168 February 20, 2025 No. 134
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL THOMAS CLICK,
aka Daniel Click,
Defendant-Appellant.
Columbia County Circuit Court
19CR11019; A178686
Ted E. Grove, Judge.
Argued and submitted June 17, 2024.
Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission. Daniel T. Click filed the supplemental
brief pro se.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Linder,
Senior Judge.*
LINDER, S. J.
Reversed and remanded with instructions to enter a
single judgment of conviction; remanded for resentencing;
otherwise affirmed.
______________
* Linder, S. J., vice Jacquot, J.
Nonprecedential Memo Op: 338 Or App 168 (2025) 169
LINDER, S. J.
Defendant was convicted of two counts of sexual
abuse in the first degree arising from acts he committed
against his daughter. On appeal, defendant raises seven
assignments of error, four through counsel and three pro se.
We accept the state’s concession that the trial court erred by
failing to merge the guilty verdicts on the two counts. We
accordingly reverse and remand with instructions to enter
a single judgment of conviction and for resentencing. We
otherwise affirm.
The charges in this case arose after defendant had
sexual contact with his 12-year-old daughter in the garage
of their home. In interviews with school and law enforcement authorities, the victim described two sexual contacts
with defendant during which defendant ejaculated. Some of
the ejaculate got on the victim’s hand, which she wiped on
defendant’s jacket. The victim described the jacket and also
drew a map of the garage showing two spots where defendant’s ejaculate fell to the floor. A police officer searched the
garage, seized the jacket, and sampled two spots on the floor
in locations matching the victim’s map. DNA from sperm
cells on both the jacket and the garage floor samples matched
defendant’s DNA. DNA from the epithelial cells in the samples matched the victim’s DNA as well as defendant’s, with
defendant as the major contributor and the victim a minor
contributor to the DNA.
Sanction for Discovery Violation. Defendant,
through counsel, first challenges the trial court’s denial of
his motion to dismiss with prejudice for a discovery violation by the state. The issue arose when, a few days before
trial, the state moved for a continuance, explaining that it
had learned of a pending internal investigation into a police
officer who would be a witness in defendant’s case. The state
expected the investigation to result in exculpatory evidence
in defendant’s and other defendants’ cases. The investigation would not be completed, however, until after the scheduled date for defendant’s trial. By then, the charges against
defendant had been pending for two years due to defendant’s
request for a continuance, followed by the COVID-19 pandemic. Defendant opposed the state’s motion and moved to
170 State v. Click
dismiss with prejudice for a discovery violation, suggesting
that the state’s motion was a pretext to gain time because of
the victim’s possible recantation. The trial court granted the
continuance, satisfied with the state’s representation of why
it was asking for the continuance. The court did not rule on
defendant’s motion to dismiss at that time.
The trial was rescheduled to the first available
court date when defendant’s expert could appear, a postponement of nearly a year. The trial court waited to resolve
defendant’s motion to dismiss until the state completed the
investigation. The investigation resulted in multiple charges
against Officer Gainer—the officer who had collected the
DNA evidence in defendant’s garage. The charges all related
to his handling and disposing of drug evidence. The state
provided defendant with full discovery from the investigation. Because the state determined that Gainer’s alleged
misconduct did not affect the evidence in defendant’s case,
it continued to pursue the charges against defendant. The
rescheduled trial date was still months away.
Once the investigation was completed, the trial court
held a hearing on defendant’s motion to dismiss. The parties
disputed whether the state violated its discovery obligations
and, if so, the appropriate sanction. The trial court concluded that the state had committed a discovery violation
by not disclosing the existence of the pending investigation
as soon as it had notice of it. The trial court found, however,
that the state did not act in bad faith and that the violation
resulted in “little to no” prejudice to defendant. The trial
court therefore declined to impose a severe sanction of dismissing the case with prejudice or, alternatively, excluding
Gainer’s testimony. Instead, the trial court censured the
state by warning it to timely disclose all potentially exculpatory evidence to defendant. Defendant challenges the trial
court’s resolution, arguing that the trial court erred in its
assessment of prejudice, and therefore abused its discretion
in not ordering a harsher sanction of dismissal or exclusion
of Gainer’s testimony.
