640 February 14, 2024 No. 87

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SHAWN MITCHELL BROCKWAY,

Defendant-Appellant.

Clackamas County Circuit Court

20CR27780; A176595

Amy B. Lindgren, Judge.

Argued and submitted November 15, 2023.

Daniel C. Silberman, Deputy Public Defender, argued 

the cause for appellant. Also on the briefs was Ernest G. 

Lannet, Chief Defender, Criminal Appellate Section, Office 

of Public Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, 

argued the cause for respondent. Also on the brief were Ellen 

F. Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Reversed and remanded.

Joyce, J., concurring in part, dissenting in part.
Cite as 330 Or App 640 (2024) 641
642 State v. Brockway

AOYAGI, P. J.

Defendant appeals a judgment of conviction for 

harassment, ORS 166.065(3). He raises four assignments of 

error, arguing that the trial court erred by (1) denying his 

motion for a continuance; (2) failing to sua sponte give a concurrence instruction to the jury; (3) denying his motion for a 

judgment of acquittal; and (4) ordering him to perform community service as part of his sentence. We conclude that the 

court properly denied the motion for a judgment of acquittal. 

However, we agree with defendant that the court abused its 

discretion when it denied defendant’s request for at least a 

short continuance to investigate information provided by 

the state on the morning of trial, as relevant to the complaining witness’s potential bias. We therefore reverse and 

remand for a new trial. Given our disposition, we need not 

address the second and fourth assignments of error.

FACTS

The harassment charge against defendant arises 

from an incident that took place on a rural property where 

defendant resides with his elderly mother and serves as the 

caretaker. Defendant discovered F sleeping in an outbuilding 

on the property, called 9-1-1 to report the trespass, and took 

action to remove F from the outbuilding. There is conflicting 

evidence as to exactly what defendant did to remove F.

According to the state’s version of events, around 

5:30 a.m., defendant awoke F by yelling at him and shining 

a flashlight in his eyes, then sprayed mace or pepper spray 

at F’s face. After stepping outside to call 9-1-1, defendant 

returned, again told F to leave, began physically removing him, sprayed F again, and, once outside, threw a metal 

object at F’s head. F walked down the hill, where he met 

the police, who arrested him for trespassing. Defendant was 

somewhat uncooperative with the police. Defendant denied 

to the police that he had used pepper spray on F, but admitted pushing F, hitting F with a flashlight, and throwing a 

container at F.

According to the version of events most favorable to 

defendant, defendant opened the outbuilding door and yelled 

at F to get out, called 9-1-1 multiple times, never entered the 
Cite as 330 Or App 640 (2024) 643

outbuilding, never had any physical contact with F, never 

sprayed anything at F, yelled at F to leave when F exited the 

outbuilding without his belongings and tried to shake defendant’s hand, and threw a plastic milk crate and a flashlight 

at F.

MOTION FOR JUDGMENT OF ACQUITTAL

Defendant raised the defense-of-premises defense 

at trial. That defense provides that “[a] person in lawful possession or control of premises is justified in using physical 

force upon another person when and to the extent that the 

person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the 

other person in or upon the premises.” ORS 161.225(1). Once 

the defense was raised, the state had the burden of disproving it beyond a reasonable doubt. ORS 161.055(1). Defendant 

moved for a judgment of acquittal on the defense-of-premises defense, arguing that the evidence was legally insufficient for the state to disprove the defense.

Our task on review of the denial of a motion for judgment of acquittal is to examine the evidence “in the light 

most favorable to the state to determine whether a rational 

trier of fact, accepting reasonable inferences and reasonable 

credibility choices, could have found the essential element of 

the crime beyond a reasonable doubt.” State v. Cunningham, 

320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 

(1995).

Viewing the record in the light most favorable to the 

state, a rational trier of fact could find that defendant used 

a greater degree of physical force than was reasonably necessary to remove F from the premises. See ORS 161.225(1) 

(permitting the use of physical force only “to the extent that 

the person reasonably believes it necessary” to terminate an 

act of criminal trespassing); Warren v. Baldwin, 140 Or App 

318, 333, 915 P2d 1016, rev den, 324 Or 229 (1996) (recognizing that the defense-of-premises defense requires both a 

reasonable belief that a person is committing a qualifying 

crime and a reasonable belief that the degree of force used is 

“necessary under the circumstances”). That is not the only 
644 State v. Brockway

finding that a jury could make, but it is one that this record 

allows, when the record is viewed in the light most favorable 

to the state. The trial court therefore did not err in denying 

the motion for a judgment of acquittal.

