State v. Jackson

The Court reasoned that the legislature intended ORS 19.420(3) to apply when the lost record is “practically necessary” for commencing an appeal, presenting the issues to the appellate court, or for the court to resolve the issues on appeal. The Court found that the issue required the court to review the “totality of the circumstances” and therefore held that Exhibit 15 was practically necessary to do so.

Defendant appealed convictions for resisting arrest and improper use of emergency communication system. Posttrial, video evidence ("Exhibit 15") was lost or destroyed. Defendant assigned error to the Appellate Commissioner's denial of his ORS 19.420(3) lost record motion, which held that Exhibit 15 was not “necessary to the prosecution of the appeal.” Defendant argued that a piece of the record is necessary if its absence would prevent a party from commencing an appeal. In response, the State argued that a piece of the record is only necessary if its absence would completely prevent an appeal from proceeding. Under ORS 19.420(3), “[w]hen it appears that an appeal cannot be prosecuted, by reason of the loss or destruction, through no fault of the appellant” of evidence “necessary to the prosecution of the appeal, the judgment appealed from may be reversed and a new trial ordered as justice may require.” The Court reasoned that the legislature intended ORS 19.420(3) to apply when the lost record is “practically necessary” for commencing an appeal, presenting the issues to the appellate court, or for the court to resolve the issues on appeal. The Court found that the issue required the court to review the “totality of the circumstances” and therefore held that Exhibit 15 was practically necessary to do so. Reversed and remanded.