510
Argued and submitted November 2, 2021, resubmitted January 25; order of
Court of Appeals reversed, and case remanded to Court of Appeals for further
proceedings April 21, 2022
STATE OF OREGON,
Respondent on Review,
v.
MICHAEL DAVID JACKSON,
Petitioner on Review.
(CC 18CR24467) (CA A170564) (SC S068428)
508 P3d 457
Defendant was charged with offenses stemming from an encounter with
police officers in an ATM vestibule. Defendant moved that evidence arising from
the encounter be suppressed, arguing that he was unlawfully seized. The trial
court denied the motion based on a record that included surveillance footage
depicting defendant’s encounter with police. Defendant appealed and learned
that the surveillance video had been lost or destroyed through no fault of defendant. He filed a motion in the Court of Appeals for reversal and a new trial under
ORS 19.420(3). The Court of Appeals denied the motion by order, concluding
that the missing video was not “necessary to the prosecution of the appeal” as
required by statute because the trial court’s factual findings were binding on
appeal. Held: (1) A lost record is “necessary to the prosecution of the appeal”
under ORS 19.420(3) when it is practically necessary to the prosecution of the
appeal, including the presentation of the issues on appeal and the court’s resolution of those issues; and (2) the Court of Appeals erred in concluding that the
missing exhibit was not “necessary to the prosecution of the appeal” before considering the merits of the appeal.
The order of the Court of Appeals is reversed, and the case is remanded to
that court for further proceedings.
On review of an order of the Court of Appeals.*
Mark Kimbrell, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
Robert M. Wilsey, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
______________
* On appeal of an order denying reconsideration.
Cite as 369 Or 510 (2022) 511
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.…
WALTERS, C. J.
The order of the Court of Appeals is reversed, and the case
is remanded to the Court of Appeals for further proceedings.
______________
… Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
512 State v. Jackson
WALTERS, C. J.
ORS 19.420(3), the lost record statute, provides
that, when “an appeal cannot be prosecuted” by reason of
the loss or destruction of an exhibit or “other matter necessary to the prosecution of the appeal” a reviewing court has
discretion to order reversal and remand for a new trial “as
justice may require.” In this case, defendant was charged
with and convicted of offenses that occurred during an
encounter with police officers in an enclosed ATM vestibule.
A surveillance video recorded the encounter and was admitted at trial as Exhibit 15. After the trial court entered the
judgment of conviction, Exhibit 15 was lost or destroyed,
and, in conjunction with his appeal to the Court of Appeals,
defendant filed a motion seeking reversal and remand under
ORS 19.420(3). The Appellate Commissioner denied defendant’s motion, concluding, as a matter of law, that the lost
exhibit was not “necessary to the prosecution of the appeal.”
The Court of Appeals denied reconsideration, and, because
this court allowed defendant’s petition for review, is holding
defendant’s appeal in abeyance. For the reasons that follow,
we conclude that the Court of Appeals erred in summarily
denying defendant’s motion before more fully analyzing the
issues defendant raised on appeal and considering whether
Exhibit 15 was necessary to resolve those issues. We remand
this case to the Court of Appeals to undertake that analysis.
I. FACTUAL BACKGROUND
Because the underlying appellate challenge is to a
renewed motion to suppress, we recite the undisputed evidence that was available at the time of the motion’s renewal.
Shortly after midnight on Tuesday, April 3, 2018, Bend
Police Officer Charles was uniformed and on patrol in his
squad car. As he was driving, he noticed two men, defendant and another man, Michael, standing inside the lighted
ATM vestibule of the Wells Fargo bank. The vestibule is six
to eight feet square and its double doors are made of clear
glass, making patrons in the vestibule readily visible from
the street. During business hours, the vestibule’s doors are
unlocked, and a customer may walk from the street through
its doors and then, to access banking services further inside
the building, through a second set of doors. At night, when
Cite as 369 Or 510 (2022) 513
the bank is closed and locked, the vestibule also is locked,
but a customer can enter it by unlocking its doors with an
ATM card.
When Charles saw the two men in the vestibule,
defendant was near the ATM, Michael was facing away
from the door, and belongings were strewn on a countertop.
Charles had not received a call raising concerns about the
men or the vestibule, but he thought that the men’s presence,
late at night and mid-week with strewn belongings, was suspicious and that one of the men might be robbing the other.
Charles parked his squad car, got out, and, undetected by
the men, listened to their conversation from outside the vestibule for two to five minutes. The men were playing music
and “just kind of carrying on with each other.” Charles’s concern that a robbery could be in progress was allayed, but he
then suspected that the men were committing a “trespassing offense” because they were not “conducting any business” in the vestibule and it was midnight.
