724 June 17, 2026 No. 559
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KATIE LYNN VINCENT,
Defendant-Appellant.
Harney County Circuit Court
23CR62994, 22CR11163; A184318 (Control), A184319
Robert S. Raschio, Judge.
Submitted December 4, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
O’CONNOR, J.
Reversed.
Cite as 350 Or App 724 (2026) 725
O’CONNOR, J.
Defendant appeals from a judgment of conviction
following a bench trial for misdemeanor failure to make an
annual report as a sex offender, ORS 163A.040(1)(f). In a
combined argument, defendant raises two assignments of
error. First, defendant argues that the trial court erred when it denied defendant’s motion for judgment of acquittal, which was made during closing argument when she argued that
the evidence did not establish the elements of the offense.
Second, defendant argues that the trial court erred when it
applied an incorrect legal standard to reach its verdict. The overarching legal question is whether the state satisfies its burden to prove that a defendant committed a voluntary act
or omission, as required by ORS 161.095(1), when failing to
make an annual report as a sex offender if the defendant
was physically unable to report when the reporting window
closed. We conclude that the answer is no, and we reverse.
We address only defendant’s second assignment of
error because it is dispositive. In construing the applicable legal framework, the trial court ruled that a person’s
voluntary failure to report at the beginning of the 20-day
annual sex-offender registry reporting window1 satisfies the state’s burden even when the person becomes incapacitated
because of an unforeseen event for the last few days of the
reporting window. That is incorrect. The state has the burden to prove that a defendant’s voluntary act or omission
caused their failure to report at the time the offense occurs, which is when the annual reporting window closes, at the
end of the tenth day after the person’s birthday. The trial
court thus erred when it applied an incorrect legal standard to reach its verdict.
In issuing its verdict, the trial court found as fact
that defendant was physically unable to report for the last
1
The legislature might have intended to establish a 21-day reporting window: the person’s birthday and 10 days before and after their birthday. Here, however, the parties agree that there is a 20-day window to report created by the statute. The trial court used that 20-day window in making its ruling, and for the purposes of this opinion, we accept that a person has a 20-day window to report. See also State v. Massei, 247 Or App 30, 33, 268 P3d 774 (2011) (where the defendant’s birthday was September 4, describing the reporting window as ending at the end of the day on September 14, the tenth day after the defendant’s birthday). 726 State v. Vincent
eight days of the reporting window, including when the
reporting window closed due to emergency surgery. Under
a correct understanding of the law, that finding required a
not-guilty verdict because defendant’s failure to report did not result from “a voluntary act or * * * omission,” as required for criminal liability under ORS 161.095(1). We thus reverse defendant’s conviction for misdemeanor failure to make an
annual report as a sex offender.
STANDARD OF REVIEW
In a bench trial, an argument that the trial court
applied an incorrect legal standard in reaching its verdict “is akin to an assertion that a trial court delivered an incorrect jury instruction.” State v. Zamora-Skaar, 308 Or
App 337, 353, 480 P3d 1034 (2020). We review “whether the
court instructed itself incorrectly as to the law[.]” Id. The trial court made express factual findings, and, on appeal,
the parties agree that the relevant facts are those that the court found. We thus state the facts consistent with trial
court’s factual findings.
STATEMENT OF FACTS
Defendant was convicted of a crime in Washington
State that requires her to register as a sex offender in
Washington. She moved to Oregon more than 10 years
prior to the trial in this case, and she must register as a
sex offender in Oregon because she has to register in
Washington. See ORS 163A.020(6)(b) (providing that “a person convicted in another United States court of a crime”
that requires “the person * * * to register as a sex offender in that court’s jurisdiction, * * * regardless of whether the crime would constitute a sex crime in [Oregon],” must register as a sex offender in Oregon). As relevant here, defendant must report in person to “the Department of State Police,
a city police department or a county sheriff’s office, in the county of [her] residence * * * [o]nce each year within 10 days of [her] birth date[.]” ORS 163A.020(1)(a)(D).
