State v. Ralston

                                        470

    Argued and submitted January 17, 2019; portion of judgment requiring
   defendant to pay a $2,255 DUII fine vacated, remanded for resentencing,
                       otherwise affirmed April 7, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
               CHRISTOPHER SHANE RALSTON,
                 aka Christopher Wayne Ralston,
                      Defendant-Appellant.
                Multnomah County Circuit Court
                      16CR33180; A165924
                                   

     Defendant appeals his conviction for driving under the influence of intoxicants. In his first assignment of error, defendant argues that the trial court
erred in denying his motion to dismiss because his right to a speedy trial under
Article I, section 10, of the Oregon Constitution was violated from a 14-month
delay that resulted in the loss of video evidence. In defendant’s second assignment, he argues, and the state concedes, that the trial court erred in imposing a
$2,255 fine in the judgment when it orally imposed a $2,000 fine at sentencing.
Held: As to the first assignment, the trial court did not err in denying defendant’s
motion to dismiss. Although the length of the delay factor weighs against the
state in the Article I, section 10, analysis, the remaining factors do not. The unexplained period of delay was relatively small and not intentional, the remaining
period of delay was reasonable and justified, and defendant failed to establish a
reasonable possibility of prejudice. While there is some probability that the missing evidence was favorable, whether that missing evidence can be shown to be
material is uncertain. As to the second assignment, the Court of Appeals agreed
with and accepted the state’s concession that the trial court erred in imposing a
fine in the judgment in an amount that exceeded its oral pronouncement in court.
   Portion of judgment requiring defendant to pay a $2,255 DUII fine vacated;
remanded for resentencing; otherwise affirmed.



    Richard Baldwin, Senior Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2021)                         471

  Before Powers, Presiding Judge, and Egan, Chief Judge,
and James, Judge.
  JAMES, J.
   Portion of judgment requiring defendant to pay a $2,255
DUII fine vacated; remanded for resentencing; otherwise
affirmed.
472                                                         State v. Ralston

           JAMES, J.
         Following a conditional guilty plea, defendant was
convicted of felony driving under the influence of intoxicants
(DUII). ORS 813.010(1);1 ORS 813.011. Defendant appeals
that judgment, raising two assignments of error. In his first
assignment, defendant argues that the trial court erred in
denying his motion to dismiss because his right to a speedy
trial under Article I, section 10, of the Oregon Constitution2
was violated from a 14-month delay that resulted in the loss
of video evidence. For reasons we later explain, we reject
that argument and affirm. In defendant’s second assignment, he challenges the trial court’s imposition of a $2,255
fine in the judgment when it orally imposed a $2,000 fine
at sentencing. We agree with and accept the state’s concession that the trial court erred in that regard. We therefore
vacate the portion of the judgment imposing the $2,255 fine,
remand for resentencing, and otherwise affirm.
         The following facts are largely procedural and
undisputed.3 At 12:29 a.m. on June 3, 2016, Officer Nafie
stopped defendant’s vehicle for failing to maintain a lane.
Nafie smelled a strong odor of alcohol and noticed that defendant’s eyes were bloodshot and watery and that his speech
was slurred. There were multiple open containers in the back
of defendant’s vehicle, he admitted to having a few drinks,4
and he declined to perform field sobriety tests (FSTs). At
12:40 a.m., Nafie arrested defendant and transported him to
the police station. At 2:06 a.m., defendant refused to submit
    1
      ORS 813.010 was amended subsequent to the pertinent events in this case.
See Or Laws 2017, ch 21, § 80. However, because the conduct in this case occurred
before the effective date of those amendments, and because those changes are
not otherwise relevant to this appeal, they do not apply to this case. See Or Laws
2017, ch 21, § 127 (amendments “apply to conduct occurring on and after the
effective date of this 2017 Act”).
    2
      Article I, section 10, provides: “No court shall be secret, but justice shall
be administered, openly and without purchase, completely and without delay,
and every man shall have remedy by due course of law for injury done him in his
person, property, or reputation.”
    3
      What occurred during the stop is taken from the police report, which is not
part of the record. However, the parties summarized that report in their legal
memoranda related to defendant’s motion to dismiss before the trial court, and
those facts are not contested on appeal.
    4
      It is unclear whether it was before or after his arrest that defendant admitted to drinking, but resolution of that fact is not necessary to our analysis.
Cite as 

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to a breath test and, at 2:32 a.m., defendant was booked into
the Multnomah County Detention Center (MCDC) on the
charge of misdemeanor DUII, ORS 813.010.5
         The same day that defendant was booked into
MCDC, he was arraigned on charges of misdemeanor DUII
and reckless driving, held in custody, and given a future
court date of July 8, 2016. On or around that same day, the
misdemeanor Deputy District Attorney (DDA) handling
defendant’s case informed a felony DDA within the office
that defendant might have prior DUII convictions that
would enhance the DUII to a felony and indicated that she
would order defendant’s prior convictions. See ORS 813.011
(providing that DUII is a Class C felony when a defendant
has at least two prior DUII convictions within 10 years of
the date of the current offense). On June 8, defense counsel appeared at the Multnomah County Circuit Court’s
Criminal Procedures Court (CPC) and requested a hearing
for defendant to enter a plea to the misdemeanor charge.
However, at that plea hearing, the state dismissed the case
because it had determined that it was likely to proceed as a
felony. Defendant was also released from custody.
         On June 9, the felony DDA received defendant’s
file that included copies of defendant’s certified prior DUII
convictions. Approximately one month later, on July 8, the
felony DDA reviewed defendant’s file and confirmed that
defendant’s DUII should be charged as a felony. On July 19,
a grand jury indicted defendant for felony DUII, ORS
813.011, and reckless driving, ORS 811.140, and the court
issued a warrant for defendant’s arrest.
        On July 20, the Multnomah County Sheriff’s
Office (MCSO) entered the warrant into various local and