Charles approached the glass doors and found them
locked, raising a concern that the men may have locked the
vestibule doors behind them, preventing others from entering.1 Charles knocked, identified himself as a police officer,
explained his concerns, and asked to see the men’s identifications. Michael opened the door and presented an Oregon
ID.
Throughout the conversation, Charles stood in the
doorway to the vestibule. His chest faced the men, and
his foot and arm were on one of the doors, holding it open.
The wall was to his right and the second door was closed.
Defendant did not initially respond to Charles’s request for
identification. Charles said, “I’m not trying to give you a hard
time. I just would like to know who you are so I can figure
out exactly what’s going on.” Defendant initially refused the
request, telling Charles that Charles “was harassing him.”
Eventually, defendant displayed a debit card and then, while
covering some of the relevant information such that Charles
could not read it, what appeared to be a Washington ID.
1
At trial, Charles offered conflicting testimony about whether, at the time
that he encountered defendant in the vestibule, he was aware that a customer
could unlock the vestibule doors with an ATM card.
514 State v. Jackson
Charles told defendant that it was “odd, that it’s
about midnight on a Tuesday” and defendant was “inside of
a foyer at the bank with another male apparently not conducting any business from [Charles’s] perspective.” Defendant then dialed 9-1-1 on his cellphone. At some point,
Charles allowed Michael to leave the vestibule, but Charles
could not recall whether that was before or after defendant
called 9-1-1.
Defendant told the 9-1-1 dispatcher that there was a
“police emergency,” that he was being harassed by the Bend
City Police Department, and that he needed a state trooper.
Defendant never identified himself to the dispatcher. The
dispatcher asked about the officer who was holding the door
open and defendant replied:
“I don’t know who he is. I have no idea. He didn’t show me
any I.D. He didn’t show me anything. He just wants to see
some I.D. I have no idea who he is. I’m in my bank, trying
to get cash out of my cash machine, and this guy—I don’t
know who he is. I have no idea.”
Defendant then set the phone down but did not end the call.
Charles contacted dispatch, confirmed that defendant had
called 9-1-1, and called for backup.
Charles now believed that he had witnessed defendant commit a crime, “[m]isuse of 9-1-1,” because defendant
had “contacted 9-1-1 for what was not an emergency to
make a complaint against an officer who was investigating
a crime at the time. There was no emergency. He stated that
[the officer] did not identify [himself], which was clearly not
true.”
A second police officer, Officer Goller, arrived at the
bank. Goller saw Charles outside the door, holding the right
door open, and “contacting” defendant. Michael had already
been told he was free to go. Goller asked defendant for identification, and defendant refused, setting his wallet and ID
down on the countertop.
The officers told defendant that he was under arrest
for misuse of 9-1-1 and to put his hands behind his back.
Defendant refused. Goller grabbed defendant’s right arm
and Charles grabbed his left, attempting to force them
Cite as 369 Or 510 (2022) 515
behind his back. Defendant tensed and pulled his arms
away. The officers ordered defendant to stop tensing, and
defendant said “I’m not” while continuing to tense his muscles. Considering both “the confined space” and the safety
of defendant and the officers, Charles pressed defendant’s
head against the ATM to handcuff him. Defendant did not
allow himself to be handcuffed, and the officers forced him
to the ground, determining that, given the confined space,
it was safer to bring him to the ground than to have him
standing. The officers noted that they had no “avenue of
escape” if they lost their grip on defendant, and they did not
know whether he was armed. Eventually, the officers handcuffed defendant and arrested him.
The state charged defendant with resisting arrest
(ORS 162.315) and improper use of emergency communications system (ORS 165.570). The parties learned that a
surveillance camera had captured the encounter, but Wells
Fargo refused to produce the resulting video before trial,
and the trial court denied defendant’s pretrial request for a
continuance to give defense counsel more time to review the
video ahead of trial.
On the day of trial, but before voir dire, defendant
made two pretrial motions, one renewing a motion to continue
so counsel could view the video before trial and the other
to suppress all evidence arising from defendant’s “unlawful arrest.” Defendant argued that he had been “unlawfully seized at the time that this incident occurred[, and]
[a]ll interactions from the point after the unlawful seizure
would be fruit of the poisonous tree and … therefore, should
be properly suppressed.” The state objected to the motion to
suppress, arguing that it was untimely and did not provide
the state with sufficient notice to respond. The trial court
denied both motions.
