1 Filed: October 11, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.
CLIFTON CORY BURGESS,
Respondent on Review.

(CC C080070CR; CA A139500; SC S059499)

En Banc
On review from the Court of Appeals.*
Argued and submitted May 1, 2012.
Susan G. Howe, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
David O. Ferry, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Public Defender.

DE MUNIZ, J.

The decision of the Cou rt of Appeals is affirmed. The judgment of the circuit court is reversed
, and the case is remanded to the circuit court for further proceedings

.

*Appeal from Washington County Circuit Court, Mark Gardner and Rick Knapp, Judges. 240 Or App 641, 251 P3d 765 (2011).1 DE MUNIZ, J. 1
Defendant was charged by indictment with (among other things) assault in 2

the first degree under ORS 163.185

. At trial, the state proceeded solely under the theory 3

that defendant had aided and abetted his codefendant's initial assault on the victim . A 4
jury found defendant guilty . On appeal, t he Court of Appeals reversed defendant's first

5
degree assault conviction and remanded to the circuit court for further proceedings on the 6

lesser cha rges of second

- a nd fourth

- degree assault. State v. Burgess
, 240 Or App 641, 7

251 P3d 765 (2011)

. We allowed t he state 's petition for review to examine whether, on 8
appellate review , the state can sus tain a criminal conviction on a theory of criminal 9
liability that it did not pursue at trial. For the reasons set out in this opinion, we conclude 10

that it cannot. 11

The facts recited by the Court of Appeals are sufficient for our review : 12

"On New Year's E ve 2007, defendant
, [codefendant] , and the victim 13 were all guests at a party. All three were intoxicated, and the host provided 14 methamphetamine to all three. Thereafter, when the host and the victim 15 became involved in a physical confrontation, [codefendant] intervened and 16 knocked the victim down with one or two punches. [Codefendant] , who 17 was wearing steel

- toed boots, then kicked the victim th ree or four times in 18 the face, 'lik e somebody kicking a football.' A bystander intervened to pull 19 [cod efendant] away from the victim, who was unconscious. [ C odefendant] 20 then walked away. 21
"Defendant and the victim had a hostile relationship. As 22 [codefendant] assaulted the victim, defendant stood nearby, without 23 participating. Approximately a minute and a half after [codefendant] had 24 been pulled away, defendant approached the victim, who was lying face up, 25 and 'stomped' him on the chest 'a couple of times.' Defendant then rolled 26 the victim over, so that he was face down, grabbed his hair, and then 'pile

27 d rived' or 'slammed' the victim's face into the muddy ground several times, 28 saying, 'Don't ever disrespect me again.' Finally, and before stopping, 29 defendant punched the victim in the face several times in the same area 302

where the victim had been kicked by [codefendant]

. After bystanders 1 carried the victim away for medical care, defendant and [codefendant] 2 'high

- fived,' congratulating each other. There was, however, no evidence 3 that defendant and [codefendant] had jointly planned or otherwise 4 coordinated t heir conduct. 5
"The victim suffered, among other injuries, a fractured right eye 6 socket, which required reconstructive surgery, several other facial fractures, 7 including to his jaw, and a lacerated arterial vein in his left temple. 8 Ultimately, at trial, n o expert medical testimony was presented relating or 9 apportioning those injuries, or their degree or severity, to [codefendant's] 10 and defendant's respective conduct. 11

"Defendant and [codefendant] were both charged with, inter alia
, 12 first degree assault. ORS 163.185

. 2 The indictment charging defendant 13 alleged, without elaboration, that defendant 'did unlawfully and 14 intentionally cause serious phys ical injury to [the victim] by means of a 15 dangerous weapon,' without referring to either principal or accomplice 16 liability. Although [codefendant] waived a jury, and defendant did not, the 17 two were tried jointly; thus, defendant was tried before a jury wh ile 18 [codefendant] was tried simultaneously before the court." 19

___________ 20

" 2 ORS 163.185 provides, in part: 21
'(1) A person commits the crime of assault in the first degree if the 22 person: 23
'(a) intentionally causes serious physical injury to another by m eans 24 of a deadly or dangerous weapon[.]' 25
'Defendant was also charged with one count of third

- degree assault, 26 which the state dismissed, and one count of unauthorized use of a weapon, 27 on which the jury acquitted defendant.'" 28
Burgess , 240 Or App at 643

