author: TOOKEY, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Anthony Patrick CONNELLY, Defendant-Appellant.
    A165943
    Court of Appeals of Oregon.
    Submitted April 22, 2019. June 19, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the briefs for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Defendant appeals a judgment of conviction for the unauthorized use of a vehicle (UUV), ORS 164.135, assigning error to the trial court's denial of his motion for judgment of acquittal. On appeal, defendant argues that "the state's evidence in this case was insufficient to support a reasonable inference that defendant had actual knowledge that the Subaru was stolen when he possessed it." We conclude that a rational factfinder could have found that the state proved beyond a reasonable doubt that defendant knew this vehicle was stolen and, therefore, the trial court did not err when it denied defendant's motion for judgment of acquittal. Accordingly, we affirm.

When reviewing the denial of a motion for judgment of acquittal, we review the facts in the light most favorable to the state and draw all reasonable inferences in the state's favor to determine "whether any rational trier of fact, accepting reasonable inferences and making reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt." State v. Lupoli , 348 Or. 346, 366, 234 P.3d 117 (2010). We present the facts consistently with that standard.

The victim in this case was the owner of a 1997 Subaru Legacy. One weekend, the victim left her Subaru parked on the street in front of her friend's house in Portland on Friday night to attend an event in Seattle. The victim returned on Sunday to find that her Subaru was missing, and the victim reported her vehicle as stolen because she had not given anyone else permission to use her vehicle.

Several weeks after the victim had reported her vehicle as stolen, Officer Powell responded to a call for assistance by some employees at Fred Meyer. The employees directed Powell's attention to defendant, his co-defendant (Jones), and a 1997 Subaru Legacy. When Powell approached the Subaru, Powell noticed that there were no license plates on the Subaru and that the Subaru only had a temporary trip permit. Based on Powell's training and experience as a police officer, Powell explained that the absence of license plates and the use of a temporary trip permit is a suspicious characteristic for a vehicle because there is no license plate that an officer can readily use to conduct a record check to find out if the vehicle is stolen. Instead, if there is no license plate, the officer uses the vehicle identification number (VIN) to conduct a record check, but that requires going into the vehicle, or looking through the windshield of the vehicle, to find the VIN. Powell located the VIN by looking through the window of the Subaru and relayed the VIN to dispatch. Dispatch advised Powell that the Subaru had been reported stolen.

When Powell contacted defendant, Powell noticed that defendant was wearing a computer chip on a lanyard around his neck. Defendant was taken into custody and officers removed the lanyard with the computer chip from around defendant's neck and gave it to Officer Wall, who was collecting the evidence in this case.

Wall, who had previously been employed as a detective on an auto theft task force in Texas, and received specific training on vehicle theft, knew that "[e]arly 90's to late 90's" Subarus are a target for car thieves because they can be started with a "jiggle key" or by using an electronic ignition bypass system that allows car thieves to start the vehicle by inserting a computer chip to bypass the ignition and flipping a relay switch to engage the starter. Wall noticed that the computer chip that defendant had on the lanyard around his neck "was the chip key for th[e] relay switch" on the ignition bypass system on the driver's side of the Subaru. The victim's Subaru did not have an electronic ignition bypass system before it was stolen. Wall knew from his training and experience that ignition bypass systems are not installed any more for any "legitimate security purpose," but are "typically used as a way to clean up a hotwire, so that you don't have a mess of wires hanging out from underneath the dash" to make the vehicle "look[ ] a little more legitimate." Based on the "wiring with the tape" on the ignition bypass system, the relay switch for the starter, and the lack of any legitimate key for the Subaru, Wall determined that this was the type of ignition bypass system that is "common with stolen vehicles" and that defendant would not "need the actual metal key that unlocks the doors and cranks the ignition at all" in order to drive the Subaru. Wall also discovered from defendant's Facebook page that defendant was mechanically inclined and had knowledge of how to work on vehicles.

As Wall continued his investigation, Wall also observed the absence of any license plates on the Subaru. Wall explained that that raised his suspicion that the Subaru was stolen because "the easiest way for an officer to check and identify whether a vehicle is stolen" is to "[r]un the license plate" because an officer can do that from a computer inside of their own car. Wall stated that "the temporary tag was immediately recognizable as being fictitious" because "some of the numbers had been altered and there was actually another piece of paper that was taped over the top of one of the numbers that had another number written on it." Wall also noted that it was apparent that "someone * * * added the word 97 and then the word Legacy, [and that] they ha[d] overwritten whatever was underneath it" on the "fishy" temporary trip permit.

When Wall removed the temporary trip permit from the back window of the Subaru, Wall discovered that the original license plates for the Subaru that had been reported stolen were inside the car. Additionally, Wall found a different expired license plate that did not belong to the victim and that "had previously been on another stolen vehicle." Wall found three sets of "jiggle keys" on individual key rings in a pocket on the driver's side door of the Subaru that did not belong to the victim. Wall also found a backpack belonging to defendant that contained blank Department of Motor Vehicles (DMV) forms and a notebook with an "imprint of writing that had been done on a previous sheet of paper." Wall used fingerprint powder to determine what had been written on the previous sheet of notebook paper and discovered that it was a purported bill of sale for the Subaru that listed Jones as the buyer but did not "have any relation to the actual owner of the car." Finally, Wall, who had also been trained to detect fraudulent DMV documents, noted that the purported bill of sale would help to "facilitate the transfer [of the Subaru to a new owner] with the DMV" and that there was a "suspicious" DMV transaction receipt in the Subaru that listed Jones as the owner of the Subaru. The transaction receipt was not submitted by the victim to the DMV, and one of the VIN numbers had been changed from a four to a seven to circumvent the DMV's process to determine whether the Subaru had been "flagged" as stolen.

The police contacted the victim and, when the victim went to Fred Meyer and saw her vehicle, the victim noticed that "the hood of the car had been changed * * * [because] it was green [instead of gray] and had a scoop * * * on it," the rear windows had been tinted, some of the decals had been removed, the license plates had been removed, and the ignition bypass, wiring, and switch had been added.

Additionally, the victim did not use a computer chip, like the one found on defendant's lanyard, to operate her vehicle.

