State v. Johnson

708                   March 18, 2026                No. 194

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
         TRAVIS JAMES DOUGLAS JOHNSON,
                 Defendant-Appellant.
             Lincoln County Circuit Court
                 23CR04743; A182738

  Sheryl Bachart, Judge.
  Argued and submitted February 19, 2026.
   Francis C. Gieringer, Deputy Public Defender, argued the
cause and filed the briefs for appellant. Also on the briefs
was Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Oregon Public Defense Commission.
   Shannon T. Reel, Assistant Attorney General, argued
the cause and filed the brief for respondent. Also on the
brief were Dan Rayfield, Attorney General, and Benjamin
Gutman, Solicitor General.
  Before Tookey, Presiding Judge, Lagesen, Chief Judge,
and Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
Cite as 

 (2026)                                                709

            TOOKEY, P. J.
          Defendant appeals his convictions for using a child
in a display of sexually explicit conduct, ORS 163.670 (Count
1); luring a minor, ORS 167.057 (Count 2); contributing to
the sexual delinquency of a minor, ORS 163.435 (Count
3); and third-degree sexual abuse, ORS 163.415 (Count 4).
Defendant raises four assignments of error. First, defendant argues that the trial court abused its discretion when
it denied his motion for a mistrial due to the state’s violation
of its discovery obligations. Second, he argues that the trial
court erred in denying defendant’s request for substitute
counsel. Third, defendant argues that the trial court erred
when it required him to wear an electronic restraint under
his clothing during his jury trial. And fourth, defendant
argues that the trial court erred in permitting the state to
amend the indictment to clarify that, under Count 3, defendant was male, not female. For the reasons explained below,
we affirm.
   I. FACTUAL AND PROCEDURAL BACKGROUND
         The victim, S, was 16 years old at the time of the
events in this case. In October 2022, S had been discharged
from a rehabilitation facility where she was receiving treatment for drug use and mental health issues. S was not doing
well mentally, and she testified that she was in “a manic
episode.”
        In November 2022, S was driving around with her
friend Granda.1 S and Granda knew each other from high
school. Granda introduced S to defendant. S exchanged
phone numbers with defendant. The number defendant had
given S was labeled “travis” in S’s phone directory. S told
defendant that she was 16 years old. Defendant told S that
he was 31.
        Defendant and S used their phones to exchange sexually explicit messages and photographs. Defendant asked
S for nude photographs, and S sent one. Defendant sent S
his contact information for Snapchat, which was labeled
“Travis Johnson.” Defendant and S planned for defendant

   1
       Granda was also identified as “Richie,” “Richie Rellos,” or “Richie Granda.”
710                                                     State v. Johnson

to go to S’s house to have sex, but when he got there, S was
feeling uncomfortable, so they just talked.
         S and defendant left S’s house to meet up with
Granda and another woman named Kaufman.2 It was the
first time S had met Kaufman. The group drove to a nearby
reservoir. Granda tried to have sex with S, but she refused.
In the backseat of Granda’s car, S and defendant “started
to try to have sex,” but defendant “couldn’t get hard at all,
and he was getting very frustrated.” Defendant was naked,
and S was partially unclothed. Even though defendant was
unable to maintain an erection, he put his penis inside S’s
vagina. Defendant also put his fingers in S’s vagina. S saw
that defendant had red patches on his skin, and, in a prior
text, defendant had stated that he has psoriasis.
         S told defendant that she “didn’t want to do it anymore,” and defendant got dressed and got out of the car. S
did not remember where they went after the reservoir. Later,
defendant tried to text S, but she blocked him because she
“didn’t want to talk to him anymore,” and she “felt very
uncomfortable and kind of scared.”
        S told her therapist about what had happened, and
S’s therapist contacted the police. After a police interview
during which S showed a police officer her text messages,
the state charged defendant with various crimes including
using a child in a display of sexually explicit conduct and
contributing to the sexual delinquency of a minor.
         Before trial, defendant’s court-appointed attorney
filed a motion for substitution of counsel because the attorney was closing his office. On February 27, 2023, the trial
court granted the motion and appointed a new attorney to
represent defendant. At a hearing on that date, when defendant was told that he had been appointed a new attorney,
defendant stated, “I’d like to get him removed, please.” The
trial court responded that defendant would have to “write a
formal letter” and that the court would schedule a hearing.
Defendant did not subsequently send a letter or renew his
request for substitute counsel.