- 44

. 29

At trial, the state a sserted that def endant had aided and abetted 30

co defendant 's assault by "'comp o und[ing]' the injuries that [co defendant] had inflicted" 31
using steel

- toed boots. Id. at 645 (first alteration in original) . At the close of the state's 323

case, defendant moved for a judgment of acquittal, arguing that the state had failed to 1

establish the necessary connection between what defendant characterized as "the only 2
dangerous weapon in the case," co defendant 's steel

- toed boots
, and defendant's 3

subs equent conduct. Id. The state countered that, because defendant "went for the same 4
place" when defendant had punched the victim and slammed his head into the muddy 5
ground, defendant had furthered the commis sion of the injury caused by codefendant
, 6

thus a iding and abetting codefendant 's assault. Id. at 646. The trial court denied 7
defendant's motion, reasoning that, "viewing the evidence most favorably to the state, 8
there was a triable issue of fact for the jury as to 'whether or not there was aiding and 9
abetting.'" Id. At the close of trial, the jury convicted defendant of assault in the first 10
degree

. 11
Defendant appealed, arguing that there was insufficient evidence to convict 12

him of first

- degree assault as an a ccomplice

. In response, t he state argu ed that
, even if 13
the evidence at trial did not support defendant's conviction as an a ccomplice , there was 14
sufficient evidence in the record to support defendant's conviction as a principal . In 15

suppo rt of that argument, the state asserted that the muddy gr ound that defendant had 16
slammed the victim's head into was a dangerous weapon and that the victim had suffered 17
serious physical injuries as a result. 18
In reversing defendant's conviction for first

- degree assault, the Court of 19
Appeals first held that the evidence was not sufficient to support defendant's conviction 20
as an accomplice, stating: 21

"A lthough defendant assaulted the victim about a minute and a half after 224

[codefendant] had broken off his assault, there is nothing

-- aside from 1 defendant's 'mere presence' when [codefendant] was kicking the victim

-- to 2 establish that [codefendant's] conduct and defendant's conduct constituted 3 anything more than uncoordinated, seriatim assaults." 4

Id. at 651. Second, t he Court of Appeals rejected the state's arg ument that defendant's 5
conviction could be sustained on appeal on the separate factual and legal theory that 6
defendant was guilty as a principal. According to the Court of Appeals, to sustain 7
defendant's conviction on the state's separate theory of princi pal liability would deprive 8

defendan t of "actual notice" and offend "overriding principles of due process." Id. at 653 9
(internal quotation marks and citation omitted)

. Although t he Court of Appeals reversed 10

defendant's conviction for first

- degree assault , it remanded the case to the trial court for 11
further proceedings on the lesser crimes of second

- and fourth

- degree assault. As noted, 12

we allowed the state's petition for review. 13

On review, the state makes two arguments . First, the state contends tha t , 14

because it presented s ufficient evidence at trial to permit the jury to find the essential 15

elements of first

- degree assault under any permissible legal theory of criminal liability
, 16

and because the trial court's instructions permitted the jury to convict defendant of first

17
degree assault without identifying him as a pri ncipal or as an accomplice , defendant's due 18
process rights would not be violated by sustaining defendant's conviction on a theory 19
different than the one presented at trial . Second, the state argues that, even if the Court of 20
Appeals correctly revers ed defendant's conviction, it would not offend double jeopardy 21
principles to remand the case to the trial court to permit the state to again try defendant 22
on the charge of first

- degree assault. 235 In response, d efendant argues that
, at trial
, the prosecutor "elect ed" as a 1

matter of law to confine the state's prosecution under the indictment to accomplice 2
liability, and for that reason th e state is barred on appeal f rom arguing a separate theory 3
of criminal liability. See , e.g., State v. Goddard , 69 Or 73, 89, 13 8 P 243 (1914) ( w hen 4
state selected some particular act as constituting the crime, jury not permitted to find 5
defendant guilty o f some other criminal act); accord State v. Ewing , 174 Or 487, 494
, 6
496, 149 P2d 765 (1944) (prosecutor's statement in rebuttal was too late to qualify as an 7

election ). 8

We need not determine whether the state made such an election here

. 9

Rather, we conclude that, under the circumstances of this case, it would be fundamentally 10

unfair to defendant to sustain defendant's conviction on a separate factual and legal 11
theory that has been proffered by the state for the first time on appeal

. 12

In his opening statement, the prosecutor told the judge and the jury that the 13
dangerous weapons used in the assault were "the ste e l