At trial, the state offered, as part of its case in
chief, Exhibit 15, the surveillance video of the ATM vestibule. Defendant did not object, and the trial court admitted the exhibit. According to the trial transcript, the silent
footage on the video is about 29 minutes long, and the first
14 minutes depict defendant and Michael in the vestibule
before Charles arrived. The remaining minutes show the
516 State v. Jackson
interaction between the police officers and the two men in
the vestibule, including defendant’s arrest. The state showed
the video to the jury during Charles’s testimony, and he provided commentary. Charles testified that when defendant
dialed 9-1-1, Charles stood “outside the doorway, holding
the door open.” He testified that there were some aspects
of the encounter that the video did not capture and that it
sometimes skipped a few seconds ahead, but overall it “represent[ed] a fair and accurate depiction of the interactions
with [defendant] that night.”
After the state rested its case, defendant renewed
his motion to suppress. Defendant argued:
“And it’s clear, after testimony from the officers, that [defendant]’s constitutional rights were violated. [Defendant] was
unconstitutionally seized.
“Officer Charles has testified that, at the time that he
asked for identification, he was blocking the doorway. It’s
been made very clear that there was no available means
for exit, and Mr.—or Officer Charles’s testimony that he
changed his reason for the stop from a suspected robbery
to a suspected Criminal Trespass lacks sufficient facts that
an officer could believe that Criminal Trespass was being
committed.
“He clarified his testimony that he was aware at the
time that it required an ATM card to get into the foyer and
that he had received no calls or requests for a Criminal
Trespass at that time.”
The state responded that Charles had reasonable
suspicion that defendant was committing criminal trespass
or, in the alternative, that Charles had not stopped defendant because he had not blocked defendant from leaving
the vestibule; Charles had only asked defendant for his
identification.
In ruling on those intertwined issues, the trial
court made findings of fact and reached conclusions of law
that were limited to the following:
“After standing outside of the vestibule listening, the officer determined that the circumstances did not necessarily
Cite as 369 Or 510 (2022) 517
suggest any kind of robbery, but given the hour, given the
fact that they were not engaged in any banking business
and appeared to be having some kind of leisurely conversation with objects strewn about in the vestibule, he believed
that a criminal trespass was in progress.
“He opened the door after the other occupant—not the
defendant—made some statement about the police being
there. Attempted to ask for identification from the individuals, defendant and the other occupant. The door was open.
The officer was standing outside of the door or at the door,
holding the door open. That’s what his testimony was that
was consistent with the video evidence that was received.
“Defendant did not make any attempt or request to leave.
The officer, nevertheless, would have had the authority to
detain the defendant for reasonable suspicion of criminal
activity; in particular, Criminal Trespass which the officer
believed may be in progress and subjectively believed was
in progress.”
The trial court denied defendant’s motion and submitted the case to the jury, which found defendant guilty as
charged.
Defendant appealed, and appellate counsel learned
that Exhibit 15 had been lost through no fault of defendant.
Counsel was unable to recover the footage or find a replacement, and he filed a motion under ORS 19.420(3) asking
that the Court of Appeals reverse and remand for a new
trial and arguing that the “issue of whether a stop occurred
is directly impacted by the missing exhibit.” The Appellate
Commissioner denied defendant’s motion, concluding, by
order and as a matter of law, that the footage was not “necessary to the prosecution of the appeal.” The commissioner
explained her ruling as compelled by the appellate court’s
standard of review: “The trial court’s findings of fact are
binding on appeal, given that they are based on and supported by testimony in the record.” Defendant moved for
reconsideration by the court, and, by order, the Court of
Appeals upheld the ruling of the Appellate Commissioner.
ORAP 7.55(4)(a). Defendant filed a petition for review of
that order, which we allowed. While we conduct that review,
the Court of Appeals is holding defendant’s appeal in
abeyance.
518 State v. Jackson
II. LEGAL BACKGROUND
The legal question for resolution in this court is
whether the Court of Appeals was correct in denying defendant’s lost record motion as a matter of law, because, as the
Court of Appeals reasoned, Exhibit 15 is not “necessary to
the prosecution of the appeal.” Resolution of that legal question requires that we interpret that phrase in the lost record
statute, ORS 19.420(3), which provides:
“Whenever it appears that an appeal cannot be prosecuted,
by reason of the loss or destruction, through no fault of the
appellant, of the reporter’s notes or audio records, or of the
exhibits or other matter necessary to the prosecution of the
appeal, the judgment appealed from may be reversed and a
new trial ordered as justice may require.”
(Emphasis added.)
This court has meaningfully considered that statute four times, focusing in all instances on whether to exercise or whether the Court of Appeals correctly exercised discretion to grant a new trial. Although that is not the issue
before us in this case, it is helpful to summarize our earlier
cases to illustrate the circumstances in which lost records
issues arise.
This court first considered the lost record statute
in 1948 in the defendants’ appeal to this court from a trial
court decree in a constructive trust suit. Hoffart v. Lindquist
& Paget Mortg. Co., 182 Or 611, 613-14,
189 P2d 592 (1948).
In Hoffart, the court stenographer’s shorthand notes and
the admitted exhibits had been lost through no fault of
the defendants, and they asserted that that innocent loss
was all that was needed to justify reversal and a new trial.
