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State v. Kenny

Court of Appeals of Oregon

May 14, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
JENNIFER LYNN KENNY, Defendant-Appellant

Argued and Submitted July 30, 2013.

Lane County Circuit Court. 211101119. Mustafa T. Kasubhai, Judge.

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 549

[262 Or.App. 704] NAKAMOTO, J.

In this criminal case, defendant appeals a judgment convicting her of failure to appear on a criminal citation, ORS 133.076. Defendant assigns error to the trial court's (1) denial of her motion for judgment of acquittal (MJOA), (2) failure to instruct the jury on an element of the offense, and (3) exclusion of her testimony regarding the reason for her failure to appear. For the reasons that follow, we conclude that the trial court did not err in denying defendant's MJOA; however, we conclude that the trial court did err in excluding defendant's testimony. Accordingly, we reverse and remand.

Page 550

Given that disposition, we need not address defendant's contention concerning instructional error.

We begin with a brief overview of the events that led to defendant's conviction. Defendant's brother called the police to report that defendant had intentionally damaged his car. Officer Hughes investigated the report and called defendant, who denied damaging the car. Eventually, on November 15, 2010, Hughes met with defendant and issued her a citation for first-degree criminal mischief, ORS 164.365, a Class C felony. The citation directed defendant to appear in court on November 30, 2010, and indicated that her appearance was mandatory. Defendant informed Hughes that she was scheduled to be in the Virgin Islands on the date listed on the citation. Hughes told her that there was nothing he could do about the scheduled date.

When defendant did not appear in court on November 30, the state charged her with failure to appear on a criminal citation, ORS 133.076.[1] Before trial on that charge, the state filed a motion in limine to prevent defendant from testifying about why she had failed to appear, arguing that such evidence was not relevant under OEC 401. The trial court granted the state's motion and excluded defendant's evidence as irrelevant. After a jury trial, defendant was convicted, and she now appeals.

We begin with defendant's challenge to the trial court's denial of her MJOA. Under ORS 133.076(1), a person

[262 Or.App. 705] " commits the offense of failure to appear on a criminal citation if the person has been served with a criminal citation issued under ORS 133.055 to 133.076 and the person knowingly fails to do any of the following:

" (a) Make an appearance in the manner required by ORS 133.060." Thus, the state was required to establish two elements: (1) defendant was served with a criminal citation issued under ORS 133.055 to 133.076 and (2) defendant knowingly failed to make an appearance in the manner required by ORS 133.060.[2]

At the conclusion of the state's evidence, defendant moved for judgment of acquittal, arguing that the state had failed to establish the first element because of its failure to prove that the citation was " issued under ORS 133.055 to 133.076." The trial court concluded that, if any determination concerning the authority for the citation defendant received were required, then it would be a matter for the court to decide, not the jury. On appeal, defendant's first assignment of error turns solely on her legal argument that ORS 133.076 requires the state to prove, beyond a reasonable doubt, that the state issued the citation in compliance with the requirements of ORS 133.055 to 133.076 and that she was entitled to acquittal because it is undisputed that the state failed to do so. Specifically, defendant contends that " the statute's text requires the state to prove that the citation was issued under the entire range of statutes from ORS 133.055 to ORS 133.076--not just ORS 133.055 and ORS 133.069."

In response, the state argues that defendant misconstrues the meaning of the phrase " issued under ORS 133.055 to 133.076." The state contends that the legislature did not intend to create additional elements of the offense when it included that phrase in ORS 133.076. Rather, the state contends, the phrase's plain meaning indicates that the legislature intended it to describe the type of citation [262 Or.App. 706] that would ...


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