State v. Potter

No. 508                June 4, 2025                     143

   This is a nonprecedential memorandum opinion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.
               RONALD EUGENE POTTER,
                   Defendant-Appellant.
              Clackamas County Circuit Court
                   23CR49228; A183067

  Ann M. Lininger, Judge.
  Submitted May 15, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  KAMINS, J.
  Affirmed.
144                                                          State v. Potter

          KAMINS, J.
         Defendant appeals a judgment of multiple convictions stemming from a domestic violence incident. In a
single assignment of error, defendant challenges the trial
court’s remedy for a discovery violation. Reviewing for abuse
of discretion, State v. Moss, 

, 

, rev den, 

 (1997), we affirm.
         At trial, the victim, A, testified that she sent photographs documenting her injuries to one of the police officers,
which were not among the photographs that had been provided to defendant by the prosecutor’s office; the existence
of those photographs was news to both the defense attorney
and the prosecutor. The police officer acknowledged that he
forgot to include the additional photographs in his report.
Defendant moved for a mistrial as a sanction for the statutory discovery violation, ORS 135.815(1)(g),1 arguing, in the
main, that it would have affected his cross-examination of
A. The trial court agreed that an inadvertent discovery violation had occurred but declined to grant a mistrial, instead
offering the remedy of a continuance and the opportunity for
defendant to cross-examine A and the police officer again.
See ORS 135.865 (to remedy a discovery violation, a trial
court “may order the violating party to permit inspection of
the material, or grant a continuance, or refuse to permit the
witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers
appropriate”).
         On appeal, defendant now argues, in the main,
that the discovery violation may have affected his decision
to waive jury, and thus the only remedy that would have
sufficed was a mistrial. Because defense counsel’s advice to

   1
     ORS 135.815(1)(g) provides, in full:
       “Except as otherwise provided in ORS 135.855 and 135.873, the district
   attorney shall disclose to a represented defendant the following material and
   information within the possession or control of the district attorney:
       “(g) Any material or information that tends to:
       “(A) Exculpate the defendant;
       “(B) Negate or mitigate the defendant’s guilt or punishment; or
       “(C) Impeach a person the district attorney intends to call as a witness at
   the trial.”
Nonprecedential Memo Op: 

 (2025)             145

waive jury was based on counsel’s belief that the case presented only “legal issues,” and the new photographs presented an opportunity to challenge the credibility of the
victim, defendant argues that, had defense counsel received
the photographs prior to trial, she may have advised defendant not to waive jury.
         The trial court did not abuse its discretion in rejecting defendant’s argument. The trial court noted that the
case was a credibility contest regardless of the photos and
reasoned that a continuance would allow defendant to use
the photographs in cross-examination. That was a legally
permissible remedy. See State v. King, 

,

 (1977), rev den, 

 (1978), overruled in
part on other grounds by State v. Dyson, 

, 

 (1981) (acknowledging that the legislature intended
“a reasonable continuance” to be “the most appropriate remedy in the majority of situations”); see also State v. Pilon,

, 

 (2022) (recognizing the
breadth of a court’s discretion to fashion a remedy under
ORS 138.865, considering factors including “[t]he amount
of prejudice created by a violation, the reasons disclosure
was not made, the feasibility of rectifying the prejudice, and
other relevant circumstances”).
        Affirmed.