339

Argued and submitted December 6, 2018, reversed and remanded July 8, 2020

STATE OF OREGON, Plaintiff-Respondent, v. WILLIAM MARTIN SAVAGE, Defendant-Appellant. Washington County Circuit Court C132332CR; A163866

Defendant appeals from a judgment of conviction for theft, raising two assignments of error and two supplemental assignments of error. The state con- cedes to defendant’s second supplemental assignment of error, that under Ramos v. Louisiana,

,

,

(2020), defendant’s conviction by a nonunanimous jury verdict violated the Sixth Amendment, which obviates the need to address defendant’s other assignments of error. Defendant requests, however, that the Court of Appeals nevertheless address his first assignment of error, that at his first retrial for his theft charge, the trial court erroneously admitted evidence related to his burglary charge, of which he was acquitted. Although defendant raised an evidentiary exclusion argument at his first retrial, primarily related to prior bad acts, defendant now makes an unre- lated constitutional argument on appeal that double jeopardy principles prevent the state from relying on facts, and evidence, related to a previous acquittal. Held: Defendant’s first assignment of error was rejected on preservation grounds; thus, the Court of Appeals did not address the merits of that argument. Defendant’s conviction was nevertheless reversed, based on a nonunanimous ver- dict, obviating the need to address defendant’s other assignments of error. Reversed and remanded.

Theodore E. Sims, Judge. Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Rolf Moan, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before DeHoog, Presiding Judge, and James, Judge, and Aoyagi, Judge.* ______________ * James, J., vice Hadlock, J. pro tempore. 340 State v. Savage

JAMES, J. Reversed and remanded. Cite as

(2020) 341

JAMES, J. In 2014 defendant was tried for a residential break-in where property was stolen. The jury acquitted him of bur- glary and robbery but convicted him of aggravated first- degree theft. Defendant appealed the theft conviction and prevailed. Before retrial in 2016 for theft, defendant moved, in limine, to exclude evidence related to, and suggestive of, the 2014 burglary and robbery charges against defendant in proving the theft count, arguing that its introduction vio- lated the Oregon Evidence Code (OEC) in multiple respects, primarily that such evidence constituted impermissible prior bad acts. The court excluded the robbery evidence but allowed the burglary evidence, and defendant was ulti- mately convicted of aggravated first-degree theft. Defendant appeals from the most recent judgment of conviction, raising two assignments of error and two sup- plemental assignments of error. In defendant’s second sup- plemental assignment of error, he challenges his conviction by less than a unanimous verdict and that the court accepted the jury’s 10 to 2 guilty verdict. In Ramos v. Louisiana,

,

,

(2020), the Court concluded that nonunanimous jury verdicts violated the Sixth Amendment. In State v. Ulery,

, ___ P3d ___ (2020), the Oregon Supreme Court concluded that a trial court’s acceptance of a nonunanimous verdict con- stituted plain error and, in light of the gravity of the error, exercised discretion to correct that error, considering that failure to raise the issue in the trial court did not weigh heavily against correction, as the trial court would not have been able to correct the error under controlling law. The state concedes that the trial court’s acceptance of a nonunanimous verdict in this case constitutes plain error. For the reasons set forth in Ulery, we exercise our discretion to correct the error in this case. That disposition obviates our need to address defendant’s first supplemen- tal assignment of error or his second assignment of error, raised in the opening brief. However, defendant has filed a memorandum of additional authorities requesting that, despite the state’s concession, we address his first assignment of error because 342 State v. Savage

the legal issue is likely to arise on remand. Ordinarily, we will consider issues likely to arise on remand when the trial court or agency has determined a question of law that will still be at issue after the case is remanded. See, e.g., Westwood Construction Co. v. Hallmark Inns,

,

, rev den,

(2002) (addressing ruling concern- ing the availability of certain type of attorney fees under ORS 87.060 as likely to arise on remand). Defendant’s first assignment of error might, arguably, fall under that ambit. Notwithstanding that possibility, however, we do not reach the merits of defendant’s first assignment of error because, as we explain below, we conclude that it is unpreserved. In defendant’s first assignment of error he chal- lenges the trial court’s denial of his motion in limine, advancing on appeal a constitutional double jeopardy argu- ment concerning issue preclusion—specifically, that double jeopardy principles prevent the state from relying on facts, and evidence, related to a previous acquittal, relying pri- marily on Ashe v. Swenson,

,

,

(1970), and Oregon cases that have adopted Ashe’s reasoning. The state does not dispute preservation in its brief- ing in this case. Nevertheless, we have an “independent obligation to determine whether an argument advanced on appeal was preserved at trial.” Vokoun v. City of Lake Oswego,

,

(2003), rev den,

(2004) (citing State v. Wyatt,

,

(2000)). In Ashe, the case principally relied upon by defen- dant on appeal, the United States Supreme Court held that double jeopardy also encompassed certain principles of issue preclusion.

. Ashe was first applied in Oregon in State v. Mozorosky,

,

(1977). There, the Oregon Supreme Court emphasized the analytical framework set forth in Ashe: “Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceed- ing, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational Cite as

(2020) 343

jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from con- sideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ”

at 498 (quoting Ashe,

) (internal citations omitted). For purposes of assessing preservation then, we must ask whether the trial court here was ever asked to undertake the record review contemplated by Ashe, or asked to assess the prior trial record to determine if “it would have been irrational” for the jury in the first trial to acquit with- out finding in favor of defendant on a fact essential to a con- viction in the new trial. Currier v. Virginia, ___ US ___,

,

(2018) (discussing the Ashe inquiry). We conclude that it was not. Upon review of the trial record here, it is apparent that before the trial court, defendant was making an evi- dentiary exclusion argument, not an argument seeking sup- pression of evidence based on a constitutional right.1 That is further reinforced when we view that argument in the context of defendant’s written motion in limine. Nowhere in that motion does defendant cite the federal or state constitu- tions, Ashe, or any Oregon case adopting Ashe, or otherwise advance any argument that constitutional double jeopardy principles prohibit the admission of certain evidence. While defendant did, in one sentence in oral argu- ment before the trial court, reference double jeopardy, he did not orally inform the court or opposing counsel of Ashe, Ashe’s requirement for a record review, Ashe’s analytical test, or how double jeopardy would change the analysis in any way from the OEC prior bad acts cases upon which he relied. Accordingly, we reject defendant’s first assignment of error on preservation grounds. We reverse defendant’s con- viction based on a nonunanimous verdict. Reversed and remanded.

1 At least one court has indicated that issue preclusion arguments based in double jeopardy might be properly categorized as a motion to suppress. See, e.g., United States v. Mock, 604 F2d 336, 338 (5th Cir 1979).