text:
    Matt Ryan FRAZIER, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
    A162640
    Court of Appeals of Oregon.
    Argued and submitted August 17, 2017. May 22, 2019
    Jason E. Thompson, Salem, argued the cause for appellant. Also on the briefs was Ferder Casebeer French & Thompson, LLP.
    Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   EGAN, C. J.

Petitioner appeals a judgment denying post-conviction relief from convictions of two counts of fourth-degree assault, and one count each of second-degree assault and strangulation. The post-conviction court concluded that petitioner's trial counsel performed inadequately by failing to object, move to strike, or request a limiting instruction after the victim in the case testified about "prior abuse" committed by petitioner. However, the post-conviction court concluded that counsel's failure did not prejudice petitioner. On appeal, petitioner raises a single assignment of error, arguing that the court erred in so concluding. The state cross-assigns error to the court's conclusion that petitioner's trial court counsel performed deficiently. We agree with petitioner and reverse.

To obtain post-conviction relief based on a claim of inadequate assistance of counsel, petitioner first must demonstrate "by a preponderance of the evidence that [his or her counsel] failed to exercise reasonable professional skill and judgment." Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015) (brackets in original). If petitioner meets that burden, he must also prove that he was prejudiced, or in other words, that his "counsel's failure had a tendency to affect the result of his trial." Id. The "tendency to affect the outcome standard demands more than mere possibility, but less than probability." Id. at 322, 350 P.3d 188. Our review of a post-conviction court's determinations on these issues is for errors of law, and we are bound by the court's findings of historical fact if there is evidence in the record to support them. Id. at 312, 350 P.3d 188.

The material facts pertaining to petitioner's inadequate assistance claim are not in dispute. In the underlying criminal proceeding, petitioner was charged with one count each of second-degree assault and strangulation, and two counts of fourth-degree assault. All of the charges arose out of physical altercations between petitioner and J, petitioner's wife at the time, that had occurred on two separate days. At trial, petitioner and J testified. Each told a different story about the altercations. J testified that, on the first day, petitioner grabbed her by the throat and took her to a wall, choking her for "seconds," long enough for J to "feel like [she] was going to pass out." Regarding the second day, J testified that, after an argument, petitioner followed her into their bedroom, grabbed a lamp off the bedside table, and hit her over the head with it. Petitioner, on the other hand, testified that he never assaulted or choked J. Petitioner testified that he and J had a verbal altercation, during which J broke a lamp on the floor. Petitioner testified that he told J that it was not acceptable to destroy household items, that he was leaving, and that J began "running around screaming" that she was going to get petitioner arrested. Further, petitioner testified that J hit herself with the lamp.

In her testimony, J made several statements in response to questions about the history of her relationship with petitioner. After the prosecutor asked J how it "came about" that she and petitioner moved to Oregon, J testified that they had first moved to California "after [petitioner] had hit [her] in the head in Alabama with [a], a wooden box, and [she] became not able to control him [herself]." On cross-examination, after the defense attorney asked J whether there was still a mark visible on her neck from the alleged strangulation, J testified that she also had a scar "from the first time when he hit [her] with the metal box in Alabama." Also on cross-examination, after the defense attorney asked whether J was ready to move back to Alabama when the altercations occurred, J testified that she was not, and explained,

"I'm here now because I like it here. It's better than Alabama. I mean, there's women's rights. There's people who want to help you. Before when I got beat, nobody cared, and I thought that it was okay. But when I got here, they gave me resources that showed me, when I opened the book and I read and learned what an abusive husband was about, I realized that I was in an abusive relationship."

Neither the prosecutor nor the defense objected or made any motions or requests for jury instructions regarding J's testimony. Ultimately, the jury found petitioner guilty of all four charges. On the charge of assault in the second degree, the jury voted 10 to two to convict petitioner. On the remaining charges, the jury voted 11 to one. Petitioner appealed the judgment of conviction, and we affirmed without opinion in State v. Frazier , 270 Or. App. 600, 351 P.3d 89 (2015).

Petitioner sought post-conviction relief, making several arguments that his counsel was constitutionally inadequate under Article I, section 11, of the Oregon Constitution. Relevant to this appeal, petitioner alleged:

"(3) Trial counsel failed to object, move to strike, or request a curative instruction after the alleged victim testified to prior abuse that allegedly petitioner committed in Alabama against her. (Tr. 24)"

With respect to that claim, the post-conviction court found that petitioner's trial counsel had performed inadequately by failing to object, move to strike or request a curative instruction "after the victim testified regarding abuse at the hands of the [p]etitioner in Alabama at page 24 of the trial transcript." The court explained:

"In a case where the victim is alleging that the defendant assaulted her and the defendant is denying any assault, testimony regarding prior abuse would be very prejudicial. Allowing testimony of prior bad acts that go to the heart of the dispute without objection or a curative instruction would be difficult to justify as a reasonable strategic decision."

Ultimately, however, the post-conviction court concluded that petitioner had failed to prove prejudice. The post-conviction court focused solely on the statement about "getting hit in the head with a box" on page 24 of the trial court transcript. The court noted:

"There is no testimony about how it happened or even whether it was intentional or accidental. It is far less harmful than other testimony by the victim on cross examination at page 47-48 of the trial transcript, where the victim discusses, without objection, a history of being beaten while in Alabama."

Because petitioner did not explicitly cite pages 47 to 48 of the transcript in his petition for relief, the court concluded that the reference at page 24 "could not have had a tendency to affect the outcome of the trial."

Petitioner filed objections to entry of the proposed general judgment denying him post-conviction relief. Petitioner argued that his citation to page 24 of the trial court transcript was a "courtesy citation" that did not confine his argument solely to the statements found on that page. The court denied petitioner's objection to entry of the proposed judgment and entered a general judgment.

Petitioner appeals the post-conviction court's judgment, arguing, as he did below, that the court erred in concluding that he was not prejudiced by his counsel's failure to object, move to strike, or request a curative instruction after J testified regarding "prior abuse." Petitioner argues that, in his petition for post-conviction relief, he did not allege only that counsel was inadequate for failing to respond properly to J's statements at page 24 of the trial transcript. Petitioner contends that his "courtesy citation" did not limit his argument to page 24, and that his allegation was generally "that trial counsel should have done something to either keep [the evidence of prior abuse] out, or, at the least, instruct the jury with what it could and could not do with that evidence if it was in." The state responds that the post-conviction court was correct in determining that petitioner's claim was limited to the statement occurring on page 24 of the trial court transcript. As noted above, the state also cross-assigns error to the post-conviction court's conclusion that petitioner demonstrated that his counsel performed deficiently. Finally, the state argues that petitioner was not prejudiced by any inadequate performance.

We begin with the state's argument that petitioner's claim is confined to the testimony on page 24 of the trial transcript. If a petitioner satisfies his burden to prove facts alleged in his petition, and "thereby establishes one or more of the grounds for relief set forth in ORS 138.530(1), the post-conviction court must grant relief." Ogle v. Nooth , 292 Or. App. 387, 388, 424 P.3d 759 (2018), rev. allowed , 364 Or. 407, 434 P.3d 970 (2019). The court's "authority to grant relief is not entirely constrained by the precise manner in which a petitioner alleges a claim for relief"

as it extends "to matters within the scope of the pleaded claims." Id . at 392, 424 P.3d 759 (brackets and internal quotation marks omitted). So long as the grounds for relief are "directly traceable to the allegations of the petition," a post-conviction court has authority to grant relief even if the petitioner "neither alleged nor argued" the specific theories of prejudice upon which the post-conviction court grants relief. Id. at 392-93, 424 P.3d 759 (citing Abbott v. Baldwin , 178 Or. App. 289, 295-96, 36 P.3d 516 (2001), rev. den. , 334 Or. 75, 45 P.3d 449, cert. den. , 537 U.S. 901, 123 S.Ct. 217, 154 L.Ed.2d 174 (2002) ). A ground for relief is unlikely to fall within the scope of the petition if it requires "different proof and different legal analysis" from the pleaded claim. Leyva-Grave-De-Peralta v. Blacketter , 232 Or. App. 441, 453, 223 P.3d 411 (2009), rev. den. , 348 Or. 114, 228 P.3d 1213 (2010).

