STATE v. LEISTIKO (2012)

Defendant has petitioned for reconsideration of our decision in State v. Leistiko, 352 Or. 172, 282 P.3d 857 (2012). He argues that we erred in two respects. He contends initially that we erred in stating that he had not pursued two issues on review that he had raised in the Court of Appeals. He also contends that we erred in not deciding whether the admission of evidence of an uncharged rape affected the jury's determination that he had committed crimes other than rape. We allow defendant's petition for reconsideration, modify our original opinion, and adhere to our opinion, as modified.

Regarding the first issue that defendant raises, our opinion noted:

“Defendant also argued that the trial court had erred in denying a motion to suppress and in failing to require jury unanimity. The Court of Appeals rejected those arguments without discussion. Defendant does not pursue those arguments on review.”

Leistiko, 352 Or. at 177 n. 4, 282 P.3d 857. In his petition for reconsideration, defendant notes that the last sentence in the footnote—that he “does not pursue those arguments on review” could be understood to mean that he had abandoned his arguments regarding the motion to suppress and jury unanimity, which could affect his ability to pursue those issues in later seeking federal habeas corpus relief. As defendant correctly observes, he raised both those issues in his petition for review. However, we limited the issues on review to the admission of the uncharged misconduct evidence, and defendant accordingly pursued only that issue in his brief on the merits in this court. We modify footnote four to make that point clear.¹

Regarding the second issue that defendant raises on reconsideration, the state charged defendant with three separate counts of first-degree rape involving three victims. Id. at 174, 282 P.3d 857. The jury convicted him of two of those counts. Id. at 177, 282 P.3d 857. The jury also convicted him of “11 other counts, including strangulation, second-degree kidnapping, prostitution, fourth-degree assault, and furnishing alcohol to a minor.” Id. at 174 n. 2, 282 P.3d 857. Finally, defendant pleaded guilty to stalking and harassment. Id. On review, defendant argued, and we held, that the trial court erred in permitting a fourth woman to testify that defendant had forced her to engage in sexual intercourse. In considering the effect of that ruling on defendant's convictions, we noted that defendant had asked “that his ‘convictions' be reversed, but he has not specified which convictions, other than his two first-degree rape convictions, may have been affected by the error.” Id. at 189, 282 P.3d 857. In the absence of any argument that the error had affected any conviction other than the two rape convictions, we declined to disturb defendant's remaining 13 convictions. Id.

In his petition for reconsideration, defendant contends that he argued both in his brief on the merits in this court and in his opening brief in the Court of Appeals that the erroneous admission of the evidence affected not only his two rape convictions but also his other convictions. We have reviewed both briefs and reach a different conclusion.² Defendant argues alternatively that, even if he previously had not raised the effect of the admission of the uncharged rape on his other convictions, he is raising the issue in his petition for reconsideration and we should address it now. We decline, however, to address that alternative argument, which defendant has made for the first time on reconsideration. See Fleming v. United Services Automobile Assn., 330 Or. 62, 65, 996 P.2d 501 (2000) (stating the general rule that the court will not address arguments raised for the first time on reconsideration). We accordingly modify our opinion in Leistiko only to clarify the last sentence in footnote four and adhere to the opinion, as modified.

The petition for reconsideration is allowed. The former opinion is adhered to as modified.

KISTLER, J.