462 November 27, 2024 No. 853
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROBIN AVERY HETHORN,
Defendant-Appellant.
Polk County Circuit Court
22CR55145, 22CR54749; A180852 (Control), A180854
Rafael A. Caso, Judge.
Submitted September 5, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
EGAN, J.
In Case No. 22CR55145, affirmed; in Case No. 22CR54749,
reversed.
Nonprecedential Memo Op: 336 Or App 462 (2024) 463
EGAN, J.
In this consolidated appeal, defendant challenges his
conviction in Case No. 22CR54749 for second-degree failure
to appear, ORS 162.195(1)(a). Defendant has also appealed
from the judgment of conviction in Case No. 22CR55145,
but, as he has not assigned error to any ruling in that case,
we affirm that judgment. Defendant did not move for judgment of acquittal on the failure to appear charge, but he
asks that we review as plain error his claim that the state
failed to adduce sufficient evidence that his release agreement unambiguously required him to personally appear for
the hearing that he did not attend. Having reviewed the
record, we agree that the error is plain. Further, we exercise
our discretion to address the plain error because of its gravity and in the interests of justice. Accordingly, we reverse
defendant’s conviction for second-degree failure to appear.
The failure to appear statute provides, as relevant
here, that a person commits the crime of second-degree failure to appear if the person knowingly fails to appear after
being released “under a release agreement … upon the condition that the person will subsequently appear personally
in connection with” a misdemeanor charge. ORS 162.195(1).
The evidence at the bench trial, viewed in the light
most favorable to the state, is that defendant signed a release
agreement in a case that is not the subject of this appeal.
The release agreement included a provision in which he
agreed “to personally appear” for his next court date, which
was noted in the release agreement as October 5, 2022.
(Uppercase omitted.) The release agreement also included
provisions in which defendant agreed “that [he] shall
appear at all times and places as ordered by the Court,” that
he would appear for trial, and that, if convicted, he would
appear for sentencing. Defendant personally appeared at
the specified hearing on October 5, and at the next hearing
on October 19. For the subsequent hearing, on November
2, however, defendant did not personally appear. That day,
he was charged with failure to appear and a warrant was
issued for his arrest.
464 State v. Hethorn
On that evidence, the court found defendant guilty
of failure to appear committed on November 2, and it entered
a conviction for that offense.
On appeal, defendant argues that the trial court
should have, sua sponte, entered a judgment of acquittal on
the failure to appear charge because there was no evidence
that he was required to personally appear for the November
2 hearing. The release agreement provided only that he had
to “appear,” which, defendant argues, was at least ambiguous as to whether defendant could appear by counsel.
The state argues that the error is not plain because
it is not obvious or beyond dispute that the state’s evidence
was legally insufficient. Ailes v. Portland Meadows, Inc.,
312 Or 376, 381-82,
823 P2d 956 (1991) (plain error must
be error of law; obvious—beyond reasonable dispute; and it
must appear on the face of the record).
We disagree. Case law establishes that, to prove
that a person has failed to appear within the meaning
of ORS 162.195(1), the state is required to prove that the
person was subject to a release agreement that unambiguously required personal appearance. See State v. Lobue, 300
Or App 340, 345-46,
453 P3d 929 (2019) (holding that firstdegree failure to appear provision “must be interpreted to
attach a criminal penalty to a knowing failure to appear”
only if “the release agreement unambiguously requires personal appearance”). And, as explained in Lobue, Oregon’s
statutory scheme permits appearance through counsel, even
in felony cases.
300 Or App at 345. Thus, requiring a defendant to “appear” is not the same as requiring a defendant to
personally appear. The release agreement here cannot, by
itself, be construed to unambiguously require defendant to
personally appear for all future court dates.
We assume without deciding that, in addition to
requiring defendant to appear personally at the October
5 hearing, the release agreement unambiguously required
defendant to personally appear at future hearings “as
ordered by the court”; that is, when a court directed him
to personally appear at a given hearing. That appears to
be the theory that the state relied on below. In closing, the
Nonprecedential Memo Op: 336 Or App 462 (2024) 465
state argued that the release agreement ordered defendant
“to personally appear in court as the court would order.”
Defendant personally appeared on October 5 and 19, “and
then he didn’t appear, and a warrant was issued for his
arrest for failing to appear.” Thus, the state concluded,
“Defendant knew he should appear [on November 2], and he
did not personally appear.”
The difficulty for the state, however, is that construing the release agreement that way—as an order to appear
personally in accordance with future court orders—means
that the state had to adduce proof that defendant had been
ordered by a court to personally appear at the subsequent
hearing. The state adduced no such evidence in this case.
Rather, as the state summarized in closing argument, its
evidence showed that defendant personally attended the
hearing listed in the release agreement, on October 5, and
the next hearing, on October 19; at the October 19 hearing,
the date of the next hearing—November 2—was set; defendant did not personally attend the November 2 hearing, and
a warrant was issued for his arrest. There was no evidence,
however, that defendant had been ordered by the court to
personally appear at the November 2 hearing. Thus, it is
beyond dispute that the record lacked any evidence that
defendant failed to comply with an unambiguous requirement in his release agreement that he personally appear at
the November 2 hearing “as ordered by the court.”
In sum, the record is devoid of any evidence that the
release agreement, either by its text or indirectly through a
later “order[ ] by the court” unambiguously required defendant to appear at the November 2 hearing. ORS 162.195(1).
It is thus beyond reasonable dispute that the trial court
erred by failing to sua sponte grant a judgment of acquittal
on the evidence in the record.
We exercise our discretion to correct that error
based on its gravity and the ends of justice. We do not believe
that doing so would undermine the policies underlying the
preservation rule because defendant had no apparent strategic reason for failing to make this particular argument.
See State v. Gayman, 312 Or App 193, 203,
492 P3d 130
(2021) (exercising discretion to correct failure to sua sponte
466 State v. Hethorn
grant MJOA due to the gravity of the error, in the interests
of justice, and noting that “exercising our discretion would
not undermine the policies underlying the preservation rule
in favor of full development of the record, as we see no strategic reason for [the defendant’s] failure to make the argument below”). Further, it does not appear that this is the
kind of case where the state likely could have remedied the
deficiency in the evidence had defendant made the argument he makes on appeal, and had the trial court reopened
the record for the state to present further evidence. See, e.g.,
State v. Matheson,
220 Or App 397, 409,
186 P3d 309 (2008)
(addressing as plain error sufficiency of evidence where,
among other things, victim’s testimony made it unlikely
that, had the state been able to reopen the record, it could
have elicited additional evidence to remedy the deficiency).
We therefore reverse defendant’s conviction for failure to
appear.
In Case No. 22CR55145, affirmed; in Case No.
22CR54749, reversed.