MOTION FOR CONTINUANCE

We next consider the denial of defendant’s motion 

for a continuance. We review that ruling for abuse of discretion. State v. Powell, 322 Or App 37, 44, 518 P3d 949 (2022), 

rev den, 370 Or 740 (2023). “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, 386 P3d 122 

(2016), rev den, 360 Or 752 (2017). 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, 331 P3d 1086 (2014) (internal quotation marks 

omitted). “Additionally, we will not overturn a denial of a 

defendant’s motion for a continuance unless the defendant 

demonstrates prejudice.” Id.

On the morning of trial, about 15 minutes before 

the proceedings began, the state disclosed to defense counsel that the district attorney’s office had a pre-charge referral for F for fourth-degree assault. That information was 

potentially relevant to bias, if F had a motive to curry favor 

with the state by testifying favorably for the prosecution in 

defendant’s trial. See State v. Nacoste, 272 Or App 460, 468, 

356 P3d 135 (2015) (“One well-recognized category of bias 

evidence is evidence that a witness has a reason to curry 

favor with the prosecution, or is under the influence of the 

prosecution, because of the witness’s own criminal conduct 

or custody status.”). F was the alleged victim and thus a key 

witness for the state. Indeed, the state’s only other witness 

was a police officer who arrived after the incident was over.

Defense counsel requested an OEC 104 hearing to 

ask F about the potential charge, because he did not want to 

“look foolish” asking about it at trial if F was just going to 

deny knowledge of it. See OEC 104 (allowing the court to hold 
Cite as 330 Or App 640 (2024) 645

a hearing to determine preliminary questions concerning 

certain evidentiary matters). At the hearing, F denied any 

recent arrest for fourth-degree assault, denied any arrest 

at all in the last 90 days, denied any knowledge of anyone 

recently making assault allegations against him, denied any 

awareness of pending charges, and denied any negotiations 

with the state. After hearing F’s testimony, defense counsel 

requested a continuance. He argued that he was ethically 

obligated to investigate the new information, even though 

he was “incredibly hesitant” to request a continuance. He 

noted that the police report would likely reveal whether F 

“should know something” about the potential charge. If F 

was being dishonest, then he could impeach F as relevant to 

showing bias, or it might reveal that “there’s just no basis for 

him to be potentially biased.” The prosecutor had already 

represented that he had no information about the referral, 

other than its existence.1

The trial court denied the continuance. The court 

had previously ruled, before the OEC 104 hearing, that it 

would “allow impeachment examination [of F] on the theory 

that bias is always relevant.” The court denied the continuance request, however, citing the fact that it was only a 

referral and might not actually be charged, and the fact that 

F had testified under oath that he did not have any knowledge of it.

The trial court’s stated reasons for denying a continuance do not survive scrutiny. For bias purposes, the 

desire to avoid a criminal charge altogether would seem 

to be as powerful a potential motivator as the desire to get 

favorable treatment on an existing charge. See State v. Valle, 

255 Or App 805, 811, 298 P3d 1237 (2013) (“[I]t is error for 

a trial court to exclude evidence from which a jury could 

reasonably infer that a prosecution witness has a motive to 

curry favor with the state. Such evidence includes evidence 

that the witness is on probation, has pending charges, or 

is the subject of a criminal investigation.”); State v. Presley, 

1 We note that defendant does not assert that the state acted in bad faith or 

committed a discovery violation by providing the information on the morning of 

trial—only that he should have been given some opportunity to investigate the 

information. Meanwhile, the state does not contest that defendant was entitled to 

the information. 
646 State v. Brockway

84 Or App 1, 5-6, 733 P2d 452 (1987) (holding that it was 

error not to allow the defendant to cross-examine the state’s 

informant about the informant’s pending theft charge that 

was later dismissed, because the pending charge was relevant bias evidence); see also Jaynes v. Cain, 319 Or App 659, 

668, 511 P3d 58 (2022) (“A witness can have bias resulting 

from benefits he may subjectively expect or hope to receive, 

whether or not those perceived benefits are grounded in 

reality.”). The state has not presented any argument or cited 

any case law to the contrary.