Id. at 614-15. This court disagreed, explaining that a party
invoking the statute must take two additional steps that the
defendants had not taken: The party must show that it had
made an attempt to recreate the lost record and must assert
not only that records had been lost, but also that some legal
error or injustice had occurred.
Id. at 616-17.
This court next addressed the lost record statute in
Ethyl Corp. v. Jalbert, 270 Or 651, 654,
529 P2d 368 (1974),
again on direct appeal from a trial court judgment. That
Cite as
369 Or 510 (2022) 519
case had gone to the jury for deliberations, and, in response
to a question from the jury, the trial court had repeated
an instruction that it, without objection, had given earlier.
Id. at 653. The appellant assigned the re-instruction as error
on appeal, but the record did not disclose what question the
jury had raised, the colloquy about that question, or which
instruction the court repeated. Id. at 654. This court denied
the appellant’s motion to reverse the judgment, relying on
the appellant’s failure to show that it could not recreate the
missing information and its failure to provide any basis for
thinking that the trial court had abused its discretion in
re-instructing the jury. Id. at 655-56.
The third case came to this court on review of a decision by the Court of Appeals granting the plaintiff’s motion
to reverse the trial court judgment because the audio record
of the trial had been destroyed. Smith v. Custom Micro, Inc.,
311 Or 375, 377,
811 P2d 1371 (1991). This court held that
the Court of Appeals had erred in that “summary” determination because, although the parties did not dispute that
the record was “necessary” to the prosecution of the appeal,
the plaintiff had not yet done enough to demonstrate that
an error had occurred.
Id. at 377-79. All the plaintiff had
done was to “hint darkly at errors in refusing him a postponement, in not granting him a jury trial, and in making
various rulings (which plaintiff acknowledges were discretionary but which he insists would be shown by a complete
record to have been abuses of that discretion).”
Id. at 379
(footnote omitted). Although we concluded that the Court of
Appeals had erred in granting the plaintiff’s motion at that
stage in the appeal,
id. at 380, we left open the question
of whether that court should, in the exercise of its discretion, permit the plaintiff a further opportunity to make the
required demonstration of error.
Id. at 380 n 6.
The final case in which this court considered the
lost record statute is State v. Acremant, 338 Or 302, 338,
108 P3d 1139 (2005), a case that came directly to this court
on mandatory review of a trial court’s sentence of death.
Ninety minutes of the record of the defendant’s penalty trial
had been inadvertently erased, and, to indicate what had
occurred during that time, the state had supplemented the
520 State v. Jackson
record with logs and affidavits, including an affidavit from
the trial court reporter.
Id. at 331-32. The defendant argued
that that reconstruction did not eliminate the problem; that
it was incomplete and contained inconsistencies that precluded counsel and the court from identifying possible errors.
Id. at 339. The court began its analysis by naming two “statutory prerequisites” to review—that “a record or exhibit necessary to the prosecution of an appeal is destroyed and that
destruction occurred through no fault of the appellant”—and
saying that “there is no dispute” that both “are met.”
Id. at
338. The court then proceeded to the discretionary step in
the analysis and declined to order the relief requested. The
court said that the defendant had not alleged that the supplemental record was not an accurate representation of what
had occurred and had “fail[ed] to make a persuasive argument that the missing transcript [would] prevent review by
this court of any error or miscarriage of justice that actually
occurred.”
Id. at 339 (emphasis added).
This case does not suffer from the faults identified
in a number of those cases. Here, the state does not question
defendant’s due diligence in attempting to find or reproduce
the surveillance tape, Exhibit 15. And defendant describes
both the trial court’s alleged error and how Exhibit 15 would
support his claim of error with specificity. This case also
does not require that we exercise our discretion to grant
defendant’s lost record motion or review an exercise of discretion by the Court of Appeals. The Court of Appeals rejected
defendant’s motion as a matter of law before considering the
merits of his appeal, and, therefore, the question before us
is a novel one that requires that we interpret ORS 19.420(3),
and the phrase “necessary to the prosecution of the appeal,”
a task to which we now turn.
III. STATUTORY INTERPRETATION
Defendant would have us broadly interpret the subject phrase as providing that a record is necessary to the
prosecution of the appeal “if it is required for appellate counsel to competently perform his or her function—fully examine the proceedings and record below, identify issues and
claims of error to present to the appellate courts, and assure
meaningful review by those courts.” To reach that result,
Cite as 369 Or 510 (2022) 521
defendant focuses on the phrase “prosecution of the appeal”
rather than the term “necessary.” In defendant’s view, the
phrase “prosecute an appeal” is a term of art, which imports
all the ethical and constitutional requirements that would
bind a person who undertakes the task of prosecuting a
criminal appeal. Defendant contends that, particularly in
a criminal appeal where a defendant’s constitutional rights
may be implicated, competent representation requires
extensive preparation and a thorough review of the record,
and lost records may interfere with counsel’s ability to meet
those obligations. Defendant also suggests that relief under
the lost record statute should not depend on a stringent
showing of necessity, but should be freely allowed when a
court believes, in the exercise of its discretion, that justice
requires a new trial.