   5
     ORS 813.010, in relevant part, provides:
       “(1) A person commits the offense of driving while under the influence of
   intoxicants if the person drives a vehicle while the person:
       “…
       “(b) Is under the influence of intoxicating liquor …[.]
       “…
       “(4) [T]he offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any
   premises open to the public.”
474                                                       State v. Ralston

national law enforcement computer databases. Because
defendant resided in Clark County, Washington, on July 29,
MCSO sent requests to the Clark County Sherriff’s Office
(CCSO) and the Battle Ground Police Department asking them to “attempt to serve the … warrant”6 at defendant’s Washington address. Further, on August 15, MCSO
mailed defendant a “Notice of Arrest Warrant” to that
same address, notifying him that Multnomah County had
issued a warrant for his arrest on felony DUII and reckless driving charges and directing him to contact the court
with any inquiries. MCSO maintains records of returned
mail, and there was no record that that letter had been
returned.
        On January 4, 2017, CCSO notified MCSO that
defendant was in custody there on both local Washington
charges and Multnomah County’s warrant. On January 5,
defendant signed a waiver of extradition, agreeing to be
returned to Oregon from Washington. On March 16, defendant was transported to Multnomah County. On March 17,
defendant was arraigned, released from custody, and given a
court date of April 28, 2017, to return, and the same defense
attorney was reappointed.7 In addition, the Oregon eCourt
Case Information Network (OECI), the official Oregon
Judicial Department register for the circuit courts, reflects
an entry on March 21 for “Motion—Pretrial Discovery[;]
Demand,” and, on April 28, “Hearing-Custody Issue.”
         On May 1, defense counsel learned that defendant’s jail booking video from his June 3 arrest was no longer available due to the jail’s policy of overwriting videos
after 30 days. On July 25, defendant filed a motion to dismiss the case, arguing that his speedy trial rights under
Article I, section 10, of the Oregon Constitution, and the
Sixth Amendment to the United States Constitution, were
violated. As part of that motion, defendant argued that the
state’s delay in prosecuting the case, beginning from the
day the misdemeanor information was filed, was unreasonable, and that he was prejudiced because the booking video
was destroyed in between the dismissal of the misdemeanor
   6
       We omit the use of all capitalization for ease of reading.
   7
       A new attorney within the same office was eventually substituted.
Cite as 

 (2021)                              475

information and the issuance of the felony indictment, and
that the video would have aided his defense.

         The state responded that defendant’s Sixth Amendment claim did not begin to run until the indictment issued
on July 19 and, due to the jail’s 30-day policy, the video was
likely overwritten before the speedy trial clock began to run.
Regarding defendant’s Article I, section 10, claim, the state
noted that it was an open question whether the speedy trial
clock began to run at the time the misdemeanor information was filed or the felony indictment issued, but it argued
that defendant’s motion should nonetheless be denied. The
state contended that the delay was not unreasonable, and
that defendant failed to establish that he was prejudiced,
because it would be speculative to conclude that what was
contained on the video would help rather than hurt defendant’s case.

         The hearing occurred on August 18, 2017, and the
parties relied primarily on their written legal memoranda,
which included declarations, affidavits, and exhibits. The
state’s memoranda provided declarations from both the felony and misdemeanor DDAs and exhibits establishing the
timeline of events, including the state’s efforts to serve the
warrant. The felony DDA did not explain why, after receiving defendant’s file on June 9, she waited until July 8, nearly
one month, to review it. Further, the state provided no explanation why, after defendant signed the waiver of extradition
on January 5, 2017, he was not transported until March 16.
Lastly, the state did not present any evidence or argument
about its efforts to prosecute the case after March 17, the
day defendant was arraigned on the felony indictment, and
August 18, the day of the hearing.

         Defendant’s motion included an affidavit from
Randy Rowlette, MCSO’s “Systems Administration Senior.”
Rowlette attested that, on the day defendant was booked,
MCDC’s booking area had five or more cameras digitally
recording inmates performing various activities in the
booking process, such as removing clothing and shoes and
filling out paperwork. Further, Rowlette stated that those
booking videos are available for “thirty days or more” before
476                                          State v. Ralston

the system automatically overwrites them, and defendant’s
booking video was no longer available.
        Defense counsel also provided a declaration stating
that Nafie’s police report did not contain any descriptions
of defendant exhibiting poor balance or walking, which
she “frequently” sees in police reports that are describing
impairment. Based on that, she believed the booking video
would have been helpful to the defense at trial. She further
stated that she has previously used MCDC jail booking
videos in DUII trials, those booking videos demonstrate a
defendant’s ability or inability to walk and balance, including “standing on one foot and removing a shoe while maintaining balance.” She also attested that in her experience,
those booking videos, as objective evidence, are “uniquely
persuasive” in DUII trials.
         The trial court concluded that the overall length of
time, and the 30 days it took the felony DDA to review defendant’s file, was “not unusual.” The trial court accepted the
assertions in defense counsel’s affidavit regarding what jail
booking videos show “normally for people without regard
to what it particularly would have shown for [defendant].”
Ultimately, the trial court denied defendant’s motion, concluding that defendant did not make “an adequate factual
showing that the … overwritten video would have been
helpful to the [d]efense.”
         On August 29, defendant entered a conditional
plea of guilty to Count 1, felony DUII, reserving the right
to appeal the denial of his motion to dismiss, and Count 2,
reckless driving, was dismissed. Although the trial court
orally imposed a $2,000 fine, the court’s written judgment
imposed a $2,255 “Fine-DUII.”
         On appeal, beginning with defendant’s first assignment, defendant abandons his argument under the Sixth
Amendment, and solely argues that the 14-month delay,
which resulted in the loss of his booking video, violated his
right to a speedy trial under Article I, section 10. The state
disagrees, arguing that the court properly denied defendant’s motion to dismiss. For the following reasons, we agree
with the state.
Cite as 

 (2021)                              477

         We review a trial court’s denial of a defendant’s
motion to dismiss for lack of a speedy trial for errors of law,
keeping in mind that we are bound by a trial court’s findings of fact if evidence in the record supports them. State v.
Johnson, 

, 

 (2007), cert den, 

 (2008).
          At the outset, defendant asks us to determine when
the speedy trial clock began to run in this case. Defendant
argues that the clock began on the day the misdemeanor
information was filed and not the day the felony indictment
issued. He argues that this case requires us to determine
whether the speedy trial clock begins to run upon the filing
of the first or second charging instrument, which is an open
question in Oregon. See, e.g., State v. Chelemedos, 

, 

, rev den, 

 (2017) (noting
unresolved issue). The state argues that we need not resolve
that issue because, even assuming the clock was triggered
on the date the misdemeanor information was filed, the difference amounts to approximately one month, which would
not affect the outcome. Ultimately, we agree with the state
that we need not resolve the matter—albeit for a slightly
different reason. It is evident that here, the parties and the
trial court treated the filing of the misdemeanor information as the date the speedy trial clock began. No party challenged that holding at trial, nor on appeal. Therefore, this
case does not require us to resolve that open question in
Oregon. For purposes of this case, we calculate the relevant
time from the filing of the misdemeanor information, and
whether a subsequent felony indictment would “reset” the
clock is a question we leave for another day.
         Article I, section 10, provides, in relevant part, that
“justice shall be administered, openly and without purchase,
completely and without delay.” In determining whether a
defendant was denied a speedy trial under that provision,
we consider three factors: (1) the length of the delay, (2) the
reasons for the delay, and (3) the prejudice to the defendant.
State v. Emery, 

