State v. Newcomer
Case # A150802
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A150802.pdf
In this case, Newcomer was arrested for Driving Under the Influence of Intoxicants (DUII). Due to an alleged calendaring error, Newcomer missed his arraignment and was also charged with Failure to Appear. At trial for both the DUII and Failure to Appear, the court included the following language as part of the jury instructions, “To establish [defendant] had knowledge of the mandatory [c]ourt appearance, and thereby knowingly failed to appear, the state must prove he received notice of that mandatory appearance.”
Newcomer objected to these instructions. Newcomer argued that the instructions directed the jury to infer that the he had knowledge of the mandatory court appearance based simply on the fact that he received a citation. Such instructions directed the jury on how a piece of evidence – the citation – relates to a particular element of the charge – knowingly.
The Court of Appeals compared this case to two others: State v. Blanchard, 165 Or App 127, 130, 995 P2d 1200, rev den, 331 Or 429 (2000) and State v. Maciel-Cortes, 231 Or App 302, 218 P3d 900 (2009). In Blanchard, the court found jury instructions containing the language “may consider” to be neutral. That language, “may consider,” did not direct a jury to draw any inference. In contrast, the Maciel-Cortes jury instructions were erroneous. The defendant in that case challenged the following language, “[d]riving under the influence is, itself evidence that a person created a substantial risk of physical injury to passengers.” The court found that the “is, itself” language told jurors how to relate evidence to a specific legal issue. That language was found to be an improper comment on evidence.
The court declared Newcomer’s case to be like the Maciel-Cortes case. The instructions directed Newcomer’s jury to conclude that “by proving delivery of the citation, the state would establish that defendant had knowledge of the mandatory court appearance and that he had ‘knowingly failed to appear.’” (Emphasis in original.) These instructions directed the jurors to make an inference about a mental state based on evidence. The Court held the instructions to be erroneous and prejudicial, and the case was reversed and remanded.