¶1Defendant contends that the court erred in finding him guilty of attempted theft in the third degree, ORS 164.043; ORS 161.405, because “it was necessary for the Plaintiff to establish, beyond a reasonable doubt, that the conduct of the Defendant was the direct result of guilty knowledge … The court applied a preponderance of the evidence standard. The state acknowledges that that was error, ORS 136.415, but argues that defendant did not object at trial and does not directly raise the issue even on appeal. The state also notes that, although defendant requested trial by jury, the file contains no written waiver of jury trial.
¶2ORAP 5.45(2) provides that “the appellate court may consider errors of law apparent on the face of the record,” notwithstanding a defect in preservation at trial or presentation on appeal. See State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). Defendant was entitled to have his guilt proven beyond a reasonable doubt. State v. Thomas, 99 Or App 32, 36, 780 P2d 1197 (1989), rev allowed 310 Or 121 (1990). We need not decide the effect of defendant’s failure to raise the jury trial issue in the trial court, because the burden of proof issue requires that he have a new trial.
¶3Reversed and remanded for a new trial.