In State v. Dyson, 292 Or 26,
636 P2d 961 (1981),
the Supreme Court recognized two kinds of harm that
can warrant a sanction for a discovery violation. The first
Nonprecedential Memo Op:
338 Or App 168 (2025) 171
is “prejudice,” which the court used to refer specifically to
harm to a party’s inability to prepare in advance for trial
and to avoid surprise during trial. Id. at 35-36. Even in the
absence of prejudice, however, a trial court has discretion to
impose a sanction for a discovery violation that frustrates
“efficient judicial administration.” Id. at 36. Dyson involved
harm of that second kind. There, the prosecutor had ignored
the defendant’s discovery requests until a few days before
trial and then contended that the only proper remedy would
be to postpone the trial. Id. The Supreme Court held that,
even though the defendant in Dyson was not prejudiced—
that is, not harmed in his ability to prepare for trial—the
trial court had discretion to dismiss the charges in the
interest of efficient judicial administration given the prosecutor’s deliberate discovery violation and his “history of
noncompliance with court rules and court directives.” Id.;
see also State v. Kull,
298 Or 38, 42-44,
688 P2d 1327 (1984)
(trial court’s supervisory authority to ensure that discovery
proceeds properly and expeditiously includes broad discretion to sanction noncompliance with court orders).
Defendant’s claim of harm in this case likewise
falls into Dyson’s second category—harm to efficient judicial
administration. Relying on Dyson, defendant argued below
that the state’s reason for seeking a continuance was a “subterfuge” and that, in fact, the state was not ready for trial
due to concerns that the victim might recant. Defendant
asserted that the state had strategically waited until the
“eve of trial” to disclose the existence of the pending Gainer
investigation to gain time to deal with its witness issues.
Earlier disclosure of the Gainer investigation, defendant
maintained, would have allowed his team to independently
investigate the suspected misconduct and defendant could
have been ready to go to trial without a continuance.
Defendant had received full discovery when the investigation was complete and did not assert any prejudice to his
ability to prepare for trial. Instead, the harm that he relied
on below, and reasserts on appeal, is the additional one-year
delay of the trial, during which defendant remained subject
to the conditions of his release and the charges against him
remained unresolved.
172 State v. Click
In essence, defendant’s premise was at trial and
remains on appeal that, but for the state’s discovery violation, the trial would have gone forward without a further set
over. That premise, however, depended on defendant’s claim
of bad faith, which the trial court rejected, and defendant no
longer asserts. In rejecting defendant’s bad faith claim, the
trial court found that the state delayed advising defendant
of the pending investigation due to its concern that disclosure would compromise the investigation, a concern that the
trial court considered “correct” but that a protective order
would have addressed. The trial court further found that,
when the state sought the continuance, the state’s knowledge about Gainer’s “alleged wrongdoing was limited.” The
trial court determined that, regardless of whether earlier
disclosure would have led defendant to be ready to proceed
to trial without a continuance, the state would have needed
additional time to complete the investigation into Gainer’s
misconduct so that it could provide full discovery and not go
to trial on “false evidence.”1 See Tiner v. Premo, 284 Or App
59, 71,
391 P3d 816 (2017), rev den,
361 Or 886 (2017) (conviction on evidence that prosecution knows or should have
known to be false violates federal due process; citing cases).
Thus, as the trial court found the facts, the state’s
discovery violation was not the cause of the trial’s postponement. See State v. Pilon, 321 Or App 460, 473,
516 P3d 1181
(2022) (in discovery context, appellate court defers to trial
court’s findings of predicate facts; prejudice or other harm
is a question of law). The trial court granted the continuance to allow the state time to complete its investigation,
to determine and disclose all related exculpatory evidence,
and to decide whether to proceed with defendant’s prosecution. Because the discovery violation did not cause the harm
1
Defendant argues that the trial court second-guessed defense counsel’s
trial strategy by discounting defendant’s argument that, if the state had given
defendant notice of the investigation sooner, “any information provided, even if
incomplete, would have allowed his defense team to begin its own investigation.”