Defendant’s birthday is September 3rd. Prior to
2023, defendant had reported during the 10 days after her
birth date each year since she moved to Oregon. In 2023, at
all times relevant to this case, defendant lived in Harney
Cite as 350 Or App 724 (2026) 727
County. She planned on reporting after her birthday, like
she had in prior years.
Leading up to her birthday, defendant was mostly
homebound. She was in a lot of pain and could not stand
or walk for more than 10 minutes. She left the house to
go grocery shopping when her boyfriend could drive her,
and she used a walker, cane, and wheelchair. Her doctor
believed that multiple sclerosis was causing her symptoms. Defendant had scheduled an appointment in Bend on
September 4, 2023, with her doctor to get an x-ray to obtain more information about the cause of her symptoms.
On September 1, 2023, defendant travelled from
Burns to Brownsville, Oregon, driven by her boyfriend, to
help him care for his grandmother. Defendant and her boyfriend left Brownsville on September 2, 2023. They stayed
in Bend for two days to celebrate her birthday and to be
close to the doctor’s office for her September 4 appointment.
On September 4, defendant’s doctor took x-rays. The
x-rays showed that defendant had spinal stenosis, which is
a condition where the spinal column abnormally narrows
and, as a result, irritates, pinches, and compresses the spinal cord. Defendant required a wheelchair by the time of her appointment, and her doctor was concerned that her spinal
column was cutting off her spinal cord from her brain. The
doctor concluded that defendant needed emergency spinal
surgery. On September 5, defendant underwent emergency
cervical fusion surgery. She was discharged from the hospital in Bend on September 13 at 2:00 p.m. She travelled
back to Burns in a medical transport van and arrived after
5:00 p.m. She was on a variety of medications, including narcotics, during her transport, and she still required the use of a wheelchair. The sheriff’s office in Burns closes between 4:00 p.m. and 5:00 p.m.
When issued its verdict, the trial court found that
defendant “knew she had reporting requirements” and that
she “had not registered by the end of the 13th[.]” The trial court also found that defendant was “unable to complete
the registration” between when she was admitted to the
728 State v. Vincent
hospital on September 5 and the end of the reporting period
on September 13:
“[Defendant] goes on a trip with her boyfriend to see the
grandmother. I don’t have any doubt either that she has
some physical ailments that are significant and that she
was admitted into the hospital on the 5th, underwent the
surgery, was not released until the 13th.
“So after she [was] admitted into the hospital, really,
she was unable to complete the registration. I think I would
factually find that as well because she was in the hospital
up until the timeframe in which she could have registered
on the 13th.”
The court continued on to explain that, under its
understanding of the law, defendant’s inability to report was not a “complete defense” to the crime because defendant had
failed to report during the beginning of the window:
“However, that’s not really the law. The law is she has
an opportunity to register within twenty days. She has an
obligation to register, and she has an obligation to make
sure there aren’t barriers that she creates or are created
for her to not register.
“She’s leaving town, register that day or all the days
beforehand. Register. She just didn’t register.
“And I don’t find that the medical appointment is a complete defense to the question of failure to register as a sex
offender because of the fact that the statute allows for, and
she had knowledge of the fact that she could register ten
days before to ten days after her birthday.”
ANALYSIS
The parties agree that the crime of failing to make
an annual report, ORS 163A.040(1)(f), occurs at 12:00 a.m.
on the eleventh day following the person’s birthday. They
also agree that a person is not criminally liable for the
omission of an act if she is incapable of performing that act. They disagree about how those principles apply in this case. Defendant argues that, because she was physically incapable of reporting on September 13, 2023, she did not commit
the crime of failure to make an annual report. The state
responds that defendant committed the crime because she
Cite as 350 Or App 724 (2026) 729
failed to report in the first part of the reporting window,
before she was incapacitated, which resulted in her not
reporting by the end of the day on September 13, 2023.
