# State v. Parkins > Oregon Supreme Court · June 25, 2009 · 346 Or. 333 URL: https://www.frixlaw.com/law-library/cases/9503282 ## Case - **Full name:** STATE OF OREGON, Respondent on Review, v. STEVEN DONALD PARKINS, Petitioner on Review - **Court:** Oregon Supreme Court - **Decided:** June 25, 2009 - **Citations:** 346 Or. 333; 211 P.3d 262; 2009 Ore. LEXIS 32 - **Precedential status:** Published - **Opinion:** Dissent by Kistler - **Judges:** Linder, Kistler - **Cited by:** 119 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503282 ## How later opinions describe it (automated extraction) - reasoning that “when the legislature sets out the offenses in separate sections, defines them as different degrees of an incrementally graded offense, and assigns them different punishments [,]” the statutory provisions are generally “separate provisions for purposes of the an… - explaining that “the pres- ervation rule is a practical one, and close calls * * * inevi- tably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served” - stating that preservation turns on whether, “given the particular record of a case, the court concludes that the policies underlying the [preservation] rule have been suf- ficiently served” - noting that, “[u]ltimately, the preservation rule is a practical one, and close calls—like this one—inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served” - concluding that issue was adequately preserved where it was raised by the state and ruled on by the trial court, even though the defendant only addressed it “ambiv- alently” ## Opinion text *356 KISTLER, J., dissenting in part and concurring in part. The trial court, sitting as the trier of fact, convicted defendant of kidnapping an 11-year-old girl and sexually abusing her. On review, the majority holds that the trial court erred in denying defendant’s motion for judgment of acquittal because the evidence was not legally sufficient to prove one element of kidnapping. In moving for judgment of acquittal, however, defense counsel expressly gave up the issue on which the majority now relies to reverse his conviction. He told the trial court that, as the court knew, “that’s not our issue.” He explained that he was not arguing about specific crimes or their elements. And, consistently with that position, defendant moved for a judgment of acquittal on all the charges (not just kidnapping) because no reasonable juror could find that he was the perpetrator. I would hold that defense counsel gave up the issue that he now raises on review and would affirm defendant’s kidnapping conviction. I respectfully dissent from that part of the majority’s decision. 1 In moving for a judgment of acquittal, defendant referred to and incorporated arguments that he had made in his opening statement. It is helpful, in my view, to describe those arguments briefly to put his motion for judgment of acquittal in context. The state charged defendant with kidnapping the victim, sexually abusing her, and unlawful sexual penetration. Throughout the trial, defendant raised one defense to all those charges: He was not the person who had committed those offenses. As defense counsel told the trial court in opening statement, the victim had told the police that the person who locked her in the room and assaulted her “was six-foot tall, really skinny, dark brown, almost black curly hair — long enough to pull it into a pony tail — big bones that stuck out — cheek bones and chin, and had brown eyes.” Defense counsel explained in opening statement that not one of his client’s physical attributes matched that description and that a photograph of his client at the time of the alleged *357 events would confirm that defendant was not and could not have been the person whom the victim had described to the police. At the close of the state’s case-in-chief, the prosecutor gave the trial court, who was sitting as the trier of fact, the citation to a Court of Appeals case that bore on the kidnapping charge. The prosecutor explained that “there’s only one case in the State of Oregon with regard to Secreting Somebody in a Place Not Likely to be Found, and that is [State v.] Montgomery[, 50 Or App 381 , 624 P2d 151 (1980), rev den, 290 Or 727 (1981)].” The court then recessed for lunch. When court resumed, defense counsel moved for a judgment of acquittal. Counsel began by noting that the prosecutor had referred, before lunch, to Montgomery. Defense counsel told the trial court that, “although [he] would factually distinguish the present case from the Montgomery case” and explained his reasons for doing so, he was basing the motion for a judgment of acquittal on a different ground. Specifically, after discussing the issue in Montgomery, defense counsel told the trial court: “However, as the Court knows from the entire case from Opening Statement to now, that’s not our issue. Our issue is not a nit-picking argument regarding specific elements and specific crimes. We’re not arguing about venue. We’re not arguing about intent. We’re simply saying that there’s insufficient evidence, as a whole, to — as a tr[i]er of fact— even in the light most favorable to the State, to believe that a tr[i]er of fact could beyond a reasonable doubt find that my client, Mr. Parkins, had anything to do with the alleged molestation that took place of [the victim], and I believe that even Detective Green, in his last answer before leaving the stand, said that the physical descriptions he received from [the victim], from [the victim’s sister], and from a friend of Mr. Parkins, Nick Olney, did not match Mr. Parkins. “The Court has heard more than once from more than one source, the physical description of the alleged person that committed this crime, and they do not match Mr. Parkins, and we provided a photograph of Mr. Parkins that was near in time, at least, to the time that the State is *358 now alleging