and submitted September 29, 2015
County Circuit Court 111050998 Gregory F. Silver, Judge.
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.
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.
Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge
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.
for failure to appear on a criminal citation reversed and
remanded; otherwise affirmed.
DUNCAN, P. J.
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. 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.
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.Consistent with ORS 133.076, the charging
instrument alleged that defendant "knowingly"
failed to appear.
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.
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.
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 ...