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State v. Servatius

Court of Appeals of Oregon

April 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
LARRY SCOTT SERVATIUS, Defendant-Appellant.

          Argued and submitted September 29, 2015

         Multnomah County Circuit Court 111050998 Gregory F. Silver, Judge.

          Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Karla Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Defendant appeals the trial court's judgment, asserting that the trial court erred when it found him guilty of failure to appear on a criminal citation, ORS 133.076, without determining whether defendant knew-at the time that he failed to appear-that he was required to do so. Held: Under ORS 133.076, the state was required to prove that defendant knew of his obligation to appear in court at the time of his failure to appear. The trial court concluded that the state did not need to prove defendant's awareness at that time and, therefore, convicted defendant under an erroneous legal theory and without making a required fending.

         Conviction for failure to appear on a criminal citation reversed and remanded; otherwise affirmed.

          DUNCAN, P. J.

         In this criminal case, defendant appeals the trial court's judgment convicting him of multiple offenses, asserting that the trial court erred when it found him guilty of failure to appear on a criminal citation, ORS 133.076, following a bench trial.[1] The issue in this case is whether ORS 133.076 requires the state to prove that defendant knew-on the day of his court date-that he was required to appear in court. The trial court concluded that it did not need to make a finding regarding defendant's mental state on the day of his missed court appearance. That was error; therefore we reverse and remand.

         We begin with the relevant historical and procedural facts. On September 13, 2011, defendant was arrested and given a citation to appear in court on October 11, 2011. Defendant did not appear for that court date, and the state subsequently charged him with the crime of failure to appear on a criminal citation, which is defined by ORS 133.076.[2]Consistent with ORS 133.076, the charging instrument alleged that defendant "knowingly" failed to appear.

         Defendant waived his right to a jury trial, and the state tried its case to the court. At trial, the state presented evidence that defendant had been given the citation to appear for court and had not appeared. Defendant did not dispute either of those facts, but he contended that he was not guilty of violating ORS 133.076 because he did not "knowingly" fail to appear. In support of his defense, defendant presented evidence that he has dementia caused by Alzheimer's disease and that he suffers from short-term memory loss and has difficulty remembering dates and appointments. Defendant testified that he could not remember what he had been doing on October 11, but he would not intentionally miss a court date.

         The parties disputed whether the state had to prove that defendant knew of his court date when he failed to appear. The state asserted that it was required to prove only that defendant had notice of the court date and that it did not matter whether defendant subsequently forgot it. Defendant disagreed, asserting that, in order to prove that he knowingly failed to appear, the state had to prove that he knew of his court date when he failed to appear.

         The trial court agreed with the state and ruled that it did not need to find that defendant knew of his court date when he failed to appear. In the court's view, the state was required to prove only that defendant had received notice of the court date. Therefore, the court concluded, what happened after defendant received the citation was irrelevant:

"What happened after that, whether [defendant] lost the citation, forgot about the date, got involved in other things and just never thought about it, woke up on the morning of October 11th, looked at his day planner, didn't see anything written down, so did something ...

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