# State v. Bracken

> Court of Appeals of Oregon · June 18, 2025 · 341 Or. App. 318

URL: https://www.frixlaw.com/law-library/cases/11076675

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** June 18, 2025
- **Citations:** 341 Or. App. 318
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Hellman
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

318 June 18, 2025 No. 545

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
QUINTON LEE BRACKEN,
aka Quinton Bracken,
Defendant-Appellant.
Douglas County Circuit Court
19CR72547; A176684

Frances Elaine Burge, Judge.
Submitted April 24, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Conviction on Count 2 reversed; conviction on Count 1
reversed and remanded.
Cite as 341 Or App 318 (2025) 319
320 State v. Bracken

HELLMAN, J.
Defendant appeals a judgment of conviction for
resisting arrest, ORS 162.315 (Count 1), and interfer-
ing with a peace officer (IPO), ORS 162.247 (Count 2). On
appeal, defendant argues first that the trial court erred in
denying his motion for judgment of acquittal (MJOA) for IPO
because he was engaged in “passive resistance,” which is
not punishable under the statute. Second, defendant argues
that the court erred by declining to give his requested jury
instruction that included a definition of “passive resistance”
as a defense to resisting arrest. Finally, the court conducted
an in camera review of evidence that defendant subpoenaed,
and defendant contends that the court erred by failing to
disclose that evidence.
As explained below, we first agree that defendant’s
conduct constituted passive resistance, and the court erred
when it denied his MJOA for IPO. Second, although we
agree that the circumstances around the court’s refusal to
provide defendant’s requested jury instruction had a proba-
bility of creating an erroneous impression of the law, defen-
dant’s requested instruction contained an incorrect state-
ment of law. Therefore, the court did not err in refusing to
provide it. Finally, we agree that the court erred in failing
to disclose some of the evidence that defendant subpoenaed.
Accordingly, we reverse defendant’s conviction for IPO, and
reverse and remand his conviction for resisting arrest.
Defendant is the owner of the Point 9 bar. Douglas
County Sherriff’s Deputy Whetzel entered the bar late at
night looking for a person in an unrelated matter. Whetzel had
been to Point 9 many times before in his official capacity and
had a contentious relationship with defendant. Defendant,
who appeared very intoxicated, approached Whetzel and
asked what he was doing there. Whetzel activated his body
worn camera and asked defendant if he was in control of the
bar. Defendant said that he was not. Whetzel determined
that by “confront[ing]” him, defendant had “assum[ed] the
role of manager,” which was a violation of OLCC administra-
tive rules to do while under the influence of intoxicants.
Whetzel ordered that the bar be shut down. The bar-
tender insisted that she was in control of the bar, but Whetzel
Cite as 341 Or App 318 (2025) 321

said that defendant “was just taking control of the bar just
now,” and ordered the bartender to pull the customers’ drinks.
The bartender did so while defendant and Whetzel continued
to argue about whether defendant was in control of the bar
and whether Whetzel was allowed in the bar.
As the customers were leaving, defendant walked
away from Whetzel and was pushing open the door when
Whetzel said, “You’re not going anywhere, [defendant].”
With his left hand holding the door ajar, defendant turned
slightly toward Whetzel and said, “Yeah, I am.” Whetzel
immediately walked toward defendant and responded, “No,
you’re not. You’re not free to go.” Whetzel repeated, “You’re
not free to go” multiple times as he moved toward defendant.
Defendant turned and faced Whetzel directly and said, “I’m
going home.” In turning toward Whetzel, defendant took
a step backward, moving from the interior of the door’s
threshold to the exterior threshold. Defendant was still
holding the door open with one hand and had his other hand
in his pocket. Whetzel was within a few feet of him and still
moving forward. When he reached the interior of the door’s
threshold, Whetzel said, “Get back in here.” Defendant
made no movement except to shake his head and said “No.”
Whetzel responded, “Okay, you’re under arrest” and reached
toward defendant.
Defendant lifted his arms and “pulled himself
away” as Whetzel grabbed him. The struggle brought them
both outside into the parking lot, where Whetzel forced
defendant to the ground and handcuffed him.
At trial, defendant argued that he had engaged in
passive resistance and acted in self-defense. He argued that
passive resistance was a defense to IPO and resisting arrest
and that his use of physical force in response to Whetzel’s
arrest was reasonable because Whetzel applied more force
than necessary. The court denied defendant’s MJOA on the
IPO charge, and the jury convicted him on both charges.
PASSIVE RESISTANCE TO IPO
On appeal, defendant first contends that the court
erred in failing to grant his MJOA for the charge of IPO. He
argues that the only order that Whetzel gave to defendant
322 State v. Bracken