As noted above, defendant moved for a judgment of acquittal on the UUV and PSV charges, arguing that "the jury cannot infer [from that evidence,] even in the light most favorable to the state, that they have proven * * * the knowledge aspect of these charges." The state contended that, "in the light most favorable to the state, * * * [i]t is apparent, based on the circumstantial evidence, * * * that the defendant, as the operator and occupant and possessor of this vehicle knew and frankly had to know that this was a stolen car [that] he did not have permission to have." The trial court denied defendant's motion for judgment of acquittal and the jury found defendant guilty of UUV and PSV.

On appeal, defendant assigns error to the trial court's denial of his motion for judgment of acquittal, reprising his argument that the state failed to prove that defendant actually knew that the Subaru was stolen. See State v. Bell , 220 Or. App. 266, 268-69, 185 P.3d 541 (2008) (because the indictment for UUV and PSV alleged that the defendant acted knowingly, "the state was required to prove that [the] defendant actually knew that the car was stolen" (emphasis in original)). Defendant compares the circumstances of this case to Bell , 220 Or. App. 266, 185 P.3d 541, State v. Shipe , 264 Or. App. 391, 332 P.3d 334 (2014), and State v. Korth , 269 Or. App. 238, 344 P.3d 491 (2015), cases in which we concluded that the evidence was insufficient to support an inference that the defendants knew that those vehicles were stolen. In response, the state contends that those cases are distinguishable "because this case involves more and different circumstantial evidence that, when viewed together, would allow a factfinder to conclude beyond a reasonable doubt that defendant knew the vehicle was stolen."

"Thus, we must determine whether, viewing the evidence in the light most favorable to the state, a rational factfinder could have found that the state proved beyond a reasonable doubt that defendant knew the [Subaru] was stolen." Korth , 269 Or. App. at 243, 344 P.3d 491. "The state may prove a defendant's knowledge with circumstantial evidence and reasonable inferences flowing from that evidence." Id .

"However, an inferred fact 'must be one that a rational factfinder can be convinced follows beyond a reasonable doubt from the underlying facts.' " Id . (quoting Bell , 220 Or. App. at 270, 185 P.3d 541 ). "Evidence is 'insufficient to support an inference when the conclusion to be drawn from it requires too great an inferential leap-that is, when the logic is too strained,' or when it 'requires the stacking of inferences to the point of speculation.' " Id . (quoting State v. Bivins , 191 Or. App. 460, 466-68, 83 P.3d 379 (2004) ). "Whether the evidence supports a particular inference is a question of law." Id .

Our opinions in other UUV and PSV cases are instructive and, in light of the parties' arguments, we begin our discussion with a brief overview of our reasoning in Bell , Shipe , and Korth . We recently summarized the holdings of Bell , Shipe , and Korth , in State v. Peirce , 296 Or. App. 829, 440 P.3d 98 (2019).

In Bell , Shipe , and Korth , we concluded that the state failed to prove that the defendants knew that those vehicles were stolen where the state did not adduce any evidence "about the physical appearance of the vehicle that would have indicated to the defendant[s] that the vehicle[s] had been stolen" and where the other evidence that the state presented "was unrelated to any wrongdoing with the stolen vehicles in those cases." Peirce , 296 Or. App. at 838-40, 440 P.3d 98 (citing Korth , 269 Or. App. at 247, 344 P.3d 491 (the defendant operated the truck with a valid key and there was nothing about the appearance of the truck that would have indicated to the defendant that it had been stolen, "such as evidence of damage to the truck's locks, windows, or ignition"), Shipe , 264 Or. App. at 393, 397, 332 P.3d 334 (noting that the truck's "ignition was in working order" and the defendant did not operate the truck with a key that appeared "suspicious," and that the record did not include any "evidence about whether the windows, locks, ignition, or wiring had been damaged or tampered with at all, much less in a way that would have been noticed by anybody using the truck"), and Bell , 220 Or. App. at 271, 185 P.3d 541 (noting the absence of evidence of "tampering or foul play" with the vehicle)). See also State v. Shuneson , 132 Or. App. 283, 286, 888 P.2d 90 (1995) (observing that there "was nothing unusual about the appearance of the vehicle, such as hot wires, that would have indicated to defendant that it was stolen").

Conversely, in Peirce , 296 Or. App. at 840, 440 P.3d 98, there was evidence that was related to "wrongdoing" with the stolen moped. In that case, the defendant was mechanically inclined, the moped's ignition had been damaged so that it would start with a screwdriver or any key, the defendant did not have a valid key, the moped's appearance had been altered by, among other things, the removal of the moped's license plate, and the defendant possessed a "highly suspicious bill of sale." Id . at 838-40, 440 P.3d 98. We concluded that,

"[u]nlike in Korth and Shipe , where there was evidence of drugs, stolen property, 'jiggle keys,' and a 'crime committing kit'-evidence that was unrelated to any wrongdoing with the stolen vehicles in those cases-here, * * * the 'brute forced' ignition, the removal of the license plate, the alterations to the moped's appearance, the 'highly suspicious' bill of sale, and the 'very cheap' price would permit a factfinder to logically infer that defendant actually knew that this moped was stolen because that evidence indicates that the moped itself was stolen."

Id . at 840-41, 440 P.3d 98 (emphasis in original).

We conclude that the evidence in this case is more like the evidence presented in Peirce . The evidence presented in this case is analogous to the evidence we found sufficient to uphold the UUV conviction in Peirce , because "there is evidence of 'tampering' and 'foul play' that is 'relevant to defendant's knowledge' that this [Subaru] was stolen." Id. at 838, 440 P.3d 98 (quoting Bell , 220 Or. App. at 271-72, 185 P.3d 541 ).

First, defendant was mechanically inclined, the Subaru's ignition had been electronically bypassed, and defendant did not have a valid key for the Subaru. Instead of having a valid key, defendant possessed a computer chip that would allow him to bypass the Subaru's ignition and start the Subaru without a key, which indicates that defendant was exercising control over the Subaru and was aware of the ignition bypass system. Additionally, the ignition bypass system that had been installed in the Subaru is no longer used for any "legitimate security purpose," is "used as a way to clean up a hotwire," and is "common [in] stolen vehicles."

