State v. Boettcher

No. 216               March 12, 2025                     783

   This is a nonprecedential memorandum opinion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.
            DEAN CHRISTIAN BOETTCHER,
                  Defendant-Appellant.
             Clackamas County Circuit Court
                  16CR67746; A172854

   Katherine E. Weber, Judge.
   Argued and submitted April 12, 2024.
   George W. Kelly filed the opening brief.
   Frances J. Gray argued the cause and filed the reply brief
for appellant.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Dean Christian Boettcher filed the supplemental briefs
pro se.
  Before Shorr, Presiding Judge, Lagesen, Chief Judge,
and Pagán, Judge.
   PAGÁN, J.
   Affirmed.
784                                                    State v. Boettcher

          PAGÁN, J.
          Defendant was convicted of one count of murder
under ORS 163.115 (2016), amended by Or Laws 2019 ch 634,
§ 28 (2019).1 On appeal, defendant raises seven assignments
of error and numerous pro se arguments. For the reasons
that follow, we affirm.
          In his first assignment of error, defendant contends
that the trial court erred in denying his motion to dismiss on
the ground that the trial court failed to follow proper procedures at his arraignment. Specifically, defendant contends
that the trial court erred in denying defendant’s motion to
dismiss because defendant (1) appeared at his arraignment
without an attorney and (2) was not handed a copy of the
indictment nor read the indictment in violation of several
statutes governing arraignments.2
          ORS 135.010 provides that a defendant is to be
arraigned “[w]hen the accusatory instrument has been
filed … or as soon thereafter as the defendant may be
arrested[.]” “The arraignment consists of reading the accusatory instrument to the defendant, causing delivery to the
defendant of a copy thereof … [and] asking the defendant
how the defendant pleads to the charge.” ORS 135.020.
          Pursuant to ORS 135.380(2), a defendant may plead
guilty at “arraignment or any time thereafter.” However,
under ORS 135.380(3), if a defendant elects not to enter a
plea, “the defendant shall be considered to have entered a
plea of not guilty.” And under ORS 131.035, no error in the
form or mode legally prescribed for a criminal proceeding
“renders it invalid, unless it has prejudiced the defendant in
respect to a substantial right.”
          The state concedes—and we agree—that after
defendant’s arrest on the murder charge, he appeared at
an arraignment where certain arraignment procedures
did not take place. However, even assuming defendant was

    1
      ORS 163.115 has been amended since defendant’s arrest and prosecution.
Those amendments do not affect our analysis.
    2
      We note that in another opinion recently issued, State v. Pederson, 

, ___ P3d ___ (2025), we addressed the constitutional right to counsel
at an arraignment. However, defendant does not raise any constitutional arguments in this case, so we do not consider them.
Nonprecedential Memo Op: 

 (2025)                             785

unrepresented,3 defendant has not shown that any error
at his arraignment caused him prejudice warranting dismissal. See Barnes v. Cupp, 

, 

, rev den, 

 (1980), cert den, 

 (1981)
(concluding that “[n]oncompliance with the arraignment
statute … does not automatically result in a denial of due
process”).
         To the contrary, as the trial court found, the record
demonstrates that defendant was aware of the charge
against him, had been previously informed of his Miranda
rights, and that he had read the search warrant.4 In a
recorded jail call made after the arraignment, defendant
discussed what happened and explained that “the indictment was for one count of murder” and noted that he needed
to confer with a lawyer before he could intelligently enter a
plea. Defendant was appointed counsel four days later, and
the state promptly provided discovery to the defense which
included a copy of the indictment. Defendant said nothing
incriminating during the arraignment and the trial court
did not take a plea. Defendant eventually pleaded not guilty
and went to trial to oppose the murder charge years later.
In sum, defendant was aware of the charge, his rights to
counsel and to silence, and he understood the importance of
his right to counsel. Thus, he failed to demonstrate any prejudice, and the trial court did not err in denying his motion
to dismiss.
        In his second assignment of error, defendant contends that the trial court abused its discretion in denying
his September 20, 2019, motion for a continuance because
he needed additional time for a defense expert to determine whether the state toxicologists had followed proper
    3
      Despite defendant’s contention that he was unrepresented at the arraignment, evidence in the record indicates that an attorney was present who conferred
with defendant and waived reading of the indictment on defendant’s behalf.
    4
      Defendant suggests that he was not aware of the nature of the charge
against him because the statute under which he was arraigned, ORS 163.115,
states the crime of second-degree murder, and he was only informed that he
had been charged with murder. But in 2016, when defendant was committed the
crime, that statute only set forth the crime of murder. See ORS 163.115 (2016),
amended by Or Laws 2019 ch 634, § 28 (2019). That statute was amended to create the new crime of second-degree murder in 2019, three years after defendant
committed the charged offense and was arraigned. Id. Thus, defendant was correctly informed of the charge against him.
786                                        State v. Boettcher