that this took place. And by no means does that match him in any respect, I would argue.” Defense counsel then raised a question regarding the victim’s credibility and concluded, “[W]e are asking the Court to make a finding for Judgment of Acquittal.” The trial court ruled: “That motion will be denied, and I do believe that there’s sufficient evidence on the Kidnapping Count to support the allegations set forth in the Indictment, particularly the evidence that was brought up by the State, that there were attempts by [the victim] to seek help and to scream, but that the Defendant told her that nobody would hear and nobody would care. And, in light of that evidence, I believe that that charge is legally sound in this case.” The preservation issue in this case arises in somewhat of an unusual posture, and it is important to be clear about both the scope of defendant’s motion for judgment of acquittal and the basis for that motion. Defendant did not limit his motion for judgment of acquittal to the kidnapping charge. Rather, as defense counsel told the trial court, “Our issue is not a nit-picking argument regarding * * * specific crimes.” Consistently with that position, the sole basis that defense counsel advanced in support of the motion for judgment of acquittal was that no reasonable trier of fact could find that defendant was the person whom the victim had described to the police. That argument, if correct, would have entitled defendant to an acquittal on all the charges against him. The trial court denied defendant’s motion, presumably because the court concluded that there was sufficient evidence to find that defendant was the perpetrator. The court then went on to address an issue that defendant had explicitly given up — whether the evidence was sufficient for a trier of fact to find that the state had proved the elements of one of the crimes, kidnapping, with which defendant was charged. On review, defendant abandons the issue that he raised in the trial court. He does not argue on review that the trial court should have entered a judgment of acquittal on all *359 the charges because no reasonable trier of fact could find that he was the person whom the victim described as the perpetrator. Rather, he argues that that no reasonable trier of fact could find that the state proved the element of kidnapping that the Court of Appeals had discussed in Montgomery. Defense counsel, however, expressly gave up that issue in the trial court. After discussing the issue in Montgomery, defense counsel told the trial court “that’s not our issue.” If that statement were not clear enough, defense counsel added, “Our issue is not a nit-picking argument regarding specific elements and specific crimes.” In my view, the only reasonable interpretation of those statements is that defendant was not directing his motion for a judgment of acquittal at kidnapping, nor was he arguing that the evidence was insufficient to prove the elements of kidnapping (or of any of the other charges for that matter). Rather, as defense counsel explained, his argument was directed to all the charges and was “simply” that no reasonable trier of fact could find that defendant matched the victim’s description of the perpetrator. Defendant argues on review that the issue regarding the kidnapping charge is preserved because the trial court was aware of that issue when it ruled on his motion for judgment of acquittal. Defendant notes that the prosecutor had provided the trial court with a citation to Montgomery before defendant moved for judgment of acquittal, that defense counsel later moved for a judgment of acquittal and distinguished Montgomery, and that the trial court expressly considered whether the evidence supported the elements of the kidnapping charge in denying his motion. While true, defendant’s argument on review fails to come to terms with a larger principle: A party may not expressly disclaim reliance on an issue before the trial court and then seek on appeal to reverse the trial court’s ruling on the very issue that the party just disclaimed. This court has long recognized that, when a party “indicates” to the trial court that an issue or ruling is acceptable, that party may not challenge the ruling on appeal. Clay/Luttrell v. Pay Less Drug Stores, 276 Or 673, 676-77 , 556 P2d 125 (1976). That is *360 true even when the trial court has considered the ruling, as in this case. See id. 2 Accordingly, I would hold that defendant’s challenge to his kidnapping conviction is not properly before us and would affirm that conviction. Defendant’s remedy on that issue should lie, if at all, in post-conviction. As noted, for the reasons stated in the concurring opinion in State v. White, 346 Or 275 , 211 P3d 248 (2009), I agree with the majority that the trial court erred in holding that the six counts of sexual abuse gave rise to six separately punishable offenses, and I join that part of its decision. Accordingly, I dissent in part and concur in part in the majority’s decision. The majority also holds that defendant’s six convictions for sexual abuse gave rise to only three punishable offenses. I agree with the majority on that point for the reasons stated in State v. White, 346 Or 275 , 211 P3d 248 (2009) (Kistler, J., concurring). In Clay/Luttrell , the trial court told the parties that it was changing one of the instructions that it had planned to give, 276 Or at 675-76 , which presumably means that the trial court had considered the change and determined that it was legally correct. One of the lawyers for the plaintiffs “ ‘indicated that the instruction, as changed was acceptable,’ ” but the plaintiffs later appealed challenging the instruction. Id. at 676 . This court declined to consider the issue, describing it as invited error. Id. at 677 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503282. Public record. Not legal advice.