The state advocates for an interpretation of the subject phrase that is much stricter than defendant’s interpretation. The state would have us hold that a record is “necessary to the prosecution of the appeal” only when its absence
entirely precludes appellate review. The state emphasizes
that the statutory remedy is extraordinary and argues that it
should be available only in the limited circumstance in which
a lost record is the only contemporaneous record of the proceeding at issue, and the appeal cannot proceed without it.
We begin with the meaning of the term “necessary,”
as it is used in ORS 19.420(3). That term is not defined in
the statute, and we have no reason to think that the legislature intended that it have anything other than its ordinary
meaning. See PGE v. Bureau of Labor and Industries, 317 Or
606, 611,
859 P2d 1143 (1993) (holding that in construing a
statute, a court assumes that the legislature generally uses
words in their “plain, natural, and ordinary” manner). We
discern that meaning by looking to the dictionary definition
of the term in 1947, when the legislature first used it in the
lost record statute.2 Webster’s Second New Int’l Dictionary
1635 (unabridged ed 1935) defines “necessary” as follows:
2
As originally enacted, the statute read, in relevant part:
“whenever it appears that such appeal can not be prosecuted by reason of the
loss or destruction, through no fault of the appellant, of the reporter’s shorthand notes, or of the exhibits, or other matter necessary to the prosecution of
522 State v. Jackson
“1. Essential to a desirable or projected end or condition;
not to be dispensed with without loss, damage, inefficiency,
or the like … 2. Resulting from or happening in accordance with necessity; determined by the nature of things;
predestined or obedient to natural law … 3. Having the
character of being compelled or resulting from compulsion; not voluntary … 7. Logic. a. Logically required or
unavoidable … b. Impossible of denial without contradiction; a priori ….”
Both parties can find support for their arguments
in that definition. By including matters that cannot be
“dispensed with without loss, damage, inefficiency, or the
like,” the definition captures matters that are essential
as a practical matter but are not logically required in the
sense that, without them, the appeal would be procedurally
impossible. However, because the definition does include
matters that are “logically required or unavoidable,” the
legislature could have used the word “necessary” in that
more limited sense. We cannot answer the question before
us by looking solely to the dictionary definitions of the word
“necessary.”
Turning, then, to the remaining words in the subject phrase and its statutory context, we see several indications that the legislature did not intend to require the
procedural impossibility for which the state argues. Taken
to the extreme, a procedural impossibility would require a
showing of inability to commence an appeal. That stringent
view is inconsistent with two aspects of the statute. First, as
defendant argues, the word “necessary,” is part of a longer
phrase—“necessary to the prosecution of the appeal.” Thus,
the legislature did not intend that an appellate court look
only to the significance of a lost record in commencing an
appeal. “To ‘prosecute’ an action is not merely to commence
it, but includes following it to an ultimate conclusion.” Black’s
Law Dictionary, 1450 (3d ed 1933). Second, the statute permits a court to act when the record that is lost is an exhibit,
and a party need not produce an exhibit to commence an
appeal. Even if procedural necessity is not limited to the
the appeal, the judgment or decree appealed from may be reversed and a new
trial ordered as justice may require.”
Or Laws 1947, ch 192.
Cite as 369 Or 510 (2022) 523
commencement of an appeal, however, the broader context
in which the phrase is used indicates that the legislature
did not intend “necessity” to have the narrow meaning for
which the state argues. ORS 19.420(3) permits a court discretion to order a new trial “as justice may require.” If the
legislature intended to limit the statute’s reach to instances
of procedural impossibility, that impossibility alone would
typically compel a remedy. There would be little room for
discretion and a consideration of what “justice may require.”
We think it more likely that the legislature intended to grant
an appellate court broad authority to exercise its judgment
when, in its view, a lost exhibit is practically necessary to
the prosecution of an appeal.