In this case, petitioner alleged that his trial counsel performed inadequately by failing to intervene, either by objecting, moving to strike, or requesting a curative instruction, after the "alleged victim testified to prior abuse that allegedly petitioner committed in Alabama against her." Petitioner cited to one page of the trial court transcript. Because of that citation, the post-conviction court did not consider any of the other instances where testimony of "prior abuse" came up at petitioner's trial in considering whether petitioner's counsel performed inadequately. However, read fairly, petitioner's allegation of "prior abuse" encompasses more than the testimony on page 24. That citation served as an example of where the "prior abuse" came up, but petitioner did not argue that his counsel performed inadequately solely in failing to object to the testimony at page 24. His claim was broader, as he argued that counsel was inadequate in failing to object, move to strike, or request a curative instruction . In particular, the request for a curative instruction could have occurred long after the testimony on page 24. Thus, petitioner's claim was not confined to page 24. See Johnson v. Myrick , 285 Or. App. 395, 401, 396 P.3d 285, rev. den. , 362 Or. 175, 406 P.3d 614 (2017) ; Sullivan v. Popoff , 274 Or. App. 222, 232 n. 6, 360 P.3d 625 (2015), rev. den. , 358 Or. 833, 370 P.3d 504 (2016) (holding that a claim of inadequate assistance of counsel based upon a failure to object to certain evidence does not encompass a claim based upon the failure to request a limiting instruction regarding that evidence). Petitioner's several specific allegations of inadequacy and his reference to "prior abuse" were broad enough to encompass J's testimony outside of that occurring on page 24 of the transcript. All of J's testimony regarding prior abuse was directly traceable to petitioner's claim. Moreover, the post-conviction court would likely apply an identical legal analysis to the testimony outside of page 24, namely, whether a reasonable attorney exercising reasonable professional skill and judgment would have intervened during or after the testimony. Accordingly, the post-conviction court erred in limiting its consideration of prejudice to the one specific instance on page 24.

Given the actual breadth of petitioner's claim for relief, we next address the state's cross-assignment of error. The state argues that, regardless of the scope of petitioner's claim, the post-conviction court erred in determining that petitioner's trial counsel performed deficiently. The state contends that petitioner's trial counsel made a reasonable strategic decision in deciding not to object or request a limiting instruction. Suffice it to say, we agree with petitioner that this case was a "credibility contest between J and petitioner," and that, because of that context, the court was correct when it concluded that petitioner's counsel performed deficiently in failing to take any action after any of the instances where J testified about "prior abuse." Thus, we reject the state's argument without further discussion.

Finally, in light of the actual breadth of petitioner's claim for relief, we conclude that petitioner was prejudiced by his counsel's failure to intervene after J's testimony about prior alleged abuse. To demonstrate prejudice, a petitioner must "show that his trial counsel's deficient exercise of skill and judgment had a tendency to affect the result of the prosecution." Green , 357 Or. at 321, 350 P.3d 188 (internal quotation marks omitted). Here, the post-conviction court's conclusion that petitioner was not prejudiced hinged on the fact that it understood petitioner's claim to be limited to page 24 of the trial transcript. Indeed, the court noted that page 24 of the transcript was "far less harmful" than J's later testimony that, after coming to Oregon, she was given literature that made her realize she was in an abusive relationship. We agree with the post-conviction court's suggestion that counsel's error in failing to object, move to strike, or request a limiting instruction after all of the incidents where J testified about prior alleged abuse would have had a tendency to affect the outcome of this case. At the criminal trial, J alleged that defendant had assaulted her. Petitioner denied the assault, there were no other witnesses to the alleged assault, and there was no definitive physical evidence that petitioner committed the assault. See Stevens v. State of Oregon , 322 Or. 101, 108-09, 902 P.2d 1137 (1995) (omissions by trial counsel had a tendency to affect the outcome of the trial because there were no other witnesses to the alleged crime and the prosecution "necessarily turned on the credibility of the complaining witness and of [the] petitioner"). As the case thus necessarily turned on J's and petitioner's credibility, testimony regarding petitioner's prior acts of abusive behavior toward J would have a tendency to affect the outcome. The post-conviction court erred in concluding otherwise. Petitioner satisfied his burden to establish the facts alleged in his petition on the ground for relief regarding his trial counsel's inadequate performance, and the post-conviction court was required to grant relief. Therefore, we reverse.

Reversed.


source: Caselaw Access Project

author: POWERS, P. J.

license: Public Domain

text:
    ALLIANZ GLOBAL RISKS US INSURANCE COMPANY and Allianz Underwriters Insurance Company, Plaintiffs-Appellants, v. ACE PROPERTY & CASUALTY INSURANCE COMPANY, as Successor to Aetna Insurance Company; Certain Underwriters at Lloyd's London; Certain London Market Insurance Companies; General Insurance Company; and Westport Insurance Corporation, as Successor to Puritan Insurance Company, Defendants-Respondents, and Con-way, Inc., as Successor to Consolidated Freightways, Inc., Intervenor-Respondent, and Allstate Insurance Company, as Successor to Northbrook Excess and Surplus Insurance Company, fka Northbrook Insurance Company ; et al., Defendants.
    Allianz Global Risks US Insurance Company and Allianz Underwriters Insurance Company, Plaintiffs-Respondents, v. ACE Property & Casualty Insurance Company, as Successor to Aetna Insurance Company; General Insurance Company; and Westport Insurance Corporation, as Successor to Puritan Insurance Company, Defendants-Respondents, and American Home Assurance Company; Certain Underwriters at Lloyd's London; Certain London Market Insurance Companies; Continental Casualty Company; Lexington Insurance Company; Northern Assurance Company of America, Defendants-Appellants, and Con-way, Inc., as Successor to Consolidated Freightways, Inc., Intervenor-Respondent, and Allstate Insurance Company, as Successor to Northbrook Excess and Surplus Insurance Company, fka Northbrook Insurance Company ; et al. Defendants.
    A159758 (Control) A159858
    Court of Appeals of Oregon.
    Argued and submitted September 12, 2017. May 8, 2019
    In A159758, C. Robert Steringer, Portland, argued the cause for appellants. Also on the briefs were James E. Mountain, Jr., and Harrang Long Gary Rudnick P.C.; and Margaret H. Warner, Ryan S. Smethurst, Andrew J. Genz, and McDermott Will & Emery LLP, Washington, D.C.
    In A159758, Frank J. Weiss argued the cause for respondent Con-way, Inc. Also on the briefs were Robyn Ridler Aoyagi, Anna K. Sortun, and Tonkon Torp LLP.
    In A159758, Matthew B. Anderson, New York, argued the cause for respondents Certain Underwriters at Lloyd's London and Certain London Market Insurance Companies. Also on the joint answering brief were Timothy R. Volpert and Tim Volpert, P.C.; Carl E. Forsberg, Matthews S. Adams, Charles Henty, and Forsberg & Umlauf, P.S., Washington; and William B. Seo and Mendes & Mount, LLP, New York. On the reply brief on cross-assignment of error was Timothy R. Volpert and Tim Volpert, P.C.
    In A159758, R. Lind Stapley, Geoffrey Bedell, and Soha & Lang, P.S., filed the briefs for respondent Ace Property & Casualty Insurance Company.
    In A159758, Thomas M. Christ filed the briefs for respondent General Insurance Company.
    In A159758, Melia Shears and Callahan & Shears, P.C., filed the briefs for respondent Westport Insurance Company.
    In A159858, Matthew B. Anderson, New York, argued the cause for appellants. Also on the joint opening brief were Timothy R. Volpert and Tim Volpert, P.C.; Carl E. Forsberg, Matthews S. Adams, Charles Henty, and Forsberg & Umlauf, P.S., Washington; and William B. Seo and Mendes & Mount, LLP, New York. On the combined reply brief and answering brief on cross-assignments of error was Timothy R. Volpert and Tim Volpert, P.C.
    In A159858, Frank J. Weiss argued the cause for respondent Con-way, Inc. Also on the briefs were Robyn Ridler Aoyagi, Anna K. Sortun, and Tonkon Torp LLP.
    In A159858, R. Lind Stapley, Geoffrey Bedell, and Soha & Lang, P.S., filed the briefs for respondent Ace Property & Casualty Insurance Company.
    In A159858, Thomas M. Christ filed the briefs for respondent General Insurance Company.
    In A159858, Melia Shears and Callahan & Shears, P.C., filed the briefs for respondent Westport Insurance Company.
    In A159858, no appearance for respondents Allianz Global Risks US Insurance Company and Allianz Underwriters Insurance Company.
    Beverly Pearman, Amy Bach, California, and Dan Wade, California, filed the joint brief amicus curiae for Port of Portland and United Policyholders.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and Ortega, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.; Ortega, J., vice Wollheim, S. J.

