De MUNIZ, Judge.
Defendant appeals his conviction for sexual abuse in the first degree. ORS 163.427. He claims that the three-year delay between his indictment and trial denied him the statutory and constitutional right to a speedy trial. We reverse.
Sometime between late December 1986 and early January 1987, the five-year-old victim told her mother that defendant had come into her bedroom and touched her vagina. Mother confronted defendant, who denied it. About four years later, in December 1990, the victim repeated the same allegation to a physician during a routine examination. The physician alerted Children's Services Division, and the police began investigating in January 1991. On May 2, 1991, a grand jury indicted defendant for sexual abuse in the first degree, and a warrant was issued for defendant's arrest. However, defendant was not arrested and arraigned until late January 1994. The case went to trial on May 16, 1994.
Defendant moved to dismiss the indictment, asserting both statutory and constitutional speedy trial provisions. The trial court denied the motion, and a jury found defendant guilty.
On appeal, defendant assigns error to the trial court's refusal to dismiss under ORS 135.747, the "speedy trial" statute,
ORS 135.747 provides:
The trial court here declined to dismiss the indictment under ORS 135.747, because the underlying statute of limitations had not expired, and the state could simply re-indict defendant after dismissal. Defendant argues that the state's ability to re-indict is irrelevant to whether defendant was "brought to trial within a reasonable period of time." We agree.
In State v. Emery, 318 Or. 460, 869 P.2d 859 (1994), the Supreme Court distinguished the right to a speedy trial under ORS 135.747 from that under Article I, section 10. Unlike a constitutional claim, dismissal under ORS 135.747 does not require proof of prejudice. 318 Or. at 470, 869 P.2d 859. "With that understanding, the dispositive inquiry becomes whether * * * [the] defendant either occasioned or acquiesced in" the delay and whether the length of time to bring the case to trial was "reasonable." Id. at 470-71, 869 P.2d 859.
Furthermore, if delay is "reasonable" simply because the state is not time-barred from re-indicting, as the trial court ruled here, then ORS 135.747 is no different from a statute of limitations. We decline, however, to construe the speedy trial statute as superfluous. Moreover, statutory time limits and ORS 135.747 serve different purposes.
According to Barnes, the statute of limitations is designed to protect a defendant's interest. Under Emery, ORS 135.747 is intended to serve the courts' interest in judicial efficiency by disposing of cases that have not been brought to trial "within a reasonable period of time."
The trial court therefore erred in focusing on the state's ability to re-indict. Under our reading of Emery, the proper inquiry is limited to whether defendant caused or consented to the delay and, if not, whether the lapse of time between indictment and trial was "reasonable." In this case, there is no contention that defendant evaded arrest, concealed himself, or otherwise contributed to the delay during the three years between indictment and trial. The record indicates that he resided in Multnomah County the entire time. As in Emery, "the delay was attributable to the state." 318 Or. at 470, 869 P.2d 859. We therefore cannot say that defendant caused or consented to the delay. We also conclude that he was not brought to trial "within a reasonable period of time." In Emery, the court found the delay unreasonable because "a simple misdemeanor citation * * * was sitting [for two years] without any action to bring the case to trial by either the prosecutor or the courts." Id. at 471, 869 P.2d 859. This case involved a more serious felony charge of sexually abusing a child, which sat without attention for a longer period of time. Moreover, the state offered no reason why the police waited approximately two years and nine months to serve the arrest warrant.
Accordingly, we conclude that defendant was denied his right to a speedy trial under ORS 135.747, and the trial court erred in refusing to dismiss the indictment on that basis. However, violation of ORS 135.747 warrants only dismissal without prejudice, and the state is free to re-indict defendant, provided the applicable statute of limitations has not expired.
Article I, section 10, of the Oregon Constitution provides, in part, that "[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay[.]" The guarantee of "a trial without delay" means a "right to a speedy trial." State v. Jackson, 228 Or. 371, 377, 365 P.2d 294 (1961). The Oregon Supreme Court has equated Article I, section 10, with the right to a speedy trial under the Sixth Amendment to the United States Constitution.
In determining whether defendant was denied the right to a speedy trial under Article I, section 10, we consider (1) the length of the delay, (2) the reasons for the delay, and (3) the resulting prejudice to the accused. Emery, 318 Or. at 472, 869 P.2d 859, citing State v. Mende, 304 Or. 18, 21, 741 P.2d 496 (1987). "If the time taken to bring an accused to trial is substantially greater than the average, inquiry into the remaining two factors is triggered." 304 Or. at 23-24, 741 P.2d 496. The state concedes that the delay here—three years between indictment and trial—"is sufficient to trigger examination of the other factors." However, when the time lag is so "manifestly excessive and unreasonable," then the delay itself requires dismissal and prejudice is presumed. Id. at 24, 741 P.2d 496, citing Ivory, 278 Or. at 505-06, 564 P.2d 1039, and Vawter, 236 Or. at 96, 386 P.2d 915.