- toed work boots" that codefendant 14

had been wearing, and that defendant had aided and abetted the commission of 15

codefendant's assault

-- com pounding the victims' injuries by smashing the victim's head 16
into the ground. Burgess , 240 Or App at 644

- 45. In response to defendant's motion for 17
judgment of acquittal, the prosecutor argued only that defendant's acts furthered the 18

comm ission of injurie s caused by codefendant. Id. at 645

- 4 6. And, finally, in his closing 19

argument , the prosecutor argued only that defendant assisted the codefendant in the 20

assault of the victim. Id. at 646. 21

A s the p arts of the record described above demonstrate
, the state never 226

contended at trial that defendant's action s were sufficient to convict him of assault in the 1
first degree as a principal. Nevertheless, t he state points out that the indictment allege d 2
that defendant "did unlawfully and intentionally cause serious physical injury to [the 3
victim] by means of a dangerous weapon." Unquestionably
, the allegation in the 4

indictment was sufficient to allege the crime of first

- degree assault and was sufficient t o 5
permit the state to proceed against the defendant at trial either as a principal
, an 6
accomplice
, or both . In other words, the state could have pursued both theories of 7
criminal liability at trial . I t is clear from the record , however, that the state inf ormed the 8

trial court and defendant that it was pursuing only one theory

-- accomplice liability. 9

Because the state took that position
, neither defendant nor the trial court was aware of the 10
separate factual and legal theory that the state now asserts on review. Accordingly
, there 11

was no reason for defendant to challenge or rebut any factual contentions as to whether 12
the "muddy ground" (as opposed to the codefendant's steel

- toed work boots) met the 13
statutory definition of a dangerous weapon, 1 or whether a ny of defendant's actions 14
independently caused serious physical injury under the pertinent statutory definition. 2 As 15

1 ORS 161.015(1) defines a "dangerous weapon" as

"any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury."

2 ORS 161.015(8) defines "serious physical injury" as a
"physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or7

an initial matter, we observe that requir ing defendant to challenge or rebut those 1

undecided factual and legal issue s for the first time o n appeal does not comport with a 2
system of appellate review premised on ensuring fairness to an opposing party by 3

perm itting the opposing party to respond to a contention and by otherwise not taking the 4
party by surprise. See Peeples v. Lampert , 345 Or 209, 2 19

- 2 0 , 191 P3d 637 (2008) 5

( policies underlying preservation a re prudential ; preservation save s judicial resources by 6

g iving the trial court the opportunity to decide the issue in the first instance
, and it 7

ensur es fairness by giving the opposing party a chance to r espond to a contention, while it 8
also promotes full development of the record needed by both the trial and appellate 9

court s )

. 10
Despite the state's failure in the trial c ourt to pursue the separate factual and 11
legal theory that defendant was guilty as a principal, the state points out that the jury 12

instructions on the elements of first

- degree assault did not prohibit the jury from 13
concluding that defendant wa s guilty as a principal, and that the evidence could have 14
permitted both the trial court and the jury
, in its ultimate determination, to conclude that 15
defendant used the "muddy ground" to cause serious physical injury to the victim 16
independent of the injuries caused by codefendant's steel

- toed boots. In effect, the state 17

asse r ts that defendant ' s conviction should be sustained on appeal under the principle that 18

protracted loss or impairment of the function of any bodily organ."8

an appellate court may affirm a correct decision of a trial court on a basis other than the 1

one on which the tr ial court relied. See State v. Rogers , 330 Or 282, 295, 4 P3d 1261 2

(2000) ( even if trial court's l e gal reasoning for ruling w a s erroneous, court will affirm if 3
ruling is supported by another legal ly correct reason and record developed in trial court ). 4
In this case, however, the conditions necessary to apply the sometime s 5

denominated principle of "right for the wrong reason" cannot be met. This court, in 6

Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or 634, 20 P3d 180 (2001), 7
explained that application of the "right for the wrong reason" principle is a matter of 8
appellate court discretion, subject to the f ollowing conditions: 9

