State v. Savage

"Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” State v. Mozorosky, 277 Or 493, 498 (1977) (quoting Ashe v. Swenson, 397 US 436, 444 (1970)) (internal citations omitted).

Defendant appealed a conviction of aggravated first-degree theft. Defendant assigned error to the trial court’s denial of his motion in limine and he advances that the State cannot rely on facts and evidence in relation to a previous acquittal. The State did not dispute the preservation issue in its briefings, nevertheless, the Court felt obliged to make an independent determination. "Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” State v. Mozorosky, 277 Or 493, 498 (1977) (quoting Ashe v. Swenson, 397 US 436, 444 (1970)) (internal citations omitted). The Court found that the trial court was never asked to review the record contemplated by Ashe and stated that Defendant’s motion did not cite to federal or state law. The Court held that a defendant must orally inform the court when enacting the Ashe analysis. Reversed and remanded.