, 

 (1994).
        In some instances, the length of the delay alone can
be dispositive. If the length of the delay is so “manifestly
excessive” that it “shocks the imagination and conscience,”
478                                           State v. Ralston

or if the state caused the delay with the intent to impede the
defense, the delay alone may establish a speedy-trial violation and no further analysis is necessary. State v. Olstad,

, 

 (2008) (internal quotation marks omitted). However, if the time taken to bring an
accused to trial was not an intentional impediment by the
state, and was not so long as to shock the conscious, but still
“substantially greater than the average,” we must proceed
to assess the other two factors—the reasons for the delay
and the prejudice to the defendant. State v. Bayer, 

, 

, rev den, 

 (2009) (internal quotation marks omitted).
         The inquiry is “fact-specific,” and requires us to
“examine the circumstances of each particular case,” and
then assign weight to each factor. State v. Harberts, 

, 

 (2000). In assessing each factor, “[w]e
do not balance the elements one against the other. Instead,
we examine the relevance of each in giving effect to the constitutional guarantee of a speedy trial.” State v. Rohlfing,

, 

 (1998). “That examination
is informed in part by the duration of the delay, so that a longer delay could cause the reasons for the delay or prejudice
to defendant factors to weigh more heavily in defendant’s
favor.” State v. Siegel, 

, 

(2006) (citing State v. Mende, 

, 

(1987) (internal quotation marks omitted)). Delays caused
by a defendant “do not weigh heavily, if at all, against the
state.” State v. Wendt, 

, 

 (2014)
(internal quotation marks omitted). Delays caused by the
prosecutor, or the court, require us to determine “whether
there [was] a justification for those delays and whether
that justification [was] reasonable.” 

 “[N]eutral reasons
for delay receive less weight than reasons caused by negligence, but they must nonetheless be weighed against the
government because the ultimate responsibility for such circumstances must rest with the government rather than the
defendant.” Siegel, 

 (internal quotation
marks omitted). However, delays that are reasonable and
justified do not qualify as neutral delay and do not “militate
in favor of dismissal.” State v. Fleetwood, 

, 

 (2003).
Cite as 

 (2021)                             479

         There are several issues not in dispute. The state
concedes that, for purposes of this appeal, a 14-month delay
is not so insignificant that we need not consider the other
factors. Further, defendant does not argue that the delay
was intentional, or that the length alone is manifestly excessive so as to shock the conscience, requiring dismissal. We
therefore move on to consider the factors of the reasons for
the delay and the prejudice to the defendant, noting that the
length of the delay weighs against the state. See Johnson,

 (explaining that where the length of the delay
is substantially greater than the average, the length of delay
factor weighs against the state).
        Reasons for Delay. Beginning with the reasons for
the delay, defendant contends that the state failed to explain
the 14-month delay, and the state disagrees. We conclude
that the state failed to explain approximately three and
one-half months of the delay, with the remaining period of
delay being explained, reasonable, and justified.
         The first relevant period is between June 3, 2016,
the day the misdemeanor information was filed, and July 19,
the day the felony indictment issued, totaling one month and
16 days. One month of that period is unexplained. The state
contends that that period was attributable to the state investigating whether it could pursue felony charges and that it
“expeditiously” obtained an indictment once that determination was made. However, what the state does not explain
is why, after having received defendant’s file on June 9,
the felony DDA waited 30 days to review it. In concluding
that the 30 days is “not unusual,” the court incorrectly
focused only on the length of the delay without considering
whether the state provided any explanation for that delay.
See Fleetwood, 

 (in determining whether
a period of delay was reasonable and justified for purposes
of Article I, section 10, of the Oregon Constitution, the court
looked to the merits of and time spent on the state’s appeal).
         We can agree, generally, with the trial court’s conclusion that a 30-day delay for a DDA to review a file may
be reasonable when considering the high-volume caseloads
many Oregon district attorney offices handle. See State v.
Dykast, 

, 

 (1985) (“We are not
480                                                      State v. Ralston

unaware … of the heavy caseloads in many district attorneys’ offices.”). However, that conclusion is not a truism that
always applies. Here, it is worth noting, the file contained
everything necessary to determine if this case was chargeable as a felony—all that needed to occur was opening the
file. Additionally, the reasons for that period of delay take on
particular relevance in this case because, if the video was
overwritten on day 30 following defendant’s June 3 arrest,
the video would have been lost on July 3. Thus, the video
was likely destroyed after the felony DDA received defendant’s file but before she had reviewed it. In other words, as
the parties agree on appeal, it was that 30-day delay that
caused the destruction of the video. In that light, we cannot
conclude that the state adequately explained this delay by
relying solely on office workload. More was required here,
and therefore, one month of that total period of delay was
without explanation and weighs against the state.
         The next period of delay is July 19, 2016, the day
the warrant issued, and January 4, 2017, the day MCSO
learned defendant was in custody in Washington, totaling
five months and 16 days. Defendant argues that that period
of time was unexplained. The state disagrees, arguing that
it obtained an arrest warrant the day the indictment issued,
entered the warrant into law enforcement databases the following day, and then “served the warrant by mail less than
a month later on August 15, 2016.”
         As an initial matter, we reject the state’s argument
that the state served the warrant when it mailed the Notice
of Arrest Warrant on August 15. Putting aside whether an
arrest warrant could be served by mail, the letter MCSO
mailed to defendant’s address notified him that there was
a pending warrant for his arrest out of Multnomah County
for felony DUII and reckless driving and gave defendant
instructions to call the court with questions. It did not purport to serve the warrant.8 Nonetheless, the state took sufficient steps to serve the warrant, including promptly obtaining a warrant on July 19, the same day the indictment was
    8
      Although we do not decide whether the warrant was served the day defendant was taken into Washington custody on the warrant or after he was extradited from Washington to Oregon, we also note that, according to OECI, the warrant service return was not filed until March 17, 2017.
Cite as 