Because defendant did not have a valid key to operate the Subaru and, instead, possessed a computer chip to operate the Subaru, we conclude that the ignition bypass, additional tape and wiring, and relay switch are "the type of obvious damage that would indicate to defendant that this [Subaru] was stolen." Peirce , 296 Or. App. at 839, 440 P.3d 98 (citing Korth , 269 Or. App. at 247, 344 P.3d 491 (noting that evidence of obvious damage to the ignition would indicate to a user of a vehicle that the vehicle is stolen, especially when the defendant does not use a valid key to operate the vehicle)).

Second, the license plates had been removed and were found inside the Subaru with a different expired license plate that "had previously been on another stolen vehicle." Furthermore, "the temporary tag was immediately recognizable as being fictitious" because "some of the numbers had been altered and there was actually another piece of paper that was taped over the top of one of the numbers that had another number written on it." Moreover, it was also apparent that "someone * * * * * * added the word 97 and then the word Legacy, [and that] they ha[d] overwritten whatever was underneath it" on the "fishy" temporary tag. And, like the moped in Peirce , the Subaru's appearance had been altered by changing the hood, removing decals, and tinting the rear windows. That evidence also supports a logical inference that defendant knew that this Subaru was stolen. See Peirce , 296 Or. App. at 839, 440 P.3d 98 (the "removal of the license plate from the victim's moped, along with other accessories," indicated that the defendant had "altered the moped's appearance because he knew that the moped was stolen"); State ex rel. Juv. Dept. v. Hal , 168 Or. App. 76, 78-79, 7 P.3d 535 (2000) (driver of a stolen vehicle "at least had reason to believe" that the vehicle was stolen, in part, because the interior had been stripped, wires hung from where the stereo had been, and the vehicle had out-of-state license plates).

Third and finally, defendant was in possession of a notebook that had been used to write the purported bill of sale for the Subaru that would help "facilitate the transfer [of the Subaru] with the DMV," but the bill of sale did not "have any relation to the actual owner of the car." Additionally, there were blank DMV forms in defendant's backpack and a "suspicious" DMV transaction receipt was found in the Subaru that was not submitted by the victim and that had one of the VIN numbers changed to circumvent the DMV's process to determine if the Subaru had been "flagged" as stolen. See Peirce , 296 Or. App. at 840-41, 440 P.3d 98 (the defendant's possession of a "highly suspicious" bill of sale that identified the seller only as "Jerry W.," and not the actual owner of the moped, and the defendant's acknowledgment that the bill of sale looked "suspicious," supported a logical inference that the defendant knew that the moped was stolen); Shipe , 264 Or. App. at 398, 332 P.3d 334 (observing that the absence of the owner's vehicle registration or insurance could indicate that the defendant knew that the vehicle was stolen, if the defendant was aware of the missing registration and insurance card).

In sum, the evidence specified above, viewed as a whole and in the light most favorable to the state, in addition to the three sets of jiggle keys found in a pocket on the driver's side door of the car, would allow a rational factfinder to find that the state had proved beyond a reasonable doubt that defendant knew that the Subaru was stolen. But see Korth , 269 Or. App. at 247, 344 P.3d 491 (concluding that the state failed to prove that the defendant knew that the truck was stolen where the defendant operated the truck with a valid key and not the "jiggle keys" found in the back of the truck). Accordingly, the trial court did not err when it denied defendant's motion for judgment of acquittal.

Affirmed.

      ORS 164.135(1)(a) provides that "[a] person commits the crime of unauthorized use of a vehicle when" the "person takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * * without consent of the owner." In cases such as this one, where the state alleges that the defendant acted knowingly, "[t]hat person must know that he or she does not have the owner's consent." State v. Gibson , 268 Or. App. 428, 430, 342 P.3d 168 (2015). In other words, that person must "actually" know that the vehicle is stolen. State v. Korth , 269 Or. App. 238, 242, 344 P.3d 491 (2015).
      Defendant was also found guilty of possession of a stolen vehicle (PSV), ORS 819.300, but the trial court merged that guilty verdict into the guilty verdict for UUV, resulting in a single conviction for UUV. Defendant's first and second assignments of error seek reversal of the jury verdicts finding him guilty of UUV and PSV. Because defendant's challenge is limited to whether the state provided sufficient evidence to establish a shared element of those crimes, as charged in the indictment-that defendant knew that the vehicle was stolen-our analysis of that issue resolves defendant's first and second assignments of error.

      After the initial briefing was complete, defendant filed a supplemental brief that included a supplemental assignment of error that assigned error to the trial court's instruction to the jury that it could return a nonunanimous verdict. Defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution require unanimous jury verdicts. We reject that argument on the merits without further discussion.

      Jiggle keys are "a very common tool in auto theft." Jiggle keys are normal keys that "have been shaved down, * * * to round off specific edges" so the keys can start a number of similar vehicles from the same era by "jiggl[ing] the [key in] the ignition until it will rotate over."

      Wall explained the evolution of the legitimate use of electronic ignition bypass systems:
      "Just prior to the evolution of keys including chips in them, some vehicle manufacturers and dealerships would offer an option for a vehicle to be outfitted with a security device that would * * * take a computer chip that you would now find in a key, and have it as an additional accessory that would fit into * * * [a] slot [underneath the dash.]"

      Photographs of the computer chip key, the ignition bypass system, the "fictitious" temporary trip permit, the "jiggle keys," a copy of the purported bill of sale, and the "suspicious" DMV transaction receipt were all entered into evidence as exhibits for the state.


source: Caselaw Access Project

author: LAGESEN, P. J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Appellant, v. Justin Jerry FRISCHMAN, Defendant-Respondent.
    A166642 A166643 (Control)
    Court of Appeals of Oregon.
    Argued and submitted April 25, 2019. June 19, 2019
    Peenesh Shah, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Kali Montague, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

The state appeals an order granting defendant's motion to suppress all evidence obtained in a warranted search of defendant's person, home, and car. The trial court originally entered an order granting suppression only in part. But then, we decided State v. Burnham , 287 Or. App. 661, 403 P.3d 466 (2017), adh'd to as modified on recons. , 289 Or. App. 783, 412 P.3d 1233 (2018) ( Burnham I ), and the court reconsidered its prior ruling and entered an order suppressing all evidence. Because our subsequent decision on reconsideration in Burnham requires a different conclusion, we reverse and remand.

