State v. Wolfs

• Decision Date: 13 February 1992
• Parties: STATE of Oregon, Petitioner on Review, v. Jay Randall WOLFS, Respondent on Review. CC 10-88-01844; CA A60331; SC S37847.
• Court: Oregon Supreme Court

Page 623

826 P.2d 623

312 Or. 646

STATE of Oregon, Petitioner on Review, v. Jay Randall WOLFS, Respondent on Review.

CC 10-88-01844; CA A60331; SC S37847.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 7, 1991.

Decided Feb. 13, 1992.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. Ann Kelley, Asst. Atty. Gen., Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, filed the petition, for petitioner on review.

George W. Kelly, Eugene, argued the cause and filed the response to the petition, for respondent on review.

GRABER, Justice.

The question presented in this criminal case is whether the granting of a defendant's motion for "judgment of acquittal" during trial, on the sole ground that the indictment did not state facts sufficient to establish a crime, bars a later prosecution. The Court of Appeals answered "yes." State v. Wolfs, 105 Or.App. 5, 803 P.2d 1192 (1990). We reverse.

Defendant was indicted for being an ex-convict in possession of a concealable firearm. ORS 166.270(1) (1985). ¹ After the state presented its case-in-chief at trial, defendant moved for a "judgment of acquittal." He argued that the indictment did not state facts sufficient to establish a crime. Defendant's only theory in support of the motion was that the indictment was defective in that it did not allege that the firearm was concealable. The trial court granted the motion and entered an "Order of Judgment of Acquittal," which gave "leave for the State to resubmit to the Grand Jury."

The state obtained a new indictment. At his second trial, defendant moved for a dismissal on the basis of former jeopardy under the applicable state statutes and constitutional prohibition. The trial court denied the motion. Defendant was convicted, and he appealed. The Court of Appeals reversed, holding that "[t]he second prosecution was barred by Oregon's constitutional ban against a person['s] being twice put in jeopardy for the same offense." ² State v. Wolfs, supra, 105 Or.App. at 10, 803 P.2d 1192. The court reasoned that State v. McKenzie, 307 Or. 554, 771 P.2d 264 (1989), suggested that result. 105 Or.App. at 8-10, 803 P.2d 1192. "This court analyzes the statutory issues applicable to a case before reaching constitutional ones." State v. Davis, 295 Or. 227, 240, 666 P.2d 802 (1983). In this case, the Oregon statutes concerning jeopardy do not afford protection to defendant. The pertinent statutes include portions of ORS 131.505, 131.515, 131.525, and 136.445, as follows:

ORS 131.505(6) provides:

"There is an 'acquittal' if the prosecution results in a finding of not guilty by the trier of fact or in a determination that there is insufficient evidence to warrant a conviction."

ORS 131.515(1) provides:

"Except as provided in ORS 131.525 and 131.535:

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

ORS 131.525(1) provides in part:

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

"(a) The defendant consents to the termination or waives, by motion, by an appeal upon judgment of conviction, or otherwise, the right to object to termination.

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

" * * * * *

"(B) There is a legal defect in the proceeding that would make any judgment entered upon a verdict reversible as a matter of law[.]"

ORS 136.445 provides:

"In any criminal action the defendant may, after close of the state's evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same offense."

Those statutes make clear that, to be a statutory bar to a later prosecution for the same offense, an "acquittal" must relate to the substance of what occurred at the first prosecution. An "acquittal" means "a finding of not guilty by the trier of fact or * * * a determination that there is insufficient evidence to warrant a conviction." ORS 131.505(6). Similarly, for a "judgment of acquittal" to bar a later prosecution for the same offense, the court's granting of the defendant's motion for judgment of acquittal must be on the ground that "the evidence introduced theretofore is such as would not support a verdict against the defendant." ORS 136.445. In contrast, when a defendant moves to terminate a proceeding on the sole ground that the accusatory instrument is defective, the applicable statutes do not bar a later prosecution. ORS 131.525(1)(a), (b)(B).