   2
     Kaufman is often referred to in the record as “Kenzie” or “Makenzie.” She
was 22 years old at the time of trial.
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 (2026)                                            711

        At a pretrial hearing on September 26, 2023, the
trial court heard arguments about whether defendant
should wear restraints during trial. The court ordered use
of an electronic restraint under defendant’s clothing that
would not be visible to the jury.
         During his trial, the jury heard testimony from
eight witnesses, including S, the officer who interviewed S,
Granda, Kaufman, and defendant’s wife. Defendant’s wife,
Johnson, was the sixth witness to testify for the state.3 She
testified that, in October 2022, she and defendant had purchased phones together. She said that, around that time,
defendant was spending a lot of time with someone named
“Richie.” Johnson identified defendant’s cellphone number, but she also testified that defendant sold the phone to
“someone named Richard” on October 25, 2022, only five
days after he had purchased it.
         Based on that testimony, the state sought to impeach
Johnson, asking, “Was there a reason you didn’t say any of
this to Detective Mitchell when he talked to you about it?”
The state also moved to treat Johnson as a hostile witness,
which the court granted. When the state continued to ask
questions seeking to call into question Johnson’s claim that
defendant had sold his phone in October 2022, defendant
objected on the ground of the spousal privilege, and the trial
court excused the jury.
        Outside the presence of the jury, defense counsel asked about the report that the state was relying on to
impeach Johnson. It was determined that a police report
based on an interview with defendant’s wife from February
2023 as well as two audio recordings of the interview had
been sent to defendant’s former counsel on March 1, 2023,
which was a couple of days after the trial court had appointed
new counsel for defendant. There is no indication that defendant’s new counsel received a copy of the report or the audio
recordings.
       When the state indicated that it would like to
impeach Johnson with her pretrial statements, defense

   3
     Although Johnson is also defendant’s last name, when we refer to “Johnson”
we mean defendant’s wife.
712                                          State v. Johnson

counsel objected that he did not have “a chance to prepare
for any of this, Your Honor. It was never discovered, and [it]
should have been.” Defendant moved for a mistrial, which
the court denied. In the alternative, defendant requested
that the court strike Johnson’s testimony and excuse the
witness. Given the discovery violation, the court granted
the motion to strike Johnson’s testimony. When the jury
returned, the court instructed the jury to disregard and
ignore all of Johnson’s testimony. At the end of trial, the
jury was again instructed not to consider evidence that had
been stricken or excluded.
        During his testimony, Granda acknowledged that
he had seen a nude photo of S on defendant’s phone because
defendant had shown it to him, but Granda denied that he
ever purchased a phone from defendant.
         After the parties rested, the state moved to amend
the indictment to correct what it described as “a scrivener’s error.” Under Count 3, defendant was charged with
contributing to the sexual delinquency of a minor, and the
indictment mistakenly referred to defendant as female, not
male. The court allowed the amendment. The trial court
instructed the jury that, under Count 3, the jury had to
find that defendant was a male. After deliberating, the jury
found defendant guilty of all four counts in the indictment.
                       II. ANALYSIS
A.    The Discovery Violation and the Mistrial Motion
         In his first assignment of error, defendant argues
that striking Johnson’s testimony and instructing the jury
to disregard it was insufficient to cure the prejudice caused
by the discovery violation, and that the trial court should
have granted the motion for a mistrial. We are not persuaded that the trial court abused its discretion. We begin
with a review of the relevant legal principles.
         The discovery statutes require that for all persons
“the district attorney intends to call as witnesses,” the state
must disclose “relevant written or recorded statements or
memoranda of any oral statements of such persons.” ORS
135.815(1)(a). Those disclosures must be made “as soon as
Cite as 

 (2026)                              713

practicable.” ORS 135.845(1). Failure to do so is a discovery
violation, and, to remedy it, a trial court may “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.” ORS 135.865.
         We review a trial court’s choice of remedy to cure a
discovery violation for an abuse of discretion. State v. Pilon,

, 

 (2022). “ ‘Discretion’
refers to the authority of a trial court to choose among several legally correct outcomes.” 