   POWERS, P. J.

In this insurance coverage case, plaintiffs Allianz Global Risks US Insurance Company and Allianz Underwriters Insurance Company (plaintiffs) appeal from the dismissal of their action for statutory and equitable contribution and declaratory judgment against defendants ACE Property & Casualty Insurance Company (ACE), General Insurance Company (General), Westport Insurance Company (Westport), Certain Underwriters at Lloyd's London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), Continental Casualty Company (Continental), Lexington Insurance Company (Lexington), Northern Assurance Company of America (Northern) and Allstate Insurance Company (Allstate), and intervenor Con-way, Inc., (formerly known as Consolidated Freightways, Inc.), the parent company of Freightliner Corporation (Freightliner). Plaintiffs brought the action after defending and indemnifying Daimler Trucks North America LLC (Daimler), as successor to Freightliner, in three "Superfund" claims and more than 1,500 asbestos personal injury claims. Defendants, who were historical primary and excess liability insurers, had insured Freightliner, but declined to contribute to plaintiffs' costs, asserting that, despite the insurance policies, they had agreements with Con-way that showed an intention that defendants would not be required to defend and indemnify Freightliner on potential claims.

After a jury trial, the trial court entered a limited judgment under ORCP 67 B for defendants ACE, General, and Westport and intervenor Con-way, and a separate limited judgment under ORCP 67 B for the London defendants. Plaintiffs' appeals from both limited judgments have been consolidated. Plaintiffs raise multiple assignments, challenging the trial court's rulings relating to the interpretation of ACE, Westport, General, and London's policies of insurance. Amici curiae Port of Portland and United Policy Holders have filed a brief in support of plaintiffs' argument that the trial court erred in its interpretation of the pollution exclusions in the London and General policies.

In a separate appeal from the limited judgment for ACE, General, Westport and Con-way, defendants American Home, London, Continental, Lexington, and Northern also seek reversal, challenging the trial court's denial of plaintiffs' motion for directed verdict or the court's failure to give a peremptory instruction regarding the interpretation of defendants' policies. They argue only that the trial court erred in rejecting plaintiffs' contention that the separate agreements that Freightliner and Con-way had with defendants ACE, Westport, and General to indemnify them against claims on the policies, which were not endorsed into the policies, cannot be considered in the interpretation of the underlying policies.

Intervenor Con-way was Freightliner's parent corporation at the relevant time. In addition to responding to plaintiffs' arguments on appeal, Con-way and defendants ACE, Westport, General, and London cross-assign error, asserting that the trial court erred in denying their motion for a directed verdict on plaintiffs' claims, made on the ground that Daimler did not assume Freightliner's contingent liabilities so as to be entitled to make claims under defendants' policies. For the reasons that follow, we agree with the argument advanced by Con-way and defendants ACE, Westport, General, and London on cross-assignment that the trial court erred in denying their motion for directed verdict and therefore affirm the judgment on that alternate ground, which obviates the need to reach the remaining arguments on appeal.

We summarize the pertinent facts, which are largely undisputed. Freightliner was a wholly-owned subsidiary of Consolidated Freightways (now known as Con-way), in the business of truck manufacturing and logistics. Beginning in 1976, Freightliner was "self-insured," in that it held reserves of $ 1 million for general liability claims and reserves of $ 5 million for products liability claims. But, as Con-way explains, "in the 1970s, it was virtually impossible for self-insured companies to establish compliance with financial responsibility laws in certain states." To satisfy state regulators, Con-way also purchased general liability policies for itself and its subsidiaries, including Freightliner, from 1976 to 1982. In exchange for a small fee, the insurance companies, defendants ACE, General, and Westport among them, issued standard-form general commercial liability policies that Freightliner and Con-way represented to regulators provided coverage with a $ 1 million limit for the liability of the insured. The insurance companies also issued certificates of insurance to state regulators certifying the policies' coverage. London issued excess liability policies to Freightliner from 1977 to 1982.

When Con-way purchased the ACE, Westport, and General policies for itself and Freightliner, it also executed an indemnification agreement with each insurer, in which it agreed to hold the insurers harmless.

On July 31, 1981, Con-way sold Freightliner to Daimler, cancelled any certificates of insurance that had been issued for Freightliner under its policies, and transferred to Freightliner cash reserves that had been set aside for known and unknown claims. On August 14, 1981, Freightliner and Daimler executed an "Agreement and Plan of Liquidation" in which Daimler agreed "unconditionally to pay and discharge any and all liabilities and debts" of Freightliner. The agreement further provided:

"[Daimler] shall deliver to [Freightliner] an instrument of assumption, under the terms of which [Daimler] shall expressly assume and undertake to pay, perform, fulfill and discharge all such liabilities and obligations of [Freightliner], accrued or existing at the time of transfer, whether absolute or contingent, and of whatever nature, except as otherwise provided for herein."

An "Assumption" agreement, signed by Daimler and executed on the same date, provided:

"IN CONSIDERATION OF the transfer and assignment, to [Daimler], of the assets of [Freightliner], and in further consideration of the execution, by [Freightliner], of that certain AGREEMENT AND PLAN OF LIQUIDATION dated as of even date herewith, [Daimler] hereby expressly assumes and undertakes to pay, perform, fulfill and discharge all liabilities and debts of [Freightliner], including, without limitation, all obligations, covenants and duties under any and all leases of real and personal property, obligations under licenses of United States and foreign patents, trademarks, service marks and copyrights, dealer agreements, pension and health plans, financial and credit arrangements, contracts, indentures, mortgages, pledges, warrants, subscriptions, loan agreements, export agreements, employment agreements, insurance agreements and plans, sales and repurchase agreements, indemnity agreements and plans of composition, and all other liabilities and obligations whether accrued, absolute or contingent, as of the date hereof."

Also on the same date, Daimler and Freightliner executed a "Transfer and Assignment Agreement," by which Freightliner assigned to Daimler all of its assets, except for its contingent liabilities. The agreement provided:

"[A]s payment in liquidation of [Daimler's] stock ownership in [Freightliner], [Freightliner] hereby assigns and transfers to [Daimler] * * * all of the properties and assets of [Freightliner] both real and personal, tangible and intangible, of every kind and nature, and wheresoever located, except as set forth in Schedule A hereto * * *[.]
"* * * * *
"Schedule A
"All contingent liabilities, and sufficient cash amounts as are estimated to be necessary to satisfy such liabilities, for which reserves have previously been established. This includes, but may not be limited to, reserves for warranty and insurance claims."

On September 1, 1981, Daimler and Freightliner signed a letter stating:

"This letter will confirm and clarify our mutual intent with respect to the liquidating distribution by Freightliner * * * effected by the Transfer and Assignment dated August 14, 1981. Specifically, we hereby confirm that such instrument was intended to transfer all properties and assets of Freightliner of every kind and nature other than the liabilities of Freightliner referred to in Schedule A and an amount of assets retained sufficient to satisfy such liabilities[.]"

As noted, Schedule A, in turn, explicitly excluded from Daimler's assumption Freightliner's contingent liabilities.

Daimler bought general commercial liability insurance coverage for Freightliner from plaintiffs going forward after July 1, 1981, and also bought a special policy from plaintiffs to provide primary coverage for claims against Freightliner that had been incurred but not reported before the transfer.

Since, Daimler acquired Freightliner, plaintiffs, as Daimler's primary insurers, have defended and paid many claims against Freightliner, including three Superfund claims and many asbestos claims, and plaintiffs brought this action for contribution from defendants. Con-way-as the party who would be called upon to indemnify ACE, Westport, and General under the indemnity agreements-intervened. The case was tried to a jury, which ultimately determined that Con-way, ACE, Westport, and General did not intend that defendants ACE, Westport, and General would have a duty under the policies to defend or indemnify Freightliner. As to plaintiffs' claims against London, the jury determined that they were subject to pollution exclusions. The trial court then entered the two limited judgments for defendants ACE, Westport, General, London, and intervenor Con-way that are on appeal.

Plaintiffs raise seven assignments of error. The first through fourth assignments challenge the trial court's decision, through various rulings, to submit to the jury the question whether Con-way, ACE, Westport, and General intended that ACE, Westport, and General would be called upon to indemnify Freightliner. In their fifth through seventh assignments, plaintiffs challenge the trial court's rulings as to the interpretation of the pollution exclusions in the General and London policies.

