222 September 20, 2023 No. 493

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

NICHOLAS RYAN CLYDE,

Defendant-Appellant.

Douglas County Circuit Court

14CR1911FE; A176269

Frances Elaine Burge, Judge.

Submitted February 27, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Anne Fujita Munsey, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Jennifer S. Lloyd, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

HELLMAN, J.

Affirmed.
Cite as 328 Or App 222 (2023) 223

HELLMAN, J.

Defendant appeals from the trial court’s denial 

of his motion to dismiss on double jeopardy grounds.1

 On 

appeal, he argues that double jeopardy prevents a retrial if 

the first trial resulted in a nonunanimous guilty verdict. For 

the following reasons, we affirm.

Defendant was convicted in 2017 of four counts of 

unlawful use of a weapon with a firearm, ORS 166.220 and 

ORS 161.610 (Counts 1 through 4); two counts of menacing, 

ORS 163.190 (Counts 5 and 6); and two counts of pointing 

a firearm at another, ORS 166.190 (Counts 7 and 8). The 

verdicts on those counts were nonunanimous. Defendant 

appealed, and, for the first time on appeal, challenged the 

nonunanimous nature of the verdicts. In that appeal, he asked 

for his convictions to be reversed and the case remanded for 

a new trial. We affirmed without opinion, but the Supreme 

Court allowed review. As defendant requested, the Supreme 

Court reversed the guilty verdicts on Counts 1 through 6 and 

remanded to the trial court for further proceedings.

On remand, defendant filed a motion to dismiss 

the indictment on double jeopardy grounds. In support, he 

relied on ORS 131.525(1) which permits a second prosecution only if the first prosecution was “properly terminated.” 

He argued that his first prosecution was not “properly terminated” because the trial court accepted nonunanimous 

jury verdicts, in violation of the United States Constitution. 

Defendant took the position that the reversal on appeal 

established that his prosecution was not properly terminated and, as a result, he could not be retried. Defendant 

also argued that the retrial violated the double jeopardy 

provisions of Article I, section 12, of the Oregon Constitution 

and the Fifth Amendment to the United States Constitution. 

The trial court denied the motion, and defendant entered a 

conditional guilty plea reserving his right to appeal the trial 

court’s ruling on the motion to dismiss.

1 Defendant characterizes his statutory and constitutional challenges collectively as ones of “double jeopardy.” Although our statute and our constitutional 

provisions are referred to as ones of “former jeopardy,” the disposition of defendant’s assignment of error does not depend on the phrase that is used. Thus, for 

purposes of this opinion, we adopt defendant’s use of the phrase “double jeopardy” 

to refer to all the legal bases for his arguments.
224 State v. Clyde

“We review the trial court’s denial of defendant’s 

motion to dismiss on double jeopardy grounds for errors of 

law, deferring to its factual findings that are supported by 

the record.” State v. Shaw, 317 Or App 746, 747, 507 P3d 280 

(2022).

Under both constitutional and statutory law, the 

basic principle of double jeopardy is that “[n]o person shall 

be prosecuted twice for the same offense.” ORS 131.515(1); 

see also State v. Moore, 361 Or 205, 213, 390 P3d 1010 (2017) 

(“The constitutional prohibition against double jeopardy 

was designed to protect an individual from being subjected 

to the hazards of trial and possible conviction more than 

once for an alleged offense.” (Internal quotation marks and 

citation omitted.)).

Because neither party disputes the applicability 

of ORS 131.525(1), we assume for purposes of this opinion 

that the statute applies in defendant’s case. ORS 131.525(1) 

states, in relevant part:

“A previous prosecution is not a bar to a subsequent 

prosecution when the previous prosecution was properly 

terminated under any of the following circumstances:

“(a) The defendant consents to the termination or 

waives, by motion, by an appeal upon judgment of conviction, or otherwise, the right to object to termination.

“(b) The trial court finds that a termination, other 

than by judgment of acquittal, is necessary because:

“(A) It is physically impossible to proceed with the 

trial in conformity with law; or

“(B) There is a legal defect in the proceeding that 

would make any judgment entered upon a verdict reversible as a matter of law; or

“(C) Prejudicial conduct, in or outside the courtroom, 

makes it impossible to proceed with the trial without injustice to either the defendant or the state; or

“(D) The jury is unable to agree upon a verdict; or

“(E) False statements of a juror on voir dire prevent a 

fair trial.”
Cite as 328 Or App 222 (2023) 225

Defendant asserts that the statute sets forth two 

separate requirements that must be met: a requirement for 

the prosecution to have been “properly terminated” and a 

separate requirement that one of the listed circumstances in 

subsection 1 must be present. The state disagrees, arguing 

that “properly terminated” is not an independent requirement, but is rather a descriptive phrase that encompasses 

the listed circumstances set forth in paragraphs (a) and (b). 

We agree with the state.