The parties’ arguments present questions of statutory interpretation. We interpret statutes to identify the
legislature’s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We view the text, in context, and give any
relevant legislative history its appropriate weight. Id. If the legislative intent “remains unclear after examining text,
context, and legislative history,” then we “resort to general maxims of statutory construction to aid in resolving the
remaining uncertainty.” Id. at 172.
We begin with the text of the annual reporting
statute. A person who must register as a sex offender must
report in person, as relevant to this case, to “the Department of State Police, a city police department or a county sheriff’s office, in the county of the person’s residence * * * [o]nce each year within 10 days of the person’s birth date[.]” ORS
163A.020(1)(a)(D). The purpose of requiring a person to register as a sex offender “is to assist law enforcement agencies in preventing future sex offenses.” ORS 163A.045(1).
The failure to make an annual report constitutes a
crime:
“(1) A person who is required to report as a sex offender
in accordance with the applicable provisions of * * * ORS
163.020 * * * and who has knowledge of the reporting
requirement commits the crime of failure to report as a sex
offender if the person:
“* * * * *
“(f) Fails to make an annual report[.]”
ORS 163A.040.
ORS 163A.020(1)(a)(D) provides that, “[o]nce each
year within 10 days of the person’s birth date,” a person
subject to the statute must report in person to one of the
law enforcement agencies identified in the statute. The
reporting window closes at 12:00 a.m. on the eleventh day
after the person’s birthday, and the failure to make the
annual report becomes a crime under ORS 163A.040(1)(f)
730 State v. Vincent
only when the reporting window closes and the person has
failed to make the report. State v. Ribas, 374 Or 750, 770, 583 P3d 1019 (2026); see also State v. Fry, 303 Or App 587, 591, 464 P3d 521 (2020) (explaining that the offense of failure to make an annual report occurs “at a single point in time—on
the 11th day after a sex offender’s birthday”).2 Thus, in this case, the offense occurred when defendant had not reported
by 12:00 a.m. on September 14, 2023.
The other statute at issue here is ORS 161.095(1),
which provides that “[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act
which the person is capable of performing.” “Conduct” is “an act or omission and its accompanying mental state.” ORS
161.085(4). An “omission” is “a failure to perform an act the performance of which is required by law.” ORS 161.085(3).
As the Supreme Court explained in Ribas, when interpreting the reporting requirement for a sex offender’s change
of residence, ORS 163A.040(1)(d), “a sex offender’s failure
to report * * * is a criminal omission, not an act. That failure amounts to criminal conduct after the 10-day reporting
period has elapsed.” 374 Or at 770 n 11.
Read together, under ORS 163A.020(1)(a)(D), ORS
163A.040(1)(f), and ORS 161.095(1), a sex offender must
have knowledge of the reporting requirement and must voluntarily fail to make the report by 12:00 a.m. on the eleventh day after the person’s birthday to commit the crime of
failure to make an annual report. That is, the person must
be “capable of” reporting and voluntarily fail to do so. ORS 161.095(1).
The state points out that ORS 163A.020(1)(a)(D)
requires a sex offender to report “within 10 days of the person’s birth date[.]” The state argues that the legislature’s use of “within” means that a sex offender must report at some
2
The Supreme Court in Ribas referred to the timing as “midnight on the tenth day” after the event that triggers the reporting requirement. “Midnight” is an ambiguous term that can cause confusion when discussing deadlines. See Johnson Mobile Park, Inc. v. Schoffstall, 341 Or App 264, 272-73, 571 P3d 230 (2025) (so stating). From the entirety of Supreme Court’s opinion in Ribas and the text of the sex offender reporting statutes, it is clear that a person has the entirety of the tenth day after their birthday to report.
Cite as 350 Or App 724 (2026) 731
point during the 20-day window. Thus, the state reasons, a
person who is capable of reporting at any point during the
window and voluntarily fails to do so has satisfied the voluntary act requirement in ORS 161.095(1). That is correct
as far as it goes, but it does not provide a complete answer to the issue in this case.