procedures and protocols when they determined that the
victim did not have any intoxicants in his blood stream
when he died.
         Whether the trial court’s denial of a defendant’s
motion for continuance was an abuse of discretion “depends
on the particular circumstances of the case and the reasons
presented to the court at the time the request is denied.”
State v. Ferraro, 

, 

 (2014).
An abuse of discretion occurs when the court’s decision is
“not justified by and clearly against the evidence and reason.” Combs v. Baldwin, 

, 

(1999) (citing Lutz v. State of Oregon, 

,

 (1994)).
         Here, defendant argues that he needed additional
time for a defense expert to review the testing procedures
used by the state toxicologist to challenge the test results
indicating that the victim was not under the influence of
any substances. However, it was not beyond reason for the
trial court to decline to continue the trial on that basis. As
the state points out, at the time of defendant’s motion, the
case had already been pending for close to three years. In a
discovery request filed in June 2019, defendant included a
passage requesting “all chemical testing performed by the
state herein to date, the methodology and testing procedures
used and the protocols of the testing processes.” Defendant
received that information from the state on September 17,
2019. However, it is undisputed that the state provided
defendant the results—indicating that the victim was not
under the influence when he died—long before that. Yet,
defendant waited until June 2019 to make a vague request
for testing process information.
         Moreover, defendant cannot show that he was prejudiced by the denial of his motion for a continuance, and we
will not overturn the denial of such a motion unless the defendant demonstrates prejudice. See State ex rel Dept. of Human
Services v. K. C., 

, 

, rev den,

, 

 (2009) (concluding that the juvenile’s
court’s denial of the mother’s motion for a continuance was
not prejudicial because the substance of the doctor’s testimony
was highly speculative). Here, defendant has not demonstrated
Nonprecedential Memo Op: 

 (2025)                            787

that he suffered prejudice as a result of the trial court’s denial
of his motion. Defendant states only that “had defendant been
able to challenge the accuracy of the test, it would have made
it more likely that the jury believed defendant rather than [an
eyewitness].” But he offers no explanation as to why. Given the
age of the case and the absence of any non-speculative showing that defendant would be disadvantaged, the trial court did
not abuse its discretion.
         In defendant’s third assignment of error, he contends that the trial court abused its discretion when it denied
his October 21, 2019, motion to continue because he needed
additional time to retain an expert to review recently discovered evidence of the victim’s mental health problems.
         During defendant’s trial, after voir dire was completed, the state informed defendant that it had recently
learned from the victim’s mother that the victim suffered
from a series of physical ailments and had been receiving
disability benefits. Upon learning this information, defendant asked for and was granted a continuance until October
15, 2019. On October 14, the parties appeared before the
court and reported that the records indicated that the victim had self-reported at a detox facility that he suffered
from bipolar disorder and PTSD.
         Thereafter, on October 21, 2019, defendant again
moved for a continuance, arguing that the continuance was
necessary because the records suggested that the victim
had been repeatedly hospitalized for bipolar disorder and
had been diagnosed with antisocial personality disorder.
Defendant asserted that, as a result of this new information,
the defense needed time to further investigate the victim’s
mental health diagnoses and obtain an expert who could
potentially testify. At the subsequent hearing, the trial court
denied defendant’s motion given the age of the case, ruling
that the victim’s medical history had been “readily accessible” all along and that the defense could have obtained it
far earlier through timely investigation in support of defendant’s self-defense claim.5

