State v. Curry

No. 976             November 13, 2025                    771

   This is a nonprecedential memorandum opinion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.
              ANTHONY LENAIRE CURRY,
                  Defendant-Appellant.
             Washington County Circuit Court
                  C142231CR; A181628

   Janelle F. Wipper, Judge.
   Argued and submitted September 8, 2025.
   Emily P. Seltzer, 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. Appellant filed the supplemental
briefs pro se.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
   PAGÁN, J.
   Reversed and remanded.
772                                           State v. Curry

        PAGÁN, J.
         This criminal case is before us for the second time
following the remand required by State v. Curry, 

, 

 (2019), adh’d to on recons, 

, 

 (2020) (Curry I). In this appeal, defendant
seeks the reversal of his seven convictions for using a child
in a display of sexually explicit conduct, ORS 163.670, or,
alternatively, a remand for resentencing. In eight counseled
assignments of error, he makes two arguments: (1) that the
trial court erred in denying his motion to suppress, and (2)
that it imposed constitutionally disproportionate sentences
on his seven convictions. Defendant also presents five supplemental pro se assignments of error. As we explain, we
agree that the trial court erred in denying the motion to
suppress, and we reverse and remand for further development of the record. Based on that resolution, we do not reach
the sentencing issues. To the extent that they do not overlap
with the issues already mentioned, we reject defendant’s pro
se assignments of error.
          Motion to Suppress. The parties agree that the merits of the suppression issue are controlled by our decision in
State v. Curry, 

, 

 (2024) (Curry II),
which concerned a parallel prosecution in a different county
involving the very same warrant at issue in this case. There,
we held that the warrant contained a number of overbroad or
insufficiently particular terms, 

, and that holding controls here given that it is the same warrant. The only
question remaining for us here is the appropriate remedy—
specifically, whether or not the state may have the opportunity on remand to produce evidence showing that some of
the evidence discovered during the search of defendant’s residence was untainted by the invalid portions of the warrant.
We conclude that the state should have that opportunity.
         In Curry II, we remanded for further development of
the record “[b]ecause the state did not have an opportunity
to develop a factual record on the question whether the challenged evidence was untainted by the insufficiently particular search categories.” 

 (internal quotation marks
omitted). The state argues that the remedy should be the
same in this case given that it arose in substantially similar
Nonprecedential Memo Op: 

 (2025)             773

circumstances. Defendant disagrees, arguing that the state
of the law was distinctly different by the time of the suppression motion in this case. Specifically, defendant argues
that, at that point in time, our decision in State v. Turay, 

, 

 (2021), aff’d in part, rev’d in part,

, 

 (2023)—which published after the
suppression hearing at issue in Curry II—put the state on
notice that it needed to produce an evidentiary record sufficient to establish whether any evidence discovered in defendant’s residence was untainted by the invalid terms in the
warrant. Having failed to do so, defendant argues, the state
should not get a second bite at the apple. The state disagrees
that our decision in Turay was sufficient to put the state on
notice. It argues that it was not until the Supreme Court’s
decision in Turay, or perhaps even our decision in Curry II,
that the state would have known the steps it needed to take.
          We acknowledge that this is a close question. On the
one hand, we agree with defendant that—especially with
the benefit of hindsight—our opinion in Turay suggested
that the state needed to develop an evidentiary record
establishing whether the evidence in question was discovered while executing valid portions of the warrant. On the
other hand, we are mindful of the fact that we are operating
with the benefit of hindsight and that the parties were litigating the issue in the midst of a rapidly evolving area of
the law, which continued to change even after the motion
hearing. For instance, in our Turay opinion, we applied our
longstanding severability doctrine, whereas the Supreme
Court’s opinion disapproved of that doctrine. Turay, 

. Furthermore, at the time of defendant’s suppression hearing, cases made a strong distinction between
physical and digital evidence, leaving some room to question
whether and how rules established in cases about digital
evidence applied to physical evidence. Thus, we felt the need
in Curry II to state explicitly that the Supreme Court’s analytical framework announced in Turay “appl[ies] equally to
warrants to search physical places for physical items and to
warrants for digital data.” 

.
         Of course, the parties and the trial court lacked the
benefit of either the Supreme Court’s Turay opinion or Curry
774                                           State v. Curry

II, and our review of the record leads us to believe that neither the state nor the trial court properly understood the
need for a developed factual record that is now required
under the current state of the law. That is to say, although
defendant does make a persuasive argument that the state
should have known that it needed to develop a factual record
as to how the search of defendant’s residence was conducted,
we are not convinced that the state of the law was so clear
that we should deviate from the remedy set forth in Curry II.
Therefore, we reverse the judgment and remand for development of that record and for the trial court to determine
which, if any, of the challenged evidence must be suppressed
under Article I, section 9.
        Supplemental Pro Se Assignments of Error.
Defendant raises five supplemental pro se assignments of
error, which we address briefly in turn.
         First, as we understand it, defendant argues that
our decision in Curry I rendered his original judgment of
conviction void and that, for that reason, he was not properly subject to a retrial on remand. We reject that argument
because Curry I reversed and remanded his case such that
the state was permitted to pursue a new trial.
          Second, defendant challenges the denial of his
motion to set aside the indictment. He argues that the
grand jury notes reflect that no witnesses appeared before
the grand jury on the day that it returned a true bill and,
thus, that the indictment cannot be valid. However, as the
trial court found, the record shows that the state presented
multiple witnesses to the grand jury, which returned a true
bill under a different case number. A couple of weeks later, a
prosecutor asked the grand jury—still composed of the same
jurors—to issue a new indictment under a new case number
to fix a typo in the original indictment. The state presented
no new witnesses at that time, which explains why the
grand jury notes record that no witnesses were presented.
Therefore, contrary to the thrust of defendant’s argument,
the grand jury did not return a true bill in the total absence
of witness testimony. That testimony was simply produced
at the first grand jury proceedings and not repeated at the
second. On appeal, defendant has failed to convince us that
Nonprecedential Memo Op: 

 (2025)            775

there is a statutory or constitutional prohibition on the
procedure used in this case to fix a typo by issuing a new
indictment under a new case number. Although defendant
argues in his pro se reply brief that the operative indictment
violated ORS 132.550(8) because it does not list the dates
of all grand jury proceedings, that is not a statutory basis
to set aside an indictment, ORS 135.510, nor has defendant
established that it is a constitutional basis for doing so.
        Third, defendant argues that the trial court erred in
denying his motion to dismiss on double jeopardy grounds.
We reject that argument for the same reasons explained in
Curry II, 

.
         Fourth, defendant argues that the trial court erred
in failing to instruct the jury on every element of the crimes,
reasoning that the state had to prove that he employed,
authorized, permitted, and compelled the complainant to
dance at a strip club. However, the statute, ORS 163.670(1)(a),
lists those actions in the disjunctive. Thus, the court had
to instruct on and the jury had to concur on only one action
proscribed by that statute—not all of them.
         Finally, defendant’s last supplemental pro se assignment of error mirrors that of his first counselled assignment
of error and thus is resolved by our discussion above.
        Reversed and remanded.