The difficulty with the state’s argument is that the
failure to report at any point within the 20-day window is
not a crime. Ribas, 374 Or at 770. A person who is capable
of reporting during the first 19 days of the 20-day reporting window, and who chooses not to do so, has not committed an
offense. If the person reports at 11:59 p.m. on the tenth day after their birthday, they have committed no crime regardless of their voluntary procrastination during the prior 19
days of the reporting window.
That is not to say that the voluntary act or omission must occur precisely at the stroke of midnight. A factfinder could find that a person who voluntarily creates circumstances that lead to their failure to report because they are unable to report at the deadline has performed a voluntary act that caused the failure to report. To provide just one example, imagine a sex offender who lives a 45-minute drive, without traffic, from the sheriff’s office where they intend to report in person. The person knows the sheriff’s office closes at 5:00 p.m. The person waits until 4:15 p.m. on the tenth
day after their birthday to leave their house to make their
annual report. Traffic causes the trip to take 60 minutes,
and they arrive at the sheriff’s office after it has closed. They thus do not make an annual report in person by 12:00 a.m.
on the eleventh day after their birthday, in violation of ORS 163A.020(1)(a)(D). That failure constitutes a crime under ORS 163A.040(1)(f) because the person knew they had to report,
was capable of reporting by the deadline, but they failed to do so when they voluntarily failed to leave their house early enough to make it to the sheriff’s office by 5:00 p.m.3
The trial court here observed that a person has an
obligation to ensure that there are no obstacles to reporting
3
This is merely a hypothetical to illustrate our understanding of the applicable statutes. We do not mean to suggest that a person must anticipate extreme and unexpected obstacles.
732 State v. Vincent
before the close of the annual reporting window. We understand that to reflect the trial court’s interpretation of the applicable statutes as imposing criminal liability if the
defendant was capable of reporting at any point during
the reporting window. That conflicts with ORS 163A.020,
ORS 163A.040, and ORS 161.095(1), as we explained above.
Properly understood, the statutes require the defendant to
be capable of reporting when the deadline expires and to
voluntarily fail to do so.
REMEDY
The trial court’s fact findings require us to reverse
defendant’s conviction instead of reverse and remand for
a new trial. We “reverse outright” when a trial court in a
bench trial unambiguously finds facts that require a not
guilty verdict under a correct understanding of the law.
State v. Barboe, 253 Or App 367, 379-80, 290 P3d 833 (2012), rev den, 353 Or 714 (2013). By contrast, if the trial court’s fact findings might permit it to find a defendant guilty
under a proper understanding of the law (and the error is
not harmless), then we reverse and remand for a new trial.
Id.
In Barboe, the state charged the defendant with
second-degree theft and fraudulent use of a credit card. Id. at 369. The defendant proceeded to a bench trial. Id. at 371. The state presented evidence that a person other than the
defendant, Mercer, had stolen a credit card from the victim, Muller. Id. at 369. Days later, Mercer and the defendant’s
stepcousin, Samantha, ate at a restaurant where the defendant was a waiter. Id. at 369-70. Mercer paid with the stolen credit card and left the defendant an unusually large tip. Id. at 370. Mercer signed Muller’s name on the receipt. Id. The
defendant did not verify the signature or the cardholder’s
identification, contrary to the restaurant’s policies. Id. The defendant also removed the tip from the till in cash, leaving the restaurant short on cash. Id.
Muller discovered his credit card was missing when
he learned of the charge from the restaurant. Id. He called
the police, and an officer interviewed the defendant at the
restaurant. Id. The defendant said he remembered receiving
Cite as 350 Or App 724 (2026) 733
the large tip but he denied knowing Mercer or Samantha
and he denied knowing that the credit card was stolen. Id.