   5
    Specifically, the court stated:
       “As previously indicated, this is not a discovery violation by the State.
   All the information that the parties have obtained in the past ten days could
788                                                       State v. Boettcher

         Defendant now challenges that ruling, arguing that
the trial court abused its discretion because defendant did
not have a reason to believe that potentially helpful information for his self-defense claim existed in the victim’s mental
health records until the victim’s mother informed the state
about the victim’s disabled status.
         However, defendant has not meaningfully addressed
the trial court’s conclusion that the victim’s medical records
were readily available and that there was no reason for
defendant not to have sought them while investigating his
self-defense claim.
As the trial court noted, there was no discovery violation by
the state, and defendant had three years between the indictment and the trial to investigate aspects of the victim—
who was known by defendant to have resided in a home for
those recovering from addiction—that could have assisted
defendant in his self-defense theory. Given defendant’s late
realization that he wanted to investigate the victim’s mental health, the trial court could reasonably conclude that
delaying the trial after the jury was selected and sworn was
unwarranted, particularly given the age of the case and the
history of defense delays. See State v. Hug, 

, 

, rev den, 

 (2003) (trial court
may consider “the need of the public and all defendants for
expedition in the court system” in deciding whether to grant
a continuance request).
        In any event, any error was harmless because
defendant stabbed the unarmed victim approximately 19
times, eyewitnesses saw defendant initiate the assault, and
   easily have been obtained through investigation into the defense’s self-defense claim.
       “It’s all been very easily accessible for both parties, as shown by the
   records that have obtained over those past ten days. And it’s not a basis to
   reset the case.
       “Furthermore is the speedy trial issue. This is a very old case and there
   have been repeated requests to reset this case made by the defense with
   counsel.
       “There have been repeated waivers of speedy trial and … despite all
   those previous knowing, voluntary and intelligent waivers, the defense filed
   and argued a lengthy motion to dismiss based on the lack of speedy trial in
   this case. As a result, given the age of the case and the history of the case, the
   motion to … reset must be denied.”
Nonprecedential Memo Op: 

 (2025)               789

defendant made a series of incriminating statements. Given
that evidence, there is little reason to suggest that testimony about the victim’s mental health diagnoses would have
affected the verdict. See State v. Davis, 

, 

 (2003) (Oregon’s constitutional test for affirmance
despite error consists of a single inquiry: “Is there little likelihood that the particular error affected the verdict?”).
         In defendant’s fourth, fifth, and sixth assignments
of error, he contends that the trial court erred by limiting
the scope of his inquiry into the witness’ drug treatment
and mental health histories to the 20-day period of time
surrounding the charged incident. Specifically, defendant
contends that the complexity of the case required defense
counsel to thoroughly investigate the background of the
witnesses that were present in the residence at the time of
the incident and that the request he made for their medical
information over “the last ten years” was reasonable and
appropriate.
        ORS 136.580 and ORS 136.567 authorize the court
to issue subpoenas for witnesses and for those witnesses
to bring material with them to a proceeding “at which the
material may be called for as evidence.” State v. Cartwright,

, 

 (2004). In exercising its authority, the trial
court cannot violate a criminal defendant’s right under the
subpoena statutes to compel witnesses to attend trial and
to produce documentary materials. 