In a cross-assignment of error, Con-way and defendants ACE, Westport, General and London assert that the trial court erred in denying their motion for a directed verdict on the question whether Freightliner assigned to Daimler its contingent liabilities. We address that cross-assignment first, because it is dispositive and requires affirmance of the judgments.

It is undisputed that plaintiffs could be entitled to contribution from Freightliner's insurers only if Daimler is responsible for Freightliner's contingent liabilities. As a general rule, a corporation does not become responsible for the liabilities of another corporation by buying its assets and continuing its product line. Erickson v. Grande Ronde Lbr. Co. , 162 Or. 556, 568, 92 P.2d 170, reh'g den. , 162 Or. 556, 94 P.2d 139 (1939). There are four recognized exceptions to the general rule:

"(1) Where the purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction amounts to a consolidation or merger of the corporations; (3) where the purchasing corporation is merely a continuation of the selling corporation; and (4) where the transaction is entered into fraudulently in order to escape liability for such debts."

Id . The parties agree that the second through fourth exceptions are not at issue on appeal, and that, if Daimler is responsible for Freightliner's liabilities, it is because it agreed to assume those liabilities. The trial court submitted the question whether Daimler assumed Freightliner's contingent liabilities to the jury, and the jury found that Daimler had assumed Freightliner's obligations. Con-way and defendants contend that the trial court erred in failing to direct a verdict on that issue and in rejecting Con-way's request for a peremptory instruction, asserting that the record requires the finding that Daimler did not assume Freightliner's contingent liabilities.

The question depends initially on an interpretation of the documents relating to the 1981 Freightliner/Daimler asset transfer agreement, which involves the familiar three-step analysis described in Yogman v. Parrott , 325 Or. 358, 361, 937 P.2d 1019 (1997). First, we examine the text and context of the contract provisions at issue. Id . If the text and context are unambiguous, the analysis ends there. Id . If the text and context are ambiguous, then, as a second step, we consider whether extrinsic evidence resolves the ambiguity. Id . at 363, 937 P.2d 1019. If extrinsic evidence has not resolved the ambiguity, then, as a third and final step, we apply established maxims of construction to determine the meaning of the disputed language. Id . at 364, 937 P.2d 1019.

Con-way concedes that if only the documents from August 14, 1981, are considered, then the parties' agreement as to Daimler's assumption of Freightliner's contingent liabilities is ambiguous. The "Agreement and Plan of Liquidation" and the "Assumption" agreement state that Daimler assumes all liabilities, "whether absolute or contingent, and of whatever nature," but the "Transfer and Assignment Agreement" explicitly states that the transfer does not include Freightliner's contingent liabilities. We agree, however, with Con-way that the letter of September 1, 1981, is properly viewed as either a part of the parties' agreement, see Hays v. Hug , 243 Or. 175, 177, 412 P.2d 373 (1966) (observing that documents made by the parties at about the same time as part of the same transaction must be construed together as one contract), or as an addendum intended to eliminate any ambiguity and to clarify that Freightliner's contingent liabilities had not been transferred to Daimler. The letter states explicitly that its purpose is to clarify the terms of the August 14, 1981, agreement. It is signed by the parties and unequivocally and unambiguously states that Freightliner has not transferred, and Daimler has not assumed, Freightliner's contingent liabilities. Thus, because the letter is properly viewed as part of the parties' agreement, and because the text and context of the letter resolve the issue, we do not consider extrinsic evidence of the parties' intent or maxims of construction. See Yogman , 325 Or. at 361, 937 P.2d 1019 ("If the provision is clear, the analysis ends."); see also id . (noting that whether a provision is ambiguous is a question of law).

As such, we agree with the assertions of Con-way and defendants ACE, Westport, General, and London in their cross-assignment that the letter of September 1, 1981, is dispositive, viz ., because Daimler did not assume Freightliner's contingent liabilities, plaintiffs cannot seek contribution from Freightliner's historical primary and excess liability insurers. Accordingly, the trial court erred in denying the motion for a directed verdict as to all defendants, but nonetheless correctly entered judgment for defendants. In light of that conclusion, we need not address plaintiffs' assignments of error, the remaining cross-assignments of error, or the assignment of error on appeal of defendants American Home, London, Continental, Lexington, and Northern.

Affirmed.

      The first limited judgment ("Limited Judgment as to Fronting Insurers and Intervenor Con-way, Inc.") provides that the policies issued by ACE, Westport, and General were not intended to provide coverage for the environmental and asbestos claims based on the indemnity agreements between those insurers and Con-way. The second limited judgment ("Limited Judgment Regarding 1977-1981 London Market Policies Pursuant to ORCP 67 B") provides that certain policies issued by London do not provide coverage for the environmental claims based on pollution exclusions in the policies.

      The policies issued by ACE, Westport, and General contained standard terms, including the duty to defend and indemnify Freightliner.
      The London excess liability policies each contained a qualified pollution exclusion that precluded coverage for certain environmental claims, except "where such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this Insurance." The first and second General insurance policies also included a pollution exclusion provision that had an exception for claims based on discharges of pollutants that were "sudden, unexpected, unintentional." Policies of other insurers had qualified pollution exclusions with exceptions for "sudden and accidental" discharges.

      For example, Con-way's separate agreements with ACE and Westport are entitled "Indemnification Agreement," and provide:
      "In consideration of [Con-way] executing this contract of Indemnity, [the insurer] agrees to issue at the request of [Con-way] a Standard General Liability and Automobile Policy."
      The indemnification agreements further provided that Con-way agreed to "indemnify and save harmless" the insurer from all losses that those insurers may "sustain, incur or be put to on account of any claim or claims made under or in connection with the policy."


author: POWERS, J.

text:
    WESTERN RADIO SERVICES CO., an Oregon corporation, Plaintiff-Appellant, v. VERIZON WIRELESS (VAW), LLC, dba Verizon Wireless, a Delaware limited liability company and Midstate Electric Cooperative, Inc., Defendants-Respondents.
    A164562
    Court of Appeals of Oregon.
    Argued and submitted January 9, 2018. May 8, 2019
    George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
    Derek D. Green, Portland, argued the cause for respondent Verizon Wireless (VAW), LLC. Also on the brief was Davis Wright Tremaine LLP.
    Matthew J. Kalmanson, Portland, argued the cause for respondent Midstate Electric Cooperative, Inc. Also on the brief were Ruth C. Rocker and Hart Wagner LLP.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   POWERS, J.

Plaintiff Western Radio Services appeals from a limited judgment dismissing its action against defendants Verizon Wireless and Midstate Electric Cooperative, Inc., assigning error to the trial court's granting of defendants' motion for summary judgment. We review the trial court's ruling for whether there are genuine issues of material fact that preclude summary judgment and whether the trial court correctly ruled that defendants are entitled to judgment as a matter of law. ORCP 47 C. We conclude that the trial court did not err in its rulings. We further conclude, however, that the trial court's dismissal of plaintiff's declaratory judgment claims was not the proper disposition and that the judgment must be vacated and remanded for entry of judgment that includes a declaration of the rights of the parties. Bell v. City of Hood River , 283 Or. App. 13, 20, 388 P.3d 1128 (2016)

The relevant facts are undisputed. Defendant Midstate is a private, nonprofit electric cooperative that provides electricity to its members in an "exclusively serviced territory." Plaintiff is a wireless telecommunications carrier and is a member of Midstate.

Under ORS 758.450, a utility service may apply with the Public Utility Commission (PUC) for the allocation of exclusively serviced territory. ORS 758.450(1) ; see also ORS 758.735 (describing application process). If the PUC approves an application, no other person may offer, construct, or extend utility service in or into the allocated territory. ORS 758.450(2).

In 1962, the PUC approved Midstate's application for allocation of an exclusively serviced territory in Deschutes, Klamath, Lake, and Lane Counties. The United States Forest Service (USFS) owns land within Midstate's exclusively serviced territory, including the land known as Sugar Pine Butte, which is on the east side of Highway 97 outside of Sunriver, Oregon, and northwest of Paulina Lake and East Lake.