In reaching that conclusion, we do not adopt defendant’s interpretation of ORS 19.420(3), at least to the extent
that he asserts that a lost record is “necessary” whenever
the record would be useful to defense counsel in deciding
whether to appeal. Even the most inclusive dictionary definition of “necessary” requires that the subject be “essential,”
or “not to be dispensed with without loss, damage, inefficiency, or the like,” Webster’s at 1635, which is more demanding than “useful.” And to focus solely on counsel’s need for
the record would ignore the role of the court in determining
whether the lost record is necessary “to the prosecution of the
appeal.” As noted, that phrase describes a process beyond
commencement of the appeal. Although it is a party that
prosecutes an appeal, the question of whether a lost record
is necessary to “the prosecution,” will not turn, solely, on
what a party needs to raise an issue, if a court can resolve
the appeal without addressing that issue.
That understanding is consistent with this court’s
analysis in Acremant, 338 Or at 339. There, as indicated,
the necessity of the destroyed transcript was not in dispute,
and the defendant argued that this court should exercise
its discretion to order a new penalty phase trial because,
without it, he and the court could not identify possible trial
court errors. In declining that invitation, we said that the
defendant had “fail[ed] to make a persuasive argument that
the missing transcript [would] prevent review by this court of
any error or miscarriage of justice that actually occurred.”
524 State v. Jackson
Id. (emphasis added). Our description of the relevant discretionary inquiry in Acremant is consistent with our statutory
interpretation here.
As a final step in our interpretation of ORS 19.420(3),
we ordinarily would consider legislative history that bears
on the meaning of the subject phrase. State v. Gaines, 346 Or
160, 171-72,
206 P3d 1042 (2009). However, in this case, the
parties have not pointed to, and we have not found, material
guidance there. Thus, from the statute’s text and context,
we conclude that the phrase “necessary to the prosecution of
the appeal” means that the lost record must be practically
necessary for the prosecution of the appeal, including not
only the commencement of the appeal, but also the presentation of the issues on appeal and the court’s resolution of
those issues. With that interpretation in hand, we turn to
its application to the present case.
IV. APPLICATION
To determine whether the Court of Appeals erred
in deciding that Exhibit 15 is not “necessary” to the prosecution of this appeal, we must first consider the issues on
appeal in that court. On appeal to the Court of Appeals,
defendant challenges the trial court’s denial of his motion to
suppress, arguing that he was unconstitutionally seized and
that the evidence arising from the seizure must therefore
be suppressed. To make that argument successfully, defendant will be required to establish (1) that he was seized, and
(2) that the seizure was not supported by reasonable suspicion (and was thus unconstitutional). See State v. Maciel-Figueroa, 361 Or 163, 170,
389 P3d 1121 (2017) (undertaking
that analysis). Defendant also likely will need to respond
to the state’s arguments that (1) defendant committed new
crimes (calling 9-1-1 absent an emergency and resisting the
officers’ attempts to handcuff him) and that his doing so
attenuated the taint of the seizure, and (2) that the error,
if any, was harmless. See State v. Suppah,
358 Or 565, 577,
369 P3d 1108 (2016) (committing new crime in response to
an unlawful seizure can attenuate taint of unlawful stop);
State v. Davis,
336 Or 19, 32,
77 P3d 1111 (2003) (requiring
that appellate court uphold verdict if little likelihood that
error affected it).
Cite as
369 Or 510 (2022) 525
Defendant contends that Exhibit 15 is necessary
to the court’s consideration of the foundational first issue
on appeal—whether defendant was seized. A seizure occurs
when “a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives” an
individual of her liberty or freedom of movement or if, under
the totality of the circumstances, a reasonable person would
believe her liberty was so restricted. State v. Ashbaugh, 349
Or 297, 316,
244 P3d 360 (2010). When an officer conveys to
the defendant by word, action, or both that the defendant is
not free to end the encounter, the officer seizes the defendant.
State v. Rodgers/Kirkeby,
347 Or 610, 627,
227 P3d 695 (2010).
An officer may convey that an individual is not free to leave
by the physical position that the officer occupies. See State v.
Dominguez-Martinez,
321 Or 206, 213,
895 P2d 306 (1995)
(defendant was seized when an officer told him he was free
to go but stood in the open doorway of defendant’s car). In
this case, defendant contends that Exhibit 15 could definitively establish that Charles took a position in the door to the
vestibule that conveyed to defendant that he was not free to
leave. Defendant claims that the video would show Charles’s
position, the position of defendant and his friend, and the size
and figuration of the vestibule—information that is practically necessary to determine whether a seizure occurred.
The state contends that Exhibit 15 is not necessary to the resolution of that legal issue for two reasons.
The first is the deferential standard of review on which the
Court of Appeals relied, viz., that “the trial court’s findings
of fact are binding on appeal, given that they are based on
and supported by testimony in the record.” The second is
that the Court of Appeals could resolve the issues on appeal
without deciding whether a seizure occurred, for instance
by deciding that even if a seizure occurred, it was supported
by reasonable suspicion, that the evidence to be suppressed
was not tainted by the seizure, or that the error, if any, was
harmless.
