State v. Fry

“We may affirm a trial court ruling on an alternative basis that was not raised in the trial court when certain conditions are met. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). However, even when those conditions are met, affirming on an alternative basis that was not raised in the trial court “is a matter of prudential discretion and not compulsion.” Biggerstaff v. Board of County Commissioners, 240 Or App 46, 56, 245 P3d 688 (2010).

Defendant appealed a second conviction for failing to re-register as a sex offender within 10 days of his birthday (ORS 163A.040). Defendant assigned error to the trial court’s denial of his motion to dismiss because the prosecution violated his right against double jeopardy. On appeal, defendant challenged the trial court’s denial of his motion to dismiss. Defendant claimed that even though the state could have prosecuted defendant on a separate event as failing to re-register prior to his 2017 birthday, the state’s lack of knowledge of the statute led to a double jeopardy on the same event in 2016. In response, the state proposed that even if the court denied defendant’s motion for the wrong reason, it did so under the right result because defendant would have been in violation of failing to re-register prior to his 2017 birthday. “We may affirm a trial court ruling on an alternative basis that was not raised in the trial court when certain conditions are met. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). However, even when those conditions are met, affirming on an alternative basis that was not raised in the trial court “is a matter of prudential discretion and not compulsion.” Biggerstaff v. Board of County Commissioners, 240 Or App 46, 56, 245 P3d 688 (2010). The Court held that the record of the charge was a hybrid of the 2016 and 2017 charges to re-register as a sex offender. However, because this occurred because of the state’s confusion of the offense, defendant was correct that he was ultimately charged under the same event in 2016.

Reversed.