 (citing State v. Rogers, 

, 

 (2000)). In assessing the proper
remedy for a discovery violation, “prejudice becomes the
threshold issue.” Pilon, 321 Or at 473. The prejudice inquiry
focuses on “the extent of surprise” and what the party to
whom disclosure should have been made would have done
differently to prepare for trial. Id. at 474 (internal quotation
marks omitted).
        “When a party moves for a mistrial, the trial court
must decide whether to grant the motion, deny the motion
but take curative steps, or deny the motion without taking
any curative steps.” State v. Northey, 

, 330,

 (2025). “The trial court’s decision is reviewable for an abuse of discretion, taking into consideration
the seriousness of the prejudice and the manner in which
the court sought to cure the error, with the decisive issue
[being] whether defendant’s ability to receive a fair trial
was impaired.” Maney v. Angelozzi, 

,

 (2017) (internal quotation marks and citations
omitted; brackets in Maney).
         Here, we are not persuaded that the trial court
abused its discretion when it denied the motion for a mistrial
and instead granted the motion to strike Johnson’s testimony.
We begin by observing that defendant does not argue that the
state acted intentionally or in bad faith in failing to disclose
Johnson’s pretrial interview. The record shows that the trial
court entered an order substituting new counsel on February
27, 2023, and the state inadvertently sent the materials to
defendant’s former counsel on March 1, 2023. Nevertheless,
even when a discovery violation is “understandable,” it is “no
less a discovery violation.” Pilon, 

.
714                                           State v. Johnson

          Defense counsel did not learn about the detective’s
interview with defendant’s wife until the middle of trial,
which is the kind of surprise that the discovery statutes
were enacted to prevent. 

. As a result, the discovery violation likely caused some prejudice. However, our
ability to gauge the extent of the prejudice is hampered by
the fact that the content of Johnson’s pretrial statements
to the detective are not part of the record. Defense counsel, for example, did not request a continuance to review the
contents of the report or to make a record of what counsel
would have done differently if the report had been properly
disclosed. See ORS 135.865 (to remedy a discovery violation,
the trial court may grant a continuance). We are not willing
to speculate regarding the extent of prejudice caused.
         In arguing he suffered substantial prejudice, defendant claims that Johnson was “the only witness to identify that the phone number associated with the ‘travis’
contact in [S]’s phone belonged to defendant.” That claim
is not persuasive because there was significant circumstantial evidence that the number belonged to defendant.
For example, S testified that she exchanged numbers with
defendant after meeting with him in person, and his number was labeled “travis” in her phone, which is defendant’s
name. And during their text message exchange, S and the
person with whom she texted agreed to meet in person, and
defendant subsequently went to S’s house. The person with
whom S texted also mentioned that he had psoriasis, and S
observed red spots on defendant’s body. Thus, S’s testimony,
and the text messages themselves, provided the jury with a
basis to find that the number belonged to defendant.
         Granting a motion for a mistrial is “a drastic remedy
to be avoided if possible.” State v. Woodall, 

, 

 (2013), rev den, 

 (2014) (internal
quotation marks omitted). Absent a contemporaneous explanation from defense counsel about how the failure to disclose
Johnson’s pretrial statements caused substantial prejudice,
we discern no abuse of discretion in the trial court’s denial of
the request for a mistrial. Instead, the trial court excluded
Johnson as a witness, which was itself a significant penalty. See Pilon, 

 (describing the sanction of
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 (2026)                                 715

excluding nondisclosed evidence as one that “should be used
only in the most extreme situations” (internal quotation
marks omitted)). And the trial court also instructed the jury
to disregard Johnson’s testimony. “[W]e assume that a jury
has followed a court’s curative instruction unless there is an
overwhelming probability that the jury was incapable of”
doing so. State v. Garrison, 

, 

(2014), rev den, 

 (2015) (internal quotation marks
omitted). Here, Johnson’s only testimony that was harmful
to defendant was her identification of the phone number as
belonging to defendant. Defendant fails to establish an overwhelming probability that the jury could not disregard that
testimony. We conclude that there was no abuse of discretion when, in response to the discovery violation, the trial
court denied the request for mistrial, granted the request to
strike Johnson’s testimony, and instructed the jury to disregard her testimony.
B.    Request for Substitute Counsel
         In his second assignment of error, defendant argues
that the trial court erred in denying his request for substitute counsel because the court did not conduct a proper
inquiry before denying the request. “A trial court faced with
a motion to substitute indigent counsel should engage in an
inquiry into the legitimacy of any complaint about appointed
counsel.” State v. Daley, 

, 

,
rev den, 

 (2022) (internal quotation marks omitted). “The trial court possesses discretion to determine the
scope of the inquiry necessitated by a particular complaint,
and the trial court’s ruling on a motion to substitute counsel
is reviewed for abuse of discretion.” 