We will take the state’s second argument first. We
agree that once the Court of Appeals reaches the merits of
defendant’s appeal, it may proceed past the first door presented on appeal and take another door out. In other words,
526 State v. Jackson
the court may assume rather than decide that defendant was
seized and may uphold defendant’s conviction on some other
legal basis, thereby making Exhibit 15 unnecessary to its
determination. But the Court of Appeals has not yet taken
up the merits of defendant’s appeal, and we do not know how
it will proceed when it does. The issue before us is not how
the Court of Appeals could or should decide the merits of
defendant’s appeal, but whether the Court of Appeals erred
by deciding, before beginning that analysis, that Exhibit 15
was not necessary to its review.3
The reason that the Court of Appeals gave for denying defendant’s lost record motion was its understanding of
the standard of review: that the trial court had made findings of fact that, if supported by constitutionally sufficient
evidence in the record, could not be a basis for reversal. That
is a correct statement of the law. State v. Ehly, 317 Or 66,
74-75,
854 P2d 421 (1993). That rule of law does not mean,
however, that the Court of Appeals was correct in deciding
that Exhibit 15 is unnecessary to the prosecution of the
appeal. Before this court, defendant argues that, even recognizing that standard of review, there are two independent
reasons that Exhibit 15 could be practically necessary to the
court’s analysis of the merits of his appeal. First, the Court
of Appeals could decide that it needs to view Exhibit 15
to decide whether the trial court’s findings are supported
by constitutionally sufficient evidence. Second, the Court
of Appeals could determine that Exhibit 15 is practically
necessary even without disturbing supported and binding
factual findings: The court must look to the totality of the
circumstances to decide the legal question of whether defendant was seized and may consider Exhibit 15 necessary to
its legal analysis.
In his first argument, defendant contends that
video recordings are “uniquely powerful pieces of evidence”
3
We do not mean to imply that an appellate court can never decide a motion
under ORS 19.420(3) before reaching the merits of an appeal. There may well
be instances in which an appellate court can determine whether a lost record is
practically necessary to the prosecution before briefing. However, where, as here,
practical necessity depends on an analysis of the issues presented on appeal,
it may be error for the appellate court to decide a motion under ORS 19.420(3)
before considering the merits of those issues.
Cite as 369 Or 510 (2022) 527
because they create an “objective and irrefutable record” of
what occurred. He takes the position that, in this case, the
video could so severely undermine Charles’s testimony that
it renders that testimony constitutionally insufficient to
support the trial court’s factual findings. Defendant argues
that, where a witness’s testimony conflicts with an unaltered, clear video, and a trial court credits the testimony
rather than the video, the trial court’s findings are not supported by constitutionally sufficient evidence. Cf. Scott v.
Harris,
550 US 372, 380-81,
127 S Ct 1769,
167 L Ed 2d 686
(2007) (Eleventh Circuit erred in relying on respondent’s
version of events on summary judgment because respondent’s account was “utterly discredited” by video evidence;
court ought to have “viewed the facts in the light depicted by
the videotape”).
The state responds that defendant’s argument is
both foreclosed by the standard of review and speculative.
According to the state, defendant can establish only that
the video could show that Charles seized defendant, and
that is unlikely because the trial court found that Charles’s
testimony was consistent with the video, a finding to which
defendant did not object. Also, the state urges, defendant
did not rely on the video in making his renewed motion to
suppress; he surely would have done so if the video clearly
demonstrated that he was seized.
The parties’ arguments raise intriguing, important,
and complex questions about the weight that an appellate
court must give to testimonial evidence or findings based
on such evidence when the evidence or findings are controverted by other evidence, such as physical or recorded evidence, that is not beset by the limitations that accompany
witness testimony.4 In this case, those questions are even
4
Defendant contends that witness testimony is beset with limitations:
Memories fade and even alter with every retrieval. See Mark W. Bennett,
Unspringing the Witness Memory and Demeanor Trap: What Every Judge and
Juror Needs to Know about Cognitive Psychology and Witness Credibility, 64 Am
U L Rev 1331, 1336 (2015) (“Our brains then either recreate or reconstruct our
experiences rather than retrieve copies of them. However, in this process of
recreating or reconstructing, we add on feelings, beliefs, or even knowledge we
obtained after the experience. Thus, we bias our memories of the past by attributing to them emotions or knowledge we acquired after the event. Because memory
is not like a video camera that can perfectly recall images of past events, it is
528 State v. Jackson
more complex because the video evidence is lost, and neither
this court nor the Court of Appeals will be able to view it to
determine the extent to which it undermines Charles’s testimony and the trial court findings.
