Ann M. Lininger, Judge.

Submitted May 15, 2025.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Marc D. Brown, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge.

KAMINS, J.

Affirmed.

144 State v. Potter

KAMINS, J.

Defendant appeals a judgment of multiple convictions stemming from a domestic violence incident. In a single assignment of error, defendant challenges the trial court’s remedy for a discovery violation. Reviewing for abuse of discretion, State v. Moss, 147 Or App 658, 663, 938 P2d 215, rev den, 325 Or 491 (1997), we affirm.

At trial, the victim, A, testified that she sent photographs documenting her injuries to one of the police officers, which were not among the photographs that had been provided to defendant by the prosecutor’s office; the existence of those photographs was news to both the defense attorney and the prosecutor. The police officer acknowledged that he forgot to include the additional photographs in his report. Defendant moved for a mistrial as a sanction for the statutory discovery violation, ORS 135.815(1)(g),1 arguing, in the main, that it would have affected his cross-examination of A. The trial court agreed that an inadvertent discovery violation had occurred but declined to grant a mistrial, instead offering the remedy of a continuance and the opportunity for defendant to cross-examine A and the police officer again. See ORS 135.865 (to remedy a discovery violation, a trial court “may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate”).

On appeal, defendant now argues, in the main, that the discovery violation may have affected his decision to waive jury, and thus the only remedy that would have sufficed was a mistrial. Because defense counsel’s advice to

1 ORS 135.815(1)(g) provides, in full:

“Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney:

“(g) Any material or information that tends to: “(A) Exculpate the defendant;

“(B) Negate or mitigate the defendant’s guilt or punishment; or “(C) Impeach a person the district attorney intends to call as a witness at the trial.”

Nonprecedential Memo Op: 341 Or App 143 (2025) 145 waive jury was based on counsel’s belief that the case presented only “legal issues,” and the new photographs presented an opportunity to challenge the credibility of the victim, defendant argues that, had defense counsel received the photographs prior to trial, she may have advised defendant not to waive jury.

The trial court did not abuse its discretion in rejecting defendant’s argument. The trial court noted that the case was a credibility contest regardless of the photos and reasoned that a continuance would allow defendant to use the photographs in cross-examination. That was a legally permissible remedy. See State v. King, 30 Or App 223, 228, 566 P2d 1204 (1977), rev den, 281 Or 1 (1978), overruled in part on other grounds by State v. Dyson, 292 Or 26, 35, 636 P2d 961 (1981) (acknowledging that the legislature intended “a reasonable continuance” to be “the most appropriate remedy in the majority of situations”); see also State v. Pilon, 321 Or App 460, 477, 516 P3d 1181 (2022) (recognizing the breadth of a court’s discretion to fashion a remedy under ORS 138.865, considering factors including “[t]he amount of prejudice created by a violation, the reasons disclosure was not made, the feasibility of rectifying the prejudice, and other relevant circumstances”).

Affirmed.