As for F’s denial of knowledge at the OEC 104 hearing, that is precisely why defendant needed to investigate. 

If F had admitted knowledge of the potential charge, then 

defendant would have had the necessary information to pursue a bias theory. However, because F denied any knowledge, defendant could not pursue a bias theory without first 

impeaching F’s denial of knowledge. Without impeachment 

evidence on knowledge, defendant could do nothing with the 

last-minute information, other than “look foolish” by asking 

F a question that he knew would be met with a denial.2

The trial court therefore relied on faulty legal premises when it denied defendant’s motion for a continuance for 

the reasons that it did. See Anderson v. Sullivan, 311 Or App 

406, 413, 492 P3d 118, rev den, 368 Or 702 (2021) (“Relying 

on a mistaken legal premise when exercising discretion 

is error, regardless of whether the trial court would have 

had discretion to reach the same result based on a correct 

understanding of the law.”); State v. Romero (A138124), 236 

Or App 640, 643-44, 237 P3d 894 (2010) (when a trial court’s 

exercise of discretion “flows from a mistaken legal premise, 

its decision does not fall within the range of legally correct 

choices and does not produce a permissible, legally correct 

outcome,” making it an abuse of discretion).

2 There is possibly a third point on which the trial court relied in denying the 

continuance. The state asserted as part of its argument against a continuance, 

“I think that what [defense counsel] elicited would essentially be the extent of 

information that would be able to be elicited either way when an individual is 

cross examined regarding possible bias or prejudice.” It is unclear whether the 

trial court adopted that as a third consideration for denying the motion. If it did, 

that is also legally incorrect, for the reasons discussed later in addressing the 

state’s prejudice argument. 
Cite as 330 Or App 640 (2024) 647

Furthermore, we agree with defendant that, in 

these circumstances, it was not within the range of legally 

permissible outcomes for the trial court to deny him any 

continuance whatsoever. The state has not cited, and we are 

unaware of, any prior decision holding that it was within 

a trial court’s discretion to deny a criminal defendant any

opportunity whatsoever to investigate information provided 

by the state immediately before trial that could plausibly 

lead to evidence materially beneficial to the defense. To the 

contrary, in cases where defense counsel has been unprepared to proceed due to circumstances outside counsel’s 

control, we have previously held it to be an abuse of discretion to deny a continuance. See, e.g., Ferraro, 264 Or App at 

282, 288 (holding that it was error to deny the defendant’s 

request for a continuance to investigate possible impeachment evidence, where the delay was not attributable to him);

State v. Kindler, 277 Or App 242, 252, 370 P3d 909 (2016) 

(holding that it was error to deny the defendant’s request for 

a continuance, where his counsel had not been given sufficient time to prepare). Defendant should have been allowed 

at least enough time to obtain a copy of the police report.

Several considerations are relevant to that conclusion. First, F’s credibility was a central issue at trial, because 

he was the complainant and the only eyewitness other than 

defendant, and there was minimal other evidence. See 

Ferraro, 264 Or App at 288 (explaining, in connection with 

reversing a criminal conviction based on erroneous denial of 

a continuance, that the credibility of the complainant and 

of her mother was “an issue that was central to [the defendant’s] case and defense”). Second, defendant did not have 

any other bias evidence regarding F. Third, and most importantly, it was the state, not defendant, that showed up on 

the morning of trial with new information. Compare State 

v. Hickey, 79 Or App 200, 204, 717 P2d 1287 (1986) (en banc) 

(reversing conviction based on erroneous denial of a continuance, and considering as part of our analysis that “circumstances beyond his and his counsel’s control caused defendant’s unpreparedness” on the morning of trial), with State 

v. Snyder, 330 Or App 477, 478, ___ P3d ___ (2024) (affirming the denial of a continuance to investigate discovery produced six days before trial, where the defendant “had reason 
648 State v. Brockway

and an opportunity to do the investigation that he sought to 

do long before trial” and “the additional material should not 

have come as a surprise” to him) and State v. Sassarini, 300 

Or App 106, 118, 452 P3d 457 (2019) (affirming the denial of 

a continuance where the defendant made a tactical decision 

to wait to seek certain evidence until the day set for trial). 