Following our statutory construction methodology, 

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), 

the text of the statute refutes defendant’s contentions. An 

examination of the listed conditions in subsections (a) and 

(b) establish that they are ways that a case can be terminated. See ORS 131.525(1)(a) (“The defendant consents to 

the termination or waives *** the right to object to termination.” (Emphasis added)); ORS 131.525(1)(b) (“[t]he trial court 

finds that a termination, other than by judgment of acquittal, is necessary” (emphasis added)). The preceding sentence 

establishes that a prosecution will be considered “properly 

terminated,” and thus not a bar to reprosecution, if any of 

the listed conditions are established. ORS 131.525(1) (“properly terminated under any of the following circumstances” 

(emphasis added)). There is no indication that the legislature intended “properly terminated” to have an extra-textual definition, and we do not insert what the legislature 

has omitted. ORS 174.010. “Properly terminated” is thus 

correctly understood as a descriptive phrase of the circumstances that follow.

With that understanding of the statute, we conclude 

defendant’s prior prosecution was properly terminated. 

Defendant “waive[d], *** by [his] appeal” of the judgment 

“the right to object to termination.” See ORS 131.525(1)(a). 

Defendant relies on State v. Jones (A82752), 141 Or App 41, 

917 P2d 515 (1996), to argue that his prior appeal did not 

evidence a waiver, but Jones does not assist defendant here.

In Jones, the trial court declared a mistrial on the 

prosecution’s motion and over the defendant’s objection, 

including the defendant’s “vigorous[] assert[ion] to the trial 

court that its ruling on the objection was incorrect.” Id. at 
226 State v. Clyde

46. Before the second trial, the defendant moved to dismiss 

the indictment, arguing that retrial was barred by ORS 

131.515(1), Article I, section 12, and the Fifth Amendment. 

Id. at 44. The trial court found that the defendant had not 

consented to the mistrial, so he had not waived his right 

to challenge termination, but that his prejudicial conduct 

during the trial required termination, such that a subsequent prosecution was permitted. Id. at 45.

On appeal, as relevant to the issues in this case, we 

agreed that the defendant’s actions at the time of the mistrial motion did not constitute a waiver of the right to raise 

a double jeopardy challenge. Id. at 47. We defined waiver 

in that context as a “voluntary action intended to forgo the 

right to make a claim of former jeopardy.” Id. The defendant’s vigorous objections to the mistrial demonstrated that 

he did not take any voluntary actions to waive his double 

jeopardy challenge. Id.

In contrast, defendant’s voluntary actions here 

operated as a waiver. He did not object to the nonunanimous jury verdicts at the trial level and his appeal explicitly characterized the nonunanimous jury verdict as an 

issue of instructional and trial court error, not an issue 

of double jeopardy. Critically, defendant’s requested relief 

was for a new trial, not a finding that the nonunanimous 

jury verdicts operated to prevent any further prosecution. 

Defendant’s failure to object to the nonunanimous verdicts 

on any ground, let alone that they implicated ORS 131.525 

or double jeopardy, his appeal and characterization of the 

errors, and his specific request on appeal for a new trial, are 

“voluntary action[s] intended to forego the right to make a 

claim of former jeopardy.” Jones, 141 Or App at 47.

In finding that defendant’s prior prosecution was 

properly terminated, we are not persuaded by defendant’s 

argument that seeks to place a nonunanimous verdict in 

a special category of “unlawful” verdicts that can never be 

found to have properly terminated a prosecution. Defendant 

does not explain how a nonunanimous verdict is “unlawful” 

in a way that places such an error outside the reach of the 

well-settled rule that a retrial after an appellate finding of 

reversible error does not violate double jeopardy (see, e.g., 
Cite as 328 Or App 222 (2023) 227

State v. Boots, 315 Or 572, 578, 848 P2d 76 (1993)), nor have 

we independently found any legal authority to support that 

proposition. Moreover, it is unclear how the existence of a 

nonunanimous verdict assists defendant in establishing a 

double jeopardy challenge. A case decision that is the product of less than twelve votes is technically not a “verdict” 

under the law. Ramos v. Louisiana, 590 US ___, 140 S Ct 

1390, 1395, 206 L Ed 2d 583 (2020) (citing 4 W Blackstone, 

Commentaries on the Laws of England 343 (1769) for the 

basic understanding that in common law “[a] verdict, taken 

from eleven, was no verdict at all” (internal quotation marks 

omitted)); State v. Broussard, 318 So 3d 319, 324 (La Ct 

App 2021) (holding that a nonunanimous verdict “is considered as the equivalent of no verdict, either of conviction 

or acquittal”). Instead, it is akin to a situation in which a 

jury is unable to reach a verdict. And if “the jury’s inability to reach a verdict is not the result of prosecutorial or 

judicial misconduct”—neither of which is implicated in this 

case—a retrial does not violate former jeopardy. See State v. 

O’Donnell, 192 Or App 234, 242, 85 P3d 323 (2004) (so holding under ORS 131.515 and Article I, Section 12); see also 

Richardson v. United States, 468 US 317, 104 S Ct 3081, 82 L 

Ed 2d 242 (1984) (so holding under the Fifth Amendment).

Finally, we hold that defendant’s case does not implicate 

double jeopardy as a constitutional matter. Double jeopardy 

bars retrial after a legally valid conviction, an acquittal, or 

an appellate finding of insufficient evidence. It does not prevent a retrial after an appellate finding of reversible legal 

error. North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 

23 L Ed 2d 656 (1969); Boots, 315 Or at 578. A conviction by 

a nonunanimous jury is not an acquittal, nor is it a finding 

of insufficient evidence. It is a conviction obtained in violation of constitutional protections. As such, defendant is subject to retrial.

Affirmed.