In 1989, plaintiff became a Midstate member and agreed to be bound by Midstate's policies, including those that "may be adopted from time to time." Among Midstate's policies is a "Line Extension Policy" adopted in 1990 providing that a line extension is "[a]ny proposed branch or continuation of a [Midstate] distribution line" within Midstate's service area. Under Midstate's line extension policy, a customer requesting a line extension must bear the costs of extending the line.

In April 1990, plaintiff obtained a special use permit from USFS to build a 60-foot radio tower and equipment building at Sugar Pine Butte. Initially, plaintiff's tower was solar and battery powered.

In 1992, plaintiff asked Midstate to provide power to plaintiff's radio tower on Sugar Pine Butte, which would involve extending a buried cable approximately 100 miles from Midstate's existing power distribution line on Highway 97. Midstate estimated that the cost for construction of the requested line extension would be $137,865. Midstate agreed to expand its power distribution infrastructure through a buried power line if plaintiff agreed to provide trenching, obtain some permitting, and pay the remaining costs as "contribution in aid of construction."

Plaintiff agreed to provide trenching and to obtain permitting, for which Midstate credited plaintiff $60,337 against its contribution in aid of construction. In a January 1992 letter, Midstate offered plaintiff two options for payment of plaintiff's remaining "contribution in aid of construction": Option One was a financing option and Option Two required full up-front payment. More specifically, Option One required an initial payment of $38,760 and annual payments of $4,845 for 10 years, for a total cost to plaintiff of $87,210. Option One would have required plaintiff to execute an "Electric Service Agreement" that included the statement that "Western agrees to pay for the cost of such installation of electrical line and facilities on Midstate's system which shall at all times be owned by Midstate[.]" Option Two required full up-front payment of plaintiff's "contribution in aid of construction" of $74,639 and no financing or contract.

Plaintiff chose Option Two and signed a "letter of agreement" that described the terms. Unlike the Electric Service Agreement, the letter made no mention of ownership of the electrical line and facilities. Midstate obtained a special use permit from USFS to construct, reconstruct, maintain, and operate power lines on USFS's Sugar Pine Butte site, as well as a nontransferable right to distribute power. Midstate's USFS permit provided that it would expire if Midstate ceased to be the owner of the equipment, including power lines.

In 2004, plaintiff entered into an agreement to lease space on its tower to Verizon's predecessor, RRC Holdings, Inc., allowing RRC Holdings to place four antenna panels on the tower and use space in the building for equipment. The lease expired on December 31, 2013. Plaintiff's USFS special use permit also expired on that date and was not renewed.

In response to the nonrenewal of its USFS lease, plaintiff sued the USFS in federal court, and the USFS filed a counterclaim for trespass. As a result of that litigation, the USFS obtained a judgment that included a permanent injunction prohibiting plaintiff from operating its equipment on USFS lands. Plaintiff was found liable for intentional trespass and ordered to remove all of its property from USFS lands, including the tower, building, and radio equipment. Plaintiff did not remove its property, which now belongs to the federal government.

After the judgment, Midstate disconnected plaintiff's access to power from the tower but continued to provide power to Verizon. Plaintiff then brought this action for trespass, alleging that it owned the power line connecting Midstate's power distribution line on Highway 97 to Sugar Pine Butte and that Midstate had improperly entered into a lease agreement with Verizon for connection to power through that line, and seeking damages and an injunction. Plaintiff also sought a declaration voiding existing contracts and preventing Midstate from entering into an agreement with Verizon.

Plaintiff's claims are predicated on its assertion that, by virtue of its letter agreement with Midstate, and oral promises made by Midstate's general manager, plaintiff owns the buried cable to Sugar Pine Butte. Midstate sought summary judgment, contending that plaintiff has no ownership interest in the power line and that, under Oregon law and Midstate's and USFS's policies, plaintiff could not own the power line.

The trial court agreed with Midstate that there was no evidence that plaintiff owns the power line, and that the summary judgment record required the conclusion that Midstate owns the equipment and has exclusive authority to operate and maintain it. Accordingly, the court granted defendants' motion for summary judgment.

On appeal, plaintiff maintains that the trial court erred in granting defendants' motion. As a preliminary matter, we note that, as defendants correctly point out (and plaintiff acknowledges on appeal), the record could not support a claim for "trespass," which is an invasion of an interest in the exclusive possession of land. See Goodwin v. Kingsmen Plastering, Inc. , 359 Or. 694, 701-02, 375 P.3d 463 (2016) (so stating); Martin v. Reynolds Metals Co. , 221 Or. 86, 90, 342 P.2d 790 (1959) (noting trespass and nuisance are separate fields of tort liability relating to interference "with the possession of land"). Rather, the only plausible claim under the pleaded facts would be for "trespass to chattels" or conversion, depending on the level of interference or disturbance. See Morrow v. First Interstate Bank , 118 Or. App. 164, 168, 847 P.2d 411 (1993) (describing distinction between trespass to chattels and conversion). To establish a claim for trespass to chattels or conversion, a party must show an actual ownership interest in and the right to control the disputed property. Mustola v. Toddy , 253 Or. 658, 663, 456 P.2d 1004 (1969) (adopting the definition of conversion found in Restatement (Second) of Torts § 222A(1) (1965) ).

In their motion for summary judgment, defendants contended that there was no viable claim, because plaintiff does not own the power line. As the party opposing defendants' motion, plaintiff had the burden to produce evidence of ownership of the power line that could support a claim of trespass to chattel or conversion. ORCP 47 C; Two Two v. Fujitec America , Inc. , 355 Or. 319, 324, 325 P.3d 707 (2014). We agree with the trial court that plaintiff did not meet that burden.

The only evidence in the record on summary judgment concerning plaintiff's asserted ownership of the power line is a statement in an affidavit of plaintiff's president, Overdorfer:

"[Midstate's general manager] provided me with two options as to how Western could handle the cost of building the line for [Midstate] to provide electrical service: (1) Midstate would finance part of the costs and would require [plaintiff] to agree to a certain minimum power consumption and [plaintiff] would have to agree that Midstate could connect other parties to the line and would own the physical line; or (2) [plaintiff] could pay for all the costs and materials, which would be [plaintiff's], and no contract would be required and it was clear that Midstate would not be able to connect other parties to the line with [sic ] [plaintiff's] approval."

Plaintiff argues that, "[i]n its essence, this is a contract case." In plaintiff's view, Overdorfer's affidavit is evidence that gives rise to a question of fact as to whether the parties agreed that plaintiff would own the equipment. The problem with plaintiff's argument, however, is that Overdorfer's affidavit does not actually state that the parties agreed that, under Option Two, plaintiff would have owned the buried power line. And there is no other evidence in this record that would support an inference that the parties intended that plaintiff's selection of Option Two gave plaintiff an ownership interest in the buried power line.

But, even viewing the affidavit in the light most favorable to plaintiff, Woodroffe v. State of Oregon , 292 Or. App. 21, 24, 422 P.3d 381 (2018) (evidence in summary judgment record must be viewed in light most favorable to nonmoving party), and assuming the truth of Overdorfer's understanding that Option Two gave plaintiff ownership of the power line, which then may call into question what the parties intended, Overdorfer's characterization of the agreement still would not create an issue of fact as to whether plaintiff actually owns the power line given the evidence in the summary judgment record. That is because, even assuming the truth of Overdorfer's understanding of the agreement, the evidence in the entire summary judgment record failed to establish that an objectively reasonable juror could return a verdict concluding that plaintiff owned the power line. First, Overdorfer's understanding does nothing to explain that Midstate would have agreed to terms that would have violated its own permit with the USFS for the extension of service, which provided that if Midstate transferred any of the equipment, its permit would be cancelled. Second, Oregon law heavily regulates the permitting of power distribution. See ORS chapters 756, 757, 758. Plaintiff's ownership of the power line would have made it a "public utility," as defined in ORS 757.005 (1)(a)(A) (defining a public utility as "[a]ny corporation *** that owns, operates, manages or controls all or a part of any plant or equipment *** for the delivery *** of *** power, directly or indirectly to or for the public"), within Midstate's "exclusively service territory" and in violation of ORS 758.450, and would have subjected plaintiff to regulation by the PUC. It is difficult to conceive how an objectively reasonable juror could find that the parties could have intended an agreement that would have such a consequence.

Viewing the summary judgment record as a whole and in the regulatory context of utility service, we conclude that Overdorfer's understanding of the parties' agreement does not give rise to a material issue of fact as to whether plaintiff actually owned the power line through which Midstate distributed power to Sugar Pine Butte. Accordingly, we conclude that the trial court did not err in granting defendants' motion for summary judgment on plaintiff's claim for "trespass."