 (2021)                               481

returned; entering the warrant into local and national law
enforcement databases the following day, July 20; promptly
asking two different Washington law enforcement agencies
on July 29 to serve the warrant; and, on August 15, mailing defendant notice of the warrant. Thus, given the facts
of this case, including that MCSO was coordinating with
out-of-state law enforcement agencies to serve the warrant,
the five-month and 16-day delay was explained and reasonable. See State v. Gonzales-Sanchez, 

, 

, rev den, 

 (2012) (concluding that
the state “made sufficient efforts” to serve the warrant for
purposes of a statutory speedy trial claim where it did not
have defendant’s out-of-state mailing address and it entered
the warrant into two law enforcement databases); State v.
Green, 

, 315 n 9, 

 (1996) (noting
that the “unreasonable delay test [for determining whether
a prosecution was initiated within the statute of limitations
under ORS 131.135] is the same as the speedy trial analysis
under Article I, section 10” (internal citations omitted)); State
v. Pirouzkar, 

, 

 (1989),
rev den, 

 (1990) (determining that a seven-month
delay between the issuance of a warrant and an unsuccessful attempt to serve the warrant was not an unreasonable
delay for purposes of commencing a prosecution within the
statute of limitations period, ORS 131.135, where the state
had entered the warrant into local and national law enforcement databases two and one-half months after the warrant
issued).
         The next period of delay is January 5, 2017, the day
defendant signed the waiver of extradition, and March 16,
the day he was transported to Oregon, totaling two months
and 11 days. That period is unexplained. We recognize the
potential obstacles the state might encounter in returning a defendant who is incarcerated in another state on
local charges from that state. However, we will not assume
that those potential difficulties were, in fact, the source of
the delay. For example, it could be that the local charges
remained pending during that period and, therefore,
Washington would not agree to return defendant until the
local charges resolved. Just as likely, however, is that the
local charges resolved, and Washington was waiting for
482                                          State v. Ralston

Oregon to provide defendant’s transport. This type of delay
requires the state to carry its burden to explain the reasons
for the delay, which did not occur here. Therefore, that two
month and 11-day period is unexplained and weighs against
the state.
          The final period of delay is March 16, the day defendant was transported to Oregon, and August 18, the day of
the hearing on defendant’s motion to dismiss, totaling five
months and two days. Although the parties do not specifically address this period, the record supports a determination that that period of delay is reasonable. On March 17, the
day after defendant was transported from Washington to
Oregon, he was arraigned on the indictment, appointed an
attorney, released from custody, and given a next court date
of April 28. A next court date 42 days out is not unusually
long for a felony prosecution. See State v. Peterson, 

, 

 (2012) (noting that there
is “nothing unreasonable about a 40-day interval between
the commencement of a misdemeanor case and the setting
of a first status conference” for purposes of statutory speedy
trial). After that, OECI reflects that on March 21 defendant
filed a demand for pretrial discovery and, on April 28, defendant appeared before the court on a custody issue. Next,
defendant filed his motion to dismiss on July 25, and the
hearing on that motion occurred on August 18. Defendant
resolved his case by plea on August 29. That period of delay
is attributed to the normal steps in the criminal justice process, was not unduly lengthy, and was attributed partly to
defendant’s motion, and is, therefore, reasonable and justified. See State v. Dixon, 

, 

(2008), rev den, 

 (2009) (concluding that, for purposes of a statutory speedy trial claim, a six-month period
“arose out of routine delays,” including “one month from
indictment to arraignment, a one-month delay to appoint
substitute counsel, and a four-month delay from the first
court appearance to the first scheduled trial date”).
        Overall, three months and 11 days of the 14-month
delay, which was unexplained but not the result of any
intentional misconduct, weighs against the state. See Green,

 (determining that, although a delay of
33 months between indictment and defendant’s arrest was
Cite as 

 (2021)                                                 483

unexplained and the result of the state’s negligence, “in the
absence of intentional misconduct it [did] not weigh heavily” in the Article I, section 10, speedy trial analysis). The
remaining approximately 11-month period was explained
and the result of reasonable and justified delays. Therefore,
the reasons for the delay factor does not weigh in favor of
dismissal and, as the parties agree, defendant’s claim rests
on whether he has established a sufficient degree of prejudice to warrant dismissal. See Emery, 

(concluding that the two-year delay in bringing defendant
to trial was attributed to the state, but, because there was
no intentional misconduct, the Article I, section 10, inquiry
“turn[ed] on … whether defendant was prejudiced by the
delay”). We turn to that question.
          Prejudice. Under Article I, section 10, defendant has
the burden of demonstrating that, as a result of the delay, he
suffered one of three kinds of prejudice: “excessive pretrial
detention, anxiety and stress resulting from the public accusation of a crime, and impairment of the ability to present
a defense at trial.” Wendt, 

. Of those, “the
last is the most serious, because the inability of a defendant
adequately to prepare a case skews the fairness of the entire
system.” State v. Tiner, 

, 

 (2006),
cert den, 

 (2007). Defendant asserts the third
type of prejudice from the loss of the booking video.
        To claim that lost evidence impaired the ability to
present a defense at trial, a defendant must show a “reasonable possibility of prejudice.” Id. at 555. “However, when
the value of unavailable evidence is only speculative, the
unavailability of that evidence will not factor significantly
in the analysis.” Johnson, 

.
        Here, defendant argues that he met his burden to
show a reasonable possibility of prejudice9 because he estab-

    9
      Defendant argues that the lost video evidence is comparable to the loss of
an eyewitness. And, at one point he notes that,
    “[t]he Supreme Court has explained that, ‘[i]f a witness dies or disappears
    during the delay, the prejudice … is obvious.’ Harberts, 

 (quoting Barker v. Wingo, 

, 

, 

 (1972)).
    In any other case, the defendant ‘needs to show only that the delay caused a
    reasonable possibility of prejudice to the ability to prepare a defense.’ Id.”
484                                                        State v. Ralston

lished that the video would have been helpful to his defense.
For support, defendant points to defense counsel’s affidavit
showing that, based on her experience trying DUII cases,
which included reviewing police reports and MCDC booking
videos and using those videos at trial, the omission from
Nafie’s report of defendant exhibiting balance issues supported a reasonable inference that the video would have
been helpful. Specifically, the video would have allowed him
to refute the testimony of the officer—the state’s only witness to testify about defendant’s impairment—and create
reasonable doubt that he was impaired, which, he argues, is
sufficient to establish a reasonable possibility of prejudice.
          The state disagrees raising two main arguments.
First, it contends that defendant’s argument as to the video’s
helpfulness is based on speculation, because its content,
including its quality, is unknown. Second, the state argues
that, even if that argument is not speculative, he “could have
achieved a similar effect” rebutting the state’s evidence of
impairment by cross-examining the officer that he “made no
observations of impaired balance or walking and that such
observations are normally included in other police reports in
DUII cases.” Thus, according to the state, defendant failed
to establish sufficient prejudice justifying dismissal.
          We begin by rejecting the state’s argument that the
officer’s testimony would have been an adequate substitute
for the booking video. Although State v. Zinsli, 