But, as it happens, we need not reach that question here. In our view, defendant’s second, alternative argument for why Exhibit 15 could be necessary to the Court
of Appeals’ analysis is persuasive. As we will explain, that
argument provides an independent basis for concluding
that the Court of Appeals erred in denying defendant’s lost
record motion without proceeding to the merits of his appeal
and considering it in that context.
Defendant’s second argument is that, without undermining or contradicting Charles’s testimony, the video will
show that Charles impeded defendant’s egress and thereby
seized him. We understand defendant to assert that the
events depicted in the video may both cohere with the trial
court’s factual findings and provide additional detail establishing the “totality of the circumstances” necessary to the
court’s legal conclusion.
To decide a motion to suppress and reach a legal
conclusion about whether the defendant was unconstitutionally seized, a court must look to the “totality of the circumstances” and determine whether a reasonable person would
have felt free to leave the encounter. Ashbaugh, 349 Or at
316. The totality of the circumstances is established not only
by the trial court’s findings of fact but also by undisputed
facts in the record. See Acremant,
338 Or at 317 (looking
to “undisputed facts relating to defendant’s assignment of
error … from the trial court’s findings of fact and from the
record” to evaluate whether the trial court erred on a motion
to suppress).
Here, the existence of the surveillance video and
what it revealed (i.e., that it depicted the encounter including
fraught with potential mischief.” (Internal quotations and citations omitted.)).
Listeners also do not access the raw data that the witness did. Instead, the witness selects and interprets the data that the witness considers meaningful to
offer a coherent account of “what happened.” Cf. State v. Lawson/James, 352 Or
724, 771-72,
291 P3d 673 (2012) (discussing scientific literature on factors affecting a witness’s perception of events in an appendix to the opinion).
Cite as
369 Or 510 (2022) 529
body positioning) were undisputed. The state introduced the
lost video in its case-in-chief, and Charles testified that the
video was “a fair and accurate depiction of the interactions
with [defendant] that night.” The trial court found the video
to be “consistent with” Charles’s testimony about the open
door and Charles’s position “outside or at the door.” Thus, if
Exhibit 15 were not lost, the trial court’s findings and the
applicable standard of review would not preclude the Court
of Appeals from considering it.
Accordingly, the Court of Appeals erred in deciding
that the standard of review made Exhibit 15 unnecessary
to its review. It did not. The standard of review did not preclude the Court of Appeals from deciding that Exhibit 15
was practically necessary to its review because the exhibit
goes to the totality of the circumstances, which an appellate court is required to look at to decide the legal question of whether defendant was seized. That error requires
that we reverse the order of the Court of Appeals denying
defendant’s motion for a new trial and return this case to
that court. That court is holding defendant’s appeal in abeyance, and, as it proceeds to analyze the merits, will want to
consider whether Exhibit 15 is practically necessary to its
resolution of the case and whether to exercise its discretion
to order a new trial. See, e.g., State v. Shumate, 262 Or App
109, 122-23,
330 P3d 29, rev den,
356 Or 397 (2014) (Court
of Appeals considered defendant’s lost record motion in context of its consideration of merits of defendant’s appeal);
cf. Smith,
311 Or at 380 & n 6 (Court of Appeals erred in
granting motion for new trial based only on the loss of the
record; whether Court of Appeals could reconsider issue in
the context of considering merits of appeal left open).
It is not our role to try to predict the course that
the Court of Appeals analysis will take. As discussed above,
there are paths that the Court of Appeals could take that
would eliminate its need to decide whether defendant was
seized. And it also is possible that the Court of Appeals could
agree with defendant on the seizure issue without viewing
Exhibit 15. For instance, the Court of Appeals could decide,
based only on the trial court findings and the evidence that
is in the record, that Charles’s position outside the door of
the enclosed vestibule communicated to defendant that he
530 State v. Jackson
was not free to leave, and therefore that the trial court erred
in denying defendant’s motion to suppress.5 See Dominguez-Martinez, 321 Or at 213 (the defendant was seized when an
officer told him he was free to go but stood in the open doorway of the defendant’s car). Either of those approaches would
render Exhibit 15 unnecessary to that court’s resolution of
defendant’s appeal. However, that court also could consider
the existence of a seizure to be dispositive and could determine that, to decide that legal question, it is practically necessary to view the lost video. If the Court of Appeals were to
reach that fork in the road, then that court would exercise
its discretion and consider what “justice requires,” including whether to reverse defendant’s conviction and whether
to order a new trial. On remand, the choices of path and the
decisions along the way are for the Court of Appeals.
The order of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
5
We note that Charles told defendant’s companion, but not defendant, that
he could leave the vestibule, which he described as “confined” and “enclosed.”
Charles also testified that he and his fellow officer were worried because they had
no means of escape, and the same might be said of defendant, who would have
needed to get by Charles to leave the vestibule.