More than one year later, the officer spoke with the
defendant again. Id. The defendant admitted that Samantha
was a relative, that he knew Mercer, and that Mercer had
handed him the credit card. Id. He maintained that he did
not know that the credit card was stolen when he ran it and
received the tip. Id. The defendant testified, however, that he did not know Mercer when Mercer had paid at the restaurant but that he got to know Mercer after his visit to the
restaurant. Id.
The trial court acquitted the defendant of seconddegree theft and found him guilty of fraudulent use of a
credit card. Id. at 371. In issuing its verdict, the trial court expressly stated that it had assumed, without deciding, that the defendant did not know Mercer and did not have a legal
duty to identify the credit card holder. Id. The trial court found the defendant guilty under an aid-and-abet after-thefact theory for failing to disclose what he knew to the officer when he was first interviewed. Id.
We held that the trial court plainly erred because
the criminal code does not recognize an aid-and-abet afterthe-fact theory of criminal liability. Id. at 375-76. We viewed the error as a legal error akin to an erroneous jury instruction. Id. We exercised our discretion to correct the error. Id.
We then turned to the proper disposition. We
explained that we would reverse the defendant’s conviction
without a remand if the facts as found by the trial court
clearly established that defendant was not guilty under a
proper understanding of the law:
“Had the trial court unambiguously found that [the]
defendant did not know Mercer [when the defendant ran
the credit card], rather than assuming as much for the purposes of applying an erroneous legal premise, or had the
court specified when, exactly, [the] defendant ‘learned of
the theft and misuse of the credit card’ (i.e., after speaking
with [the officer]), we would be bound to reverse [the] the
defendant’s conviction outright.”
734 State v. Vincent
Id. at 379 (citing State v. Gonazlez, 188 Or App 430, 431, 431 n 1, 71 P3d 573 (2003), and State v. Johnson, 335 Or 511, 523, 73 P3d 282 (2003)). The trial court, however, had “merely
assumed for the sake of argument” that the defendant did
not know Mercer at the time and did not know of the misuse
of the credit card until after the fact. Barboe, 253 Or App
at 380. “Accordingly, because a factual question as to [the] defendant’s knowledge at the time of the fraudulent transaction (a material element of the crime of fraudulent use of a credit card) remains unresolved, and the evidence pertaining to that question is sufficient to withstand a motion for judgment of acquittal,” we reversed and remanded for a new
trial. Id. at 380-81 (emphasis omitted).
Barboe recognizes that a trial court’s fact findings
when issuing its verdict in a criminal bench trial have consequences on appeal when we conclude that a trial court erred
in instructing itself on the law. When the court’s unambiguous fact findings require a not guilty verdict under a correct understanding of the law, then we reverse. When the
trial court did not make findings, or when the fact findings are ambiguous, and the evidence would permit a factfinder
to find a defendant guilty under a proper understanding of
the law, then we reverse and remand for a new trial. Id. at
378-79; see also State v. Langford, 260 Or App 61, 71, 317
P3d 905 (2013) (citing Barboe and explaining that the trial
court’s erroneous interpretation of an order in a contempt
case would result in “outright reversal” if the trial court
had resolved the dispositive facts in the defendant’s favor, but because the trial court left the dispositive factual issue unanswered, “the proper disposition of the case is to reverse and remand for a new trial”).
Here, defendant did not perform a voluntary act
or omission under the facts as unambiguously determined
by the trial court. The crime occurred at 12:00 a.m. on
September 14. See Ribas, 374 Or at 770. The trial court
found that defendant was unable to report from September 4
to the end of the day on September 13 because she was
physically incapacitated. The trial court did not find that
defendant should have anticipated the emergency surgery.
The trial court did not find that defendant should have
Cite as 350 Or App 724 (2026) 735
anticipated that she would be incapacitated from September 4 through the end of the day on September 13, and the record
would not permit that inference. The court’s fact findings
required a not guilty verdict under a correct understanding
of the law. We thus “reverse outright” instead of reversing
and remanding for a new trial. See Barboe, 253 Or App at
379-80.
Reversed.