, 

, rev den, 

 (1998), is based on
the Due Process Clause of the Fourteenth Amendment to
the United States Constitution and otherwise has no bearing on this case, we find it helpful in illustrating the unique
quality of video evidence. There, the defendant was charged
with DUII, and the state lost the videotape of the defendant’s FST performance. Id. at 247-48. Responding to the
defendant’s motion to dismiss based on the lost videotape,
the state had argued that the defendant could introduce his
FST performance through the testimony of the arresting

(Second internal quotation marks omitted; emphasis added.) Although defendant
otherwise agrees he must establish a “reasonable possibility” of prejudice, to the
extent he also argues there is a presumption of prejudice when a witness dies or
disappears, which should apply in this case, we reject that argument for reasons
we later explain.
Cite as 

 (2021)                                  485

officer and his report. Id. at 253. We rejected that argument,
explaining:
       “In general, the prosecution of a DUII case depends
   heavily on the opinion of the arresting officer in determining whether a defendant’s mental or physical faculties were
   adversely affected to a noticeable or perceptive degree. Here,
   in the absence of the videotape, a jury would have only [the
   officer’s] interpretation of defendant’s performance of the
   FSTs, demeanor, appearance, and speech patterns, which,
   as noted, were to some extent not noticeably affected by
   alcohol. Of course, defendant may, but does not have to, offer
   his own version of the events to rebut [the officer’s] conclusions and the Intoxilyzer results. However, defendant’s testimony is not an acceptable substitute, because defendant’s
   testimony carries the risk that the jury will view that testimony as extraordinarily self-serving, whereas that risk
   is not present in the videotape evidence. Accordingly, the
   videotape evidence is unique because it would provide
   defendant with an objective video replay of the events from
   which a jury could draw its own conclusions.”
Id. at 253-54 (internal quotation marks and citation omitted; emphasis in original).
          For similar reasons articulated in Zinsli, Nafie’s
testimony would have been an insufficient substitute for the
booking video. Here, defendant sought to prove that he was
walking without any balance or coordination issues and,
unlike cross-examining Nafie about omitting that defendant
exhibited difficulties walking in his police report, a video
showing defendant walking with proper balance would have
been affirmative evidence to establish that fact. For example, attempting to prove that defendant had no walking or
coordination issues by impeaching the officer would have
required the jury to make an intermediate inference to draw
the ultimate inference that defendant sought—that the officer omitted any mention of defendant’s balance or coordination issues because he wasn’t exhibiting any. However, the
officer could have provided an alternative explanation as to
why he omitted any mention of that in his report, including
that it was a simple oversight. And, as an adverse witness,
the officer would have had a motive to provide an alternative explanation for that omission. In that scenario, the jury
would have had to make a credibility determination whether
486                                           State v. Ralston

it believed the officer’s explanation for the omission or defendant’s explanation. However, watching the booking video
would not have required the jury to make any credibility
determinations or draw intermediate inferences to decide
whether defendant was exhibiting any balance or coordination issues. The jury could watch the video and “draw its
own conclusions.” Zinsli, 

 (emphasis in
original).
         It is also worth noting that the unique value of
video evidence in criminal prosecutions today is the reason
local law enforcement agencies across the nation are implementing, or being ordered to implement, policies requiring
body cameras to be worn by officers and dash cameras to be
installed in police vehicles. See United States Department
of Justice, The United States Attorney’s Office, District of
Oregon, Department of Justice Awards Over $500,000 to
Oregon Law Enforcement Agencies for Body-Worn Camera
Programs, Press Release (Oct 11, 2016), https://www.justice.
gov/usao-or/pr/department-justice-awards-over-500000-
oregon-law-enforcement-agencies-body-worn-camera
(accessed Mar 31, 2021) (noting that then-Attorney General
Loretta E. Lynch awarded grants to “establish and enhance
law enforcement body-worn camera programs across the
United States”); Floyd v. City of New York, 

 (SDNY 2013) (ordering the New York City Police
Department to require patrol officers in the precincts with
the highest number of stops in 2012 to wear body cameras
for one-year because body cameras “are uniquely suited to
addressing the constitutional harms at issue” in that they
“provide a contemporaneous, objective record of stops and
frisks,” which “may either confirm or refute the belief of
some minorities that they have been stopped simply as a
result of their race, or based on the clothes they wore, such
as baggy pants or a hoodie”).
         The critical facts necessary to decide many of the
legal issues in criminal prosecutions, like the lawfulness of
a stop or search, or to determine whether a defendant committed the charged crime like a DUII or resisting arrest,
often depend upon what occurred at the time of the stop.
And frequently it is only the officer and a defendant present
when the stop occurs. Video recordings, therefore, can be
Cite as 

 (2021)                            487

uniquely powerful pieces of evidence because they create “an
irrefutable record of what occurred during stops.” Floyd, 

 n 65; see State v. Merriman, 

 (Tenn 2013) (“A video recording from a patrol vehicle is unique by its very nature. No evidence comparable to
this video recording could have been obtained through other
means.”); see, e.g., Bostic v. State, 332 Ga App 604, 606-08,

 (2015) (concluding that officer did not
have probable cause to arrest defendant for DUII because a
videotape of the traffic stop, which contradicted some of the
officer’s testimony at the suppression hearing, showed that
the defendant’s gait was “steady and otherwise normal,” he
answered all of the officer’s questions, his speech was clear,
and his eyes were not bloodshot and watery).
         We turn to whether defendant established that the
lost video would have been helpful. We note, at the outset,
that the state’s characterization of defendant’s argument
regarding the video as “speculation,” simply because the video’s contents are unknown, is not helpful. When considering
lost evidence, parties are always, on some level, speculating.
This area of the law is highly nuanced—seeking to draw the
impossibly fine line between permissible and impermissible
inference.
          It is an understatement to say that a defendant
attempting to show that he suffered prejudice from evidence
that was lost or destroyed faces a seemingly impossible task,
and parties and courts are well-served by recognizing the
difficultly faced by defense counsel in these situations—
situations that, by definition, only come about when there has
been unexplained delay caused by the state. The Supreme
Court has acknowledged that difficulty, explaining that
“[p]roof of actual prejudice is often quite difficult” when a
defendant is attempting to show prejudice “where witnesses
or records have disappeared or memories have dimmed.”
State v. Ivory, 