In view of our conclusion with respect to the trespass claim, we agree with defendants that plaintiff has not established a basis for seeking declaratory relief. Finally, because the trial court incorrectly dismissed plaintiff's declaratory judgment claims, we vacate the judgment and remand for entry of a judgment that includes a declaration of the parties' rights that is consistent with this opinion. See, e.g. , Schroeder v. Clackamas County Bank , 291 Or. App. 16, 18, 419 P.3d 726, rev. den. , 363 Or. 815, 431 P.3d 90 (2018) ("[B]ecause it is error to dismiss a claim for declaratory relief unless there is no justiciable controversy, we remand for the issuance of a judgment that declares the rights of the parties.") (footnote and citation omitted).

Vacated and remanded.

      The agreement also provided:
      "To enable Midstate to provide the equipment and facilities requested by Western pursuant to this Agreement, Western agrees to pay the sum of [$38,760] as contribution in aid of construction on account of the equipment and facilities described in Exhibit A hereto upon execution hereof. No refund shall be made to Western of any portion of the contribution in aid of construction and all improvements as described in Exhibit A to Midstate's distribution system and any related equipment shall remain and become the sole and exclusive property of Midstate."

      We reject plaintiff's contention that the absence, in the letter of agreement, of a statement that Midstate would own the power line permits an inference that plaintiff owned the power line.


author: GARRETT, J. pro tempore.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Josef Grant TAYLOR, Defendant-Appellant.
    A164113
    Court of Appeals of Oregon.
    Submitted October 18, 2018. May 1, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Matthew Maile, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   GARRETT, J. pro tempore.

ORS 137.106(1)(a) provides that, if the state seeks restitution in a criminal case, the prosecutor must present the trial court with supporting evidence "at the time of sentencing or within 90 days after entry of the judgment." The court may extend that period upon a showing of good cause. In this case, the trial court imposed restitution in a supplemental judgment entered 331 days after the entry of the judgment of conviction. On appeal, defendant argues that the delay in entering the supplemental judgment for restitution was not justified by good cause. However, the current text of ORS 137.106(1) does not require a supplemental judgment imposing restitution to be entered within any particular time after the judgment of conviction. Therefore, we affirm.

The relevant facts are procedural and not in dispute. After entering a plea of no contest to several charges, defendant was sentenced on February 24, 2016, and the judgment of conviction was entered on that date. Before the sentencing hearing, the state filed a "restitution worksheet" requesting restitution under ORS 137.106, and defendant filed a motion requesting a restitution hearing. At sentencing, defendant's attorney asked the court to set a separate restitution hearing because he needed "some time to digest it further." The court agreed with the attorney's request. As a result of a series of events not relevant to our review, a restitution hearing was held on January 12, 2017, and a supplemental judgment ordering defendant to pay $ 6,450.89 in restitution was entered on January 20, 2017-331 days after the original judgment was entered.

On appeal, defendant's sole challenge to the restitution award is that the trial court violated ORS 137.106 because "good cause" did not justify entering the supplemental judgment 331 days after the entry of the judgment of conviction. The state contends that the trial court correctly found good cause for the delay. We review for legal error. State v. Biscotti , 219 Or. App. 296, 299, 182 P.3d 269 (2008).

ORS 137.106(1)(a) provides, in part:

"When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence of the nature and amount of the damages. The court may extend the time by which the presentation must be made for good cause."

The plain text of the statute provides that the state is obligated to "present" restitution evidence to the court within 90 days of the entry of judgment. The court may extend the time for that presentation on a showing of good cause.

Below, defendant did not articulate any argument that the state had failed to "present to the court * * * evidence of the nature and amount of the damages" within 90 days after entry of the judgment. ORS 137.106(1)(a). Rather, he argued that that statutory text required the court itself to determine the amount of restitution and enter judgment within 90 days, unless the state showed good cause. He renews that argument on appeal.

We reject defendant's argument. ORS 137.106(1)(a) requires only that the state present certain evidence to the court within 90 days; it imposes no time limit for the court to act on that evidence. The court did not err in imposing restitution 331 days after the entry of the judgment of conviction.

Affirmed.

      The timing requirement of the current statute diverges significantly from the timing required by the former version of the statute. Defendant relies on cases that examined good cause under a timing requirement in the former version of the statute, one that the legislature omitted from the present version. The former version, ORS 137.106 (2003), amended by Or. Laws 2005, ch. 564, § 2, and Or. Laws 2007, ch. 425, § 1, and Or. Laws 2007, ch. 482, § 1, and Or. Laws 2013, ch. 388, § 1, and Or. Laws 2015, ch. 9, § 2, provided:
      "(1) When a person is convicted of a crime * * * that has resulted in pecuniary damages, the district attorney shall investigate and present to the court, prior to the time of sentencing , evidence of the nature and amount of such damages. If the court finds from the evidence presented that a victim suffered pecuniary damages, in addition to any other sanction it may impose, the court shall :
      "(a) Include in the judgment a requirement that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's pecuniary damages as determined by the court; or
      "(b) Include in the judgment a requirement that the defendant pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim's pecuniary damages as determined by the court. The court may extend the time within which the determination and supplemental judgment may be completed for good cause."
      (Emphases added.)

      To the extent that defendant implicitly argues on appeal that the prosecutor did not "present" the evidence required by ORS 137.106(1)(a) within 90 days, that argument is not preserved or presented on appeal sufficiently for our review, and, accordingly, we do not address it.


author: JAMES, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. David Joel BARBERO, Defendant-Appellant.
    A164307
    Court of Appeals of Oregon.
    Argued and submitted January 7, 2019. May 1, 2019
    Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. Also on the brief 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 brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

The common law concept of corpus delicti for the corroboration of confessions is codified at ORS 136.425(2). To assist courts in implementing that statute, the Uniform Criminal Jury Instructions committee of the Oregon State Bar created Uniform Criminal Jury Instruction (UCrJI) 1050, which reads as follows:

"A confession alone is not sufficient to support a conviction for a crime. There must be some additional evidence, other than the confession, from which you may draw an inference that tends to establish or prove that a crime has been committed.
"Not all statements by the defendant are confessions. A statement that is an admission rather than a confession may be used to corroborate a confession.
"A confession is an acknowledgement of guilt made by a person after an offense has been committed. An admission is a statement made for some purpose other than to acknowledge guilt."

To date, corpus delicti decisions by this court, as well as the Oregon Supreme Court, have arisen exclusively in the context of motions for judgment of acquittal (MJOA) and have concerned whether the evidence was sufficient to meet the requirements of ORS 136.425(2) so as to allow the case to proceed to a jury. This case, however, concerns UCrJI 1050 and provides an opportunity to clarify when, if ever, the instruction is warranted. Specifically, this case presents the question of whether, after a trial court denies an MJOA raised on ORS 136.425(2) grounds, there remains any residual factual determination for the jury on corroboration so as to warrant an instruction. Here, defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He assigns error to the trial court's refusal to give UCrJI 1050, after the trial court's earlier denial of his MJOA, where the court held that his statements were admissions, not confessions. We conclude that the instruction was not warranted in this case after the trial court ruled defendant's statements were admissions. We, therefore, affirm.

"In reviewing the trial court's refusal to give a requested instruction, we view the record in the light most favorable to establishment of the facts necessary to require that instruction." State v. Egeland , 260 Or. App. 741, 742, 320 P.3d 657 (2014). "[A] trial court may refuse a requested jury instruction if the instruction does not accurately state the law as it applies to the case." State v. Snyder , 288 Or. App. 58, 61, 405 P.3d 175 (2017), rev. den. , 362 Or. 508, 424 P.3d 726 (2018). We begin with the following relevant facts.

Deputy Ross was called to mediate a dispute between defendant and the camp host of the Wilson River RV Park, where defendant had his mobile home parked.

Ross was wearing a body camera and recorded his interaction with defendant. Ross knocked on defendant's door and asked him about the disagreement defendant was having with the camp host regarding a package being held at the RV park office and defendant's application to stay at the park. Defendant explained that he had tried to retrieve his package from the office before 5:00 p.m., but the host had closed the office early. Ross then asked defendant if he had driven his vehicle to the office or around the park property. After some more back and forth between Ross and defendant, Ross told defendant, "So, obviously, I can smell a little bit of alcohol off of you." Ross asked, "So I guess my question is, is how much have you had to drink today?" and explained to defendant that he was concerned that defendant had been driving intoxicated. Defendant responded, "No, I'm not" and explained to Ross that earlier someone had "screamed out of [the RV park] * * * like the Tasmanian Devil" but that "no, I would never do that." Ross again asked defendant, "You never drove around?" Defendant responded, "No. Oh, yeah, I drove around but not like that."

