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State v. Burgess

Summarized by: 

Date Filed: 10-11-2012
Case #: S059499
De Muniz, J. for the Court; En Banc.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/S059499.pdf

Criminal Procedure: The State is precluded from raising a legal theory on appeal that was not argued at the trial level because the defendant may have developed the record differently had the issue been addressed at trial.

Defendant was convicted of being an accomplice to first-degree assault. The Court of Appeals reversed, and the Supreme Court granted the State’s petition for review. Defendant watched Codefendant kick the victim in the face with steel-toed boots. After Codefendant walked away, Defendant slammed victim’s head into the muddy ground in the same place Codefendant had kicked victim. The State argued on review that the Court of Appeals erred in rejecting the State’s new argument that Defendant could be held liable as a principal of first-degree assault with a deadly or dangerous weapon. Court disagreed because it held that Defendant would have developed a different record if he knew the State was trying to convict him as a principal of first-degree assault rather than an accomplice. Defendant presumably would have brought forth evidence demonstrating that the muddy ground was not a deadly weapon. The Court found that the State was precluded from raising a new legal theory of principal liability at the Court of Appeals because it failed to do so at the trial court. Affirmed.