State v. Mota

No. 135             February 26, 2025                 175

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                  CASIMIRO MOTA,
                  Defendant-Appellant.
              Malheur County Circuit Court
                 23CR03029; A183042

  Lung S. Hung, Judge.
  Submitted January 10, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  LAGESEN, C. J.
  Reversed.
176                                                          State v. Mota

           LAGESEN, C. J.
         Defendant appeals a judgment of conviction for
second-degree failure to appear, ORS 162.195. The state
concedes that the trial court erred in assuming that second-degree failure to appear is a lesser-included offense of first-degree failure to appear, ORS 162.205. We agree with and
accept the state’s concession. We therefore reverse defendant’s conviction.1
        The state charged defendant with first-degree failure to appear, and the case proceeded to a jury trial. After
the state rested, defendant moved for a judgment of acquittal because, in the case in which he had failed to appear,
defendant had been charged with misdemeanors. The state
conceded that the underlying offense had been charged as
a misdemeanor, not a felony, but it moved the trial court to
reduce the charge to a lesser-included offense to avoid having
to “dismiss and re-bring the case.” The trial court allowed
the state to proceed on a theory of second-degree failure to
appear. The jury found defendant guilty of that offense.
         On appeal, defendant argues that the trial court
erred, or plainly erred, in allowing the state to proceed on a
theory of second-degree failure to appear because it is not a
lesser-included offense. The state does not contest preservation and concedes that the trial court erred. We accept the
concession.
         A crime is a lesser-included offense when either “(1)
the elements of the lesser offense necessarily are included
in the greater offense, or (2) all of the elements of the lesser
offense are expressly set forth in the accusatory instrument.” State v. Zimmerman, 

, 

 (2000). As we explained in State v. Arney, 

, 

 (2010), “second-degree failure to
appear is not a lesser-included offense of first-degree failure
to appear, as the former requires proof of nonappearance
on a misdemeanor charge, while the latter requires nonappearance on a felony charge.” In other words, “[e]ach crime
requires proof of an element that the other does not.” 

   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.
Cite as 

 (2025)                            177

         Here, the trial court acquitted defendant of first-degree failure to appear, and defendant was never charged
with second-degree failure to appear. “Generally, a court
does not have jurisdiction to convict on a charge for which
the defendant was not indicted.” State v. Cook, 

, 

 (1999); see also Arney, 

 (explaining that the defendant could not be convicted of
second-degree failure to appear when the defendant was not
charged with that crime). We reverse defendant’s conviction
for the uncharged offense of second-degree failure to appear.
        Reversed.