Whether the trial court was correct to conclude that the invalidation of one provision of the warrant requires suppression of evidence obtained pursuant to other, valid portions of the warrant, presents a question of law, so our review is for legal error. See generally State v. Burnham , 289 Or. App. 783, 785-86, 412 P.3d 1233 (2018) ( Burnham II ) (so reviewing the question).

In Burnham II , we discussed the proper approach when one provision of a warrant is determined to be impermissibly overbroad in the context of a motion to suppress. We concluded "that the impermissibly overbroad portion of the warrant may be excised and the balance of the warrant upheld and that only those items seized under the invalid portion of the warrant must be suppressed." 289 Or. App. at 785, 412 P.3d 1233 (internal quotations marks omitted). Because, with respect to some of the items seized, the trial court had not made the factual findings necessary to determine whether the seizure was permissible or not, in view of the partial invalidity of the warrant, we remanded for the court to make those determinations. Id . at 786, 412 P.3d 1233.

The state argues that Burnham II means that we must reverse the order on appeal and remand for the trial court to reinstate its original order that granted suppression only of that evidence seized pursuant to the invalid portion of the warrant. Defendant argues that we should affirm. He asserts that the state failed to preserve its argument that the invalid portion of the warrant could be excised, so as to allow for the admission of the evidence obtained pursuant to the valid portion of the warrant. Alternatively, reraising arguments that he raised below, defendant contends we should affirm on the alternative basis that the warrant affidavit was stale or did not establish probable cause.

We are persuaded from our review of the record that the state preserved its contention that the invalid portion of the warrant should be excised and that the evidence obtained pursuant to the other portions of the warrant should not be suppressed.

Further, as to whether the warrant was supported by probable cause (or nonstale probable cause), we view the magistrate's determination on those points with a deferential eye. State v. Chase , 219 Or. App. 387, 392, 182 P.3d 274 (2008) ("We defer to the issuing magistrate's determination of probable cause and resolve doubtful cases by the preference for warranted searches."). In that light, we see no basis on which to displace the magistrate's conclusions regarding the probable cause supporting the other provisions of the warrant. Accordingly, consistent with Burnham II , we conclude that suppression is not required of those items seized pursuant to the valid portions of the warrant.

That leaves the question of disposition. Although the trial court originally issued an order granting suppression only of the evidence obtained pursuant to the invalid portion of the warrant, and the state asks us to reinstate that order, we decline to do so. In some sense, that order was premature because the parties do not appear to have developed the facts as to what evidence, in particular, was seized as a result of the invalid portion of the warrant or to have understood fully the need for that factual development following the determination that the warrant was partly good and partly bad. And the trial court's ultimate conclusion that Burnham I requires suppression of all evidence as a matter of law rendered such factual development unnecessary. Thus, as was the case in Burnham II , a remand is required so that the trial court can determine what evidence is admissible pursuant to the valid portions of the warrant and what evidence must be suppressed because it was obtained based on the invalid portion of the warrant. See Burnham II , 289 Or. App. at 786, 412 P.3d 1233 (remanding for factual determination of whether certain items were seized while officers were executing a valid portion of the warrant). At oral argument on this matter, the parties presented competing views of whether the seizure of certain items authorized by valid portions of the warrant may, nonetheless, have been tainted as a result of the officers' execution of the invalid portion of the warrant. As the facts pertinent to those arguments have not yet been determined, we leave the issue for the trial court to resolve on remand, should it be presented on the facts that the trial court finds.

Reversed and remanded.


author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. James Richard SWEARINGEN, aka James R. Swearingen, Defendant-Appellant.
    A165274
    Court of Appeals of Oregon.
    Submitted April 30, 2019. June 12, 2019
    Ernest G. Lannet, Chief Defender, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Defendant appeals a judgment convicting him of first-degree sodomy with a firearm, ORS 163.405, ORS 161.610(2), unlawful use of a weapon with a firearm (UUW with a firearm), ORS 166.220, coercion with a firearm, ORS 163.275, and fourth-degree assault, ORS 163.160. He raises two assignments of error on appeal, the second of which we reject without discussion. We write only to address defendant's first assignment of error, in which he contends that the trial court erred when, pursuant to ORS 137.123(5)(b), it imposed the sentence on his unlawful use of a weapon conviction consecutively to the sentence for his first-degree sodomy conviction. It is undisputed that defendant committed both offenses when he threatened the victim with a firearm and used that firearm to forcibly compel the victim to engage in sodomy. The state, for its part, concedes that under existing case law, the trial court erred by imposing the sentences consecutively. As the state observes, because both offenses "were committed through identical conduct and the 'use or threatened use of a firearm' was an element of both offenses, the trial court lacked authority under this court's caselaw to impose the consecutive sentence." We agree. See State v. Provancha , 293 Or. App. 169, 176, 428 P.3d 916 (2018) (where defendant attacked victim, striking her several times with a baseball bat, the trial court could not impose a sentence for second-degree assault consecutive to a sentence for attempted murder under ORS 137.123(5)(b) where "the record [did] not support a determination that [the] defendant's assault offense caused or risked greater or qualitatively different harm to the victim than that caused by the attempted murder offense" (internal quotation marks omitted)); State v. Edwards , 286 Or. App. 99, 109, 399 P.3d 463, rev den , 362 Or. 175, 406 P.3d 609 (2017) (where a defendant shot twice at a police officer, hitting him once in the leg, record did not support the imposition of consecutive sentences for attempted aggravated murder and first-degree assault because the "defendant's conduct underlying both offenses caused or risked precisely the same harms," to the victim: "death and physical injury"). Here, the evidence is that defendant used a firearm for the single purpose of forcing the victim to engage in sodomy, and there is no evidence to support a determination that the conduct underlying the UUW with a firearm offense caused or risked a different harm than using the offense of using a firearm to compel sodomy. Thus, the trial court erred in imposing defendant's sentence for UUW with a firearm sentence consecutively to the sentence for sodomy with a firearm.