Ross read defendant his Miranda rights and informed him that he was under arrest for DUII. Defendant was arrested and charged with DUII. At the close of the state's case, defendant moved for judgment of acquittal, arguing:

"[DEFENSE COUNSEL]: [T]he state has insufficient evidence to establish driving of a vehicle. And there's a couple of points I want to make on this one.
"Number one is that the driving in this case is established through [defendant]'s statement that he drove. And he never actually says he drove.
"* * * * *
"And what we have here is no corroboration of any kind other than the statement regarding driving."

In response, the prosecutor argued:

"[PROSECUTOR]: Defendant says he drove 25 minutes ago. When Deputy Ross told him he was concerned about his driving, he said, well, there's nothing recorded, but a couple days ago, you know, someone was driving crazy.
"That's direct evidence. And the fact he was driving, it's an admission. It doesn't need corroboration."

The arguments then focused on whether defendant's statements constituted admissions or confessions. Defense counsel argued:

"[DEFENSE COUNSEL]: Well, and, Your Honor, with the confession corroboration instruction, it instructs the jury on kind of the difference between a confession or an admission. And the fundamental difference between the two is the intent of the person making the statement."
The state responded:
"[PROSECUTOR]: Yeah. I think [ State v. ] Anderson [, 103 Or. App. 436, 797 P.2d 1072 (1990), rev. den. , 311 Or. 60, 803 P.2d 732 (1991) ] gives us a couple of points of law. One being subjective intent of the defendant controls.
"The defendant in the video shows at the end while he's in the car, he says, 'I don't even know why I've been arrested,' while he's leaving a voice mail.
"So all of the statements he made up to that point I don't think it's possible to find that he had the subjective intent to confess to a crime. And so I think that qualifies as admissions. Admissions don't take-don't require corroboration."

The trial court denied defendant's MJOA, reasoning that "this is not a confession case" because defendant "didn't actually admit to impairment," which is an element of the charged crime. The court ruled:

"[COURT]: [T]his is not a confession case. Anderson discusses it at detail. And the facts of Anderson are very similar to this case.
"There is a vehicle here, as there was in Anderson there. Anderson 's an ATV. Here, it's a car. Defendant points out his car and talks about the engine and the horsepower and all sorts of things.
"He admits to driving. And that's all done in the context of dispute, I think was referred to.
"So, based on that, motion for judgment of acquittal will be denied."

That ruling-the denial of defendant's MJOA-is not before us on appeal, as defendant has not assigned error to it. Instead, on appeal, defendant focuses on what occurred after that ruling. Defendant requested UCrJI 1050, arguing:

"[DEFENSE COUNSEL]: I think that that comes down to a jury question and that the-if a juror-there's evidence which would support a jury determining there's a confession. There's evidence where a jury could believe it was an admission.
"At JOA, it goes in the light most favorable to the state but not at a jury instruction level."

The trial court refused to give the instruction, ruling:

"[COURT]: All right. So at the jail he refused breathalyzer because he said he didn't realize he's being arrested for DUI. I don't think there ever was a confession. There's a lot of admissions throughout that.
"But based on Anderson , I-I don't think there's a basis for confession jury instruction.
"* * * * *
"And so I don't think based on Anderson we could give corroboration-confession corroboration just because there's not a legal basis to find that there was a confession."

Ultimately, the court instructed the jury, in relevant part, as follows:

"[COURT]: You have heard evidence that the defendant made a statement that you may find is an admission. You may not consider such statement unless you first decide:
"(1) The statement actually was made by the defendant, and if so,
"(2) The statement was made voluntarily by the defendant.
"The state must prove that the statement was actually made and that it was made voluntarily. Consider all the evidence about the statement including the circumstances under which it was given.
"You must make your decision as to whether or not the statement was made voluntarily without considering the truth or falsity of the statement. You are the sole and exclusive judge of the weight, if any, to be given to such statement."

At the conclusion of deliberations, the jury returned a unanimous guilty verdict.

On appeal, defendant assigns error to the trial court's denial of his requested jury instruction on confession and corroboration, UCrJI 1050. Defendant argues that he was entitled to the instruction as long as the instruction correctly stated the law and the evidence in the record supported giving the instruction. According to defendant, despite the court's ruling, the jury was entitled to make its own determination as to whether his statements were admissions or confessions, and, if confessions, whether such confessions were corroborated. In response, the state asserts that the trial court's ruling on the legal question of whether defendant's various statements were admissions, and not confessions that needed to be corroborated, was correct and unchallenged on appeal. Further, following that legal ruling, there was no factfinding role for the jury on the issue, thus rendering the instruction improper. The issue so framed, we turn to the merits.

ORS 136.425 codified Oregon's corpus delicti law on confessions and corroboration and states, in part:

"(2) Except as provided in ORS 136.427, a confession alone is not sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed."

Although framed in statutory terms, corpus delicti as a legal concept has a long pedigree. It emerged out of English common law as a response to the problem of false confessions and the resulting executions of later-exonerated accused. As the Oregon Supreme Court explained:

"One of the most famous of these [cases] was Perrys' Case , 14 How. St. Tr. 1312 (1660). The supposed victim failed to return home one evening, and a search revealed only his hacked and bloody hat. A servant of the victim confessed that he, his brother and his mother had murdered the victim. The three were tried, convicted and executed on the strength of the victim's disappearance, the discovery of the hat and the servant's confession. A few years later, the victim reappeared."

State v. Manzella , 306 Or. 303, 310 n. 4, 759 P.2d 1078 (1988).

ORS 136.425(2) requires "some other proof" in order to convict a defendant based upon his confession. We have noted that "some other proof" "only means that there must be evidence from which an inference may be drawn that tends to establish that a crime has been committed by the defendant." Anderson , 103 Or. App. at 439, 797 P.2d 1072 (emphases in original). As we stated in Anderson , "The sufficiency of the evidence in this case depends on whether the statement [to the officer] was an admission or a confession." Id. at 438, 797 P.2d 1072.

In Manzella , the court concluded that "it seems clear that the legislature intended to distinguish between 'confessions' and 'admissions' for the purpose of the corroboration requirement." 306 Or. at 314, 759 P.2d 1078. The Manzella court determined that

"statements made for some purpose other than to acknowledge guilt, i.e. , exculpatory statements or statements made as part of a person's employment duties, are not confessions. It follows, then, that a 'confession' must have been made after the commission of the crime in question, for the purpose of acknowledging that the speaker is guilty of some criminal offense."

Id. at 316, 759 P.2d 1078. As the court in Manzella concluded,

"[t]his court's practice of distinguishing between 'admissions' and 'confessions' for the purpose of [ ORS 136.425 ] has been consistent and longstanding. In light of that precedent, the 1957 legislature's rejection of the proposed addition of the words 'or admissions' in 1957, and its failure to amend [that provision], it seems clear that the legislature intended to distinguish between 'confessions' and 'admissions' for the purpose of the corroboration requirement."

Id. at 314, 759 P.2d 1078. That "longstanding" distinction between admissions and confessions has not been legislatively altered since Manzella .

Thus, the evidence of a defendant's statements is treated differently by the trial court as a result of its legal determination as to whether the statements constitute an admission or a confession. The trial court's determination implicates the sufficiency of the evidence-or under ORS 136.425(2), the requirement of "some other proof"-and is a bedrock determination that triggers the corpus delicti rule.

We recognize that Oregon's treatment of corpus delicti is not universal. Broadly, "The question of whether the corroboration rule is an evidentiary rule or a substantive rule of criminal law has been the subject of significant discussion in other jurisdictions and by commentators." State v. Leniart , 166 Conn. App. 142, 163, 140 A.3d 1026, 1045 (2016). Additionally,

"there is also the question of whether the corpus delicti rule simply defines the evidentiary foundation needed to support the introduction of the defendant's confession, so that the decision is to be made by the trial judge before the case is submitted to the jury, or whether on the other hand it establishes an implicit element of the government's proof, so that the trial judge's evidentiary ruling would be merely preliminary to the jury's later determination of corpus delicti . There is a split of authority between the 'evidentiary foundation' and 'implicit element' approaches[.]"

