author: ORTEGA, P. J.

text:
    David Lee BATES, Personal Representative of the Estate of Olivia Sophia Bates, Deceased, Plaintiff-Respondent, v. ANDALUZ WATERBIRTH CENTER, an Oregon corporation; Carmen Cosby, CPM, LDM; Jennifer Gallardo, CPM, LDM; Tracy Lawson-Allen, CPM, LDM; Katie Nadalsky, CNM; Mary Strubhar, CNM, MSN; and Marilyn Milestone, CPM, LDM, IBCLC, Defendants-Appellants.
    A163860
    Court of Appeals of Oregon.
    Argued and submitted December 14, 2017. August 7, 2019
    Hermine Serena Hayes-Klein argued the cause for appellants. On the brief were
    Janet M. Schroer and Hart Wagner LLP. On the reply brief was also Mark Sherman.
    Rhett Garrett Fraser argued the cause for respondent. Also on the brief were
    James D. Huegli and Huegli Fraser P.C.
    Faith M. Morse filed the brief amicus curiae for Oregon Trial Lawyers Association.
    Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.

      Mooney, J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

Defendants appeal from an order denying their motion to dismiss and compel arbitration of plaintiff's claim for wrongful death. ORS 36.730(1)(a). Plaintiff is the personal representative for the estate of Olivia Bates, who was two days old when she died from complications of her birth at defendant Andaluz Waterbirth Center (Andaluz). Defendants sought to dismiss the wrongful death action and compel arbitration based on an arbitration clause in the "Midwife Disclosure and Consent" form that Olivia's mother, Stephanie Bates, had signed when she was about four months pregnant with Olivia. The trial court denied that motion, and defendants appeal. Under the circumstances presented here, we conclude that Olivia was not bound by the arbitration agreement in the Midwife Disclosure and Consent form and, accordingly, affirm.

The relevant facts are undisputed. In July 2014, Stephanie Bates sought prenatal and birth care at Andaluz. Before receiving care, she signed a "Midwife Disclosure and Consent" (Midwife Disclosure). The Midwife Disclosure is a two-and one-half page form and is signed only by Stephanie.

On the first page and the beginning of the second page, the Midwife Disclosure describes the experience of the midwives who work at Andaluz. It then provides information and disclosures about the services offered, and not offered, at Andaluz, separated by the following headings: "Services provided to mother and baby," "Responsibilities of the mother and her family," "The risks inherent in birth and malpractice coverage disclosure," "Types of emergency medicine and equipment used," "Transfer of Care and Transport Plan," "Fees for services including financial arrangements," and "Our philosophy of birth." Of relevance to this proceeding, the "Services provided to mother and baby" section provides:

"The Andaluz midwives provide continuity of care. Two midwives will serve you during your pregnancy and birth, in our birth center or your home. Besides your two midwives, Andaluz also uses the assistance of midwife apprentices whom you will meet at your prenatal visits. The apprentices are trained in labor, birth, and postpartum care and are well on their way to becoming midwives themselves. We provide childbirth classes, lab work throughout the pregnancy (lab fees are separate), one hour prenatal visits every four weeks until 32 weeks, every two weeks until 36 weeks, then every week until birth, 24-hour on-call services for labor and other emergency needs, labor and delivery care in one of our birthing suites or in your home, meals for you and your partner during your stay at the birth center, newborn exam after delivery, 1-2 day postpartum care at the birth center, four postpartum visits for baby and mother at 3 days, 1 week, 3 weeks, and 6 weeks, contraceptive counseling and pap smear."

After the sections named above, the Midwife Disclosure sets out the following statement:

"I plan to give birth at the Andaluz Waterbirth Center or at home with a midwife in attendance. I have read, discussed, and signed our midwives disclosure statement and agree to read the financial agreement and risk assessment criteria as listed in the Birthing Center High Risk Factors form and OAR 332-025-0021."

Following that statement, the Midwife Disclosure finally provides, directly before a signature line, the arbitration agreement that is at issue in this proceeding. That provision provides:

"If Arbitration or Mediation Is Required
"I understand that the midwives and facility at Andaluz Waterbirth Center do not carry malpractice insurance.
"Any dispute or claim that arises out of or relates to this agreement, or care given and received, or to the interpretation or breach thereof, or to the existence, scope, or validity of this agreement, shall be resolved by arbitration in accordance with the then effective arbitration of (and by filing a claim with) Arbitration Service of Portland, Inc. and judgment upon the decision rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof.
"If the parties prefer mediation to resolve a dispute, this can be done through a mediator selected and agreed upon by the parties. The parties acknowledge that mediation helps parties settle their dispute and any party may propose mediation whenever appropriate."

After signing the Midwife Disclosure, Stephanie received prenatal care from Andaluz. In December 2014, Stephanie went into labor and delivered Olivia at Andaluz's center. Shortly after Olivia's birth, she was transported to the hospital by ambulance. Two days later Olivia died in the hospital from complications resulting from the circumstances of her birth.

Plaintiff, the personal representative of Olivia's estate and Olivia's father, brought a wrongful death action against defendants. Defendants sought to dismiss that action and compel arbitration of plaintiff's claim based on the arbitration clause in the Midwife Disclosure that Stephanie had signed while pregnant with Olivia. The trial court denied that motion, concluding that Stephanie's signature was not effective to waive Olivia's constitutional right to a jury trial. Defendants appeal that order.

On appeal, defendants argue that Olivia was bound by the arbitration agreement in the Midwife Disclosure because Stephanie signed the agreement on behalf of Olivia. Defendants assert that that is the case because the Midwife Disclosure covered care for Olivia's delivery, as well as postpartum exams for Olivia. Defendants further argue that Stephanie had the authority to bind Olivia to the arbitration agreement because Olivia could not have done so on her own behalf and that Stephanie did so to obtain medical care for Olivia. Defendants argue that Stephanie was not required to obtain any special authority to act on behalf of her unborn child.

Plaintiff responds that the text of the Midwife Disclosure does not purport to bind Olivia to the arbitration agreement and there is no evidence that Stephanie and Andaluz intended to so bind Olivia. Further, plaintiff argues, Stephanie had no notice that she was being asked to so bind Olivia. Plaintiff thus asserts that defendants cannot treat Olivia as a party to the arbitration agreement and take away her fundamental right to a jury trial. Plaintiff further argues that a parent's consent to medical care for a child is a separate issue and cannot constitute a waiver of the child's right to a jury trial. Finally, plaintiff also responds that Stephanie did not have authority to bind Olivia, or Olivia's estate, to the arbitration agreement.

Reviewing for legal error, DeLashmutt v. Parker Group Investments, LLC , 276 Or. App. 42, 44, 366 P.3d 769 (2016), we conclude that the trial court did not err because, as a matter of contract interpretation, Stephanie did not bind Olivia to the arbitration agreement when she signed the Midwife Disclosure. Based on that disposition, we do not reach the issue of whether Stephanie had the authority to bind Olivia to an arbitration agreement.

"Arbitration arises as 'a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' " Drury v. Assisted Living Concepts, Inc. , 245 Or. App. 217, 221, 262 P.3d 1162 (2011) (quoting AT&T Technologies v. Communications Workers , 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) ). Under Oregon's Uniform Arbitration Act, it is for the court to "decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate." ORS 36.620(2). We make that decision applying ordinary rules of contract formation and interpretation. DeLashmutt , 276 Or. App. at 46, 366 P.3d 769.

"To form a contract, there must be 'a meeting of the minds of the parties, a standard that is measured by the objective manifestations of intent by both parties to bind themselves to an agreement.' " Drury , 245 Or. App. at 221, 262 P.3d 1162 (quoting Rick Franklin Corp. v. State Dept. of Transportation , 207 Or. App. 183, 190, 140 P.3d 1136, rev. den. , 342 Or. 116, 149 P.3d 138 (2006)). And, in interpreting a contract, we follow the steps in Yogman v. Parrott , 325 Or. 358, 937 P.2d 1019 (1997). First, we "examine[ ] the text of the disputed provision, in the context of the document as a whole. If the provision is clear, the analysis ends." Id. at 361, 937 P.2d 1019. If the provision is ambiguous, we proceed to the next steps as provided in Yogman . Id. at 363, 937 P.2d 1019. Here, we conclude that the Midwife Disclosure is not ambiguous and, based on the text and context of that document, Stephanie did not sign on behalf of Olivia, nor was Olivia otherwise made a party to the arbitration agreement.