. When a
party subpoenas a witness to bring material to the courtroom so that it is available for trial, the trial court must
enforce the subpoena “unless it is clear that the material or
testimony has no potential use at trial.” State v. Bray, 

, 

 (2018) (citing Cartwright, 

) (emphasis omitted).
          However, a defendant’s right to use a subpoena to
produce evidence at trial is constrained by two primary limitations: relevance and privilege. See State v. Bray, 

, 

 (2016), aff’d, 

 (2018). And
here, defendant has not shown that the witnesses’ treatment
and mental health histories outside the window prescribed
790                                        State v. Boettcher

by the court would reveal any information relevant for their
cross-examination. Defendant argues that the ability of an
individual to accurately recall or describe events cannot be
accurately captured in a “20-day snapshot.” But defendant
does not provide a non-speculative reason as to why. The
trial court correctly understood that information that could
indicate the witnesses’ mental health or drug use status at
the time of the incident could reveal potential impeachment
information. But the court did not err in concluding that
defendant had failed to meet a preliminary threshold of relevance regarding the witnesses’ ten-year history.
         Finally, defendant’s seventh assignment of error
challenges the admission of photographs of drug paraphernalia in defendant’s bedroom, arguing that the foundation
for their admission was inadequate because the officer who
took the photos could not confirm that the items belonged to
defendant or his roommate. Defendant also argues that the
photographs were irrelevant, inadmissible character evidence, and unduly prejudicial.
          The question of foundation under that rule depends,
first and foremost, on the particular purpose for which the
party is offering the evidence. That is, the rule requires that
the evidence support a finding that the exhibit is “what its
proponent claims.” OEC 901(1). In this case, the state offered
the photos to show that they fairly and accurately depicted
defendant’s bedroom and the items found in the room when
the officer searched it. The state elicited testimony from
the officer that the photograph was what it purported to
be—i.e., the defendant’s bedroom. To be sure, the detective
conceded that he could not determine who owned the items.
But that did not render the foundation inadequate. At that
point, the state was free to ask the detective—based on his
training and experience—whether the items appeared to be
drugs and drug paraphernalia. To the extent that defendant
disputed whether the items belonged to him, he was free to
argue that inference to the jury. But the detective’s inability to establish ownership did not render the foundation for
admission of the photographs inadequate.
       As to defendant’s relevancy argument, the photographs were at least relevant for the limited purpose of
Nonprecedential Memo Op: 

 (2025)             791

corroborating the testimony of a witness who stated that
he was concerned about defendant’s drug use, and defendant does not assign error to the admission of that testimony. Further, defendant’s contention that the evidence
was unduly prejudicial under OEC 403 is unpersuasive.
As defendant himself conceded in his opening statement to
the jury, “you’re going to hear some issues whether or not
drugs were involved in this particular scenario on the part
of [the victim] or on the part of my client.” Given the physical evidence, the eyewitness evidence, and defendant’s own
incriminating statements and behavior, admission of the
photographs was not unduly prejudicial. The trial court did
not err.
         Turning to petitioner’s many undeveloped arguments, we first note that most of petitioner’s assignments of
error do not comply with ORAP 5.45(2) and (3). That is, they
do not separately identify and address the specific ruling of
the trial court that is being challenged, which complicates
our ability to analyze the arguments he raises. Nevertheless,
we have attempted to carefully consider each and every one
of petitioner’s arguments. But a recurring problem is that
many of petitioner’s arguments fail to specifically identify
error in the court’s ruling. Often the arguments simply refer
to various portions of the record while ignoring the trial
court’s ruling entirely, disregarding the standard of review,
and framing the issues as if we were exercising de novo
review. We reject such arguments as undeveloped. See,
e.g., Waldorf v. Premo, 

, 

(2019), rev den, 

 (2020) (not addressing undeveloped argument); Beall Transport Equipment Co. v. Southern
Pacific, 

, 701 n 2, 

, adh’d to as
clarified, 

 (2003) (rejecting to address “conclusory sentences” requesting a remand and new trial); ORAP
5.45(3) (“Each assignment of error must identify precisely
the legal, procedural, factual, or other ruling that is being
challenged.”).
        Affirmed.