No. 343 July 6, 2023 753

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

RAY LOREN ROCKAFELLOR II,

Defendant-Appellant.

Hood River County Circuit Court

19CR18975, 19CR18981;

A176458 (Control), A176459

John A. Olson, Judge.

Submitted December 7, 2022.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Sara F. Werboff, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Doug M. Petrina, Assistant Attorney 

General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagán, Judge.

SHORR, P. J.

Affirmed.
754 State v. Rockafellor
Cite as 326 Or App 753 (2023) 755

SHORR, P. J.

In this consolidated criminal appeal, defendant 

appeals from two judgments that together convicted him of 

one count of driving under the influence of intoxicants, ORS 

813.010(4), and one count of resisting arrest, ORS 162.315. 

Defendant contends that the trial court abused its discretion and violated defendant’s rights under Article I, section 

11, of the Oregon Constitution and the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution, 

when it ordered defendant, as well as all other individuals 

in the courtroom who did not provide proof of their vaccination against COVID-19, to wear a protective face mask 

during trial except while testifying. We conclude that the 

trial court did not abuse its discretion or violate defendant’s 

constitutional rights and therefore affirm.

The relevant facts are purely procedural. Defendant 

was charged with driving under the influence of intoxicants 

and resisting arrest in two separate cases stemming from 

the same incident. As defendant proceeded to a consolidated 

jury trial in June 2021, defendant filed a “motion for constitutional trial procedures,” in which he requested that 

the “court state trial court procedures on the record or in 

writing in advance of trial,” requested that “all witnesses 

be barred from wearing facial coverings that bar full view 

of facial expressions,” and requested supplemental introductory jury instructions. The trial court responded with 

a letter informing defendant of the “trial protocol the court 

will be employing to ensure a fair trial that is also safe for 

all the participants” in light of the ongoing COVID-19 pandemic. That letter specified certain social distancing and 

masking requirements that would be followed, including 

that “[Centers for Disease Control and Prevention (CDC)] 

guidelines” would be followed “regarding masks,” that 

“[a]nyone providing proof of completed vaccination will be 

permitted but not required to remove their mask,” and that 

“[w]itnesses will testify behind a clear divider from the witness chair but will not wear a mask while testifying.” Those 

measures were consistent with Chief Justice Order (CJO) 

No. 21-016 (May 25, 2021), which was in effect at the time of 

trial and which required the use of protective face masks in 
756 State v. Rockafellor

Oregon courts with only certain delineated exceptions, one 

of which being that a judge was permitted to allow “fully 

vaccinated participants to remove their protective face coverings during the proceeding, provided that the judge both 

requests and reviews proof of fully vaccinated status of any 

such participant.” CJO No. 21-016, ¶ 4(a)(1).1

On the morning of trial, defendant moved in limine

“asking although [defendant is] not vaccinated if he’d be 

allowed to not wear a mask during his trial.” Defendant 

cited State v. Schroeder, 62 Or App 331, 661 P2d 111, rev den, 

295 Or 161 (1983), analogized the court’s mask requirement to shackling, and contended that the issue presented 

“a due process question.” Defendant also argued that the 

court’s mask requirement “poses some Confrontation Clause 

issues” under both the state and federal constitutions, positing that the masking requirement would prevent him from 

meeting his accusers “face to face.” Defense counsel added 

that defendant had “passed a COVID test * * * yesterday.” 

The state responded that defendant’s right to confront witnesses would not be impeded by the masking requirement 

and contended that masking was not analogous to shackling. Nevertheless, the state conceded that it was not “familiar with the actual Oregon or even federal guidelines right 

now, or rules in place in terms of being masked,” and that 

“without knowing the full rules either I—I can’t object, but 

I’m not going to take a position at this point.”

The trial court denied defendant’s request for an 

exception from the masking requirement for unvaccinated 

individuals, stating that “[m]y understanding of the current 

CDC guidelines is that it’s recommended that persons who 

are unvaccinated continue to wear masks, persons that are 

vaccinated are not required to wear masks. We’re going to 

follow the guidelines.” As to defendant’s shackling arguments, the court concluded that there was nothing “about 

wearing a mask that is the least bit stigmatizing in the current society,” that masking was “completely innocuous under 

current culture,” and that it bore “no relation to” shackling. 