As set out above, the arbitration agreement appeared in the Midwife Disclosure after the statement of acknowledgment of having read the disclosure and immediately before a signature line. Throughout the document, the Midwife Disclosure uses the terms "you" and "I," and the signature line provided only for Stephanie to sign in her individual capacity. The document also makes references to "the client," which in context each refer to the person giving birth. The Midwife Disclosure, however, does not identify the expected child as a client, a patient, or a party.

Further, the arbitration agreement itself begins with an "I" statement and contains no text providing that it would bind anyone other than Stephanie. Although the arbitration agreement covers "[a]ny dispute or claim that arises out of or relates to this agreement, or care given and received," it does not include any text that would cover any person other than Stephanie herself; that is, by its terms, the arbitration agreement only applies to "any dispute or claim" belonging to Stephanie or Andaluz, the parties to the Midwife Disclosure. There is nothing in the text or context of the arbitration agreement, or in the remainder of the Midwife Disclosure, that evinces an intent of the parties that Stephanie would, by signing in her individual capacity, also be signing on behalf of her expected child.

Defendants nonetheless assert that Stephanie was signing the arbitration agreement on behalf of Olivia because the services section of the Midwife Disclosure set out care for her expected child during delivery and after the birth. We disagree. The only mention of the expected child in the Midwife Disclosure is in the one line in the services section that provides that Andaluz offers, as part of its services, delivery care, a newborn exam after delivery, and four postpartum visits for "baby and mother." Nothing in the Midwife Disclosure evinces an intent of the parties to have Stephanie bind her expected child to the arbitration agreement; it only provided that the parties anticipated that some medical care would be given to the expected child. Impliedly giving parental consent for some medical care of Olivia, as provided in the description of services offered by Andaluz, did not constitute signing the contract on behalf of Olivia.

In addition, nothing in the text or context of the Midwife Disclosure conditioned, either expressly or implicitly, the provision of care to the expected child on Stephanie signing the arbitration agreement on behalf of her expected child. Indeed, the only thing Stephanie was agreeing to, with regard to the portion of the Midwife Disclosure that came before the arbitration agreement, was that

"I plan to give birth at the Andaluz Waterbirth Center or at home with a midwife in attendance. I have read, discussed, and signed our midwives disclosure statement and agree to read the financial agreement and risk assessment criteria as listed in the Birthing Center High Risk Factors form and OAR 332-025-0021."

If the parties had intended to make the expected child a party to the Midwife Disclosure and arbitration agreement, they could have expressed that intent in any number of ways; however, they did not do so. We thus conclude that Stephanie did not sign the Midwife Disclosure on behalf of Olivia, and Olivia is not a party to the arbitration agreement. That, however, does not end our inquiry. Although not directly raised by defendants, their arguments suggest an assertion that Olivia is bound by the arbitration agreement as an intended third-party beneficiary. We agree that Olivia was an intended third-party beneficiary because the Midwife Disclosure anticipated that defendants would provide care for Olivia. Thus, we address whether Olivia was bound by the arbitration agreement as a third-party beneficiary and conclude that she was not.

"[U]nder proper circumstances, an arbitration provision may be enforced against a third-party beneficiary." Drury , 245 Or. App. at 222, 262 P.3d 1162. "Consistently with general contract principles, however, '[a] third party beneficiary might in certain circumstances have the power to sue under a contract; it certainly cannot be bound to a contract it did not sign or otherwise assent to.' " Id . at 223, 262 P.3d 1162 (quoting Comer v. Micor, Inc. , 436 F.3d 1098, 1102 (9th Cir. 2006) (emphasis in Comer )). Thus, to hold a third-party beneficiary bound to an arbitration agreement, the third-party beneficiary must have "manifested assent to be bound by the agreement-for example, by ratifying it or asserting a claim for relief under the agreement." Id . at 224, 262 P.3d 1162 ; see also id. at 224 n. 5, 262 P.3d 1162 (noting that, "[f]or example, unless the third-party beneficiary in some way assents to a contract containing an arbitration clause, the contracting parties have waived the beneficiary's right to a jury trial without her consent").

Here, the parties agree that Olivia, as a newborn, did not have capacity to assent to the arbitration agreement in her own behalf. Rather, defendants assert, that by consenting to care for Olivia, Stephanie assented to the arbitration agreement on behalf of Olivia. We conclude, however, that, assuming without deciding that Stephanie could assent on Olivia's behalf, she did not do so under the circumstances here. As set out above, nothing in the Midwife Disclosure would have alerted Stephanie that her assent on Olivia's behalf was being sought or given. Nor has plaintiff, as the personal representative for Olivia's estate, assented to the Midwife Disclosure by bringing a claim that asserts rights under that document. Instead, plaintiff asserts only a claim for wrongful death.

Because we conclude that Olivia was not bound by the arbitration agreement in the Midwife Disclosure, the trial court did not err in denying defendants' motion to dismiss and compel arbitration.

Affirmed.

      The parties agree that Oregon law applies because either the issue presented is not one that requires application of federal law under the Federal Arbitration Act or federal law would not supply a different rule of decision. See DeLashmutt , 276 Or. App. at 44 n. 2, 366 P.3d 769 (applying Oregon law under those circumstances).

      In support of their argument, defendants cite to cases from other jurisdictions that have concluded that the child was bound by an arbitration agreement contained within a parental consent to medical care for that child. We do not find that authority persuasive because, unlike in this case, the contracts at issue in those cases expressly sought to bind the child to the arbitration agreement. See, e.g. , Pietrelli v. Peacock , 13 Cal. App. 4th 943, 16 Cal. Rptr. 2d 688 (1993) (a newborn was bound to a contract signed by that mother which provided she was signing on behalf of "persons born or unborn, on behalf of whom I have the power to contract"); Bolanos v. Khalatian , 231 Cal. App. 3d 1586, 283 Cal. Rptr. 209 (1991) (a newborn daughter was bound by an arbitration agreement signed by the mother which provided, among other things, "It is the intention of the parties that this agreement bind all parties whose claims may arise out of or relate to treatment or services provided by the physician including any spouse or heirs of the patient and any children, whether born or unborn, at the time of the occurrence giving rise to any claim. In the case of any pregnant mother, the term 'patient' herein shall mean both the mother and the mother's expected child or children."); MN MedInvest Co., L.P. v. Estate of Nichols , 908 So. 2d 1178 (Fla. App. 2005), rev. den. , 924 So. 2d 809 (Fla. 2006) (a minor child was bound by an arbitration clause in a contract which the mother signed that was solely for the provision of medical care for the child); Leong by Leong v. Kaiser Foundation Hospitals , 71 Haw. 240, 788 P.2d 164 (1990) (a minor dependent-beneficiary member of an insurance plan was bound by an arbitration clause in a group medical insurance that applied to members); McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C. , 428 Mich. 167, 405 N.W. 2d 88 (1987) (a newborn was bound by an arbitration agreement signed by mother in the name of "Baby or Babies McKinstry").


source: Caselaw Access Project

author: JAMES, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Steven Patrick PAYNE, Defendant-Appellant.
    A163092
    Court of Appeals of Oregon.
    Submitted March 9, 2018. July 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

In Oregon criminal trials, jury concurrence is necessitated in two situations. "One situation occurs when a statute defines one crime but specifies alternative ways in which that crime can be committed." State v. Pipkin , 354 Or. 513, 516, 316 P.3d 255 (2013). The other situation occurs "when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime." Id. at 517, 316 P.3d 255. In that second scenario, decisions by this court, as well as the Oregon Supreme Court, have indicated that a party can address the issue either by requesting a jury concurrence instruction, or alternatively, "can ask the state to elect the occurrence on which it wishes to proceed and, in that way, limit the jury's consideration to a single occurrence." Id. (emphasis added). Unfortunately, the term "elect" and "motion to elect" have been used in caselaw to refer to different motions, made for different purposes, at different stages of litigation, potentially resulting in confusion. Also, cases describing precisely how a concurrence election is to be made, or what a trial court is obligated to do when faced with a motion to elect that is not concomitantly accompanied by a requested jury concurrence instruction, have been few. This case presents an opportunity to offer some clarity in the area.

