State v. Lorenzo

“Disobedience to a subpoena or a refusal to be sworn or to answer as a witness may be punished as contempt by a court before whom the action is pending or by the judge or justice issuing the subpoena. Upon hearing or trial, if the witness is a party and disobeys a subpoena or refuses to be sworn or to answer as a witness, such party’s complaint, answer, or reply may be stricken.” ORCP 55 G; “Except for offenses based on municipal or county ordinance, in a criminal action the State of Oregon is the plaintiff and the person prosecuted is the defendant.” ORS 131.025.

The State appealed a trial court order dismissing the State’s information charging Defendant with attempted Assault in the Third Degree, constituting domestic violence. The State assigned error to the trial court’s dismissal of the information after the alleged victim, who had been subpoenaed by the State, failed to appear for trial. On appeal, the State argued that, a victim is not a “party” for purposes of ORCP 55 G, and, therefore, the trial court was not authorized to dismiss the State’s charging instrument when the alleged victim in the case failed to comply with the State’s subpoena. “Disobedience to a subpoena or a refusal to be sworn or to answer as a witness may be punished as contempt by a court before whom the action is pending or by the judge or justice issuing the subpoena. Upon hearing or trial, if the witness is a party and disobeys a subpoena or refuses to be sworn or to answer as a witness, such party’s complaint, answer, or reply may be stricken.” ORCP 55 G. The Court held that a victim is not a "party" to a criminal case. Therefore, ORCP 55 G does not authorize a court to dismiss the State’s charging instrument in a criminal case where the witness who disobeys the subpoena is not a party, but the victim of the alleged crime. Reversed and Remanded.