The court noted that the attorneys, jurors, and court would 

1 The CJO is available at https://www.courts.oregon.gov/Documents/

CJO_2021-016.pdf (accessed June 27, 2023).
Cite as 326 Or App 753 (2023) 757

all be wearing masks unless they both presented proof of 

vaccination and chose to remove their mask. Finally, as to 

defendant’s confrontation arguments, the court concluded 

that masking did not “prevent a person from seeing the witnesses against them and hearing their testimony and being 

present with them.” The court reiterated that, should defendant choose to testify, he would not “be required to wear a 

mask during his testimony.”

A jury was subsequently empaneled and heard the 

evidence presented. After the state rested its case, the trial 

court noted for the record that both lawyers and two jurors 

had worn masks for the duration of the one-day trial thus 

far, which the court believed supported its “supposition that 

[masking is] not stigmatizing.” The jury returned guilty verdicts on both counts, the court entered judgments of conviction, and this timely appeal followed.

As explained above, defendant assigns error to the 

trial court’s order requiring defendant to wear a protective 

face mask during trial except when testifying, contending that the masking requirement “infringed upon defendant’s constitutional rights and was not justified based on 

the record in this case.” Whether a defendant was denied 

his constitutional rights to confrontation and a fair trial 

are legal questions that we review for errors of law. State v. 

Martin, 370 Or 653, 657-58, 522 P3d 841 (2022) (reviewing 

alleged violation of confrontation rights for errors of law); 

State v. Presock, 281 Or App 277, 280, 380 P3d 1192 (2016), 

rev den, 360 Or 852 (2017) (reviewing alleged violation of 

due process rights for errors of law). However, when such 

rights are not implicated, we review a trial court’s exercise 

of control over courtroom proceedings for abuse of discretion. See State v. Pierce, 307 Or App 429, 432, 477 P3d 437 

(2020) (reviewing trial court’s control over the presentation 

of evidence and examination of witnesses for abuse of discretion); see also State v. Washington, 355 Or 612, 629, 330 

P3d 596, cert den, 574 US 1016 (2014) (reviewing trial court’s 

order requiring that a defendant be physically restrained 

for purposes of courtroom security for abuse of discretion). 

Under those standards, we first review the court’s ruling 

without deference to determine whether the law was applied 

correctly. If application of the correct legal principles leads 
758 State v. Rockafellor

to more than one correct outcome, we then consider whether 

the trial court’s decision was within the range of legally 

correct discretionary choices and produced a legally correct 

outcome. State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000). 

If so, the trial court did not abuse its discretion. Id.

Defendant raises two distinct arguments—first, 

that the court’s masking requirement violated his right to 

face-to-face confrontation under Article I, section 11, and the 

Sixth Amendment, and second, that the masking requirement violated his right to appear without visible restraints 

under Article I, section 11, and the Fifth and Fourteenth 

Amendments. The parties contend that defendant’s state 

and federal rights are indistinguishable, and thus do not 

offer differentiated arguments as to those separate authorities. We agree and proceed in the same fashion.

We first consider defendant’s confrontation rights—

under Article I, section 11, the right “to meet the witnesses 

face to face,” and under the Sixth Amendment, the right “to 

be confronted with the witnesses against him.” The central 

purpose of confrontation is “to ensure the reliability of the 

evidence against a criminal defendant by subjecting it to 

rigorous testing in the context of an adversary proceeding 

before the trier of fact.” Maryland v. Craig, 497 US 836, 845, 

110 S Ct 3157, 111 L Ed 2d 666 (1990). As the United States 

Supreme Court noted in its earliest case considering the 

Confrontation Clause, the primary object of the provision 

was

“to prevent depositions or ex parte affidavits, such as were 

sometimes admitted in civil cases, being used against 

the prisoner in lieu of a personal examination and crossexamination of the witness in which the accused has an 

opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him 

to stand face to face with the jury in order that they may 

look at him, and judge by his demeanor upon the stand and 

the manner in which he gives his testimony whether he is 

worthy of belief.”

Mattox v. United States, 156 US 237, 242-43, 15 S Ct 337, 

39 L Ed 409 (1895). Confrontation combines four separate 

elements—physical presence, oath, cross-examination, and 
Cite as 326 Or App 753 (2023) 759

observation of demeanor by the trier of fact—which together 

ensure that evidence admitted against a criminal defendant 

is “reliable and subject to * * * rigorous adversarial testing.” 