In this case, defendant appeals a judgment of conviction on one count of menacing, ORS 163.190, raising two assignments of error. First, defendant raises a challenge to the trial court's failure to grant defendant's motion to require the state to elect a single factual occurrence that constituted the count of menacing. Defendant raises that issue asserting that it was preserved in the trial court, and the state does not contest preservation. Second, defendant raises a plain-error challenge to the trial court's failure to instruct the jury that it must concur on which factual occurrence constituted the count of menacing, acknowledging that he did not request a concurrence instruction. As we discuss below, we ultimately reject both assignments of error. Because we held in State v. White , 115 Or. App. 104, 838 P.2d 605 (1992), that the crime of menacing does not require an election of a single factual occurrence, and defendant does not challenge that decision in this appeal, both defendant's preserved and unpreserved claims must fail. Accordingly, we affirm.

The relevant facts are procedural in nature. The charging instrument alleged that defendant "did unlawfully and intentionally attempt to place [the victim] in fear of imminent serious physical injury" on a particular date in a particular county, but it did not specifically identify which occurrence constituted the crime. Immediately before trial, defendant moved to have the prosecution elect a theory of what action formed the basis for the menacing charge. The state declined to make an election at that time, stating that it would make an election if, after the evidence was presented, there was reason to do so. During the state's opening statement, the state told the jury that defendant was "charged with Menacing [constituting] domestic violence because of his threats to kill [the victim] and bury her if she talked to police." During its case in chief, the state presented evidence that defendant, the victim, and their son were traveling in the victim's car together. Defendant was driving. At some point during their car trip, defendant and the victim stopped at a store to buy beer, wine, and snacks. They began traveling again, and defendant began to drink the beer that had just been purchased. Defendant became agitated. As a result of his agitation, he and the victim began to argue about the language defendant was using in front of their child. Defendant needed to use the bathroom and pulled off to a rest stop. After defendant used the bathroom, the victim suggested that she drive because she had not been drinking. Defendant refused to allow the victim to drive, saying that he would leave without her if she did not get back into the car. The victim returned to the vehicle.

After she did so, defendant threatened to put the car into reverse and crash into something to kill everybody in the vehicle. Defendant then put the vehicle into reverse and accelerated backwards at a high rate of speed. The victim grabbed defendant's face to try to get him to stop accelerating backwards. He did stop accelerating backwards, but then grabbed the victim and violently attacked her.

After the attack was over, the victim exited the vehicle. Defendant informed the victim that he would take the child and leave without her if she did not return to the car. The victim returned to the car. Defendant proceeded to drive the three of them home. On the drive home, defendant told the victim he had a knife and a gun. The victim never saw the gun but did see the knife. Defendant told the victim that she should not contact the police or he would kill her, dispose of her body, and burn down her house. Over the course of the drive home, defendant threatened the victim. Defendant drove to his house, he exited the car, and the victim departed for her house with their son. At some point after, defendant's mother arrived at the victim's house, and together they called the police.

The victim and child both testified. The child testified only that defendant drove quickly backwards in the vehicle, and violently attacked the victim after she grabbed him. At the close of evidence, while working out jury instructions, defendant again requested that the state make an election as to the occurrence that constituted menacing. The state argued that it would be hard to "encapsulate" the conduct that constituted menacing, but specified that "having the gun and making threats[,] * * * [d]riving and making threats[,] * * * [t]he manner in which [defendant] was driving[,] * * * [and] [h]is statements to [the victim]" constituted the count of menacing.

Ultimately, the trial court denied defendant's motion to require the state to elect, and accordingly, no election was made in argument before the jury. Defendant thereafter did not request a concurrence instruction, and the trial court did not give a concurrence instruction. During closing arguments, while in the context of arguing why self-defense was inapplicable in this case, the state said "[defendant's] driving in a manner that was very scary to [the victim]. In other words, peeling out and going backwards saying he's gonna crash the car." Defendant was found guilty on all counts and appealed.

On appeal, defendant assigns error to the trial court's failure to require the state to elect a single factual occurrence that constituted the count of menacing, and to the trial court's failure to instruct the jury that it must concur on which factual occurrence constituted the count of menacing.

Defendant argues that because the jury could have found that defendant committed menacing during three separate occurrences, the trial court should have required the state to elect a single factual occurrence or instructed the jury that it must agree upon the factual occurrence that constituted the crime. Defendant acknowledges that he did not request a concurrence instruction but asks this court to exercise our discretion to review the trial court's failure to give a concurrence instruction as plain error. The state argues that the offense of menacing is not necessarily committed by a specific, discrete act but can consist of a series of acts and statements, that, when considered together, constitute the crime of menacing. The state argues that because the state's evidence below showed that because the aggregate of the occurrences that formed the basis for the menacing charge constituted a single offense, no election is necessary for the crime of menacing. The state also argues that defendant's assignment of error regarding the concurrence instruction is not plain error.

We address defendant's assignment of error regarding the trial court's failure to require the prosecution to elect a single factual occurrence first. At the outset, it is important to recognize that we have historically used the term "election" or "motion to elect" somewhat imprecisely in the past. A review of how we have used those terms shows that we have applied them at two different points in litigation, serving very different purposes. We begin, therefore, by cleaning up the terminology in this area.

A "motion for election" made early on in litigation, often pretrial, is conceptually similar to a civil motion to make more definite and certain under ORCP 21 D. Oregon has no formal criminal procedure code, and hence there is no direct procedural equivalent to ORCP 21 D in criminal practice. The closest conceptual equivalent would be a motion for a bill of particulars. See State v. Darlene House & James House , 260 Or. 138, 142-43, 489 P.2d 381 (1971) (explaining that the purpose of such a motion is "to provide the defendant with further information respecting [a] charge [against him] so as to enable him to prepare his defense and avoid prejudicial surprise at trial"). Of note, a bill of particulars-in jurisdictions that allow for them-requires that "an indictment must be sufficient on demurrer before any right to a bill of particulars arises." Id. at 142, 489 P.2d 381. In Oregon, we do not have a statute expressly authorizing such a motion. However, our case law has described situations in which an indictment is sufficient to withstand a demurrer but still may fail to give a defendant adequate notice of the precise charges against him. In those instances, Oregon common law has created the "motion for election" that gives a defendant more information as to the basis for the charges against him.

This type of motion for election was best described in State v. Hale , 335 Or. 612, 75 P.3d 448 (2003). There the Supreme Court addressed situations in which an indictment is sufficient to withstand a demurrer because it follows the statutory language but is insufficient for the purpose of notice for the defendant. The defendant was charged with 13 counts of aggravated murder and other noncapital crimes.

"Defendant *** demurred to the form of the indictment in this case on the ground that the six aggravated murder counts that alleged that he had committed murder to conceal the crime of third-degree sexual abuse and to conceal the identity of the perpetrator of the crime of third-degree sexual abuse *** were impermissibly vague."

Id. at 617-18, 75 P.3d 448 (footnote omitted).

Specifically, the defendant argued that he was

"entitled to notice of the particulars of the offenses he is alleged to have committed. The offenses of sexual abuse in the third degree *** are not charged anywhere in the indictment.
"The indictment does not say who is or were the victims of the offense of sexual abuse in the third degree. That's not set forth anywhere in the indictment. There are three decedents who are all potential victims of that crime. There's also Jonathan Susbauer, who is claiming to be a victim of some sort."

