164
Submitted November 12, reversed and remanded December 23, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
TERRY JOSEPH READ,
Defendant-Appellant.
Washington County Circuit Court
18CR52473; A170210
Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed and remanded.
Cite as
308 Or App 164
(2020) 165
PER CURIAM
Defendant appeals from a judgment of conviction
for first-degree criminal trespass for knowingly entering
and remaining unlawfully in a dwelling, ORS 164.255. He
first assigns error to the denial of his motion for a judgment
of acquittal, arguing that “the state’s evidence in this case
established that defendant was unaware of the nature of
his intrusion” into a lit and occupied home. (Emphasis in
original.) That was one available inference from defendant’s
behavior at and around the time he entered the home, but it
was not the only available inference about his mental state.
We therefore reject his first assignment of error. See State v.
Hedgpeth,
(2019) (when a court
considers a motion for judgment of acquittal, “the question is
whether the factfinder reasonably could infer that a particular fact flows from other proven facts,” not whether the fact
necessarily flows from proven facts).
In his second assignment, defendant argues that
the court erred in denying his motion for a continuance after
the surprise unavailability of his expert, who would have
testified about defendant’s medical conditions (traumatic
brain injury and an epileptic disorder), connected them to
defendant’s behavior at the time of the incident, and opined
on his mental state when entering the home. Defendant filed
the motion on the morning of trial, shortly after learning
that the expert he hired had been subpoenaed to testify in
another case on the same date—a potential conflict that the
expert had failed to disclose. Defendant informed the court
that the state did not oppose the motion and that the parties
had agreed to a future trial date on which the expert was
available to testify.
Despite the lack of any objection by the state, the
trial court on its own raised questions about the expert’s
qualifications (that he was a neuropsychologist and “not a
medical doctor”), cut off defense counsel’s argument about
prejudice, and then entered an order denying the motion
that stated, “[w]ay too late request + no assurance expert
can even testify to information (i.e., Ø medical records).”1
1
We note that Judge D. Charles Bailey, Jr., decided the motion for a continuance, whereas Judge Wipper presided over the trial and entered the judgment of
conviction.
166 State v. Read
On appeal, defendant argues that the court abused
its discretion in denying his motion for a continuance to
produce a critical witness, and the state concedes the error.
As the state points out, the trial court’s ruling on the continuance rested either on a mistake of fact or a mistake of
law: Either the court erroneously believed that the expert
had not reviewed defendant’s medical records—which would
have been factually incorrect and inconsistent with defense
counsel’s affidavit—or the court believed that defendant was
required to proffer some additional assurance of the expert’s
competency and qualifications beyond what was included in
defense counsel’s affidavit in support of the motion, such as
an expert report—a proposition that finds no support in the
law. The state further concedes that the error in denying the
continuance was prejudicial, considering that defendant’s
mental state was the key issue in the case. We agree with
and accept the state’s concession of error, reverse defendant’s
conviction, and remand for a new trial. See State v. Johnson,