was “[g]et back in here” and that the only indication of defen-
dant’s refusal to obey that order was his verbal response,
“no.” To the extent that defendant made any movements
after Whetzel’s order, defendant contends that it was “no
more than de minimis movement.” Thus, defendant argues
that his actions qualified as passive resistance and that the
court erred in denying his MJOA.
The state contends that defendant’s argument that
Whetzel’s only order was to “get back in here” was not made
below and should not be considered on appeal. Alternatively,
the state argues that the court properly denied defendant’s
MJOA because Whetzel’s other statements were orders that
defendant disobeyed.
In reviewing the trial court’s denial of an MJOA,
we view the facts in the light most favorable to the state,
drawing all reasonable inferences in the state’s favor. State
v. Walker, 332 Or App 594, 595, 549 P3d 576, rev den, 372 Or
813 (2024) (internal quotation marks omitted). Reviewing
under that standard, we conclude that the court erred by
failing to grant defendant’s MJOA because defendant’s
actions constituted passive resistance.
A person commits the crime of interfering with a
peace officer when the person, “knowing that another per-
son is a peace officer,” “refuses to obey a lawful order” given
by that peace officer. ORS 162.247(1)(b) (2019).1 The statute
does not apply, however, “in situations in which the person is
engaging in * * * passive resistance.” ORS 162.247(3).
Although it is not defined by statute, the Oregon
Supreme Court has interpreted the phrase “passive resis-
tance,” for purposes of ORS 162.247(3)(b), to refer to “nonco-
operation with a lawful order of a peace officer that does not
involve active conduct.” State v. McNally, 361 Or 314, 339,
392 P3d 721 (2017). In that case, the defendant refused to
comply with a police officer’s repeated orders to leave a bus
station and verbally insisted that the officer “couldn’t make
him leave.” Id. at 316-17. On review, the Supreme Court
reversed the defendant’s conviction for IPO, explaining that

1
ORS 162.247 (2019) was amended by Oregon Laws 2021, chapter 254, sec-
tion 1. All references hereafter are to the 2019 statute.
Cite as 341 Or App 318 (2025) 323

the defendant’s refusals constituted “inactive, nonviolent
noncooperation when the police officer ordered him to leave
the bus station.” Id. at 339.
We applied that decision in State v. Bledsoe, 311 Or
App 183, 487 P3d 862, rev den, 368 Or 637 (2021). In Bledsoe,
the defendant was walking away from a TriMet train when
officers ordered her to stop and show proof of fare. Id. at 185.
The defendant continued “walking at a steady pace, despite
the officer ordering [her] to stop and show proof of fare three
more times.” Id. The state charged the defendant with IPO
for refusing to obey the officer’s orders; the defendant moved
for a judgment of acquittal on the IPO charge, and the trial
court denied the motion. Id. at 185-86. On appeal, the defen-
dant argued that “continuously walking before, during,
and after the officer ordered her to stop was simply passive
resistance.” Id. at 186. We disagreed with that argument
and affirmed the trial court’s decision, clarifying that the
defendant “was engaged in active, physical movement—the
activity of walking. And there is no dispute that she refused
to obey the [officer’s] order to stop.” Id. at 189. Thus, we con-
cluded that the defendant’s conduct was not “passive” resis-
tance. Id. at 190.
In this case, we come to a different conclusion.
Having reviewed the record, including the body camera
footage, we conclude that, viewing the evidence in the light
most favorable to the state, defendant’s conduct qualified as
passive resistance.
We are not persuaded by defendant’s argument, how-
ever—even assuming it was preserved—that the only lawful
order that Whetzel gave was to “[g]et back in here.” Just as the
officers in Bledsoe “ordered [the defendant] to stop,” Whetzel’s
statement that defendant was “not free to leave” was a “law-
ful order” by a peace officer that communicated to defendant
that he could not leave the bar, and defendant would have
violated ORS 162.247(1)(b) had he continued to walk away.2
Id. at 185-86. Unlike the defendant in Bledsoe, however,
defendant did not continue to walk away. Instead, defendant
2
We need not decide whether Whetzel’s first statement, “[y]ou’re not going
anywhere,” was a lawful order. That statement was made within a few seconds of
his order that defendant was “not free to go” and does not affect our analysis.
324 State v. Bracken

