State v. Buchnoff
| Decision Date | 18 May 2022 |
| Docket Number | A172909 |
| Citation | 319 Or.App. 599,511 P.3d 438 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kevin William BUCHNOFF, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
Before James, Presiding Judge, and Lagesen, Chief Judge, and Kistler, Senior Judge.
Defendant appeals a judgment of conviction for one count of felony failure to appear, ORS 162.205(1). That statute makes it a crime to fail to appear at a regularly scheduled court hearing, "[h]aving by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally * * *." Defendant argues that his release agreement did not specify "personal" appearance and that the trial court therefore erred in denying his motion for judgment of acquittal. We agree and reverse.
When reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether any rational trier of fact, accepting reasonable inferences and credibility choices, could have found the essential elements of the crime beyond a reasonable doubt. State v. Cervantes , 319 Or. 121, 125, 873 P.2d 316 (1994) ; State v. Evans , 161 Or. App. 86, 89, 983 P.2d 1055 (1999) ; State v. Bivins , 191 Or. App. 460, 462, 83 P.3d 379 (2004).
The operative facts are undisputed. Defendant signed a release agreement that read:
Defendant signed a notice acknowledging that he had been "directed by the Court to appear" for a pretrial conference on June 13, 2019, and trial on June 26-28, 2019. Defendant personally appeared for trial on June 26, 2019. At that time, the trial court told defendant, defense counsel, and the jurors that they should be in the courtroom and prepared to proceed at 9:15 a.m. the following morning, June 27, 2019. The next day, defense counsel appeared, but defendant did not. Defendant made no attempt to contact his attorney or the court. The trial court waited until 10:05 a.m., then issued a warrant for defendant's arrest. Defendant was ultimately apprehended two months later and charged with felony failure to appear.
At trial on the FTA count, defendant moved for judgment of acquittal, arguing that the release agreement in this case could not support an FTA conviction under State v. Lobue , 300 Or. App. 340, 346, 453 P.3d 929 (2019), because the agreement failed to unambiguously require defendant's personal appearance. The state responded that the release agreement could be understood to require personal appearance because defendant was required, under ORS 136.040, to personally appear at trial, whereas the defendant in Lobue was not statutorily required to personally appear at a pretrial call hearing. The trial court denied the motion, defendant was convicted, and this appeal followed.
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