Craig, 497 US at 846; see also Kirby v. United States, 174 US 

47, 55, 19 S Ct 574, 43 L Ed 890 (1899) (similarly describing 

confrontation as ensuring evidence is established by “witnesses who confront [the defendant] at the trial, upon whom 

he can look while being tried, whom he is entitled to crossexamine, and whose testimony he may impeach”). Those elements also ensure a fair trial and the integrity of the factfinding process. Coy v. Iowa, 487 US 1012, 1019-20, 108 S Ct 

2798, 101 L Ed 2d 857 (1988).

However, face-to-face confrontation is still not the 

“sine qua non of the confrontation right.” Craig, 497 US at 

847. In certain “narrow circumstances,” competing interests may warrant “dispensing with confrontation at trial.” 

Id. at 848. In other words, “precedents establish that the 

Confrontation Clause reflects a preference for face-to-face 

confrontation at trial, a preference that must occasionally 

give way to considerations of public policy and the necessities of the case.” Id. at 849 (internal quotation marks and 

citation omitted, emphasis in original). Specifically, a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial 

“where denial of such confrontation is necessary to further 

an important public policy” and “where the reliability of the 

testimony is otherwise assured.” Id. at 850. Indeed, a declarant’s otherwise reliable hearsay statements have survived 

Confrontation Clause challenges despite the fact that the 

declarant is not testifying in court. Id. at 847-48.

We conclude that the circumstances here, in which 

all courtroom participants including defendant were required 

to wear a protective face mask if they did not provide the 

court with proof of vaccination against COVID-19, with the 

exception that all witnesses were ordered to remove their 

masks while testifying, did not impede defendant’s rights to 

confront the witnesses against him under Article I, section 

11, or the Sixth Amendment. As explained above, confrontation is primarily concerned with ensuring the reliability of 

evidence offered by witnesses, and ensuring that a defendant 
760 State v. Rockafellor

and jury have adequate access to witnesses. Craig, 497 US 

at 845; Mattox, 156 US at 242-43. Here, the witnesses who 

testified against defendant did so in his presence and in the 

presence of the jury, where they were under oath and subject 

to cross-examination. No element of the right to confrontation promises the defendant that his entire face will be literally seen or requires the witness or others to observe the 

same. In short, the defendant’s right to confrontation does 

not require that defendant be unmasked in the courtroom. 

See also United States v. Tagliaferro, 531 F Supp 3d 844, 

849-50 (SDNY 2021) (similarly concluding that requiring a 

criminal defendant to wear a protective face mask did not 

violate his right to physical confrontation).

Thus, we move to defendant’s argument that the 

trial court’s order requiring him to wear a protective face 

mask during trial except when testifying was akin to a 

physical restraint visible to the jury that violated his rights 

under Article I, section 11, and the Fifth and Fourteenth 

Amendments. In defendant’s view, the court’s order requiring him to wear a mask conveyed to the jury that defendant 

was a “potential vector of sickness,” thus prejudicing him.

Both the state and federal constitutions prohibit 

prejudicial security measures such as visibly shackling 

or otherwise physically restraining a criminal defendant 

during a jury trial unless doing so is justified by an essential 

state interest. Deck v. Missouri, 544 US 622, 629, 125 S Ct 

2007, 161 L Ed 2d 953 (2005); State v. Guzek, 358 Or 251, 

263, 363 P3d 480 (2015), cert den, 580 US 1121 (2017). That 

requirement rests on the understanding that “inherently 

prejudicial” measures like visible shackling “undermine[] 

the presumption of innocence and the related fairness 

of the fact-finding process.” Deck, 544 US at 630; see also 

Washington, 355 Or at 628 (“the use of physical restraints 

can impinge on the presumption of innocence to which a 

defendant is entitled and may also impair a defendant’s ability to participate in his or her defense, such as by consulting 

with counsel or by taking the stand as a witness”). In other 

words, the right is intended to ensure that the defendant is 

afforded the presumption of innocence and a fair trial, and 

may be implicated by practices that “single out the accused 
Cite as 326 Or App 753 (2023) 761

from everyone else in the courtroom.” Holbrook v. Flynn, 475 

US 560, 567, 106 S Ct 1340, 89 L Ed 2d 525 (1986).