Defendant acted promptly on the new information, requesting an OEC 104 hearing and only moving for a continuance 

once he knew that F would deny knowledge.

As for prejudice, the state argues on appeal that the 

denial of a continuance did not prejudice defendant because, 

even if defendant were to discover evidence that F lied at 

the OEC 104 hearing, that evidence would be inadmissible under OEC 608. See OEC 608(2) (prohibiting the use of 

extrinsic evidence to prove specific instances of conduct by a 

witness and thereby attack the witness’s credibility, except 

for certain criminal convictions). But defendant was interested in F’s potential bias, and, as to bias evidence, OEC 

609-1(2) provides:

“If a witness fully admits the facts claimed to show the 

bias or interest of the witness, additional evidence of that 

bias or interest shall not be admitted. If the witness denies 

or does not fully admit the facts claimed to show bias or 

interest, the party attacking the credibility of the witness 

may then offer evidence to prove those facts.”

(Emphasis added.)

The state’s argument that defendant has not established prejudice is thus unpersuasive. Because defendant’s 

trial largely came down to a credibility contest between 

F’s version of events and defendant’s version of events, we 

cannot say that denial of the continuance did not prejudice 

defendant, particularly in a case that was close enough to 

produce a split verdict. See Ferraro, 264 Or App at 288 (stating, as to prejudice, “we cannot say that the court’s refusal 

to allow the continuance did not deny defendant his right to 

present an adequate defense”); see also Kindler, 277 Or App 

at 252 (the defendant did not have to make a “rigorous and 

particularized” showing of prejudice, because the denial of 

the continuance made it impossible to know “what additional 

arguments and proof defense counsel might have developed 
Cite as 330 Or App 640 (2024) 649

if the court had allowed a reasonable continuance”); Hickey, 

79 Or App at 204 (“We cannot say that the court’s refusal to 

allow the continuance did not deny to defendant his attorney’s best efforts on his behalf, which includes adequate 

preparation for trial.”).

In sum, the trial court abused its discretion in denying defendant’s request for a continuance to allow him to 

investigate the state’s morning-of-trial disclosure that the 

complainant had a pending referral on a potential criminal charge, which might cause the complainant to want to 

curry favor with the state. The court’s reasons for denying 

the continuance were legally unsound. Moreover, under the 

circumstances, it was outside the range of legally permissible options for the court to deny defendant any opportunity 

to investigate the late-produced information. If the complainant had admitted knowledge of the potential charge at 

the OEC 104 hearing, or if the state had provided a copy of 

the police report when it made the disclosure, there likely 

would have been no need for a continuance. As it was, however, at least a short continuance was necessary, and it was 

an abuse of discretion to deny one. We therefore reverse 

defendant’s conviction and remand for a new trial.

Reversed and remanded.

JOYCE, J., concurring in part, dissenting in part.

We have “historically been loath to second-guess 

trial courts’ denials of motions for postponement or continuance,” reviewing such denials for abuse of discretion. 

State v. Kindler, 277 Or App 242, 250, 370 P3d 909 (2016). 

While I appreciate that limits exist on that discretion, I do 

not believe that the trial court here exceeded those limits. 

Accordingly, I dissent.1

The motion for a continuance here was prompted 

by the prosecutor’s disclosure on the morning of trial about 

a precharge referral of an assault in the fourth degree 

against the complainant, F. To be sure, that disclosure was 

1 I concur in the majority’s opinion that the trial court correctly denied his 

motion for judgment of acquittal. Because I dissent from the majority’s analysis 

on the motion to continue, I would reach defendant’s remaining assignments of 

error, and I would reject both of those claims of error.
650 State v. Brockway

new information, both for the state and defendant. But in 

my view, the trial court addressed it appropriately. The trial 

court held an OEC 104 hearing in which F testified under 

oath that he had no knowledge about the potential charge 

and had not engaged in any negotiations with the state. In 

denying the motion for a continuance, the trial court noted 

those denials and further explained that F had not been 

charged, and whether the referral would lead to a charge 

was uncertain and speculative; defendant could question F 

about the possible charge;2

 and any extrinsic evidence defendant might procure may be inadmissible.3

Those factors were appropriate for the trial court 

to consider, and indeed, the trial court was in the best position to balance them with the interests of the parties and 

the court. See State v. Powell, 322 Or App 37, 44-45, 518 

P3d 949 (2022), rev den, 370 Or 740 (2023) (“In exercising 

its discretion, the trial court balances the many demands 

associated with managing multiple dockets, the defendant’s 

interest in having [their] lawyer adequately prepared, the 

victim’s interest in timely resolution and avoiding the stress 

that accompanies trial preparation activities, and the state’s 

interest in expeditiously bringing the case to final resolution. The balancing of those interests is best suited to the 

trial court ***.”). I would thus conclude that the trial court 

properly exercised its discretion in light of the information 

that arose the morning of trial.

