State v. Burgess, 287 P.3d 1093

Burgess was charged with first-degree assault; trial theory centered on accomplice liability for codefendant's assault using steel-toed boots.
Codefendant's boot use caused major facial injuries; muddy ground condition later alleged to have caused injuries as a separate dangerous weapon.
During trial, the state argued Burgess aided and abetted the codefendant; the jury convicted Burgess of first-degree assault; no expert medical testimony allocated injuries between actors.
Court of Appeals reversed Burgess on first-degree assault, remanding for trial on lesser charges (second- and fourth-degree assault).
State sought review to sustain a first-degree assault conviction on a theory not pursued at trial (principal liability via muddy ground as a dangerous weapon).
Supreme Court held that applying a new theory on appeal would be fundamentally unfair and could not uphold the conviction on that basis; remand protocol discussed but not addressed on new retrial for first-degree assault.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a first-degree assault conviction can be sustained on a theory not pursued at trial.	State contends election not required; any theory proven by record supports conviction.	Burgess argues due process requires trial theory to be monopoly of proof; cannot be convicted on unpled theory.	No; cannot sustain on unpleaded theory; fundamentally unfair.
Whether the appellate court may affirm under a different theory using the 'right for the wrong reason' rationale.	State asserts alternative theory supports conviction and review should allow it.	Burgess argues alternative theory was not presented below and due process prohibits switching theories on appeal.	Not permitted here; right-for-the-wrong-reason rationale not satisfied.

State v. Rogers, 330 Or 282 (2000) (affirm on alternative basis only if record supports it)
Outdoor Med. Dimensions Inc. v. State of Oregon, 331 Or 634 (2001) (conditions for affirming on alternative basis; preservation requirements)
Peeples v. Lampert, 345 Or 209 (2008) (preservation and fairness by giving opposing party opportunity to respond)
State v. Castrejon, 317 Or 202 (1993) (general preclusion of new issues not raised in court of appeals)
Tarwater v. Cupp, 304 Or 639 (1988) (petitioner cannot shift positions on appeal)