We turn, then, to defendant's state constitutional argument, which is based on this court's opinion in State v. McKenzie, supra. In McKenzie, the defendant was charged with escape. At trial, he moved for a judgment of acquittal at the conclusion of the state's case, arguing that the phrase "unlawful departure," as used in the statute defining "escape," was unconstitutionally vague. The trial court denied the motion. The defendant was convicted; he appealed. The Court of Appeals held that the constitutional challenge to the statute was untimely, because the defendant could make such a challenge exclusively by means of a demurrer before trial. State v. McKenzie, 92 Or.App. 647, 650, 759 P.2d 1123 (1988). On review, this court held that, although "a motion for a judgment of acquittal was not the proper method to challenge the constitutionality of the statute, we conclude that a remedy was available in the form of a motion in arrest of judgment." State v. McKenzie, supra, 307 Or. at 556, 771 P.2d 264. The case was remanded to the Court of Appeals to decide the vagueness claim on its merits. Ibid. In explaining the holding, this court wrote:

"To understand why it is inappropriate to consider a motion for judgment of acquittal as a demurrer it is necessary to consider the procedural status of criminal cases when they reach the Court of Appeals. Generally speaking, criminal cases will reach the Court of Appeals on an appeal by the defendant after a judgment of conviction. ORS 138.040. Occasionally, the state appeals following a ruling on a pre-trial motion or a demurrer. ORS 138.060. In none of these circumstances is the Court of Appeals faced with a double jeopardy problem because no trial has yet been held. Defense appeals do not present double jeopardy problems because the defendant already has been found guilty and cannot complain if his conviction is reversed and a new trial ordered. The state can appeal successful motions for a new trial or in arrest of judgment without risk of jeopardy attaching to the outcome because a reversal merely reinstates the earlier conviction.

"That is not the case following a successful motion for a judgment of acquittal that is allowed during trial. The granting of such a motion acts as a bar to future prosecution. ORS 136.445. The Court of Appeals has attempted to avoid this problem by construing such motions as demurrers, but that construction only evades the statutory prohibition against reprosecution. The constitutional bar remains. Of course, by the time [ State v.] Johnson [, 80 Or.App. 350, 722 P.2d 1266 (1986),] and [ State v.] Woodley [, 88 Or.App. 493, 746 P.2d 227 (1987), rev'd on other grounds, 306 Or. 458, 760 P.2d 884 (1988),] reached the Court of Appeals, the state's right to retry the defendants was protected by a guilty verdict. The state has no such protection at the trial court level. If the trial judge grants a motion for acquittal (or sustains a demurrer) during trial, the state will be unable to appeal and future prosecution will be barred." 307 Or. at 558-59, 803 P.2d 1192 (footnotes omitted; emphasis in original).

The Court of Appeals relied solely on that passage, and in particular on the last sentence just quoted, to reach its result in the present case. 105 Or.App. at 9-10, 803 P.2d 1192. That sentence from State v. McKenzie, supra, must be read in context. The only issue presented in McKenzie was "whether a criminal statute may be challenged for unconstitutional vagueness by a motion for a judgment of acquittal made at the conclusion of the State's case." 307 Or. at 556, 803 P.2d 1192. In that situation, if the criminal statute under which the indictment was brought were held to be unconstitutionally vague and a "judgment of acquittal" were entered, ³ then a later prosecution necessarily would be barred, because there would be no valid statutory basis on which such a prosecution could go forward. In contrast, here, defendant does not attack the validity of the statute under which he was prosecuted. Instead, he argues that the indictment did not include all the essential elements of the statute. In that situation, a later prosecution is not necessarily barred, because a proper indictment is still possible.

An assertion that the facts stated in the accusatory instrument do not constitute an offense is a ground for a demurrer. ORS 135.630(4). ORS 135.610(1) provides that a defendant may enter a demurrer "either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose." Accordingly, the applicable statutes permit the trial court to allow a defendant to assert that the facts stated in the accusatory instrument do not constitute an offense, at any time, including at the close of the state's case-in-chief. The first question is whether the analysis of former jeopardy under the state constitution should differ on the sole ground that one defendant makes the assertion in a "demurrer," while another defendant makes an identical assertion in a "motion for judgment of acquittal." We answer that question "no." There is no principled reason for the analysis of former jeopardy under the state constitution to differ merely because...