Id. at 163-64, 140 A.3d 1026.

Despite the emergence of a split of authority between the evidentiary foundation and implicit element approaches, "federal courts have characterized the corroboration rule as a hybrid rule * * *: 'The corroboration principle sometimes comes into play in the trial court's decision to admit the defendant's confession and also if he later challenges the sufficiency of the evidence.' " Leniart , 166 Conn. App. at 164-65, 140 A.3d 1026 (quoting United States v. McDowell , 687 F.3d 904, 912 (7th Cir. 2012) ).

Importantly, "Even in those jurisdictions that consider the corpus delicti rule to be an implicit element of an offense or treat it as a hybrid rule, many courts have concluded that no special instructions to the jury are required." Leniart , 166 Conn. App. at 165, 140 A.3d 1026 ; see, e.g. , McDowell , 687 F.3d at 912 ("The corroboration principle sometimes comes into play in the trial court's decision to admit the defendant's confession and also if he later challenges the sufficiency of the evidence. But we have held that the district court is not obligated to instruct the jury on the requirement of corroboration. United States v. Howard , 179 F.3d 539, 543 (7th Cir. 1999). Following the lead of two other circuits, [the Seventh Circuit] concluded in Howard that the matter was better left to the trial judge, and that the standard instructions regarding the government's burden of proof and the presumption of innocence are generally sufficient."); United States v. Dickerson , 163 F.3d 639, 642-43 (D.C. Cir. 1999) ("We think it telling that in each of the Supreme Court's principal corroboration cases, the Court resolved the corroboration question on its own without any mention at all of the necessity of jury reconsideration. The Court treated corroboration essentially as a duty imposed upon courts to ensure that the defendant is not convicted on the basis of an uncorroborated out-of-court statement. If the Court thought the jury played a necessary supplementary role in making the corroboration determination, the Court certainly could not have affirmed the convictions based solely on its own judgment that sufficient corroborative evidence existed, without first considering whether the jury had been instructed to do the same. * * * After all, the requirement for sufficient evidence to convict is itself a limitation on the jury's power, but no one thinks it follows from this that the jury must be given an opportunity to reconsider for itself the judge's decision on a motion for judgment of acquittal." (Citations and footnote omitted.)) ; United States v. Singleterry , 29 F.3d 733, 739 (1st Cir. 1994) (noting that "particularly where a full confession dominates the government's proof, it is fair to assume that a jury will interpret its duty to find guilt beyond a reasonable doubt to mean that it cannot simply accept a confession at face value"); D'Aquino v. United States , 192 F.2d 338, 357 (9th Cir. 1951) ("It is sufficient if the corroborative evidence, when considered in connection with the confession or admission, satisfied the jury beyond a reasonable doubt that the offense was in fact committed. * * * [T]his court indicated that the usual instructions on presumption of innocence and reasonable doubt adequately covered all that the jury need be told upon this question of sufficiency of proof of the corpus delicti ."). As the preceding survey indicates, a majority of jurisdictions across the United States agree that it is sufficient when the jury is properly instructed with regard to the presumption of innocence and the state's burden to prove beyond a reasonable doubt that the crime was committed. That is, "the district court is not obligated to instruct the jury on the requirement of corroboration." McDowell , 687 F.3d at 912.

ORS 136.425 and ORS 136.427 are situated within the statutory scheme pertaining to criminal trials; specifically, within the section pertaining to evidence. ORS 136.030 describes broadly how issues are tried in criminal trials: "An issue of law shall be tried by the judge of the court and an issue of fact by a jury of the county in which the action is triable." This statutory scheme also describes the function of a criminal trial court in ORS 136.310 :

"All questions of law, including the admissibility of testimony, the facts preliminary to such admission and the construction of statutes and other writings and other rules of evidence shall be decided by the court. All discussions of law shall be addressed to it. Whenever the knowledge of the court is by statute made evidence of a fact, the court shall declare such knowledge to the jury, which is bound to accept it as conclusive, except as provided in ORS 40.085."

As mentioned above, the legal distinction between confessions and admissions is an important one because "[ ORS 136.425 ] applies only to statements that constitute 'confessions,' not to mere 'admissions.' " State v. Bella , 231 Or. App. 420, 431, 220 P.3d 128 (2009), rev. den. , 347 Or. 608, 226 P.3d 43 (2010). Here, because the trial court determined-as a matter of law-that defendant's statements were not made for the purposes of acknowledging guilt, the court could only have concluded that those statements were admissions and not confessions. The corpus delicti requirements of ORS 136.425(2) are triggered only by the state's reliance on a confession . Regardless of UCrJI 1050's additional wording on admissions, without a confession, the trial court did not err when it determined that there was no "basis for [the] confession jury instruction." Instead, the trial court provided instruction on admissions and voluntariness, as well as the state's burden of proof. Accordingly, the trial court did not err when it refused to instruct the jury on confessions and corroboration, UCrJI 1050.

Affirmed.

      ORS 136.425 was amended by the legislature in 2009. A review of the legislative history shows that the 2009 amendments were intended to address corpus delicti in the narrow confines of abuse cases with vulnerable victims. Nothing in the text or history of the 2009 changes indicate a legislative intent to dispose of the admissions/confessions distinction.

      The "same statute" may mean the same chapter where a provision has been codified. E.g. , Morsman v. City of Madras , 203 Or. App. 546, 561, 126 P.3d 6, rev. den. , 340 Or. 483, 135 P.3d 318 (2006). However, the same statute may also include other provisions of the bill that were originally approved by the legislature, but later codified in different chapters or sections of the Oregon Revised Statutes. E.g. , Martini v. DMV , 278 Or. App. 172, 178-79, 373 P.3d 1227 (2016).


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Nancy Lazaryan HUTCHISON, Defendant-Appellant.
    A164785
    Court of Appeals of Oregon.
    Submitted March 26, 2019. May 1, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appealing a judgment of conviction for two misdemeanor counts of disorderly conduct for "mak[ing] unreasonable noise," ORS 166.025(1)(b), defendant assigns error to the trial court's (1) denial of her motion for judgment of acquittal on both counts, (2) failure to, in effect, correctly instruct itself on the applicable legal standard for assessing defendant's guilt on the charges, and (3) imposition of two consecutive five-year probation terms.

We reject defendant's first two assignments of error without further discussion. We vacate and remand for resentencing on the third assignment of error, on which the state, correctly, has conceded error. Defendant's aggregate term of probation is 10 years. But the trial court was not authorized to impose a term of probation that exceeded a total of five years. See ORS 137.010(3), (4) (allowing for term of probation not to exceed five years); State v. Marsh , 78 Or. App. 290, 294, 716 P.2d 261, rev. den. , 301 Or. 320, 721 P.2d 1388 (1986) (construing ORS 137.010 as limiting the term of probation to a period of five years starting at the date of imposition of sentence). Although defendant did not preserve her assignment of error, the error is one that is plain, that is, obvious in view of the terms of the statute and our case law. We further conclude that we should exercise our discretion to correct that error because its gravity is significant; absent correction of the error, defendant would be subject to a significantly longer sentence.

The parties are not in agreement as to the proper disposition. Defendant asserts that the correct disposition is for us to remand to the trial court for entry of a judgment that does not run the terms of probation consecutively. The state contends that, on this record, we should vacate and remand for resentencing because it is not clear what the trial court would have done had it recognized the limits of its authority with respect to the probationary term it could impose. We agree with the state that the record does not disclose what disposition the trial court would have chosen had it recognized the limits on the total term of probation. For that reason, as was the case in State v. Tison , 292 Or. App. 369, 372-73, 424 P.3d 823, rev. den. , 363 Or. 744, 430 P.3d 567 (2018), which, like this case, was an appeal governed by former ORS 138.040 (2015), we conclude that the appropriate disposition of this appeal is to vacate the portion of the judgment imposing the unlawful terms of defendant's sentence and remand for resentencing.

Portion of judgment imposing consecutive terms of probation vacated; remanded for resentencing; otherwise affirmed.

      ORS 138.040 (2015) was repealed in 2017 but governs this case because the judgment on appeal was entered before January 1, 2018, the effective date of the new legislation. Or. Laws 2017, ch. 529, § 28; Tison , 292 Or. App. at 372 n. 3, 424 P.3d 823 (making that point).