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State v. Ipsen

Court of Appeals of Oregon

October 25, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD EUGENE IPSEN, Defendant-Appellant.

          Argued and Submitted March 1, 2016

         Deschutes County Circuit Court MI131959; Barbara Haslinger, Senior Judge. (Judgment) Alta Jean Brady, Judge. (Amended Judgment)

          Stephen A. Houze argued the cause and fled the briefs for appellant.

          Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Tookey, Judge, and Garrett, Judge. [*]

         Case Summary:

         Defendant appeals a judgment of conviction for 25 counts of second-degree invasion of personal privacy, assigning error to the trial court's ruling that issue preclusion barred him from litigating his motion to suppress. First, defendant contends that application of issue preclusion infringes on his right to a jury trial. Second, defendant contends that issue preclusion is inapplicable because the denial of defendant's motion to suppress in a different county was not "essential to a fnal decision on the merits, " an element of issue preclusion. Held: The trial court did not err in concluding that issue preclusion barred defendant from litigating the motion to suppress.

         Affirmed.

         [288 Or. 403]TOOKEY, J.

         Defendant appeals a judgment of conviction for 25 counts of second-degree invasion of personal privacy, ORS 163.700, assigning error to the trial court's ruling that issue preclusion barred him from litigating his motion to suppress. For the reasons that follow, we affirm.

         Following the discovery and search of a hidden camera found in a bathroom at Starbucks, defendant was charged in both Washington and Deschutes County for multiple counts of second-degree invasion of personal privacy.[1]The pertinent facts leading to defendant's charges and the basis for his motion to suppress in Washington County are set forth in State v. Ipsen (A157082), 288 Or.App. 395, __P.3d__(2017). Following the denial of his motion to suppress in Washington County, defendant waived his right to a jury trial and, after a trial on stipulated facts, he was convicted of eight counts of second-degree invasion of personal privacy and two counts of attempted second-degree invasion of personal privacy.

         Subsequently, in Deschutes County, defendant filed a motion to suppress that was nearly identical to the motion to suppress that he had filed in Washington County.[2]Rather than ruling on the merits of defendant's motion, the Deschutes County trial court denied the motion, concluding that it was precluded from making an independent determination on the merits because that issue had already been heard and decided by the Washington County trial court. Thereafter, defendant entered a conditional plea of guilty to all 25 counts of second-degree invasion of personal privacy, reserving his right to appeal pursuant to ORS 135.335(3).

         On appeal, defendant argues that the trial court erred in ruling that issue preclusion barred defendant from [288 Or. 404] litigating his motion to suppress. First, defendant contends that application of issue preclusion in this context infringes on defendant's right to a jury trial. Second, defendant contends that issue preclusion is inapplicable because the Washington County trial court's denial of defendant's motion to suppress was not "essential to a final decision on the merits, " an element of issue preclusion. As we understand defendant's argument, because the context of a motion to suppress is different from the consideration of the elements necessary to establish defendant's charged offenses, the denial of defendant's motion to suppress was distinct from and not essential to the decision on the merits to convict defendant.

         In response, the state argues that the trial court did not err. First, the state points out that defendant's motion to suppress in this case was identical in substance to the motion that he had filed in the Washington County case. Moreover, at the hearing on his motion in this case, defendant twice told the trial court that he was not intending to introduce new evidence; rather, defendant stipulated to the admissibility of the Washington County transcript as well as his identical briefing. Second, the state asserts that because a motion to suppress presents a pure legal question, the resolution of that motion would not impede ...


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