Id. at 618, 75 P.3d 448 (ellipsis in original).

The trial court denied the demurrer. Id. at 619, 75 P.3d 448. The Supreme Court held that the issue of the sufficiency of the indictment was timely raised by the demurrer, but that the defendant was not entitled to require the state to make the indictment more definite and certain, and that the trial court's failure to grant the demurrer was not error. Id. at 620-21, 75 P.3d 448. The court reasoned that though they agreed with the defendant that "where the record would support more than one incident of third-degree sexual abuse, the defendant was entitled to know the state's precise theory of the case and which facts and circumstances the state was relying on to support the aggravated murder counts[,]" the Supreme Court did not agree that "requiring the trial court to sustain [the] demurrer was the proper (or only) vehicle for ensuring [the] defendant obtains the information that he seeks. [The] [d]efendant had other avenues available to him for acquiring that information, such as later moving the court to require the state to elect a specific incident of third-degree sexual abuse, or requesting special jury instructions that clarify the matter." Id.

Then, in State v. Antoine , 269 Or. App. 66, 344 P.3d 69, rev. den. , 357 Or. 324, 354 P.3d 696 (2015), this court addressed the issue of notice when the indictment charged multiple counts of the same crime using the wording of the applicable statute, and each charge was worded identically. There, the defendant was indicted on four counts of first-degree sodomy, ORS 163.405 (1989), amended by Or. Laws 2017, ch. 318, § 5, and four counts of first-degree sexual abuse, among other crimes. Id. at 68-69, 344 P.3d 69. The sodomy charges were worded according to ORS 163.405 (1989) and read as follows:

"That as a separate act and transaction from [each of the other counts]: The defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly have deviate sexual intercourse with [the victim], a child under 12 years of age."

Id. at 69, 344 P.3d 69 (brackets in Antoine ).

The sexual abuse charges were worded according to ORS 163.427, and read as follows:

"That as a separate act and transaction from [each of the other counts]: The defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly subject [the victim], a child under 14 years of age, to sexual contact by touching [the victim]'s genitalia, a sexual and intimate part of the child."

Id. at 69-70, 344 P.3d 69 (brackets in Antoine ).

The state provided the defendant with a large amount of discovery, and the provided discovery "indicated that the victim had reported a greater number of criminal sexual acts than were alleged in the indictment." Id. at 70, 344 P.3d 69. The defendant demurred, arguing that "despite having received discovery from the state, the indictment was not sufficiently definite and certain as required by ORS 132.550(7) [ (2007), amended by Or. Laws 2017, ch. 650, § 7]." Id. at 70, 344 P.3d 69. The defendant's demurrer "asserted that the indictment provided insufficient notice of the charges, placed him at risk of double jeopardy, and failed to ensure that he was being tried only for those criminal acts for which the grand jury had indicted him." Id. The defendant asked the trial court to dismiss the indictment and require the state to obtain a new indictment from the grand jury which was based on specific criminal acts. Id.

The state told the trial court that the issue the defendant raised could be solved by making an election of the specific criminal acts for which it would seek a conviction at the close of its case-in-chief. Id. at 71, 344 P.3d 69. The defendant did not object to the timing of the election. Id. The demurrer was overruled. The trial court concluded that the indictment was sufficient to withstand the demurrer but ordered the state to confer with the deputy district attorney who presented the case to the grand jury so that the state at trial only elected factual incidents that the grand jury relied upon in returning the indictment against the defendant. Id. After the trial court's ruling on the demurrer, the defendant moved for an order to require the state to disclose grand jury notes. Id. In support of that motion, the defendant argued that other, newly received discovery indicated that there were acts that the victim alleged that the defendant committed that did not correspond to the charges in the indictment.

Id. at 72, 344 P.3d 69. The state "confirmed that the grand jury had selected a subset of the incidents of abuse for the indictment." Id. The state emphasized that the " 'grand jury did not consider specific facts related to specific charges.' Rather, it was 'presented with the information in the discovery and determined that each kind of touching happened at least X number of separate times.' " Id. at 73, 344 P.3d 69. Again, the state said an election would be made at the close of its case-in-chief, and the defendant did not object to the timing of the election. Id. at 73-74, 344 P.3d 69.

The defendant was found guilty on all counts and appealed. Id. at 75, 344 P.3d 69. Regarding the notice issue the defendant raised at trial and on appeal, we confirmed that though an indictment usually suffices if it alleges the charged crime in the words of the statute defining the offense, there are exceptions to that rule. Id. at 76, 344 P.3d 69. Such an exception occurs when "discovery would not aid the defendant because of the vast number of crimes from which the state could select in charging the defendant." Id. We held that the defendant was correct that this case fell within the exception, and that the

"state's charging method effectively allowed the state to adduce evidence of multiple criminal acts in each count of the indictment, without defendant knowing which of the acts would be specified and argued to the jury for convictions. Such a charging process failed to provide defendant with proper notice of the charges before trial."

Id. at 77, 344 P.3d 69. However, we affirmed the trial court's overruling of the defendant's demurrer based on our understanding of Hale . Id. at 78-79, 344 P.3d 69. We reasoned that Hale placed "the burden on a defendant to attempt to procure adequate and timely notice of the charges against him, even when an indictment that is alleged in the words of the statute does not provide such notice." Id. at 78, 344 P.3d 69. Therefore, the

"defendant could have moved to discover the state's election of the specific criminal acts that the state would prosecute at trial, in time for defendant to tailor his defense to those specific incidents. Defendant did file a demurrer before trial but did not later move for the state's election of the specific criminal acts that it would prosecute at trial. That was so even though the state had put defendant on notice at the hearing on the demurrer that it would make its election after it presented its case-in-chief. Because defendant had another avenue to obtain adequate notice of the charges against him, we affirm the trial court's overruling of the demurrer insofar as it was based on lack of notice."

Id. at 79, 344 P.3d 69 (footnote omitted).

In contrast to the notice-based "motion to elect" discussed in Hale and Antoine , a motion for election made at the end of a trial, while termed the same, serves a fundamentally different purpose. The end-of-trial motion to elect is designed to ensure that the jury agrees as to every necessary element or concurs on the same occurrence in reaching a verdict on a single count of a charged crime. The right to jury concurrence arises from Article I, section 11, of the Oregon Constitution. State v. Ashkins , 357 Or. 642, 649, 357 P.3d 490 (2015) ; Pipkin , 354 Or. at 518 n. 6, 316 P.3d 255.

In Ashkins , the Supreme Court held that where an indictment charged a single occurrence of an offense, but "the evidence permitted the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator[,]" the state was "required to elect which occurrence it would prove, or alternatively, [the] defendant was entitled to a concurrence instruction." Ashkins , 357 Or. at 659, 357 P.3d 490. In other words, an election at the end of a trial is an alternative to a Boots instruction. See State v. Boots , 308 Or. 371, 377, 780 P.2d 725 (1989) ("In order to convict, the jury must unanimously agree on the facts required by either [charged] subsection [of ORS 163.095(2) ].").

In real-world practice, an Ashkins -type motion to elect is frequently resolved casually in trial court. It is common for the state to agree that an election is required, and voluntarily tailor its closing argument to make it clear to the jury the factual occurrence upon which it is relying. That practice, despite being routine, is not actually how such an election should be handled. Because an Ashkins election exists to ensure jury concurrence, mere argument by the parties is insufficient to ensure that the jury only relied on certain evidence in reaching its verdict. To ensure the jury limits its consideration in the manner contemplated by the motion for election, the trial court needs to charge the jury in some manner. See, e.g. , State v. Coss , 53 Or. 462, 467, 101 P. 193 (1909) ("If [the prosecution] selects some particular act * * *, the jury ought not to be permitted to find the defendant guilty, because it may believe * * * that he did, in fact, commit some other criminal act of a similar nature to that charged."); State v. Pauley , 211 Or. App. 674, 679 n. 4, 156 P.3d 128 (2007) ("To be effective, an election must be confirmed to the jury by the court."). Thus, a meritorious motion for election under Ashkins and Pipkin triggers the need for a response from the trial court beyond simply relying upon the state to tailor its closing argument. Rather, the trial court must choose a means to ensure the jury limits its consideration to the elected factual occurrence.

