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STATE v. FULLER
287 P.3d 1263 (2012)
252 Or. App. 391
STATE of Oregon, Plaintiff-Respondent,
v.
Tawanna D. FULLER, aka Tawana Divier Fuller, Defendant-Appellant.
100748130; A147724.
Court of Appeals of Oregon.
Argued and Submitted December 19, 2011.
Decided September 26, 2012.
Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.
ARMSTRONG, P.J. Defendant appeals a judgment convicting her of two violations, assigning error to the trial court's denial of her motion to be tried by a jury and proved guilty beyond a reasonable doubt. Defendant also assigns error to the admission of hearsay evidence. Because we reverse and remand on defendant's first assignment of error, we do not reach her second. The facts of this case are largely procedural. Defendant was charged with two misdemeanor offenses, third-degree theft, ORS 164.043, and attempted first-degree theft, ORS 164.055; ORS 161.405, as a result of an incident in which she was accused of shoplifting.1 Defendant was arrested on the charges and briefly incarcerated. At arraignment, the state elected to prosecute the charges as violations rather than misdemeanors. Defendant filed a motion to have the charges tried to a jury and to be proved guilty beyond a reasonable doubt, contending that she was entitled to those protections even though the state had elected to prosecute the charges as violations rather than misdemeanors. The trial court denied the motion and found defendant guilty of the charges by a preponderance of the evidence. The court imposed a $300 fine on each conviction. Defendant appeals, contending that the trial court erred in denying her motion for a jury trial and to be proved guilty beyond a reasonable doubt. She contends that she was entitled to those protections because her prosecution and conviction of the charges retained characteristics that made the prosecution a criminal prosecution notwithstanding the treatment of the charges as violations. The state counters that a violation proceeding is not a criminal prosecution and, consequently, that defendant was not entitled to the protections that she seeks. ORS 161.566(1) provides that the state may elect to treat most misdemeanors as Class A violations if the state makes that election at or before the defendant's first appearance on the charge.2 If the state elects to do that, then the charge is tried to the court without a jury and the prosecution has the burden of proving the charge by a preponderance of the evidence. ORS 153.076(1), (2). If the defendant is convicted
of the violation, the court may impose a fine up to the maximum amount that it could impose for the class of misdemeanor receiving violation treatment, ORS 161.566(2)(b), which, in this case, is $6,250 for attempted first-degree theft and $1,250 for third-degree theft, ORS 161.635.3 The legislature may choose to devise a system to punish people for law violations by means other than criminal prosecution. However, if the alternative approach has characteristics that do not sufficiently distinguish it from a criminal prosecution, then the alternative approach will be considered to subject people to criminal prosecution and, thus, require protections that apply to criminal prosecutions, viz., the right to a jury trial and proof beyond a reasonable doubt. Brown v. Multnomah County Dist. Ct., 280 Or. 95, 100-02, 570 P.2d 52 (1977).4 In Brown, the Supreme Court identified five factors that bear on whether the prosecution of a defendant on a particular charge subjects the defendant to a criminal prosecution. Those factors are the type of offense, the nature of the prescribed penalty, the collateral consequences associated with conviction, the significance of the conviction to the community, and the pretrial practices associated with an arrest and detention for the offense. Id. at 102-08, 570 P.2d 52. The determination whether the trial court erred in denying defendant's motion to require a jury trial and proof beyond a reasonable doubt in this case turns on an assessment of those factors. See State v. Thomas, 99 Or.App. 32, 35, 780 P.2d 1197 (1989), aff'd on other grounds, 311 Or. 182, 806 P.2d 689 (1991) ("If theft III, as a violation, retains traits that characterize a criminal prosecution, then [the] defendant's rights to a jury trial and to have her guilt proven beyond a reasonable doubt cannot be abrogated[.]").
1. Third-degree theft is a Class C misdemeanor. ORS 164.043(2). First-degree theft is a Class C felony, ORS 164.055(3), and an attempt to commit a Class C felony is a Class A misdemeanor, ORS 161.405(2)(d). Consequently, attempted first-degree theft is a Class A misdemeanor.
2. All misdemeanors are subject to violation treatment except those established in ORS 811.540 and ORS 813.010. See ORS 161.566(4).
3. Attempted first-degree theft is a Class A misdemeanor, which is subject to a maximum fine of $6,250. ORS 161.635(1)(a). Third-degree theft, in turn, is a Class C misdemeanor, which is subject to a maximum fine of $1,250. ORS 161.635(1)(c).
4. Article I, section 11, of the Oregon Constitution provides that a defendant has the right to a jury trial in all criminal prosecutions; the requirement that the state prove a defendant guilty beyond a reasonable doubt is implicit in criminal prosecutions. Brown, 280 Or. at 98-99, 570 P.2d 52.
5. Former ORS 161.565(2) (1987), which was repealed by Oregon Laws 1999, chapter 1051, section 49, gave a trial court authority to treat a misdemeanor, other than a misdemeanor in the Oregon Vehicle Code, as a violation if, before the defendant pleaded to the charge, the court declared that it intended do that and the state did not object. If the court did not decide to treat the misdemeanor as a violation or if the state objected, then the charge was tried as a misdemeanor.
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