 (internal quotation
marks omitted).
          Before trial, the court allowed defendant’s former
court-appointed attorney to withdraw and appointed a new
attorney to represent defendant. At a pretrial hearing on
the same day that it granted the motion for substitute counsel, the following exchange occurred:
         “THE COURT: Okay. You filled out an application for
     Court-appointed counsel. I have approved that. I’m actually appointing Matthew Martin to represent you. He’s
     going to be your new attorney on your other pending cases.
716                                           State v. Johnson

      “THE DEFENDANT: I’d like to get him removed,
   please.
     “THE COURT: Okay. Well, you’ll have to write a formal letter to me, and then I’ll schedule a hearing on it.
      “THE DEFENDANT: Okay.
     “THE COURT:        You can’t just verbally tell me that.
   Okay?
      “THE DEFENDANT: Mm-hmm.”
Defendant did not subsequently submit a letter or file a
motion.
          We are not persuaded that that exchange can be
viewed as the denial of a motion for substitute counsel.
Instead, the trial court simply deferred ruling on the request
until defendant put his concerns in writing, which he never
did. And even if we were to assume that the trial court
denied defendant’s request, “a trial court does not always
abuse its discretion when it does not inquire of a defendant
personally when a defendant seeks substitute counsel.” State
v. Hernandez-Sanchez, 

, 

,
rev den, 

 (2025) (emphasis in original). Instead,
the court’s inquiry into the legitimacy of any complaint is
“necessarily, case—and fact—specific.” Daley, 

. Here, the request was made only moments after the trial
court had informed defendant that the court was appointing
the new attorney, and the hearing occurred over six months
before defendant’s jury trial. Given those facts, it is not clear
how the newly appointed attorney could not have done anything at that early stage that would cause defendant to be
concerned about the adequacy of the attorney’s performance
in representing defendant. See 

 (“A legitimate complaint
… is one that is based on an abridgement of a criminal
defendant’s constitutional right to counsel. The right to counsel requires adequate performance of an appointed lawyer’s
professional assistance.” (Internal quotation marks omitted.)). We reject defendant’s second assignment of error.
C. Restraints
        In his third assignment of error, defendant argues
that the trial court abused its discretion when it required
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him to wear an electronic restraint during trial. Oregon
has long recognized the “right of an accused to be free from
physical restraint during a criminal trial.” State v. Wall,

, 

 (2012), rev den, 

 (2013). That right “has common-law and constitutional
underpinnings.” 

 “Specifically, physically restraining
a defendant implicates Article I, section 11, of the Oregon
Constitution and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.” 

         “That right, however, is not absolute. A trial court
has the discretion to order a defendant to wear restraints if
there is evidence of an immediate and serious risk of dangerous or disruptive behavior.” State v. Osborn, 

, 

 (2021) (internal quotation marks omitted). We review a trial court’s order requiring a defendant to
wear restraints for abuse of discretion. 

          At a pretrial hearing regarding whether defendant
should wear restraints during his trial, a sheriff’s deputy
testified that he had “several fights with other inmates, [and]
opposition to staff,” and defendant had a verbal argument
with another inmate only days earlier. In addition, at a prior
trial, defendant took some pens from the courtroom that the
deputy had to retrieve. In reviewing defendant’s criminal
history, the trial court noted that he had convictions for supplying contraband, possession of a weapon by an inmate, and
aggravated harassment of a public safety officer.
         Given defendant’s criminal history and the testimony regarding his behavior in jail, the trial court had
a basis to conclude that defendant posed a risk of dangerous or disruptive behavior. As a result, the order requiring
restraints was not an abuse of discretion. See Osborn, 

 (explaining that we will uphold a decision
to require restraints “if there is evidence providing a particularized basis to require a defendant to wear restraints”);
see also State v. Funrue, 