In general, a trial court has three primary tools at its disposal to ensure a jury bases its verdict on a discrete factual situation: a jury instruction, a statement of issues, or a verdict form. The first option-the jury concurrence instruction-is well understood, having been extensively discussed in previous decisions. The second option-the statement of issues-is an agreed neutral statement developed by the parties, approved by the court, and reduced to writing and submitted to the jury along with jury instructions, that summarizes the core of the dispute to be resolved by the jury. It is provided for in ORCP 59 C(2), a subsection applicable to criminal trials, which states that "[t]he court may, in its discretion, submit to the jury an impartial written statement summarizing the issues to be decided by the jury." The last option on that list-the verdict form-warrants a more detailed discussion.

At common law, there were three potential types of verdict forms, the general verdict, the special verdict, and the general verdict with interrogatories. Each of those three is codified in ORCP 61. ORCP 61 A defines a general verdict as "that by which the jury pronounces generally upon all or any of the issues either in favor of the plaintiff or defendant." It is the pronouncement on the ultimate issue of guilt or liability that is the historic hallmark of a general verdict. See, e.g. , Kennedy v. Wheeler , 356 Or. 518, 533, 341 P.3d 728 (2014) (explaining that "[t]he Council derived the text of ORCP 61 from several sources. In ORCP 61 A(1), defining the term 'general verdict,' the Council used wording identical to that used in former ORS 17.405 (1977), repealed by Or. Laws 1979, ch. 284, § 199, a statute that dated to the Deady Code."); Turner v. Cyrus , 91 Or. 462, 464, 179 P. 279 (1919) ("A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant."); Black's Law Dictionary 1791 (10th ed. (2014)) (defining the general verdict as "[a] verdict by which the jury finds in favor of one party or the other, as opposed to resolving specific fact questions"). However, the general verdict is an ineffective tool to ensure a jury bases its verdict on a discrete factual situation.

As the first alternative to a general verdict, ORCP 61 B defines the special verdict as follows:

"The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires such party demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict."

The conceptualization of the special verdict set forth in ORCP 61 B is drawn from the Oregon Supreme Court's articulation of the difference between special and general verdicts in State v. Setsor :

"Our statute, making provisions for trials in criminal actions as to the verdict, is, in effect, as follows:
" 'The jury may either find a general verdict, or where they are in doubt as to the legal effect of the facts proven, they may find a special verdict.' Section 1546, L. O. L. 'A general verdict upon a plea of not guilty, is either "guilty" or "not guilty" which imports a conviction or acquittal of the crime charged in the indictment.' Section 1547, L. O. L. 'A special verdict is one by which the jury finds the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence.' Section 1548, L. O. L. 'The special verdict must be reduced to writing by the jury, or in their presence, under the direction of the court, and agreed to by them, before they are discharged. It need not be in any particular form, but is sufficient if it presents intelligibly the facts found by the jury.' Section 1549, L. O. L. 'In all cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime.' Section 1552, L. O. L. 'When there is a verdict found, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; but if after such reconsideration they find the same verdict, it must be received.' Section 1554, L. O. L."

61 Or. 90, 92, 119 P. 346 (1911) (emphasis added). Setsor , in turn, reflects the historic common law understanding of a special verdict. See, e.g. , Black's at 1792 (defining special verdict as "[a] verdict in which the jury makes findings only on factual issues submitted to them by the judge, who then decides the legal effect of the verdict").

Thus, unlike a general verdict, where the jury considers the facts presented in evidence, applies the law, and renders a decision on the ultimate issue, i.e. , guilt or liability, with a special verdict the jury decides solely factual disputes, leaving it to the court to render the "verdict" on the ultimate question of guilt or liability that necessarily follows from those binding factual findings. As noted by Clementson on Special Verdicts :

"The special verdict is the sole basis of judgment. It finds the facts only, leaving it for the court to apply the law thereto, and is never properly rendered with a general verdict. It must be complete and consistent in and with itself, without aider by intendment or reference to the evidence. If it does not find all the facts essential to sustain (or defeat, as the case may be) the cause of action, it will not support a judgment."

George Burr Clementson, Special Verdicts and Special Findings by Juries 45 (1905). See also Floyd v. Laws , 929 F.2d 1390, 1395 (9th Cir. 1991) (noting that "[i]n theory, special verdicts compel the jury to focus exclusively on its fact-finding role. Special verdicts also empower the judge to play a more prominent role by applying the law to the jury's findings of facts").

The final type of verdict form provided by ORCP 61 C, is the general verdict with interrogatories-a hybrid between the general and special verdicts:

"The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and the answers shall be entered. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial."

The general verdict with interrogatories, sometimes called the "special findings," is denoted by a jury finding upon the ultimate issue, in contrast to a special verdict, but includes factual findings relevant to some aspect of the judgment. As Clementson noted:

"On the other hand, the special findings embrace answers to one or more questions pertinent to but not necessarily covering any of the issues, though they may be controlling. They are never required except when a general verdict is returned, and are designed to explain and test the latter."

Clementson, Special Verdicts at 45; see also Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1031 (9th Cir. 2003) ("Although some general verdicts are more general than others, encompassing multiple claims, the key is not the number of questions on the verdict form, but whether the jury announces the ultimate legal result of each claim. If the jury announces only its ultimate conclusions, it returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict.").

This distinction between general verdicts, special verdicts, and general verdicts with interrogatories is more than mere semantics. The legislature has generally provided that special verdict forms are not permitted in criminal cases in ORS 136.455, which provides that "[a] general verdict upon a plea of not guilty is either 'guilty,' of an offense charged in the accusatory instrument, or 'not guilty' " and ORS 136.485, which states that:

"If the jury finds a verdict which is not a general verdict, the court may, with proper instructions as to the law, direct the jury to reconsider it; and the verdict cannot be received until it is given in some form from which it can be clearly understood that the intent of the jury is to render a general verdict."

In criminal cases, the special verdict is statutorily prohibited. However, as discussed previously, the distinction between "special" and "general" verdicts is the jury's pronouncement on the ultimate issue of guilt or liability. The general verdict with interrogatories contains such a pronouncement by the jury, and as such is not prohibited by ORS 136.485. In fact, ORS 136.770 expressly provides that the jury may render a decision on guilt, as well as answer sentence enhancement factor questions-a classic example of a general verdict with interrogatories. Thus, the general verdict with interrogatories exists as the third option for ensuring a jury limits its decision-making to a particular factual occurrence.

In sum then, in terms of clarity of language, and for the sake of a trial court accurately understanding the issue and argument presented, a motion for election based on the reasons set forth in Hale or Antoine would more accurately be termed a "Motion for State's Election for Notice" or, alternatively, a "Motion for State's Election to Make More Definite and Certain." In contrast, a motion based on the reasons set forth in Ashkins or Pipkin would more accurately be termed a "Motion for State's Election for Concurrence" or, alternatively, a "Motion for Concurrence Election and Jury Instruction." That later, Ashkins -based motion is a request to charge the jury. In response, the court can (1) give a jury concurrence instruction, or (2) direct the parties to develop and submit an approved neutral statement of issues that limits the jury to the agreed upon factual allegation for the charged crime, or (3) create a general verdict form with interrogatories. Those options are neither singular nor exclusive, and the cautious court might wisely utilize a combination of methods. In any case, some form of communication from the court, to the jury, is required. As such, it is incumbent upon a party seeking to preserve the issue for appellate review not merely to move for an election, but to request the court to charge the jury in one of those manners.