Remanded for resentencing; otherwise affirmed.

      As relevant here, a person who "engages in oral or anal sexual intercourse with another person or causes another to engage in oral or anal sexual intercourse commits the crime of sodomy in the first degree" if the "victim is subjected to forcible compulsion." ORS 163.405.
      A person commits the crime of unlawful use of a weapon, as charged here, if the person "[a]ttempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015." ORS 166.220.
      Furthermore, the
      "use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime ***. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words 'with a firearm' to the title of the offense."
      ORS 161.610(2).

      In his second assignment of error, defendant asserts that the trial court plainly erred in accepting the jury's nonunanimous verdict on the first-degree sodomy with a firearm charge.

      ORS 137.123(5)(b) provides:
      "The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
      "* * * * *
      "(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."

      Although the state concedes that the trial court erred in imposing consecutive sentences in light of our interpretation of ORS 137.123(5)(b), it also contends that our case law was incorrectly decided. The state does not, however, argue or demonstrate that our cases are "plainly wrong" under the standard set forth in State v. Civil , 283 Or. App. 395, 417, 388 P.3d 1185 (2017) (explaining that we will overrule a prior decision only if it is "plainly wrong," a "rigorous" standard that is "satisfied only in exceptional circumstances"). Thus, we do not accept the state's apparent invitation to revisit our prior cases.


author: PER CURIAM

text:
    In the MATTER OF M. S. D., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. M. S. D., Appellant.
    A169699
    Court of Appeals of Oregon.
    Submitted May 3, 2019. August 7, 2019
    Lindsey Burrows and O'Connor Weber LLC filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing her to the Mental Health Division for a period of up to 180 days. ORS 426.130. Appellant argues that the trial court erred because the record does not establish by clear and convincing evidence that she is a "person with mental illness." ORS 426.005(1)(f) ; ORS 426.130(1)(a)(C). The state concedes that the evidence in the record does not meet the legal standard for involuntary commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of commitment.

Reversed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Charles William GARNER, Defendant-Appellant.
    A165581 (Control) A165582
    Court of Appeals of Oregon.
    Submitted May 6, 2019. June 5, 2019
    Bear Wilner-Nugent filed the opening and reply briefs for appellant. Charles William Garner filed the supplemental brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

In this consolidated appeal from a consolidated trial, defendant appeals two judgments of conviction, pursuant to a bench trial, for multiple sex offenses, including five counts of encouraging child sexual abuse in the second degree, ORS 163.686. He raises four assignments of error, two through counsel and two in a pro se supplemental brief. He contends that (1) the trial court plainly erred by requiring defendant to stand trial while shackled without making a record of the reasons justifying shackling; (2) the trial court erred in denying defendant's motion for judgment of acquittal on the five counts of encouraging child sexual abuse in the second degree in Case No. 16CR58643; (3) the trial court erred in admitting evidence of defendant's prior conviction without conducting adequate balancing under OEC 403 ; and (4) the 25-year mandatory sentence that the trial court imposed under ORS 137.690 is so disproportionate that it violates the prohibition on cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Defendant's plain-error claim regarding the shackling does not provide grounds for reversal because the record is insufficient to demonstrate that defendant was prejudiced by the shackles. See State v. Bowen , 340 Or. 487, 495-96, 135 P.3d 272 (2006) (court will not presume prejudice from shackling); State v. Bates , 203 Or. App. 245, 125 P.3d 42 (2005), rev. den. , 340 Or. 483, 135 P.3d 318 (2006) ; see also Larsen v. Nooth , 292 Or. App. 524, 425 P.3d 484 (2018). But see Larsen , 292 Or. App. at 525-37, 425 P.3d 484 (James, J., concurring) (calling for a reexamination of the proper framework for evaluating whether the shackling of a criminal defendant comports with the state and federal constitutions, and suggesting that prejudice should be presumed in some circumstances).

Defendant's OEC 403 claim fails because the record demonstrates that the trial court's balancing satisfied the requirements of OEC 403.

With respect to his 25-year sentence under ORS 137.690, defendant has not demonstrated that it is cruel and unusual as applied to him specifically or generally. See, e.g. , State v. Horseman , 294 Or. App. 398, 407 & n. 6, 432 P.3d 258 (2018) (rejecting similar challenge under similar circumstances).

Defendant is, however, entitled to relief on his second assignment of error. As the state concedes, the evidence presented at trial was legally insufficient to support a finding that he had committed the counts of encouraging child sexual abuse in the second degree alleged in Counts 9 through 13 of Case No. 16CR58643 within the applicable limitation periods. We therefore reverse the convictions on those counts.

In A165581, convictions on Counts 9 through 13 reversed; remanded for resentencing; otherwise affirmed. In A165582, affirmed.


text:
    In the MATTER OF W. A. B., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. W. A. B., Appellant.
    A169621
    Court of Appeals of Oregon.
    Submitted June 6, 2019. August 7, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.
   PER CURIAM

The trial court committed appellant to the custody of the Oregon Health Authority for a period not to exceed 180 days and entered an order prohibiting appellant from purchasing or possessing firearms after determining that he was a danger to himself or others because of a mental disorder. See ORS 426.005(1)(f)(A). On appeal, he argues that the court erred in failing to grant his motion for a continuance to allow him an opportunity to review recently produced discovery, including police reports, medical records, videos, audio recordings, and hundreds of photographs. The state concedes that, because the motion for a continuance was unopposed and appellant's counsel had not had an opportunity to review that discovery with appellant, the court abused its discretion when it denied the motion. See State v. C. C. , 190 Or. App. 568, 569, 79 P.3d 373 (2003) (concluding that the court had abused its discretion in denying a motion for a continuance under analogous circumstances). We agree, accept the state's concession, and reverse the commitment judgment and the order prohibiting the purchase or possession of firearms.

Reversed.