, 

 (1977); see
Doggett v. United States, 

, 

,

 (1992) (“[I]mpairment of one’s defense is the
most difficult form of speedy trial prejudice to prove because
time’s erosion of exculpatory evidence and testimony can
rarely be shown.” (Internal quotation marks omitted.));
Barker v. Wingo, 

, 

, 

                                          State v. Ralston

2d 101 (1972) (“Loss of memory, however, is not always
reflected in the record because what has been forgotten can
rarely be shown.”); see also California v. Trombetta, 

, 

, 

 (1984) (in determining whether there has been a due process violation “[w]henever potentially exculpatory evidence is permanently lost,
courts face the treacherous task of divining the import of
materials whose contents are unknown and, very often, disputed”). To address that reality, the Supreme Court adopted
a test that requires a defendant to show a “reasonable possibility” of prejudice. Ivory, 

. Nonetheless, the
difficulty remains—precisely how does a defendant provide
nonspeculative proof that lost evidence—which is no longer
available and, therefore, impossible to know with certainty
its contents or substance—would be helpful to show a reasonable possibility of prejudice.
         In distilling the analytical rule that governs prejudice in the speedy trial context, we must acknowledge that
the decisions in this area do not always fit neatly beside one
another. It does not serve the bench or bar to pretend that
there is not tension in precedent. That tension exists here.
Nevertheless, our task is to reconcile that precedent into a
coherent rule. To that end, we turn to the following cases for
guidance.
         In Wendt, we concluded that defendant failed to
show a reasonable possibility of prejudice from the loss of
witnesses and dimmed memories. 

.
There, the defendant was charged with DUII, first-degree
manslaughter, and third-degree assault. After watching a
band perform at a bar, defendant drove home and his vehicle
collided with another car, causing the death of his passenger and injury to two victims in the other vehicle. 

.
Shortly after the incident, the state interviewed a witness
who had observed defendant in the bar and was videotaping the band, although the state never obtained the video.
Days before trial, that witness told the prosecutor that the
video had captured a conversation between defendant and
his passenger before they left the bar discussing whether
they should be driving, which was then disclosed to the
defendant. 

. Before trial, the defendant moved to
dismiss the case on speedy trial grounds, arguing that the
Cite as 

 (2021)                                   489

delay impaired his ability to present a defense because certain witnesses, who were at the bar and who his investigator had interviewed near the time of the incident, could no
longer recall certain details and could have, if their memories were not impaired, helped the investigator identify and
locate other witnesses seen on the video. Id. at 91-92.
       In rejecting defendant’s prejudice argument, we
began by summarizing two Supreme Court opinions, Tiner
and Johnson:
   “[In Tiner,] the defendant argued that a delay impaired his
   defense because a potential witness who had died during
   the delay ‘might have testified that a gun sold to [the defendant’s friend] (and transferred to [the] defendant) was of
   a different caliber than the weapon that had killed [the]
   victim.’ The court concluded that the loss of that potential
   witness did not cause a reasonable possibility of prejudice.
   In the court’s view, ‘[t]he gun-sale witness’s potential testimony was speculative’ because the defendant ‘never located
   him and, above all, never determined what he might have
   had to say.’ The Supreme Court reached the same result
   in Johnson, where the defendant argued that, because
   his aunt had died while his case was pending, he could
   not present her testimony during the penalty phase of his
   trial. The defendant acknowledged that ‘[i]t is not possible
   to know what she might have said,’ but argued that ‘it is
   highly likely that [she] would have had something kind to
   say.’ The Supreme Court concluded that speculative testimony of that sort was not enough to establish a reasonable
   possibility of prejudice.”
Wendt, 

 (citations omitted).
         We held that the defendant’s theory that the lost
witnesses would have provided favorable testimony rested on
the same type of speculation as that in Tiner and Johnson.

. Our decision there turned on materiality, or value.
We explained that the defendant “was required to point to
some evidence—something more than mere speculation—
as to the value of those potential witnesses’ testimony.”

 (emphasis in original). We continued by noting
that, despite defendant’s investigator having interviewed
several people in the bar that night, the “[d]efendant made
no showing that others (who could be seen or heard on the
490                                          State v. Ralston

video but had not yet been identified) had any interaction
with defendant on the night in question,” or had observed
him closely enough to provide relevant or helpful testimony.

. We similarly rejected the defendant’s arguments
that, had the memories of the witnesses who were in the bar
on the night of the incident and interviewed by the defense
investigator not faded, those witnesses could have provided
corroborating testimony that defendant was not impaired.

. We explained that the defendant did not provide any evidence whether those witnesses were in a position
to observe defendant or otherwise know any details related
to his level of intoxication. 

. Further, with regard
to the lost memory of those witnesses, we explained that,
because defendant did not provide any information about
what they had said previously to the investigator when
interviewed near the incident, or provide any information
about the specific facts or circumstances forgotten, “there
[was] no way to determine whether the earlier statements
are materially different—and more beneficial to defendant’s
case—than their statements[.]” 

         Harberts came to the opposite conclusion. In that
case the defendant was charged with aggravated murder
and, after being held in jail for five years between his arrest
and trial, he was convicted and sentenced to death. 

. The defendant lived with the victim’s father, the
father’s girlfriend, and the victim. On the night of the murder, while everyone was asleep in the house, the defendant
claimed that he found the victim’s body lying on the bathroom floor when he awoke to use the bathroom. 

 No direct
evidence linked the defendant to the crime, and his theory
at trial was that the victim’s father had killed the victim,
either alone or with his girlfriend. 

.
         The defendant claimed that he was prejudiced from
the delay in two ways. First, the father and his girlfriend’s
testimony at trial in 1994 regarding details of the night of
the murder were inconsistent with their statements near the
time of the murder in 1989, and they claimed that they could
not remember what they had told the police because too much
time had passed. 