Having attempted to offer some clarity in this area, we now turn to defendant's arguments in this case. At the outset, although defendant made a motion for election, defendant did not request a concurrence instruction, propose a statement of issues, or submit a proposed general verdict with interrogatories. Neither did defendant object to the court's failure to charge the jury using any of those options. While the state does not dispute preservation on the election assignment of error, we have an independent obligation to ensure preservation. See, e.g. , State v. Wyatt , 331 Or. 335, 346, 15 P.3d 22 (2000) (holding that court has independent obligation to ensure preservation despite parties' concessions). In this case, defendant's trial argument was framed as asking the court to force the state to make a specific argument in closing, as opposed to asking the court to charge the jury in a particular manner. Nevertheless, a review of the record does show that the parties cited to relevant case law, and the trial court described reviewing caselaw before denying the motion to elect. In that light, despite defendant's failure to request that the trial court charge the jury in some manner, we believe the purposes of preservation were served. However, as we discuss below, defendant's claim fails on the merits.

In State v. White , 115 Or. App. 104, 838 P.2d 605 (1992), we interpreted the menacing statute, ORS 163.190, in the context of jury concurrence as to which occurrence constituted a menacing charge. The defendant in that case had brandished a flashlight at his neighbor during an argument, then went inside his house and returned with a gun. Id. at 106, 838 P.2d 605. The defendant was charged with menacing, ORS 163.190, and pointing a firearm at another, ORS 166.190. Id. Following an acquittal on the firearm charge, the defendant argued "that the court should have given a jury instruction that specified the act that the state relied on to support the menacing charge" because "the jury could have found him guilty of menacing, even though only some jurors might have concluded that he had pointed a gun at another, while others might have concluded he had brandished a flashlight." Id. at 106-07, 838 P.2d 605. This court held that "no one act must be proven to support a conviction for menacing[.]" Id. at 107, 838 P.2d 605. "[The] defendant could have done several different acts and, if he intended thereby to attempt to place [the victim] in fear, would have committed menacing. The jury did not have to agree unanimously that he did any specific act that would cause fear in order to find him guilty of menacing." Id. at 107-08, 838 P.2d 605.

Defendant does not invite us to reexamine the holding in White or argue that the Supreme Court's holding in Ashkins may be in conflict with the reasoning in White . Ashkins , 357 Or. at 659, 357 P.3d 490 (holding that where an indictment charged a single occurrence of an offense, but "the evidence permitted the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator[,]" the state was "required to elect which occurrence it would prove, or alternatively, [the] defendant was entitled to a concurrence instruction." (emphasis added)). Because White controls in this case, we cannot conclude that the trial court erred in denying the motion to elect, or plainly erred in failing to deliver a concurrence instruction.

Affirmed.

      Defendant was also charged with fourth-degree assault, ORS 163.160 (Count 1); reckless driving, ORS 811.140 (Count 3); and two counts of recklessly endangering another person, ORS 163.195 (Counts 4-5).

      ORCP 21 D provides:
      "Upon motion made by a party before responding to a pleading, or if no responsive pleading is [permitted] by these rules upon motion by a party within 10 days after service of the pleading, or upon the court's own initiative at any time, the court may require the pleading to be made definite and certain by amendment when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge, defense, or reply is not apparent. If the motion is granted and the order of the court is not obeyed within 10 days after service of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just."

      The amended language in the statute does not affect our analysis.

      ORS 163.405 (1989) provided, in relevant part:
      "(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
      "* * * * *
      "(b) The victim is under 12 years of age[.]"

      ORS 163.427 provides, in relevant part:
      "(1) A person commits the crime of sexual abuse in the first degree when that person:
      "(a) Subjects another person to sexual contact and:
      "(A) The victim is less than 14 years of age[.]"


author: AOYAGI, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Clyde Beldon BAKER, III, Defendant-Appellant.
    A164140
    Court of Appeals of Oregon.
    Argued and submitted October 19, 2018. July 17, 2019
    Erik Blumenthal, 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.
    Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Defendant appeals a judgment of conviction for two counts of first-degree theft, ORS 164.055 (Counts 1 and 2); three counts of felon in possession of a firearm, ORS 166.270 (Counts 3, 4, and 5); one count of unauthorized use of a vehicle, ORS 164.135 (Count 6); and one count of possession of methamphetamine, ORS 475.894 (Count 8). We reject defendant's first three assignments of error, which challenge the admission of certain exhibits, without written discussion. We write only to address defendant's fourth assignment of error, regarding an alleged error that the trial court made in applying ORS 137.717 (2015), the repeat property offender (RPO) statute, when sentencing defendant on Counts 1, 2, and 6. For the reasons that follow, we agree with defendant that the trial court erroneously treated his prior conviction for shoplifting under California Penal Code section 459.5 as a "comparable offense" to second-degree burglary under ORS 164.215. Accordingly, we remand for resentencing, and otherwise affirm.

We limit our discussion of ORS 137.717 to the portions relevant to this appeal. When a person is convicted of first-degree theft under ORS 164.055 or unauthorized use of a vehicle under ORS 164.135 -as defendant was in this case- ORS 137.717(1)(b)(B) provides for a presumptive sentence of 18 months of incarceration if the person has "[t]wo or more previous convictions for any combination of the crimes listed in [ ORS 137.717(2) ]." ORS 137.717(2) lists 18 crimes under Oregon law, plus "[a]ny attempt to commit" any of those crimes. ORS 137.717(2)(s). Further, under ORS 137.717(3), the person's presumptive sentence of 18 months "shall be increased by two months for each previous conviction" of a crime listed in ORS 137.717(1) or (2), excluding the convictions "used as a predicate" for the 18-month presumptive sentence, and not to exceed a 12-month increase to the presumptive sentence. Of critical relevance here, the definition of "previous conviction" includes "[c]onvictions entered in any other state or federal court for comparable offenses ." ORS 137.717(9)(b)(B) (emphasis added).

As relevant to this appeal, defendant was convicted of two counts of first-degree theft and one count of unauthorized use of a vehicle. For all three convictions, the state asked that he be sentenced as a repeat property offender under ORS 137.717, citing three prior convictions in California. The trial court agreed and sentenced defendant to 20 months each on Counts 1, 2, and 6. That is, for each count, the court relied on two of defendant's California convictions to impose a presumptive sentence of 18 months under ORS 137.717(1)(b)(B), and it relied on the third California conviction to increase his sentence by two months under ORS 137.717(3).

On appeal, defendant concedes that two of his prior California convictions are comparable offenses to crimes listed in ORS 137.717(1) or (2), such that he was subject to a presumptive 18-month sentence under ORS 137.717 (1)(b)(B). However, consistent with his arguments below, defendant argues that the trial court erred in concluding that his third California conviction-for misdemeanor shoplifting under California Penal Code section 459.5 -is a comparable offense to second-degree burglary under ORS 164.215. Consequently, defendant argues, the court erred in increasing his sentences on Counts 1, 2, and 6 by two months, i.e. , from 18 to 20 months. In response, the state essentially concedes that the trial court erred in treating defendant's California conviction as comparable to second-degree burglary under ORS 164.215. The state acknowledges a "problem" with that treatment given differences between the two statutes (differences that we discuss later), states that it is "unclear under controlling case law whether the two offenses are comparable," and makes no argument that they are comparable. The state asserts that we "need [not] consider that problem," however, because we can affirm on the alternative basis that defendant's California shoplifting conviction is comparable to second-degree theft under ORS 164.045 or attempted second-degree theft under ORS 164.045 and ORS 161.405. The comparability of an out-of-state offense to an Oregon offense is a question of law. State v. Escalera , 223 Or. App. 26, 31, 194 P.3d 883 (2008), rev. den. , 345 Or. 690, 201 P.3d 910 (2009). In State v. Carlton , 361 Or. 29, 31, 388 P.3d 1093 (2017), the Oregon Supreme Court recently construed the term "comparable offenses" in another statute, ORS 137.719, that is similar in nature to ORS 137.717. ORS 137.719(1) creates a presumptive sentence for a felony sex crime if the defendant has been sentenced at least twice for felony sex crimes prior to the current sentence. A "prior sentence" is defined to include "[s]entences imposed by any other state or federal court for comparable offenses." ORS 137.719 (3)(b)(B). In Carlton , the trial court ruled that, for purposes of ORS 137.719, the California offense of lewd and lascivious conduct upon a child under 14 years old, Cal. Penal Code § 288(a), is a comparable offense to first-degree sexual abuse under ORS 163.427(1)(a)(A). Carlton , 361 Or. at 33, 388 P.3d 1093. We affirmed that decision, using the standard for "comparable offenses" that we articulated in Escalera , 223 Or. App. at 30-32, 194 P.3d 883, when construing the same words in the RPO statute. See State v. Carlton , 275 Or. App. 60, 64-68, 364 P.3d 347 (2015), rev'd , 361 Or. 29, 388 P.3d 1093 (2017) (relying on Escalera ).