, 

(2025) (“When reviewing for an abuse of discretion, we do not
determine whether, sitting in the shoes of the trial court, we
would make the same ruling; rather, our role is to determine
whether the trial court came to a legally permissible choice
among the range of options.”).
718                                             State v. Johnson

         In any event, because the electronic restraint
was not visible to the jury, and because defendant has not
argued that it impeded his ability to move during the trial,
interfered with his choice of clothing at trial, or impacted
his decision not to testify, we conclude that the error, if any,
in requiring defendant to wear an electronic restraint was
harmless. See State v. Davis, 

, 

(2003) (under the state constitution, an error is harmless if
there is little likelihood it affected the verdict); see also State
v. Walton, 

, 

 (1991) (under the federal constitution, the state must prove an error is harmless
beyond a reasonable doubt). We therefore reject defendant’s
third assignment of error.
D. Amendment to the Indictment
        In his fourth and final assignment of error, defendant argues that the trial court erred when it amended the
indictment to change a reference to defendant’s sex from
“female” to “male” in Count 3 of the indictment, which
charged defendant with contributing to the sexual delinquency of a minor.
         The Oregon Constitution permits an amendment to
an indictment when it is a matter of form, but not when it
goes to the substance of the indictment unless approved by
a grand jury. State v. Wimber, 

, 

(1992). Similarly, under the federal constitution, an indictment may not be amended except by a grand jury, unless the
change is “merely a matter of form.” Russell v. United States,

, 

, 

 (1962).
         ORS 163.435(1) provides:
      “A person 18 years of age or older commits the crime of
   contributing to the sexual delinquency of a minor if:
      “(a) Being a male, he engages in sexual intercourse
   with a female under 18 years of age; or
      “(b) Being a female, she engages in sexual intercourse
   with a male under 18 years of age; or
      “(c) The person engages in oral or anal sexual intercourse with another person under 18 years of age or causes
   that person to engage in oral or anal sexual intercourse.”
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Here, the indictment alleged that defendant “being a female
over the age of eighteen years, did unlawfully and knowingly engage in an act of sexual intercourse with [S], a
female under the age of eighteen years.” (Emphasis added.)
          After the parties rested, the state moved to amend
the indictment to change the word “female” to “male” in
Count 3. Defendant responded that his sex was an element
of the crime, so the amendment required resubmission to the
grand jury. Instead of directly amending the indictment, the
trial court indicated that it might simply address the issue
when instructing the jury. The following day, the court indicated that it had considered the factors set out in Wimber,

, that it would allow the amendment, and
that it had drafted the jury instructions accordingly. When
instructing the jury on the charge of contributing to the sexual delinquency of a minor, the court instructed that the
state had to prove that defendant, “being a male, knowingly
engaged in sexual intercourse with a female,” S.
          On appeal, defendant argues that the amendment
“added a new theory” or element to the crime and that it
“went to a matter of substance and not form.” We are not
persuaded. In State v. Long, 

, 

(1994), the indictment alleged the offense occurred during
an incorrect date range. The Supreme Court determined
that the date of the offense was not a material element of
the crime, and it separately noted that the amendment was
permissible because it merely served to correct a scrivener’s
error. 

.
         Here, the sex of the defendant is a material element
of the offense of contributing to the sexual delinquency of a
minor under ORS 163.435(1)(a), but the indictment did not
omit that element; instead, it incorrectly identified defendant’s sex as female rather than male. We therefore conclude that it was permissible for the trial court to amend the
indictment without resubmitting the case to the grand jury
because the amendment served to correct a scrivener’s error
in Count 3 of the indictment. Count 4 of the indictment,
which charged defendant with third-degree sexual abuse,
expressly referred to defendant committing that crime by
causing the victim to “touch the defendant’s penis,” which
720                                        State v. Johnson

shows that the grand jury understood that defendant was
male, and that the reference to defendant being female in
Count 3 was a typographical error. The victim expressly
testified at trial that defendant was male, and defendant
did not present any evidence disputing that. The amendment changing the word “female” to “male” in Count 3 did
not change how defendant would have defended himself
against the charges, so he suffered no prejudice when the
indictment was amended to fix a scrivener’s error. See State
v. Pachmayr, 

, 

 (2008) (“The
amended indictment did not require defendant to defend
against any allegations that were not already included
in the original indictment.”). We reject defendant’s fourth
assignment of error.
        Affirmed.