. The defendant argued that
the passage of time had provided them both with a “plausible excuse” for not remembering what they had told the
Cite as 

 (2021)                                              491

police, which undermined his ability to impeach their credibility with prior inconsistent statements. The court agreed,
concluding that it “is not speculative to say that successfully
impeaching their credibility could have established some
doubt about whether the police properly had eliminated the
father and the father’s girlfriend as suspects.” Id. at 95.
         Second, defendant argued that he was prejudiced
by not being allowed to cross-examine the investigator who
had died during the delay about “how thoroughly he had
searched the [father and his girlfriend’s] bedroom, what he
saw, or whether [the investigator] could have overlooked evidence in the bedroom that would have created a reasonable
doubt that defendant had killed the victim.” Id. at 95-96.
In concluding that defendant had established a reasonable
possibility of prejudice, the court emphasized that the investigator had “unique knowledge” of the bedroom because he
was the only detective who searched it, and his report failed
to describe the extent and nature of the search. Id. at 96-97
(internal quotation marks omitted). The court noted that
the “defendant was not required to show that [the investigator] would have said anything exculpatory. It is sufficient
that defendant was deprived of the opportunity to demonstrate potential weaknesses in the state’s case.” The court
concluded that the defendant’s “impaired ability to impeach
the credibility of the father and the father’s girlfriend, and
his inability to cross-examine [the investigator], created a
reasonable possibility of prejudice to the defense.” Id. at 97.
         Similarly, in Ivory, the Supreme Court concluded
that defendant had shown a reasonable possibility of prejudice from the loss of witnesses.10 

. In that
case, the defendant was secretly indicted for selling narcotics 10 and one-half months before he was arrested. At the
hearing on his motion to dismiss, the defendant testified
    10
       The state argues that Ivory is of questionable continuing validity because
the Supreme Court modified Ivory’s adoption of the federal speedy-trial analysis
in Barker. See Harberts, 

 (“Although this court endorsed the Barker
analysis in Ivory, it subsequently acknowledged that not all the Barker analysis
is appropriate for evaluating claims under Article I, section 10,” including that
a defendant is no longer required to demand a speedy trial.). Nonetheless, it
is undisputed that the remaining Barker factors adopted in Ivory remain the
Article I, section 10, speedy trial test in Oregon, and we therefore reject that
argument.
492                                                        State v. Ralston

that there were three missing witnesses who were “vital to
his defense of entrapment.” Id. at 501-02. He asserted that
one witness could testify to the contents of the initial conversation the defendant had with a police agent, which would
show the defendant’s “lack of predisposition” to sell the
drugs; a second witness, who was working with the police,
could testify that he solicited the defendant to sell cocaine
on several occasions over an extended period of time; and
a third witness, who was a dealer, would testify that the
defendant was not a dealer and did not profit from the conduct involved in the charged crime. Id. at 502.
         On appeal, we had concluded that the defendant’s
claim as to what the witnesses would say was “conclusory
and nonfactual.”11 Id. The Supreme Court reversed, holding that the defendant had shown a reasonable possibility
of prejudice by identifying “potentially favorable witnesses
who could not be found” due to the delay. Id. at 508-09. The
court stated that “ ‘[i]f witnesses die or disappear during a
delay, the prejudice is obvious.’ ” Id. at 508 (quoting Barker,

).
          We recognize the confusion that Wendt, Tiner,
Johnson, Harberts, and Ivory may present in determining
what a defendant must show to establish a reasonable possibility of prejudice to the impairment of the defense from
lost evidence. For example, the extent of the defendant’s
showing in Harberts was producing potential questions to
ask the investigator regarding the search of the bedroom.
However, nothing in the record established that the investigator’s search of the bedroom would have supported the
defendant’s theory that the investigation was inadequate or
that the answers to those questions would have been helpful
to the defendant. Similarly, in Ivory, although the defendant
presented some evidence by way of his testimony, the extent
of his showing otherwise included an assertion that one witness, who was presumably present during the defendant and

    11
       We had also concluded that it was unlikely that the third witness would
waive his privilege against self-incrimination and provide the testimony the
defendant expected, which the Supreme Court generally agreed with. However,
it ultimately concluded that there was nothing in the record establishing that
the third witness was in a position to invoke that privilege. Ivory, 

& n 1.
Cite as 

 (2021)                               493

officer’s initial drug transaction, would have corroborated
the defendant’s theory that he had a lack of predisposition to
sell drugs. However, the defendant did not explain or point
to anything in the record to show, for example, who that
witness was and why it was more likely the witness would
have supported the defendant’s version of events and not the
officer’s. Further, Ivory’s statement that “[i]f witnesses die or
disappear during a delay, the prejudice is obvious,” 

 (internal quotation marks omitted), suggests that the
court applied a presumption of prejudice when witnesses die
during a delay, which the court in Johnson and Tiner made
clear is not the standard.
          Reconciling that varied precedential landscape, we
distill the following: First, prejudice in the context of speedy
trial is not binary; there are degrees of prejudice. See Wendt,

 (explaining that, for purpose of determining prejudice under Article I, section 10, the controlling
question is whether a defendant “established a degree of
prejudice that, when evaluated together with the reasons
for delay and the length of pretrial incarceration, warrants
dismissal” (emphasis in original; internal quotation marks
omitted)); see also Barker, 

 (None of the factors
are “a necessary or sufficient condition to the finding of a
deprivation of the right of [a] speedy trial. Rather, they are
related factors and must be considered together with such
other circumstances as may be relevant.”).
          Second, the possibility of prejudice is judged by
assessing two parallel sliding scales: probability and materiality. For probability, a defendant must provide an explanation as to how the lost evidence would be favorable. See
Emery, 

 (concluding that the defendant failed
to show a reasonable possibility of prejudice because he did
“not explain specifically how his ability to defend himself
was prejudiced by the faded memories” of witnesses). For
materiality, there must be something in the record, based
on the specific facts of each case, to support the defendant’s
theory that the lost evidence would have been helpful to the
theory of the case, in the context of how the evidence was
presented at trial. See 

 (“Defendant offered no evidence to show how the witness could have assisted him in
preparing his defense.”).
494                                          State v. Ralston

         Third, both probability and materiality are judged,
in degree, according to the totality of the circumstances
of the specific facts of each case. See Bayer, 

 (concluding that the defendant had failed to establish
a reasonable possibility of prejudice from the officer’s faded
memory because, even if the officer had testified to what
the defendant had hoped, “it could not have had a bearing
on the success of defendant’s suppression motion” because
the court had already determined the stop was lawful); see
also Johnson, 