See State v. Pilon, 321 Or App 460, 475,
516 P3d 1181 (2022) (trial court should
not substitute court’s judgment for counsel’s regarding trial strategy, especially
on the import of new evidence). That argument misses the mark. The trial court
accepted that the defense, if it had been advised of the pending investigation
sooner, might have been willing to go to trial without a reset. The trial court’s
point was that the state’s legitimate need for a continuance would have resulted
in a reset of the trial just the same.
Nonprecedential Memo Op:
338 Or App 168 (2025) 173
to “efficient judicial administration” that defendant relies
on, the trial court exercised sound discretion by neither dismissing the charges nor excluding Gainer’s testimony as a
sanction. See State v. Biggs,
331 Or App 314, 322,
545 P3d
193 (2024) (trial court’s ruling on appropriate discovery violation sanction is reviewed for abuse of discretion).
Exclusion of Specific Charges Against Gainer. At
trial, Gainer was called as a witness to describe his search
of defendant’s home and the evidence that he had collected
there. On cross-examination, the defense established that
Gainer was currently under indictment on 12 charges brought
by the same District Attorney’s Office pursuing defendant’s
prosecution. When the defense asked if six of the charges
were for official misconduct, the state objected on relevance
grounds. In response, defendant argued that the names of
the charges were relevant to show that Gainer might not
have followed protocols for gathering evidence or might have
tampered with the evidence. The trial court agreed that the
pending charges were relevant to bias and motive because
they gave the officer a reason to cooperate with the prosecution. The trial court concluded, however, that identifying the
specific charges to show Gainer’s character for mishandling
evidence and that he conformed to that character in investigating this case would constitute inadmissible bad acts (i.e.,
propensity) evidence against a third-party witness. The trial
court therefore sustained the objection.
On appeal, in his counsel’s second assignment of
error, defendant challenges the trial court’s ruling, arguing
that the specific charges would have permitted the factfinder
(here, the trial court) to conclude that Gainer could not be
trusted to handle evidence and was not honest in his testimony. We agree with the trial court that relevance for that
purpose would require a propensity inference—i.e., Gainer
mishandled and was deceptive in handling drug evidence in
the past, therefore he mishandled and was deceptive in handling DNA evidence in this case. That inference may be questionable given the different nature of the evidence involved.2
But even if that inference logically follows, the evidence was
2
The inference is especially questionable given the suggestion in the record
that Gainer’s handling of drug evidence (Oxycodone) may have been due to his
addiction to pain medications.
174 State v. Click
not admissible for that purpose. See OEC 404(3) (“Evidence
of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show that the person acted
in conformity therewith.”). The trial court did not err.
Merger of guilty verdicts. Defendant’s third assignment of error, made through counsel, challenges the trial
court’s failure to merge defendant’s two guilty verdicts into
a single conviction. Defendant argues, and the state concedes, that the state failed to establish a sufficient pause
between the two acts of sexual contact that formed the basis
for defendant’s convictions. See ORS 161.067(3) (separate
convictions involving same crime and same victim require
pause in defendant’s conduct sufficient for defendant to
renounce criminal intent). Having reviewed the record, we
conclude that the state’s concession is well taken. We therefore reverse and remand with instructions to merge the verdicts by entry of a single judgment of conviction.
Remaining Assignments of Error. We resolve
the remaining assignments of error more summarily.
Defendant’s fourth assignment of error made through counsel challenges the 75-month sentence imposed by the trial
court as unconstitutionally disproportionate. We do not
reach that issue in light of our remand to merge the guilty
verdicts, which requires resentencing. We decline to reach
defendant’s first pro se assignment of error challenging his
pretrial release conditions because his claim is unpreserved,
even assuming that it is not moot. Defendant’s second pro
se assignment of error challenges the trial court’s exclusion of certain hearsay evidence. To the extent defendant’s
arguments are preserved, we find no error. On defendant’s
third pro se assignment of error, we conclude that the trial
court did not err in denying defendant’s motion to dismiss
on speedy trial grounds.
Reversed and remanded with instructions to enter
a single judgment of conviction; remanded for resentencing;
otherwise affirmed.