      Although the state concedes that the judgment must be reversed, it proposes that we "reverse and remand for a new hearing." We have routinely reversed outright rather than remanding in civil commitment proceedings, even in the case of procedural errors-including in cases in which the trial court erred in denying a motion for a continuance. See, e.g. , State v. J. J. S. , 297 Or. App. 707, 708-09, 441 P.3d 257 (2019) (reversing a judgment of commitment and related firearms order after accepting the state's concession that " 'the trial court abused its discretion in not granting a brief continuance' "). In the absence of a developed argument as to why our well-established practice is wrong, we decline to depart from it.


text:
    TRI-COUNTY CENTER TRUST, Petitioner, v. DEPARTMENT OF STATE LANDS, Respondent.
    A167382
    Court of Appeals of Oregon.
    Argued and submitted June 24, 2019. August 7, 2019
    Gregory J. Miner argued the cause for petitioner. Also on the briefs was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.
    Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Petitioner, a trust, seeks judicial review of a final order of the Department of State Lands (DSL) that denied the trust's application for a removal-fill permit for property identified as Tax Lot 100 in Tigard, Oregon. That tax lot had once been part of a much larger, 26-acre property owned by petitioner's trustee, Martin. In the 1990s, Martin obtained a removal-fill permit for the 26-acre property, which was conditioned on mitigating the effects of development on the property's wetlands. In 2003 and 2005, Martin sold a substantial portion of the 26-acre property, including Tax Lot 100, but Tax Lot 100 was subsequently conveyed back to him. Martin then set up petitioner as a trust, named himself trustee, and conveyed Tax Lot 100 to petitioner.

In 2015, petitioner applied for the removal-fill permit at issue in this case, seeking to develop a restaurant and a bank on Tax Lot 100. DSL ultimately denied the permit application, concluding, among other things, that Tax Lot 100 had been treated as a compensatory mitigation site as part of the earlier development, that the water resources on the site were valuable enough to warrant protection, and that the project did not satisfy a public need that would otherwise support granting the permit. Petitioner seeks judicial review of the denial, advancing a number of challenges to DSL's findings and conclusions regarding the scope and effect of the earlier removal-fill permit, DSL's construction of applicable statutes and rules, its findings about the functioning of the wetlands, and its conclusion that the denial of the permit was not an unconstitutional taking.

A more detailed discussion of the record and our reasoning would not benefit the agency, the bar, or the parties in this case. DSL's final order is nearly 400 pages long and contains approximately 270 pages of factual findings, including express credibility findings regarding various witnesses. Our role is not to reweigh the evidence or try the facts anew; rather, our review function is circumscribed by ORS 183.482(8). In short, there is ample support in the record for DSL's factual findings, as detailed in the final order, and we are not persuaded that the agency committed any of the legal errors that petitioner claims. We therefore reject each of petitioner's assignments of error and affirm DSL's final order.

Affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Raymond Everett COOK, Defendant-Appellant.
    A165912 (Control) A165911 A165910 A165909
    Court of Appeals of Oregon.
    Argued and submitted June 26, 2019. August 14, 2019
    Kyle Krohn, 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.
    Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and Aoyagi, Judge, and Mooney, Judge.
   PER CURIAM

In this consolidated appeal, defendant appeals judgments in four criminal cases: Marion County Circuit Court Case Nos. 16CR54636, 16CR75574, 17CR30584, and 17CR29946. The cases were consolidated for sentencing below, and, with one exception, the trial court sentenced defendant in accordance with the parties' negotiated agreement, which included defendant's stipulations to the payment of court-appointed attorney fees in a specified amount for each case. Appellant raises six assignments of error on appeal. In his first four assignments of error, defendant contends that the court erred in ordering him to pay those attorney fees, raising a variety of arguments. With the single following exception, we reject those assignments and arguments without discussion. In his fourth assignment of error, defendant asserts, as an alternative basis for reversing the court's imposition of fees in Case No. 17CR29946, that the court erred in ordering him to pay $910 in attorney fees because defendant's plea petition in that case reflects that he agreed to pay $547 in fees and the court did not announce on the record in defendant's presence that it was imposing a different amount. The state concedes that the trial court erred in that regard; we agree, accept the state's concession, and reverse and remand for the court to correct that error.

Defendant's remaining two assignments of error apply to the judgments in Case Nos. 17CR29946 and 17CR30584. We reject defendant's fifth assignment of error for the same reasons that we rejected a similar contention in State v. Saunders , 298 Or. App. 291, 293, --- P.3d ---- (2019). Defendant's sixth assignment of error-that the trial court erred in including in the judgment an order directing the clerk to schedule payments of defendant's financial obligations pursuant to ORS 161.675 -is foreclosed by our decision in State v. Foos , 295 Or. App. 116, 117-18, 433 P.3d 493 (2018).

In Case No. 17CR29946, portion of judgment imposing attorney fees reversed and remanded; otherwise affirmed. In Case Nos. 16CR54636, 16CR75574, and 17CR30584, affirmed.


author: ORME, Judge:

text:
    STATE of Utah, Appellant, v. Jose DE LA ROSA, Appellee.
    No. 20170993-CA
    Court of Appeals of Utah.
    Filed June 20, 2019
    Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellant
    Teresa L. Welch, Salt Lake City, Attorney for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.
    Opinion
   ORME, Judge:

¶1 After a jury convicted him of one count of possession of a controlled substance with intent to distribute and one count of retail theft, defendant Jose De La Rosa, through post-conviction counsel, moved the court for a new trial pursuant to rule 24 of the Utah Rules of Criminal Procedure. He claimed entitlement to a new trial on five grounds: (1) the jury instruction on constructive possession was inadequate; (2) his prior drug possession and distribution convictions should not have been admitted at trial; (3) there was juror misconduct; (4) his retail theft charge should have been severed from his possession with intent to distribute charge at trial; and (5) his trial counsel failed to move to suppress the evidence obtained from the search of his vehicle.

¶2 The trial court granted Defendant's motion but did not identify which of the five grounds raised by Defendant formed the basis for its decision. Its order was limited to the following:

The Court, having reviewed Defendant's Motion for a New Trial, the State's Opposition to Defendant's Motion for a New Trial and Defendant's Amended Motion for a New Trial, makes the following ruling: Defendant's Motion is granted.

The State appeals, arguing, among other things, that we should remand to the trial court for it to identify the rationale for its ruling. We agree.