In my view, the majority places a new limit on that 

discretion and departs from our existing case law. To support its conclusion that the trial court abused its discretion 

in denying defendant’s motion for a continuance, the majority relies on Kindler, State v. Ferraro, 264 Or App 271, 331 

P3d 1086 (2014), and State v. Hickey, 79 Or App 200, 717 P2d 

1287 (1986). The circumstances in each of those cases and 

2 Defense counsel’s ability to question F about the potential charge during 

trial, even if he knew it would be met with a denial, was not necessarily unavailing. It is possible that the jury may not have found the denial to be credible. We 

can infer that the jury did not find F to be entirely credible given that they did 

not convict defendant of the unlawful use of mace charge after F testified that 

defendant sprayed him with mace.

3 The majority correctly points out that defendant could have obtained 

admissible bias evidence under OEC 609-1(2), but the admissibility of the evidence was just one consideration among several that the trial court considered.
Cite as 330 Or App 640 (2024) 651

the factors that we gave weight to in holding that the trial 

courts had abused their discretion are distinguishable from 

this case.

In Ferraro, the defendant was indicted on 21 felony 

sex offenses arising out of numerous events spanning over 

a year, and he did not obtain counsel until 34 days before 

the date set for trial. 264 Or App at 273, 275. In Kindler, the 

defendant was indicted on unlawful possession of methamphetamine six days before a suppression hearing and trial 

and arraigned minutes before the proceedings. 277 Or App 

at 250. In Hickey, the defendant was on trial for a Class B 

felony, and defense counsel’s briefcase containing the entire 

case file was stolen the night before trial. 79 Or App at 202.

In each of those cases, the defendant moved for a 

continuance on the day of trial, the trial court denied the 

motion, and we reversed. In holding that the trial courts 

had abused their discretion, we reasoned that the defendants had been prevented from adequately preparing a 

defense, noting the gravity of the felony offenses in Ferraro

and Hickey, and the insufficient amount of time counsel 

had to prepare for trial in all three cases. See Ferraro, 264 

Or App at 282 (the delays in procurement of defense counsel 

“prevented defendant’s attorney from adequately investigating and preparing a significant part of defendant’s defense 

at trial” (emphasis added)); Kindler, 277 Or App at 250 

(defense counsel had “no meaningful opportunity to prepare 

for a suppression hearing or trial”); Hickey, 79 Or App at 203 

(“The loss of the file prevented [defense] counsel from completing the preparation of the case for trial. It deprived him 

of his work product developed for use during the trial, and 

he insisted that he could not adequately defend his client 

without those materials.”).

In contrast, this case was nearly a year old, involved 

two misdemeanors arising out of one incident, and defense 

counsel had sufficient time to prepare. Although defense 

counsel did not have additional time to investigate the pending precharge referral, that denial did not prevent him from 

preparing a significant part of defendant’s defense at trial; 

having a meaningful opportunity to prepare; or adequately 

defending his client. F’s potential bias was relevant, but it 
652 State v. Brockway

was not defendant’s primary theory of the case and, importantly, the trial court allowed defendant to ask F about 

that potential bias based on the information that both parties had. In short, the trial court’s denial of the motion for 

a continuance did not preclude defense counsel from adequately preparing a defense, and thus it was not an abuse of 

discretion.

To be clear, the majority offers a well-reasoned 

opinion for why granting a motion to continue would have 

been appropriate. But “we may not substitute our judgment 

for that of the trial court even if we might have resolved the 

issue differently.” State v. Licari, 261 Or App 805, 808, 322 

P3d 568, rev den, 355 Or 880 (2014). That it would not have 

been error to grant the motion to continue does not mean 

that it was error to deny it.

Accordingly, I respectfully dissent.