State v. Stull

Under the standard set out in State v. Moore, a trial court does not abuse its discretion by denying a party’s request for a continuance to secure the appearance of a witness who is unable or fails to appear at trial unless that party demonstrates that “(1) the witness can be produced; and (2) if produced, the witness would testify about a material fact.”

Defendant appealed from a judgment of conviction on multiple counts of criminal mischief and criminal trespass.  Defendant assigned error to the trial court’s denial his motion for a continuance to subpoena witnesses. On appeal, defendant first argued that the trial court’s denial of a continuance was an abuse of its discretion under the two-part standard set out in State v. Moore, 324 Or 396, 410 (1996). The state contended that the trial court did not abuse its discretion because defendant did not show that the witnesses would provide relevant, material testimony.  In affirming the trial court, the Court held that under Moore, a trial court does not abuse its discretion by denying a party’s request for a continuance to secure the appearance of a witness who is unable or fails to appear at trial unless that party demonstrates that “(1) the witness can be produced; and (2) if produced, the witness would testify about a material fact.” The Court also held that as a factual matter, the Defendant, both at the trial court and on appeal, had not shown how the testimony would be exculpatory or relevant. Affirmed.