Applying standard principles of statutory construction, the Supreme Court construed the term "comparable offenses" in ORS 137.719, ultimately concluding that the legislature intended to require "close element matching." Carlton , 361 Or. at 42, 388 P.3d 1093. Thus, to qualify as a "comparable offense" under ORS 137.719(3), the elements of the non-Oregon offense for which a person has been convicted and sentenced must be "the same as or nearly the same as the elements of an Oregon felony sex crime." Id . at 43, 388 P.3d 1093. It is not enough that the two offenses "share a core similarity." Id . In so concluding, the court rejected Escalera 's reasoning, which relied on the "less restrictive" of two dictionary definitions of "comparable." See Carlton , 361 Or. at 37, 42, 388 P.3d 1093 (discussing two dictionary definitions of "comparable"); Escalera , 223 Or. App. at 30-31, 194 P.3d 883 (relying on first of those two definitions). After examining the text, context, and legislative history of the statute, the court concluded that the legislature had intended the "more restrictive"

meaning of "comparable," rather than the "less restrictive" meaning on which we relied in Escalera . Carlton , 361 Or. at 41-42, 388 P.3d 1093. Based on that understanding of "comparable offenses," the court reversed, concluding that the California offense of lewd and lascivious conduct upon a child under 14 years old is not a comparable offense to first-degree sexual assault under ORS 163.427(1)(a)(A), because the former proscribes significantly broader conduct than the latter. Id. at 44, 46, 388 P.3d 1093.

Although Carlton addresses the meaning of the term "comparable offenses" in a different statute than the one at issue in this case, both parties recognize, and we agree, that Carlton dictates our construction of the term "comparable offenses" in ORS 137.717. The two statutes are in the same chapter, serve similar purposes (imposition of presumptive sentences for certain repeat offenders), and use the term "comparable offenses" in grammatically and contextually analogous ways. Compare ORS 137.717(9)(b)(B) (defining "[p]revious conviction" to include "[c]onvictions entered in any other state or federal court for comparable offenses " (emphasis added)), with ORS 137.719(3)(b)(B) (defining "prior sentence" to include "[s]entences imposed by any other state or federal court for comparable offenses " (emphasis added)). Indeed, Carlton itself strongly suggests that its reasoning is not limited to ORS 137.719. See Carlton , 361 Or. at 41-42, 388 P.3d 1093 (indicating that, notwithstanding differences in wording, the legislature intended many recidivist statutes to require close element matching for purposes of counting foreign convictions). We therefore proceed on the understanding that "comparable offenses" has the same meaning in ORS 137.717 as it does in ORS 137.719.

With that in mind, we undertake to determine whether misdemeanor shoplifting under California Penal Code section 459.5 (the offense of which defendant was previously convicted ) is a comparable offense to second-degree burglary under ORS 164.215. The trial court ruled that it is.

The offense of shoplifting under California Penal Code section 459.5 is defined as follows:

"(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. ***
"(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."

As the state recognizes, section 459.5 prohibits entry into a commercial establishment with the intent to take something, not the taking itself, which "deviates from the colloquial understanding" of the term "shoplifting." People v. Gonzales , 2 Cal. 5th 858, 871, 216 Cal.Rptr.3d 285, 392 P.3d 437 (2017). A violation of section 459 is a misdemeanor, unless the defendant has certain prior convictions. See Cal. Penal Code § 459.5.

Meanwhile, "a person commits the crime of burglary in the second degree [under ORS 164.215 ] if the person enters or remains unlawfully in a building with intent to commit a crime therein." ORS 164.215(1). Violation of ORS 164.215 is a Class C felony. ORS 164.215(2).

Defendant argues that shoplifting under California Penal Code section 459.5 is not a comparable offense to second-degree burglary under ORS 164.215. He points to three differences between the statutes. First, the California statute explicitly differentiates between shoplifting and burglary and provides that, if conduct meets the definition of shoplifting, it must be charged as shoplifting and cannot be charged as burglary. See Cal. Penal Code § 459.5(b) (stating that "[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting" and that "[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property"). Second, a person commits the California offense of shoplifting if the person enters a commercial establishment with certain criminal intent "while that establishment is open during regular business hours," whereas a person must enter or remain in a building "unlawfully" to commit second-degree burglary under ORS 164.215. Third, the California offense of shoplifting is a misdemeanor, whereas second-degree burglary under ORS 164.215 is a felony.

In response, as previously mentioned, the state concedes that it is at least "unclear under controlling case law" whether the offenses are comparable, particularly because ORS 164.215 does not apply when a person lawfully enters and remains in a commercial establishment, while California Penal Code section 459.5 does. The state offers no affirmative argument that they are comparable offenses. Applying the "close element matching" described by the Supreme Court in Carlton , we conclude that the trial court erred in ruling that shoplifting under California Penal Code section 459.5 is a comparable offense to second-degree burglary under ORS 164.215. The elements of the California offense are not "the same as or nearly the same as" the elements of the Oregon offense. Carlton , 361 Or. at 43, 388 P.3d 1093. In particular, unlawful entry or remaining is an element of the Oregon offense, whereas entry of an establishment while it is open during regular business hours is an element of the California offense, regardless of whether the entry is lawful or unlawful. Because that difference is significant enough to be dispositive-i.e. , it precludes us from saying that the elements of the two offenses are "nearly the same"-we need not address the other differences that defendant argues exist between the statutes.

Having concluded that the trial court erred in ruling on the basis that it did, we turn to the state's assertion that we may nonetheless affirm the trial court's decision on the alternative basis that, for purposes of ORS 137.717, shoplifting under California Penal Code section 459.5 is a comparable offense to second-degree theft under ORS 164.045 or attempted second-degree theft under ORS 164.045 and ORS 161.405. We may affirm on an alternative basis that was not raised in the trial court only if certain conditions are met, and, even then, it is a matter of discretion. Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001). Here, whether defendant's California conviction is a comparable offense to completed or attempted second-degree theft under Oregon law is purely a question of law, the trial court's view of the evidence is not a factor, and the factual record could not have developed differently had the state raised the issue earlier in the proceedings. The issue therefore is well-suited to presentation as an alternative basis to affirm. See id . (describing necessary conditions to consider alternative basis to affirm). Ultimately, however, we disagree with the state that we may affirm on the alternative basis, because, applying the "close element matching" standard from Carlton , we disagree that shoplifting under California Penal Code section 459.5 is a comparable offense to completed or attempted second-degree theft under Oregon law.

As relevant here, a person commits second-degree theft under ORS 164.045 "when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person *** [t]akes, appropriates, obtains or withholds such property from an owner thereof," ORS 164.015(1) ; the person does so "[b]y means other than extortion"; and "[t]he total value of the property in a single or aggregate transaction is $100 or more and less than $1,000." ORS 164.045.

At least two aspects of California Penal Code section 459.5 convince us that it is not a comparable offense to second-degree theft under ORS 164.045. First, section 459.5 criminalizes the act of entering a commercial establishment with the intent to commit larceny, regardless of whether the person actually takes any property after entering. See Cal. Penal Code § 459.5. By contrast, ORS 164.045 requires that a person "[t]akes, appropriates, obtains or withholds" property from an owner. See ORS 164.045 (incorporating by reference ORS 164.015(1) ). In that regard, the California statute is significantly different from the Oregon statute-it prohibits a different and broader range of conduct.