" The first condition is that, if the question presented is not purely 10 one of law, then the evidentiary record must be sufficient to support the 11 proffered alternative basis for affirmance. That requires: (1) that the facts 12 of record be sufficient to support the alternative basis for affirmance; (2) 13 that the trial court's ruling be consistent with the view of the evidence under 14 the alternative basis for affirmance; and (3) that the record materially be the 15 same one that would have been developed had the prevailing party raised 16 the alternative basis for affirmance below. In other words, even if the 17 record contains evidence sufficient to support an alternative basis for 18 affirmance, if the losing party might have created a different recor d below 19 had the prevailing party raised that issue, and that record could affect the 20 disposition of the issue, then we will not consider the alternative basis for 21 affirmance. " 22

Id. at 659

- 60 (emphasis in original)

. 23

Here, the third condition necessary to apply the "right for the wrong reason" 24
principle has not been met. Specifically, it is highly likely that defendant w ould have 25
developed the record differently if defendant had had actual notice that the state was 26

purs u ing principal liability against him on the theory that the "muddy ground" was a 27
dangerous weapon and that defendant's actions independently caused serious physical 289

injury to the victim

. As defendant points out, he did not have any reason to develop the 1
factual record regarding whether the actual muddy ground condition could have 2
constituted a dangerous weapon. N either did defendant have any reason to develop any 3

medical evidence regarding the likelihood, if any, that the " muddy ground " caused 4

seriou s physical injury to the victim independe nt of codefendant's steel

- toed boots. 5

Because the state never asserted that defendant independently had used the " muddy 6
ground " as a dangerous weapon that independently had caused serious physical injury to 7
the victim, defendant had no opportunity or reas on to raise factual and legal challenges 8

on those issues by way of motion s to the trial court or argument to the jury. 3 9
In summary, the state's failure in this case to pursue the separate factual and 10
legal theory of principal liability at trial now precl ude s the state from successfully 11
asserting that theory on appellate review as a means to sustain defendant's conviction for 12
assault in the first degree. 13
That does not, however, conclude our analysis

. The state also contends that 14

3 Furthermore, b ecause the state's separate factual and legal theory was not pursued in the trial court, the trial court record does not permit meaningful appellate review of the trial court proceedings in that respect . As we have noted previously, the state contends that the jury instructions did not prohibit the jury from concluding that defendant was guilty as a principal. We agre e with that proposition as an abstract matter. However, even assuming that the evidence permitted the jury to conclude both that the "muddy ground" was a dangerous weapon and that defendant intended to and did cause separate serious physical injury to the victim, the record is devoid of any indication that the jury made any such determination.10

the Court of Appeals incorrectly remanded the case to the trial court for further 1
proceedings only on the lesser charges of second

- and fourth

- degree assault. In that 2
regard, t he state argues that on remand it should be permitted to retry defendant for 3

assault in the first degree

. According to the state, the reversal of defendant's conviction 4

for first

- degree assault is not based on the insufficiency of the evidence to warrant a 5
conviction, but, instead, is based on the state's failure to notify defendant that it intended 6

t he jury to be able to convict defendant as a principal as well as an accomplice. 7

W e do not address the state's argument. It has long been the rule in this 8
court that we will not address arguments that were not raised in the Court of Appeals. 9

See Stat e v. Castrejon , 317 Or 202, 209 n 9, 856 P2d 616 (1993) (failure to raise an issue 10
in the Court of Appeals generally pr ecludes review by this court); Tarwater v. Cupp , 304 11

Or 639, 644 n 5, 748 P2d 125 (1988) (petitioner in S upreme C ourt " cannot shift or 12

ch ange his position and argue or raise an issue that was not before the Court of 13
Appeals " ). In this case, the state argued in the Court of Appeals only that
, if the Court of 14
Appeals "concludes that the evidence wa s insufficient to support defendant's convic tion 15

for first

- degree assault, the remedy is to reform the conviction to one for second

- degree 16
assault." Reforming defendant's conviction to one for a lesser crime
, as the state argued 17
in the Court of Appeals
, does not even come c lose to addressing the co mplicated former 18
jeopardy question s that surround the state 's new argument in this court that it should be 19
permitted to again try defendant for the crime of assault in the first degree. Accordingly, 20
we do not address the state's argument. 21

N either party addresses the correctness of the Court of Appeals ' 2211

determination that on remand defendant can be prosecuted for the lesser offense s of 1

second

- and fourth degree assault arising out of the same criminal episode. Because that 2
question also is not before us , we express no opinion on the correctness of the Court of 3
Appeals' disposition in that regard

. 4
The decision of the Court of Appeals is affirmed. The judgment o f the 5

circuit court is reversed
, and the case is remanded to the circuit court for further 6

pr oceedings. 7