State v. McCOINState v. McCOIN
- Reporters:
- , ,
- Before:
- Landau
In this consolidated appeal, defendant challenges the sufficiency of the evidence on two convictions for second-degree failure to appear. In both cases, he failed to appear at hearings related to his driving under the influence of intoxicants (DUII) diversion agreement. He argues that the diversion agreement effectively stayed the underlying charges and that, as a result, his failure to appear was not “in connection with a charge” against him as provided in the statute that defines the offense.
The relevant facts are not in contention. Defendant was charged with DUII.
In connection with the diversion agreement, defendant was required to appear in court on August 11, 2000. On that date, however, defendant failed to appear. He was charged with one count of second-degree failure to appear in case number A113653.
A warrant was issued, and defendant was arrested. He was again conditionally released and required to appear in court on September 22, 2000. Defendant failed to attend that hearing as well. As pertinent here, in case number A113653, he was charged with an additional count of second-degree failure to appear in connection with the DUII charge.
Both cases were tried to the court. In both cases, defendant moved for a judgment of acquittal, contending that the state had failed to prove that he had failed to appear in connection with the DUII charge because the diversion agreement had suspended the charge. The trial court denied *626 the motion, and defendant was found guilty of the described counts of second-degree failure to appear. On appeal, defendant challenges those convictions. In both cases, he renews his argument that, because‘the diversion agreement suspended the underlying DUII charge, the state failed to prove a material element of the failure-to-appear charges.
Because the appeal turns on the meaning of the applicable statutes, we review the trial court’s ruling for errors of law, State v. Rodarte, 178 Or 173, 176, 35 P3d 1116 (2001), applying the interpretive method set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). In accordance with that interpretive method, we attempt to ascertain the intended meaning of the statutes by reference to their text in context and, if necessary, the legislative history and other aids to construction. Id.
“[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 in connection with a charge against the person of having committed a misdemeanor [.]”
(Emphasis added.) The issue in this case is whether the state has demonstrated that defendant failed to appear “in connection with a charge.” Specifically, the issue is whether the existence of the diversion agreement had the effect of staying the charge of DUII against defendant.
“A driving while under the influence of intoxicants diversion agreement shall be for a period of one year after the date the court allows the petition. During the diversion period the court shall stay the driving while under the influence of intoxicants offense proceeding pending completion of the diversion agreement or its termination.”
(Emphasis added.) As a condition of diversion, the court was authorized to “issue an order requiring defendant to appear and show cause why the court should not terminate the diversion agreement.”
The foregoing statutes make this much clear: First, what must be shown to prove second-degree failure to appear is a failure to appear in connection with a “charge.” Second, under the applicable statutes, what was stayed pursuant to a diversion agreement was a DUII “offense proceeding.” Thus, the statutory construction issue reduces to the question whether a stay of the DUII “offense proceeding” occasioned by the diversion agreement means that the DUII “charge” itself has been stayed.
The term “charge” is not defined in the statutes. In such cases, we generally give statutory terms their “plain, natural, and ordinary meaning.”
PGE,
317 Or at 611. As pertinent to this case, a “charge” ordinarily refers to “an accusation of a wrong or offense” and is commonly regarded as synonymous with “allegation” or “indictment.”
Webster’s Third New Int’l Dictionary
377 (unabridged ed 1993). An “offense” is defined in
The term “offense proceeding” is not statutorily defined. The criminal statutes do define a similar term, “criminal proceeding,” as “any proceeding which constitutes a part of a criminal action or occurs in court in connection with a prospective, pending or completed criminal action.”
Defendant insists that, even if the charge itself was not stayed by the diversion agreement, the only permissible sanction for failing to appear in the context of a diversion was the reinstatement of the DUII proceeding, not a separate charge for failure to appear. The state argues that, although it is true that the statute required a court to terminate a diversion agreement for a failure to appear and permitted a prosecution on the underlying DUII charge to proceed, it does not necessarily follow that the failure to appear did not constitute a separately chargeable offense.
We agree with the state. In State v. Eastman, 112 Or App 256, 258, 828 P2d 484 (1992), we held that “[t]he gravamen of the offense [of second-degree failure to appear] is the violation of a release or security agreement.” See also State v. Duvall, 187 Or App 316, 320, 67 P3d 424 (2003) (“an allegation that a defendant has violated a release agreement states a crime”). The fact that defendant’s failure to appear may have had other consequences — because he had agreed to appear as a condition of diversion — does not mean that the conduct did not also constitute a chargeable offense.
Affirmed.
Notes
In 2003, the legislature amended the diversion statutes, Or Laws 2003, ch 816, §§ 1-5, effective January 1, 2004. Neither party contends that the amendments apply. All references to the statute are to the 2001 version.