When an inherently prejudicial security measure 

is at issue, a trial court must make a determination that 

such restraints are justified by a state interest specific to 

that particular trial. Deck, 544 US at 629; Washington, 

355 Or at 628 (requiring court to hold a hearing for that 

purpose where it must receive evidence from both parties 

before making “a record of its factual findings and reasoning in support of its order”). If such findings are not made, or 

where the order lacks adequate justification, “the defendant 

need not demonstrate actual prejudice to make out a due 

process violation”—instead, “the State must prove beyond 

a reasonable doubt that the shackling error complained of 

did not contribute to the verdict obtained.” Deck, 544 US 

at 635 (internal quotation marks and brackets omitted); see 

also Washington, 355 Or at 629 (reviewing similar security 

measure orders for abuse of discretion).

Both state and federal case law have been clear, 

however, that only some security measures are “inherently 

prejudicial” such that they create an unacceptable risk that 

the jury will consider “impermissible factors” in making its 

ultimate determination. Flynn, 475 US at 570. For instance, 

in Flynn, the deployment of security personnel in the courtroom—specifically, four officers quietly sitting in the first 

row of the courtroom’s spectator section—was not inherently prejudicial, in part because “the presence of guards at 

a defendant’s trial need not be interpreted as a sign that he 

is particularly dangerous or culpable.” Id. at 569. Where the 

protective measure is not inherently prejudicial, the defendant must show actual prejudice as a result of the measure. 

Id. at 572. Under those circumstances, the “defendant bears 

the burden of establishing that the trial court abused its 

discretion in adopting the security measures that it did.” 

Washington, 355 Or at 650.

Here, we do not see a basis to conclude that the 

court’s order regarding protective face masks, which applied 

not only to defendant but to all courtroom participants 

equally, singled out defendant in a way that undermined the 

presumption of innocence or defendant’s right to a fair trial. 
762 State v. Rockafellor

The order required all courtroom participants to wear a protective face mask throughout the trial unless they provided 

the court with proof of their vaccination against COVID-19. 

The only exception to the court’s order was the requirement 

that witnesses remove any mask while testifying behind a 

clear divider. Those protective measures were fully consistent with the requirements of CJO No. 2021-016 and were 

not inherently prejudicial to defendant. As the trial court 

noted for the record, other courtroom participants also wore 

masks, including both attorneys and two of the six jurors. 

Within that context, the fact that defendant wore a face 

mask except when testifying did not necessarily communicate to the jury that defendant specifically was a danger 

to the community—instead, the jury could have made any 

number of inferences about defendant’s mask-wearing, or 

none at all. And, because the court’s order permitted those 

who were vaccinated to continue to wear a protective face 

mask if they chose to do so, we do not agree with defendant’s argument that the court’s order necessarily communicated to the jury that he was unvaccinated or that he 

was particularly dangerous. Thus, because the court’s face 

mask order was not inherently prejudicial towards defendant, defendant bears the burden to establish that he was 

actually prejudiced by the order. But defendant does not 

point us to any evidence of actual prejudice as a result of 

the face mask order, and we see no evidence of such prejudice on this record. The jury received the usual instructions 

regarding the presumption of innocence, the proof-beyond-areasonable-doubt requirement, and their duty to decide the 

case based on the evidence, rather than bias or prejudice. 

Absent some evidence of actual prejudice, we must presume 

that the jurors followed those instructions. See State v. 

Smith, 310 Or 1, 26, 791 P2d 836 (1990) (“jurors are assumed 

to have followed their instructions, absent an overwhelming 

probability that they would be unable to do so”).

In conclusion, the trial court did not violate defendant’s right to confront the witnesses against him or his 

right to a fair trial free of visible restraints when it ordered 

defendant and other courtroom occupants to wear a protective face mask throughout trial unless they presented the 

court with proof of their vaccination against COVID-19 or 
Cite as 326 Or App 753 (2023) 763

were testifying behind a clear divider. Further, the order 

applied to all courtroom occupants equally, meaning that 

defendant was not subject to an inherently prejudicial physical restraint. Defendant presents no argument that his right 

to a fair trial was actually prejudiced by the court’s order. 

As a result, the trial court did not err or abuse its discretion 

in issuing and enforcing the order.

Affirmed.