Argued and submitted on February 21, 2013.
Morrow County Circuit Court 10CR042 Jeffrey M. Wallace, Judge.
Alice Newlin-Cushing, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Rolf C. Moan, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and De Muniz, Senior Judge.
ORTEGA, P. J.
Defendant appeals from a judgment of conviction for failure to appear in the second degree. ORS 162.195. He contends that the trial court erred in denying his motion for judgment of acquittal "on the basis that the security release agreement defendant signed was an unsworn statement and therefore not a 'security release' or 'release agreement' as used in ORS 162.195, failure to appear in the second degree." We conclude that the trial court correctly denied the motion for judgment of acquittal and, therefore, affirm.
When reviewing the trial court's denial of a motion for a judgment of acquittal, this court must determine whether, viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Lupoli, 348 Or 346, 366, 234 P.3d 117 (2010). Accordingly, we state the background facts in the light most favorable to the state.
Defendant, who was in custody on an underlying criminal charge, requested release. The court, upon review of the request, found that release on personal recognizance was unwarranted and set defendant's bail at $5, 000. As part of its order, the court also set several "security release additional terms." (Capitalization omitted.) Defendant then signed a "security release" document which provided that, "[a]s conditions of [his] release from custody, " defendant "promise[d] and agree[d]" (among other things) to appear in court on a particular date and time and "thereafter as ordered by the Court until discharged or final order of the Court." The security-release document also provided that defendant was required to post security of $500 in cash or cashier's check. Immediately above defendant's signature, the document contained the following statement:
"I agree to obey the conditions above. I understand that if I violate the conditions, my release may be revoked and an arrest warrant issued. If I fail to appear, I may be charged with a new crime of contempt of court."
Several times during the course of the criminal proceedings, defendant was not present in court when his case was called. On a number of those occasions, he appeared later on the same day or the next day. On one occasion, at a trial readiness conference set for September 2, 2010, defendant called the court and stated that he was running late. However, he did not appear in court that day. Defendant ultimately was charged with several counts of second-degree failure to appear. Because defendant was acquitted on all the charges except one, only the charge on which defendant was convicted arising out of the September 2 nonappearance is at issue on appeal.
At the close of the state's case, defendant moved for a judgment of acquittal, asserting that he could not be convicted of failure to appear because the document he signed was not a "sworn writing" and, therefore, did not meet the definition of a release agreement under ORS 135.230(9). The court took the motion under advisement and then later heard additional argument on the motion. Ultimately, the court issued a letter opinion denying defendant's motion. It observed that the security-release document did "not contain any language that [it was] signed after the administration of an oath." However, it reasoned that a
"'Security Release' means a release conditioned on a promise to appear in court at all appropriate times, which is secured by cash, stocks, bonds or real property.
"In this case, * * * [the release was] conditioned on a promise to appear, secured by cash, that is, $500.00 * * *. [The document] is specifically marked as a 'security release' in the checked box in ...