Second, even as to actual takings, the California statute criminalizes the taking of property valued up to $950, while ORS 164.045 criminalizes the taking of property valued $100 or more and less than $1,000. Thus, a person may violate the California statute by taking property valued under $100, while the same conduct would not violate ORS 164.045.

Instead, such conduct would constitute third-degree theft in Oregon. See ORS 164.043 (defining third-degree theft as theft of property with a total value of "less than $100"). That is a critical distinction because third-degree theft is not a qualifying "previous conviction" for purposes of the RPO statute. See ORS 137.717(2) (listing first-degree and second-degree theft, but not third-degree theft, as qualifying previous convictions). The state suggests that we disregard that difference, drawing our attention to the fact that the California charging instrument, which is in the record, alleged that the property at issue in defendant's case was valued in excess of $400. But, as we have made clear, "[t]he determination of comparability under ORS 137.717(4)(b) presents a legal question to be resolved by an examination of the text of the statutes under which a defendant has been convicted, not the charging instrument underlying the out-of-state conviction." Escalera , 223 Or. App. at 31, 194 P.3d 883. Carlton did not call that aspect of Escalera into question; to the contrary, it analyzed comparability based on the statutory elements of the offenses. Carlton , 361 Or. at 43, 388 P.3d 1093. The state's suggestion that we rely on the charging instrument is misplaced.

We therefore conclude that shoplifting under California Penal Code section 459.5 is not a comparable offense to second-degree theft under ORS 164.045.

The state's argument that it is a comparable offense to attempted second-degree theft under ORS 164.045 and ORS 161.405 fares no better. Under ORS 161.405, "[a] person is guilty of attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime." To constitute a "substantial step," the defendant's conduct must "(1) advance the criminal purpose charged, and (2) provide verification of the existence of that purpose." Carlton , 361 Or. at 45, 388 P.3d 1093. The state argues that "taking or attempting to take property valued more than $450 from a commercial establishment" both violates section 459.5 and is a substantial step toward committing the crime of second-degree theft under ORS 164.045.

That argument fails for similar reasons as those already discussed with respect to completed second-degree theft under ORS 164.045. It implicitly, and improperly, relies on the California charging instrument, rather than comparing the elements of the offenses. It also only partially addresses the intent issue, because California Penal Code section 459.5 criminalizes entering a commercial establishment with the intent to commit larceny, regardless of whether the defendant takes any substantial step toward effectuating that intent. The intent element of section 459.5 is similar to the intent element of ORS 164.045, which requires that the defendant had "the intent to deprive another of property or to appropriate property to the person or to a third person" when committing the prohibited act. But, whereas section 459.5 requires only entering with the requisite intent, attempted second-degree theft under ORS 164.045 requires attempting to take , obtain , or withhold property with the requisite intent. For both reasons, a violation of California Penal Code section 459.5 is not a comparable offense to attempted second-degree theft under ORS 164.045 and ORS 161.405.

In conclusion, the trial court erred in treating defendant's conviction for shoplifting under California Penal Code section 459.5 as a qualifying "previous conviction" for purposes of RPO sentencing under ORS 137.717. As a result of that error, the trial court improperly increased defendant's sentence by two months-from 18 to 20 months-on Counts 1, 2, and 6.

Remanded for resentencing; otherwise affirmed.

      All references to ORS 137.717 are to the 2015 version of the statute.

      Because defendant will be resentenced, we need not address his fifth assignment of error, challenging the trial court's imposition of $1,400 in fines. See former ORS 138.222(5)(a) (2015), repealed by Or. Laws 2017, ch. 529, § 26 (providing for remand of "the entire case for resentencing" if the appellate court determines that the sentencing court committed an error in sentencing that requires resentencing).

      We note that, although Carlton plainly rejected Escalera 's reasoning, it does not necessarily follow that the result in Escalera was wrong. We emphasized in Escalera that the Washington and Oregon statutes at issue were quite similar and had only "minor possible differences in scope." 223 Or. App. at 32, 194 P.3d 883. Under Carlton , a foreign offense is "comparable" if its elements are "the same as or nearly the same as the elements of an Oregon felony sex crime." Carlton , 361 Or. at 43, 388 P.3d 1093 (emphasis added).

      It is undisputed that defendant's prior conviction is for a misdemeanor violation of California Penal Code section 459.5. Given the text of section 459.5, it is accurate to refer to that conviction as one for "shoplifting," as both parties generally do on appeal. The state has at times referred to the conviction as one for "burglary" or a "reduced form of burglary," apparently due to the fact that section 459.5 is housed in Title 13 ("Of Crimes Against Property"), Chapter 2 ("Burglary"), of the California Penal Code. To avoid confusion, we consistently refer to the conviction as one for "shoplifting."

      We understand the state's reference to "$450" to be a reference to the California charging instrument, which alleged that the property was valued "in excess of Four Hundred Dollars ($400)." We have found no other reference to "$450" in the record.

      At oral argument, the state argued that the only practical way to prove that a person intended to commit larceny upon entering a commercial establishment would be to prove that he or she took or attempted to take property once inside and, by inference, intended to do so when entering. We are not persuaded that that would be the only way to prove intent, nor are we convinced that Carlton allows looking past the statutory elements to the practicalities of proof.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Crystal Dawn HARPER, Defendant-Appellant.
    A166154
    Court of Appeals of Oregon.
    Submitted May 30, 2019. July 17, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, she challenges her sentence. In her first assignment of error, defendant, who holds a medical marijuana registry card, asserts that the trial court erred in imposing a special condition of probation that she "shall be allowed to use medical marijuana only if prescribed by a doctor." Defendant argues that imposition of that condition was improper under ORS 137.542(2) and State v. Bowden , 292 Or App 815, 425 P.3d 475 (2018), in which we held that

"the legislature has provided an exception to the general probation condition that a probationer may not 'use or possess controlled substances' if the probationer has a medical prescription, ORS 137.540(1)(b), and that exception applies to those persons who have a marijuana medical registry card, ORS 137.542. The sentencing court does not have the discretion to impose a probation condition that runs counter to ORS 137.540(1)(b) and ORS 137.542."

Id . at 818-19, 425 P.3d 475. The state concedes that the trial court violated ORS 137.542(2) by imposing the special condition at issue here. We agree that, because defendant holds a medical marijuana registry card, the trial court erred by imposing the condition prohibiting the use of medical marijuana without a prescription and accept the state's concession.

We turn to the appropriate disposition. Defendant asks us to remand for resentencing with a direction to the trial court to delete the special condition of probation from the judgment. The state concedes that we should remand for the trial court to resentence defendant in a way that conforms with the law, but argues that "the trial court should be afforded an opportunity to impose whatever lawful sentence is necessary to resolving its concerns that defendant's marijuana use puts her at risk of re-offending." We agree with the state. See Bowden , 292 Or App at 819, 425 P.3d 475 (remanding for resentencing "with instructions to conform defendant's conditions of probation with ORS 137.540(1)(b) and ORS 137.542"); State v. Hurita , 276 Or App 58, 61, 366 P.3d 754 (2016) (remanding for resentencing when probation condition was overbroad); see also State v. Moreno-Hernandez , 365 Or. 175, 191, 442 P.3d 1092 (2019) (remanding for further proceedings when "there may be other permissible options that the trial court could adopt on resentencing" rather than only reversing portion of judgment erroneously requiring the defendant to pay compensatory fines).

In her second assignment, defendant seeks plain-error review of the trial court's imposition of a $2,000 fine. She asserts that the trial court erred because the imposition of any fine was discretionary, but that "the trial court mistakenly believed that the $2,000 fine was mandatory, stating that it believed the fine to be 'statutory,' " and imposed it because it believed it was required to. In light of our disposition on the first assignment, we need not reach the second assignment of error; the trial court will have the opportunity to consider the issue on remand.

Remanded for resentencing; otherwise affirmed.

      ORS 137.542(2) states, "Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs."