State v. Brockway

“In reviewing the denial of a motion for continuance, we determine the propriety of the motion by examining the circumstances of the case and the reasons presented to the court at the time that it denied the request.” State v. Stull, 281 Or App 662, 667 (2016). “If the trial court’s decision ‘is within the range of legally correct choices and produces a permissible, legally correct outcome, then the trial court did not abuse its discretion.’” State v. Ferraro, 264 Or App 271, 281 (2014).

The defendant appealed his conviction of harassment for physically removing a trespasser. He argued that the trial court erred by denying his request for a continuance, failing to instruct the jury on concurrence, denying his motion for a judgment of acquittal, and imposing community service. “In reviewing the denial of a motion for continuance, we determine the propriety of the motion by examining the circumstances of the case and the reasons presented to the court at the time that it denied the request.” State v. Stull, 281 Or App 662, 667 (2016). “If the trial court’s decision ‘is within the range of legally correct choices and produces a permissible, legally correct outcome, then the trial court did not abuse its discretion.’” State v. Ferraro, 264 Or App 271, 281 (2014). The Court upheld the denial of the acquittal motion, finding sufficient evidence that the defendant used excessive force. However, the Court found the trial court abused its discretion by denying the continuance which was crucial for the defendant to investigate potential bias in the trespasser's testimony. The Court reasoned the new information presented by the State at trial and the minimal evidence justified the need for a continuance. The Court found the denial of continuance was in error because it hindered the defendant’s ability to investigate and challenge the credibility of the trespasser. The Court did not address the other assignments of error. Reversed and Remanded.