¶3 Rule 24 of the Utah Rules of Criminal Procedure provides that trial courts may "grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party." Utah R. Crim. P. 24(a). Unlike its civil counterpart, rule 24 does not expressly require trial courts to provide reasons for granting a new trial in criminal cases. Compare Utah R. Civ. P. 59(d) ("The order granting a new trial must state the reasons for the new trial."), with Utah R. Crim. P. 24. But because appellate courts cannot meaningfully review a trial court's grant of a new trial without having the benefit of the trial court's reasons for its ruling-especially when some of the grounds argued warrant inquiry into the trial court's underlying legal conclusions-we agree with the State that it is necessary to remand with instructions that the trial court identify the basis for its decision to grant Defendant a new trial.

¶4 "We review a trial court's ruling on a motion for a new trial under an abuse of discretion standard." State v. Billingsley , 2013 UT 17, ¶ 9, 311 P.3d 995. Generally, this standard is highly deferential to the trial court's ruling in that "we assume that the district court exercised proper discretion unless the record clearly shows the contrary." State v. Serrano , 2019 UT App 32, ¶ 8, 440 P.3d 734 (quotation simplified). But "trial courts do not have discretion to misapply the law." State v. Petersen , 810 P.2d 421, 425 (Utah 1991). For this reason, "the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court's use of its discretion." State v. Barrett , 2005 UT 88, ¶ 17, 127 P.3d 682.

¶5 Defendant contends that the trial court's order is sufficient for purposes of appellate review because "the record indicates that the trial [court] took a thoughtful, careful approach to ensuring that [Defendant] received his constitutional right to a fair trial" and that should be enough to satisfy the abuse of discretion standard applied by appellate courts when reviewing a ruling on a motion for a new trial. This argument arises from the recognition that trial courts are in an advantaged position to that of appellate courts "to determine the impact of events occurring in the courtroom on the total proceedings." State v. Maestas , 2012 UT 46, ¶ 325, 299 P.3d 892 (quotation simplified). See also ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2013 UT 24, ¶ 22, 309 P.3d 201. And we might very well agree with Defendant's argument had he limited the arguments in his motion for a new trial to those that would not ordinarily require review of the trial court's underlying legal conclusions on appeal. For example, a determination of whether the jury misconduct in the present case merited a new trial would have been almost wholly dependent on the trial court's evaluation of the impact such misconduct had on the fairness of the proceedings-something that is inherently difficult for appellate courts to second guess. Had Defendant limited his motion to this and similar arguments, our review of the trial court's ruling would indeed be circumscribed by the assumption "that the district court exercised proper discretion," Serrano , 2019 UT App 32, ¶ 8, 440 P.3d 734 (quotation simplified), and we would reverse "only if there is no reasonable basis for the decision," ASC Utah , 2013 UT 24, ¶ 21, 309 P.3d 201 (quotation simplified).

¶6 On the other hand, a trial court "is not necessarily in a better position than an appellate court to identify its own errors of law." Id. ¶ 23. Thus, when a trial court determines that a legal error "had a substantial adverse effect upon the [defendant's] rights," Utah R. Crim. P. 24(a), it necessarily exceeds its discretion if there was no underlying error. Our Supreme Court's decision in State v. Billingsley , 2013 UT 17, 311 P.3d 995, is illustrative of this point. In Billingsley , the trial court had previously determined a teacher's testimony that a rape victim had made "inappropriate sexual advances" toward her to be inadmissible under rule 412 of the Utah Rules of Evidence. Id. ¶¶ 7, 10. The court eventually granted a new trial to the defendant after it determined the evidentiary ruling to be in error and concluded that the exclusion violated the defendant's Sixth Amendment right to confront the witnesses against her. Id. Our Supreme Court held that the trial court abused its discretion in granting a new trial because the court "correctly excluded the evidence" in the first place and the exclusion therefore "could not justify arresting the verdict." Id. ¶ 10. See id. ¶ 23. It further concluded that the exclusion did not violate the defendant's Sixth Amendment rights and that "[t]he trial court abused its discretion when it determined that [the defendant's] right to confront witnesses against her was violated." Id. ¶ 17.

¶7 Likewise, the trial court in the present case would have abused its discretion had it, for example, granted a new trial based on its belief that the jury instruction on constructive possession was inadequate and we later determined that this underlying legal conclusion was incorrect. Because there would be no underlying error that could possibly have "had a substantial adverse effect upon the rights of [Defendant]," see Utah R. Crim. P. 24(a), the trial court would not have been justified in granting a new trial in that situation. Thus, the trial court's reasons for granting a new trial are crucial to meaningful appellate review of its ruling.

¶8 Defendant's argument that the record is sufficient to determine that the trial court did not exceed its discretion in granting a new trial is further undermined by Utah Supreme Court precedent, which states:

If the trial court determines that a new trial is warranted and grants the motion, it should describe the basis for its decision in the record such that an appellate court can have the benefit of those reasons. ... "In order to eliminate speculation as to the basis of the exercise of judicial discretion in granting new trials, the record should show the reasons and make it clear the court is not invading the province of the jury. ... With no indication as to the basis for exercise of the power vested in the court to grant new trials the appeal tribunal would be left to analyze the matter from the evidence, the record, and the instructions. It would be required to search out possible reasons for agreeing or disagreeing with the trial court in the exercise of [its] discretion. The exercise of judicial discretion must be based upon some facts notwithstanding great latitude is accorded the trial court in such matter."

Crookston v. Fire Ins. Exch. , 817 P.2d 789, 804 (Utah 1991) (quoting Saltas v. Affleck , 99 Utah 381, 105 P.2d 176, 178 (1940) ).

