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State v. Newcomer

Court of Appeals of Oregon

October 1, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL H. NEWCOMER, JR., Defendant-Appellant

Submitted March 26, 2014

Lane County Circuit Court. 211119621. Mustafa T. Kasubhai, Judge.

Peter Gartlan, Chief Defender, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Edmonds, Senior Judge.

OPINION

Page 138

[265 Or.App. 707] DEVORE, J.

Defendant raises two assignments of error, appealing a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and failure to appear on a criminal citation, ORS 133.076. Due to an erroneous jury instruction, we reverse and remand the conviction for failure to appear and otherwise affirm.

First, defendant assigns error to the trial court's denial of his motion to suppress evidence of his urine sample, arguing that his consent to provide the sample was involuntary or coerced by the arresting officer's reading of the statutory implied consent warnings. We reject that argument without discussion in light of the Supreme Court's decision in State v. Moore, 354 Or. 493, 318 P.3d 1133 (2013), adh'd to as modified on recons, 354 Or. 835, 322 P.3d 486 (2014).

Second, defendant assigns error to a jury instruction on notice and knowledge--an instruction given in relation to the charge of failure to appear on a criminal citation. Defendant argues that the special instruction impermissibly commented on the evidence or directed the jury to make an inference about the requisite culpable mental state. The state disputes defendant's interpretation of the instruction and contends that, in any event, the instructions as a whole did not prejudice defendant. We review for errors of law. State v. Blanchard, 165 Or.App. 127, 130, 995 P.2d 1200, rev den, 331 Or. 429, 26 P.3d 148 (2000).

The relevant facts are undisputed. Defendant was arrested and cited for DUII early in the morning on August 15, 2011. An arresting officer issued defendant an Oregon Uniform Citation and Complaint, which notified defendant that he had a court appearance at 8:30 a.m. on September 13, 2011. When defendant did not appear for arraignment on that date, the court issued a warrant for his arrest. Defendant contacted the court on September 15 and learned that he had missed his court date. The arraignment was rescheduled for September 20, but the court date no longer would concern just the DUII charge. The state amended the [265 Or.App. 708] information to add a charge of failure to appear on a criminal citation, ORS 133.076.[1]

The charges of DUII and failure to appear were tried together.[2] The jury instruction

Page 139

on the latter offense advised that " a person commits the offense of failure to appear on a criminal citation if they have been served with a citation and knowingly failed to appear as directed." A prior instruction gave a definition of acting " knowingly" : " A person acts 'knowingly' or 'with knowledge' if that person acts with an awareness that his or her conduct is of a particular nature or that a particular circumstance exists." See ORS 161.085(8) (defining culpable mental state " knowingly" ). Over defendant's ...


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