 (“[T]he inference that defendant
seeks to draw from the fact that he possessed other stolen
property for trade—i.e., that he came into possession of the
victim’s jewelry as a result of trafficking in stolen property—
seems somewhat strained in light of defendant’s statement
to [a witness who testified at trial] that he came into possession of the jewelry as a result of ‘off[ing] the bitch.’ ”).
         Although direct evidence of the lost evidence’s value
will rarely be available, it is possible for defendants to meet
their burden by producing or pointing to evidence already in
the record showing circumstantially how and why the lost
evidence would be material. See, e.g., Wendt, 

 (noting that, although the defendant claimed the lost
witnesses could provide corroborating testimony that defendant was not intoxicated and thus not DUII, the defendant
did not explain whether those witnesses “were in a position
to notice” details about the defendant’s level of intoxication,
including whether the two bartenders had any interaction
with the defendant); State v. Whitlow, 

, 345-
48, 

 (2014) (for purposes of establishing prejudice
from preindictment delay under the Due Process Clause, the
record established the substance of the detective’s missing
testimony because it contained the detective’s report of the
interview of the victim regarding the abuse, and the victim’s
testimony from the first trial which included incidences of
abuse not contained in the detective’s report; thus, it was
inferable and “hardly ‘speculative’ to assume that an experienced detective would confirm the thoroughness of his
or her interview with the complainant in a sexual abuse
investigation and the comprehensive accuracy of the consequent investigative report”); Zinsli, 

(concluding that the record established that the lost video
Cite as 

 (2021)                           495

of the defendant’s FST performance would have been helpful for purposes of a due process violation where the officer
testified that “he formulated his descriptions [in his police
report] of defendant’s performance of the FSTs from the
lost videotape,” which included notations that the defendant performed satisfactorily on some of the FSTs). In sum,
defendants must “point to some evidence [in the record]—
something more than mere speculation,” to meet their burden to establish a reasonable possibility of prejudice from
lost evidence. Wendt, 

.
         Applying those principles here, we conclude that
defendant did not carry his burden to establish prejudice. Beginning with probability, on this record, defendant
showed that there was at least some probability that the
missing evidence would be favorable. Defendant presented
evidence that the police report did not contain any description of defendant exhibiting poor balance or difficulty walking, which defense counsel frequently sees noted in police
reports describing impairment. And, defendant presented
evidence that defense counsel has obtained and used prior
booking videos from MCDC in prior DUII trials and that
those videos demonstrate a defendant’s ability or inability
to walk and perform coordination tasks like standing on one
foot and removing a shoe while maintaining balance, which
the trial court found as fact. Further, defendant established
that he was booked into MCDC approximately two hours
after he was stopped, and that there were at least five cameras digitally recording the booking area. Defendant therefore believed that the booking video was more likely to show
defendant walking with good balance and coordination,
which we conclude, based on that evidence, is a reasonable
inference. Further, the value of a booking video showing
defendant performing various balance and coordination
tasks only two hours after being pulled over in a DUII
prosecution, where the only other evidence of impairment
derives from a single witness, could be powerful impeachment evidence.
         However, defendant’s showing as to the materiality of the missing evidence is complicated by the posture of
this case—arising from a plea. For some evidence, materiality is self-evident. But for other evidence, even favorable
496                                             State v. Ralston

evidence may be only minimally material to the dispute,
depending on how a case is tried. Here, the materiality of
the video is, on some level, relative to how the officer would
testify concerning the missing observations in his report. In
short, underlying at least one aspect of defendant’s prejudice
argument is that the video would have had an impeachment
value against the officer’s testimony. But that assumes how
the officer would have testified. It is equally possible the officer would have admitted the inaccuracies, or inconsistencies, in his report. Because this case was resolved via guilty
plea, the record does not contain evidence about the officer’s
testimony. Defendants who raise a speedy trial motion pretrial, then resolve the case with a plea, add an additional
complexity to their already difficult task of establishing
prejudice—showing the materiality of evidence never seen,
to a trial that never happened.

         Similarly, because materiality can sometimes only
truly be known in the context of a tried case, not every
speedy trial motion can be resolved conclusively pretrial.
Certainly, in some instances, all the factors can be shown
pretrial, but, in other circumstances, a court may not be
able to assess materiality until after the close of the state’s
case. Accordingly, it may be necessary for a trial court to
defer ruling on a speedy trial motion, or for prudent defense
counsel to reraise the motion at the close of the case in
chief.

         Additionally, defendant’s showing as to the materiality of the missing video here is complicated by another
fact that we must consider in the totality of circumstances.
Defendant, who was represented by the same law office
throughout his case, was willing to enter a guilty plea
five days after his arrest without having viewed the booking video. Defendant’s willingness to enter a plea without
having viewed the video is part of the totality, and weighs,
in some measure, against claims of the video’s materiality. Regardless of the video’s potential exculpatory value,
defendant’s willingness to enter a guilty plea suggests that
defendant didn’t view the video as sufficiently exculpatory.
Although that fact is not dispositive, it’s relevant and one
that we cannot ignore in this case.
Cite as 

 (2021)                             497

         In sum, in this case we are dealing with a relatively
small period of unexplained delay. While there is some probability the missing evidence was favorable, whether that
missing evidence can be shown to be material is uncertain.
Although the length of the delay weighs against the state,
the remaining factors do not, because the reasons for the
delay were not intentional and otherwise reasonable and
justified, and defendant failed to establish a reasonable
possibility of prejudice. Therefore, defendant’s speedy trial
rights under Article I, section 10, were not violated.
         We turn to defendant’s second assignment, in which
he argues that the trial court erred in imposing a $2,255
fine in the judgment after orally imposing a $2,000 fine at
sentencing. As the state acknowledges, defendant was not
required to preserve his claim of error because the error
appeared for the first time in the judgment. State v. Lewis,

, 

, rev den, 

 (2010)
(preservation not required where alleged error appeared
for the first time in the judgment). Further, we agree with
and accept the state’s concession that the trial court erred.
See State v. Zamno, 

, 271, 

 (2019)
(accepting the state’s concession that the trial court erred in
orally imposing a $2,000 fine at sentencing and then imposing a $2,260 fine in the judgment). Accordingly, we vacate
the portion of the judgment imposing the $2,255 “Fine-DUII” and remand for resentencing. See id. at 271-72 (vacating portion of judgment requiring the defendant to pay a
$2,260 DUII fine when court imposed a $2,000 DUII fine at
sentencing and remanding for resentencing).
         Portion of the judgment requiring defendant to pay
a $2,255 DUII fine vacated; remanded for sentencing; otherwise affirmed.