¶9 Defendant argues that this principle is limited to the civil context, as is evidenced by the adoption of rule 59(d) of the Utah Rules of Civil Procedure, requiring that the trial court state the reasons for granting a new trial, coupled with the lack of any corresponding provision in the Utah Rules of Criminal Procedure. But when our Supreme Court articulated this principle in Saltas , and subsequently reaffirmed it in Crookston , the Utah Rules of Civil Procedure did not require trial courts to state their reasons for granting a new trial as they do now. Compare Utah R. Civ. P. 59 (1991), with id. R. 59(d) (2019) ("The order granting a new trial must state the reasons for the new trial."). Instead, the Court articulated this principle as an appellate court's prerogative to request additional information from the trial court to facilitate meaningful appellate review of the court's grant of a new trial. Otherwise, appellate courts would have to resort to speculation, see Crookston , 817 P.2d at 804, and could potentially affirm on a basis not relied on by the trial court. Even conclusions of legal error are in most cases followed by inquiries into whether the "error ... had a substantial adverse effect upon the rights of a party." Utah R. Crim. P. 24(a). And this inquiry falls entirely within the discretion of the trial court due to its advantaged position to judge "the impact of" legal errors "on the total proceedings." Maestas , 2012 UT 46, ¶ 325, 299 P.3d 892. Thus, affirming on alternate grounds would ultimately undermine the broad discretion granted trial courts when ruling on motions for a new trial. Cf. Interstate Income Props., Inc. v. La Jolla Loans, Inc. , 2011 UT App 188, ¶ 20, 257 P.3d 1073 (stating that appellate courts have a "right to require a meaningful statement of the basis of the trial court's decision and enough factual findings to assure us that the trial court's legal conclusions logically flow from and are supported by the evidence").

¶10 The concern our Supreme Court had in Crookston applies equally, if not more so, in the criminal context. There are seven specific grounds on which a trial court may grant a new trial in civil cases, see Utah R. Civ. P. 59(a)(1)-(7), while in criminal cases trial courts enjoy a greater latitude when granting new trials, see Utah R. Crim. P. 24(a). Rule 24 permits a trial court to "grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party." Id. (emphasis added). The interest in avoiding speculation is significantly increased in criminal cases where the potential grounds for granting a new trial are more open-ended. Thus, our Supreme Court's rationale for avoiding speculation from among seven enumerated grounds in a civil case applies with even greater force in the criminal context.

¶11 In conclusion, because the trial court did not identify the ground on which it determined a new trial was warranted, we are left to speculate as to the reason and are accordingly deprived of the ability to provide meaningful appellate review of the trial court's decision. We therefore remand with instructions that the trial court identify and explain the ground or grounds for its ruling.

      The juror misconduct to which Defendant refers occurred at the close of the State's case-in-chief. After the State rested, the trial court called a brief recess. As the bailiff walked past the jury room during the recess, he heard the jurors discussing the case, in violation of a jury instruction that stated: "You should not begin any discussions on the evidence until the case is presented to you for deliberation after closings." The bailiff instructed the jury to cease discussing the case and reported the matter to the trial court. The court, in turn, informed the parties of what had transpired. The defense asked what the jurors had specifically said, but the bailiff could not provide any particulars other than that he had generally heard them "talking about the case and about evidence." The court initially offered to ask the jurors what they had discussed but ultimately decided against it. Instead, the court admonished the jury, and Defendant proceeded to present his defense.

      Defendant argued all five grounds in his initial motion for a new trial. But in his amended motion, Defendant argued only the first four grounds and appears to have abandoned the argument that his trial counsel was remiss for not moving to suppress the evidence obtained from the search of his vehicle. In its order granting a new trial, the trial court expressly stated that it had reviewed both Defendant's initial and amended motions for a new trial. It is unclear, given the absence of any explanation by the trial court, whether in so stating it considered all the issues to be alive and well or whether, as at least seems possible, it took the amended motion to mean that the fifth issue was dead and buried.

      Because we remand to the trial court on this basis, we need not determine whether rule 59(d) of the Utah Rules of Civil Procedure applies to criminal proceedings by virtue of rule 81(e). See Utah R. Civ. P. 81(e) ("These rules of procedure shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule, provided, that any rule so applied does not conflict with any statutory or constitutional requirement.").

      It is well recognized that, ordinarily, an appellate court "may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and ... even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court." State v. Topanotes , 2003 UT 30, ¶ 9, 76 P.3d 1159 (quotation simplified). But as we have explained, this principle is difficult to apply in the context of reviewing a trial court's grant of a new trial because of the discretionary inquiry that trial courts must engage in following the conclusion that an error or other impropriety occurred at trial, which determination is inherently difficult for appellate courts to make from a cold record.

      This concern, however, does not arise when reviewing a trial court's denial of a motion for a new trial, which necessarily involves review of all the arguments made by the defendant in his motion for a new trial. For that reason, a trial court is not required to provide its reasons for denying a motion for a new trial. See ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2013 UT 24, ¶ 21, 309 P.3d 201 ("District courts are required to explain the basis for their decisions only when they grant motions for a new trial-not when they deny such motions.") (emphasis in original). That said, there is no question that an explanation from the trial court, even with a denial, will prove helpful to the appellate court in reviewing the decision.

      We so order irrespective of whether the State preserved its argument that the trial court should have stated its reasons for granting a new trial. The larger issue of whether the trial court exceeded its discretion in granting Defendant a new trial was preserved by the State's opposition to Defendant's motion for a new trial. Accordingly, as discussed, see supra ¶¶ 6-10, our ability to meaningfully review the larger, preserved issue is wholly dependent upon the trial court's reasons for its ruling. Cf. Interstate Income Props., Inc. v. La Jolla Loans, Inc. , 2011 UT App 188, ¶ 20, 257 P.3d 1073 ("[The defendant's] failure to preserve its challenge to the adequacy of the detail of the findings of fact does not waive our right to require a meaningful statement of the basis of the trial court's decision.").
      It should go without saying that the explanation sought on remand can, as a practical matter, only be offered by the judge who granted the new trial motion. A successor judge would be no better positioned than would we to discern the rationale of the prior judge from a cold record. Indeed, in all cases where a matter is remanded for an explanation that is uniquely within the province of a particular judge, the matter on remand should be directed to the same judge, notwithstanding artificial constraints on the case finding its way to that judge automatically, such as a change in the judge's office location or responsibilities, reassignment of the case for reasons other than recusal, or the judge's taking senior status. Given the scheduled retirement of the judge who ordered the new trial, care should be taken to direct this matter to her promptly following remand.