Defendant asserts that the delay was "manifestly excessive and unreasonable" because he was tried more than seven years after the commission of the crime. In addition to the three years from indictment to trial, he urges us to consider the four-year period between the offense itself and the time it was reported to police. Defendant misconstrues the pertinent time frame. The right to a speedy trial under Article I, section 10, "is directed to unreasonable delay after a charge has been formally made." State v. Dike, 91 Or.App. 542, 544, 756 P.2d 657, rev. den. 306 Or. 660, 763 P.2d 152 (1988), citing State v. Serrell, 265 Or. 216, 218, 507 P.2d 1405 (1973) (emphasis supplied). Pre-indictment delay is governed by the statute of limitations underlying the particular offense. Dike, 91 Or.App. at 544, 756 P.2d 657. In determining whether the delay here was "manifestly excessive and unreasonable," we consider only the three-year period between indictment and trial.
In State v. Coggin, 126 Or.App. 230, 868 P.2d 29 (1994), we held that a 27-and-one-half month delay from indictment to arraignment was "not so manifestly excessive and unreasonable that it shocks the imagination and conscience." 126 Or.App. at 234, 868 P.2d 29. In State v. Chinn, 115 Or.App. 662, 840 P.2d 92 (1992), we reached the same conclusion regarding a 32-month delay between indictment and arrest. 115 Or.App. at 666, 840 P.2d 92.
The unexplained failure to serve the arrest warrant caused much of the delay here (two years, nine months). Although the state bears responsibility for that, defendant does not characterize the delay as intentional. See Mende 304 Or. at 25, 741 P.2d 496; State v. Dykast, 300 Or. 368, 377, 712 P.2d 79 (1985) (intentional delay weighs heavier against the state than "inadvertent or negligent conduct"); Ivory, 278 Or. at 506, 564 P.2d 1039 (if delay intended to hamper defense, showing of prejudice unnecessary). Defendant concedes that the time lag is attributable to "negligence by the state." Although that weighs against the state, in the absence of intentional misconduct it does not weigh heavily. State v. Wirth, 114 Or.App. 496, 499, 835 P.2d 952 (1992). Accordingly, the analysis turns on whether defendant was prejudiced by the delay. Emery, 318 Or. at 473, 869 P.2d 859.
Defendant has the burden of establishing "some reasonable possibility of prejudice." Ivory, 278 Or. at 508, 564 P.2d 1039; Emery, 318 Or. at 474, 869 P.2d 859 (it is "defendant's burden to prove prejudice"). There are three possible types of prejudice under a speedy trial claim: (1) excessive pretrial detention, (2) anxiety and concern of the defendant, and (3) impairment of the defense. Emery, 318 Or. at 473, 869 P.2d 859; Dykast, 300 Or. at 378, 712 P.2d 79.
Defendant was not incarcerated during the delay. Instead, he claims to have suffered "a substantial amount of anxiety" because "he had to reconstruct events that took place more than seven years prior to trial." That is not the type of "anxiety and concern" addressed by Article I, section 10. Anxiety is prejudicial in the constitutional sense when the defendant is aware of the charges and, as a result, is forced to endure the uncertainty and stigma of "unresolved public accusation" for an unreasonable period of time. Emery, 318 Or. at 473, 869 P.2d 859; Hacker, 62 Or.App. at 696, 662 P.2d 21; State v. Burns, 43 Or.App. 937, 941, 607 P.2d 735 (1979); see also Barker v. Wingo, 407 U.S. 514, 534, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Defendant concedes here that he was unaware of the indictment during the two years and nine months before his arrest. When he finally learned of the charge, he was brought to trial in three-and-one-half months. We conclude that any anxiety defendant may have suffered was not prejudicial under Article I, section 10.
Defendant also claims the third type of prejudice—impairment of defense—because "a defense witness had moved out of the state and could not be located." In Ivory, the Supreme Court held that a defendant establishes a reasonable possibility of prejudice by identifying "potentially favorable witnesses who could not be found due to a delayed trial." 278 Or. at 508, 564 P.2d 1039.
Even assuming his brother is a "potentially favorable witness," defendant has not established the loss of this witness "due to [the] delayed trial." It is unclear from the record whether defendant lost contact with his brother during the roughly four-year period before the crime was reported, or during the three-year period between indictment and trial. As discussed above, Article I, section 10, only addresses delay "after a charge has been formally made." Dike, 91 Or.App. at 544, 756 P.2d 657. If defendant's brother disappeared before the indictment, then any resulting prejudice was not "due to" the delay between indictment and trial. Because we cannot determine when the brother disappeared, defendant has failed to carry his
Judgment of conviction reversed and remanded for entry of judgment dismissing charge against defendant without prejudice pursuant to ORS 135.747.
We express no opinion whether the statute of limitations has expired in this case. That question is not before us. Emery, 318 Or. at 471 n. 18, 869 P.2d 859.