and Submitted June 2, 2017
County Circuit Court 02FE0202; Lindsay R. Partridge, Judge.
Wilner-Nugent argued the cause and fled the brief for
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Frederick M.
Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals the supplemental judgment of conviction that was
entered following his retrial on several counts of attempted
aggravated murder, attempted murder, and first-degree
burglary. Defendant argues that the trial "court erred
by granting the state's motion for issue preclusion"
and instructing the jury "that defendant was guilty of
arson and recklessly endangering another person [as a matter
of law, ] and that those issues were removed from the
jury's consideration." Held: Although the
parties framed their dispute in terms of "issue
preclusion," the issue in this case concerned the scope
of the Court of Appeal's remand order in defendant's
previous appeal. The court's opinion and remand order
permitted the trial court to order a limited retrial. The
arson and recklessly endangering another person convictions
that the court affirmed in defendant's previous appeal
served as a basis to prove certain elements of the attempted
aggravated murder, attempted murder, and first-degree
burglary convictions that were reversed. Therefore, the trial
court did not err when it ordered a retrial limited to the
remaining elements of the attempted aggravated murder,
attempted murder, and burglary charges, and instructing the
jury that defendant had committed arson and recklessly
endangering another person as a matter of law.
Or.App. 346] TOOKEY, J.
consider this criminal case for the fourth time following our
prior decisions in State v. Galloway, 202 Or.App.
613, 123 P.3d 352 (2005) (Galloway I), vac'd and
rem'd, 345 Or. 315, 195 P.3d 62 (2008), State v.
Galloway, 225 Or.App. 67, 200 P.3d 175 (2009)
(Galloway II), and Galloway v. Nooth, 247
Or.App. 164, 268 P.3d 736 (2011) (Galloway III).
Defendant appeals the supplemental judgment of conviction
that was entered following his limited retrial on several
counts, raising six assignments of error. We reject
defendant's third through sixth assignments of error
without further discussion. We write only to address
defendant's first and second assignments of error, in
which he argues that the trial "court erred by granting
the state's motion for issue preclusion" and
instructing the jury "that defendant was guilty of arson
and recklessly endangering another person [as a matter of
law, ] and that those issues were removed from the jury's
consideration." For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
pertinent facts are mostly procedural and undisputed. To
minimize confusion about the parties when describing several
proceedings, we refer to defendant throughout this opinion as
"defendant" even when he was the petitioner for
post-conviction relief in Galloway III We refer to
the responding party in Galloway III as the
2002, defendant was charged by Crook County's Chief
Deputy District Attorney, Ron Brown, with two counts of
third-degree theft, one count of fourth-degree assault, three
counts of resisting arrest, one count of disorderly conduct,
one count of furnishing alcohol to a minor, and one count of
minor in possession of alcohol. Galloway I, 202
Or.App. at 615. In August 2002, two fires occurred.
Id. at 616. The first fire occurred in the Brown
family home at approximately 3:30 a.m. Id. As
Brown's home was filling with smoke, Brown woke up and
was able to evacuate with his wife and three children.
Galloway III, 247 Or.App. at 167. [294 Or.App. 347]
The second fire occurred at Ochoco Creek Park, a few blocks
from Brown's home. Galloway I, 202 Or.App. at
was subsequently arrested and indicted on 27 charges stemming
from the two fires. Id. at 615-16. At
defendant's first trial, he was found guilty of all 27
charges- nine counts of attempted aggravated murder, ORS
161.405; ORS 163.095 (Counts 1-9), five counts of attempted
murder, ORS 161.405; ORS 163.115 (Counts 10-14), six counts
of first-degree arson, ORS 164.325 (Counts 15-20), two counts
of first-degree burglary, ORS 164.225 (Counts 21 and 22),
four counts of recklessly endangering another person, ORS
163.195 (Counts 23-26), and one count of arson in the second
degree, ORS 164.315 (Count 27). Id. at 615 n 1.
"The second-degree arson charge was based on the fire at
the park; all of the other counts were based on the fire at
Brown's home." Galloway III, 247 Or.App. at
Defendant's direct appeals in Galloway I
and Galloway II
appealed and, in Galloway I, we exercised our
discretion to "vacate  defendant's sentences and
remanded for resentencing because the trial court had
[plainly erred when it] imposed a departure sentence based on
a judicial finding that defendant's crime had created a
serious risk to human life." Galloway II, 225
Or.App. at 69. The Supreme Court vacated our decision in
Galloway I "in light of State v.
Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd
to as modified on recons, 344 Or. 195, 179 P.3d 673
(2008), and State v. Fults, 343 Or. 515, 173 P.3d
822 (2007)," and remanded the case to us to determine
whether we had properly exercised our discretion to correct
the plain error. Id. On remand from the Supreme
Court, in Galloway II, we "conclude[d] that,
under Ramirez, our exercise of discretion in
Galloway I was erroneous," and we affirmed
defendant's convictions. Id.
Defendant's petition for post-conviction relief
in Galloway III
then brought an action for post-conviction relief, and the
post-conviction court granted a new trial on [294 Or.App.
348] all of defendant's convictions on the ground that
defendant's "trial counsel provided inadequate
assistance (1) by failing to investigate and discover
evidence that would have undermined the state's case that
the threat posed by the fire was serious and (2) by failing
to discredit [defendant's] codefendant."
Galloway III, 247 Or.App. at 166. The superintendent
of the Snake River Correctional Institution appealed, arguing
that the post-conviction court had erred in concluding that
defendant's counsel provided inadequate assistance and,
alternatively, that, if defendant was entitled to relief,
"it should extend only to the attempted murder and
attempted aggravated murder convictions." Id.
concluded that the post-conviction court did not err in
concluding that defendant's trial counsel provided
inadequate assistance by failing to investigate and discover
evidence that the threat posed by the fire was serious
because "[t]he state's case as to intent to kill
rested to a significant degree on the evidence of the threat
posed by the fire." Id. at 183. We further
concluded that, "with respect to the charges that
contained, as an element, intention to kill, [defendant] was
prejudiced by [trial counsel's] failure to provide
adequate assistance of counsel, and furthermore, that
[defendant] is entitled to post-conviction relief on those
charges." Id. at 184-85. With respect to trial
counsel's failure to discredit ...