. Wilson,

215 Or. App. 229

323 Or. 498, 519, 918 P.2d 826 (1996), cert. den., 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 (1997) (Wilson I).

On remand, defendant successfully postponed retrial on the murder and aggravated murder charges while he sought collateral relief. Meanwhile, the state sought to have defendant resentenced on the convictions that had been affirmed by the Oregon Supreme Court. The trial court then sentenced defendant on two counts of first-degree kidnapping (the court merged the second-degree kidnapping count) and one count of third-degree

173 P.3d 152

assault. The court imposed a 140-month sentence on one of the first-degree kidnapping counts and a concurrent indeterminate 30-year dangerous offender sentence on the other, as well as a concurrent 18-month sentence for the third-degree assault. In State v. Wilson, 161 Or.App. 314, 985 P.2d 840 (1999), rev. den., 330 Or. 71, 994 P.2d 133 (2000) (Wilson II), defendant challenged those sentences, and we affirmed.²

As noted, defendant's present appeal concerns his retrial on eight counts of aggravated murder³ and one count of murder. On retrial, defendant was found guilty of five counts of the lesser-included offense of attempted aggravated murder, each on a different theory, and one count of the lesser-included offense of attempted murder. The jury failed to reach a verdict on three additional counts of aggravated murder, each on a different theory. The court granted a mistrial as to the counts on which the jury had failed to reach a verdict and, at sentencing, merged all of the convictions into a single conviction for attempted aggravated murder and initially imposed an upward departure sentence of 120 months' imprisonment. The court subsequently amended the judgment to delete the departure sentence and impose a presumptive sentence of 66 months' imprisonment for attempted aggravated murder, 60 months of which were to run consecutively to defendant's sentence for first-degree kidnapping, as affirmed by this court in Wilson II. In imposing that consecutive sentence, the trial court determined that

215 Or. App. 230

the attempted aggravated murder offense "caused a greater or qualitatively different injury or harm to the victim, per ORS 137.123(5)" than the first-degree kidnapping.

We first address defendant's assignments of error challenging rulings in the course of the retrial on the aggravated murder and murder charges. Defendant first challenges the trial court's giving of an "acquittal first" instruction pursuant to ORS 136.460(2). As described more fully below, defendant contends that, because his alleged crimes occurred in 1992 and ORS 136.460 was not enacted until 1997, the giving of the statutorily prescribed instruction violated the ex post facto provisions of the state and federal constitutions. ORS 136.460 provides, in pertinent part:

"(1) Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.

"(2) The jury shall first consider the charged offense. Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense."

That statute was enacted in 1997. Or. Laws 1997, ch 511, § 1. Before the enactment of that statute, the Oregon Supreme Court held in State v. Allen, 301 Or. 35, 39, 717 P.2d 1178 (1986), that, although "acquittal first" instructions had historically been given in criminal cases in Oregon, such an instruction could have the effect of coercing jurors with minority views to change their minds. The Supreme Court had, thus, concluded that, although juries could be instructed to first consider charged offenses before considering lesser-included offenses, they should not be told that they must reach a verdict of acquittal on the greater charges first. Id. at 39-40, 717 P.2d 1178. Consequently, at the time of defendant's crimes charged here—after Allen and before the enactment of ORS 136.460—Allen was controlling law and "acquittal first" instructions were not given.

Given that timing, defendant argues that giving the "acquittal first" instruction at his retrial violated the ex post

215 Or. App. 231

facto provisions of Article I, section 21, of the Oregon Constitution and Article I, section 10, of the United States Constitution. In particular, defendant argues that, under both the state and federal constitutional analyses, the giving of the instruction ran afoul of the principle that a law "`that alters the legal rules of evidence, and receives less, or different testimony, than the

173 P.3d 153

law required at the time of the commission of the offence,'" is an ex post facto law. State v. Fugate, 332 Or. 195, 212, 26 P.3d 802 (2001) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-91, 1 L.Ed. 648 (1798) (emphasis in Fugate omitted)).

The state responds, quite cogently, that ORS 136.460 does not alter any legal rule of evidence or alter the type or amount of evidence received at trial at all. In that regard, the state emphasizes that the Oregon Supreme Court has recently explained that the operative species of ex post facto law— Calder's "fourth category"—refers to an evidentiary change that "alters the sufficiency-of-evidence standard or otherwise reduces the quantum of evidence necessary to meet the burden of proof to convict." State v. Guzek, 336 Or. 424, 445-46, 86 P.3d 1106 (2004), vac'd and rem'd on other grounds, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006) (internal quotation marks, citation, and omitted).

We need not, however, address the dubious proposition that a change in the law concerning the order in which a jury deliberates on charges is tantamount to a law that alters an evidentiary standard. That is so because of the posture in which the matter arises and the manner in which it is framed for our consideration. In particular, defendant contends—or, at least, did in his opening brief—that, as a result of the alleged error, his convictions (for attempted aggravated murder and attempted murder) must be reversed. Defendant also argues, particularly in his reply brief, that the alleged error caused the jury to be unable to reach a verdict on the counts of aggravated murder on which the trial court ultimately granted a mistrial. Thus, defendant seems to argue that the giving of the "acquittal first" instruction both (1) compels reversal of his convictions on lesser-included...