responded to Whetzel’s lawful order by turning back toward
Whetzel. Defendant verbally disobeyed the order by stating
that he was going home, but defendant obeyed physically in
that he halted his exit and remained standing at the door.
The same is true of Whetzel’s next order for defendant to “get
back in here.” Defendant shook his head and verbally refused,
but he did not otherwise move. In sum, during the 10 seconds
between Whetzel’s order that defendant was not free to leave
and telling defendant that he was under arrest, the totality
of defendant’s conduct involved defendant halting his exit,
shifting from facing away from Whetzel to facing towards
him, holding the door fully ajar, stepping backward from the
interior threshold of the door to the exterior threshold, and
shaking his head no. On those facts, we conclude that defen-
dant’s resistance was inactive, nonviolent noncooperation in
opposition to Whetzel’s lawful order.
In making that conclusion we recognize that defen-
dant made some movements, however minor, following the
deputy’s order and that “movement is, by definition, active.”
Bledsoe, 311 Or App at 191 (James, J., concurring). We dis-
agree, however, that the holding in McNally requires the
conclusion that “[v]irtually any human act short of rigid
immobility in response to an order does not qualify as pas-
sive resistance.” Bledsoe, 311 Or App at 196 (James, J., con-
curring). Although we will not attempt to set the precise
parameters here, we conclude that, under the facts of this
case, defendant’s movement did not involve “violence or
active measures of opposition” to a lawful order. See McNally,
361 Or at 322 (providing the dictionary definition of “passive
resistance,” which “has the same meaning whether consid-
ered in a lay or legal context,” as “resistance * * * that does
not resort to violence or active measures of opposition” (cit-
ing Webster’s Third New Int’l Dictionary 1651 (unabridged
ed 2002))). Thus, defendant’s conduct constituted passive
resistance, and the court erred when it denied his MJOA.
JURY INSTRUCTION FOR RESISTING ARREST
Defendant next challenges the trial court’s refusal
to give his requested jury instruction related to the charge
of resisting arrest. Prior to trial, defendant gave notice that
he intended to rely on a “passive resistance” defense to both
Cite as 341 Or App 318 (2025) 325

the IPO and resisting arrest charges. Just as ORS 162.247
exempts a person engaging in “passive resistance” from lia-
bility to the charge of IPO, ORS 162.315 exempts a person
engaging in “passive resistance” from liability to the charge
of resisting arrest. See ORS 162.315(1) (“A person commits the
crime of resisting arrest if the person intentionally resists a
person known by the person to be a peace officer or parole
and probation officer in making an arrest.”); ORS 162.315(2)
(c) (“ ‘Resists’ means the use or threatened use of violence,
physical force or any other means that creates a substantial
risk of physical injury to any person and includes, but is not
limited to, behavior clearly intended to prevent being taken
into custody by overcoming the actions of the arresting officer.
The behavior does not have to result in actual physical injury
to an officer. Passive resistance does not constitute behavior
intended to prevent being taken into custody.”).
During defense counsel’s cross examination of
Whetzel, however, the prosecutor contended that passive
resistance was not a defense to the charge of resisting arrest.
“Q [by defense counsel]: And you know that you’re
allowed to engage in passive resistance to a lawful order. Correct?
“A [by Whetzel]: Yes.
“Q: You’ve been trained in that. You have acknowl-
edged that previously?
“A: Yes.
“Q: Just like you’re allowed to engage in passive resis-
tance to, to arrests. Correct?
“[Prosecutor]: Your Honor, I’m gonna object. That’s
actually not the law. So - -
“[THE COURT]: Why don’t you rephrase.
“[Defense counsel]: Well, it’s a defense to Resisting
Arrest, that you’re engaging in passive resistance. Correct?
“[Prosecutor]: Your, Your Honor, I’m gonna have to
object. It’s literally not. And I’m happy to have this conver-
sation outside of the presence of the jury. And I have case
law to support that.
“[Defense Counsel]: I have case law against it. We’ll,
we’ll reserve this, Judge, if you would like.
326 State v. Bracken

“[Prosecutor]: The, the term passive resistance is only
unique to Interfering With a Peace Officer.
“[Defense counsel]: Well - -
“[THE COURT]: Right. Let’s leave it as that. Okay.
Okay.”
Defense counsel continued questioning Whetzel without fur-
ther mentioning passive resistance to resisting arrest.
Outside of the presence of the jury, the parties dis-
cussed, and the court considered, defendant’s requested jury
instruction. Defendant’s requested instruction stated:
“ ‘Passive Resistance’ refers to noncooperation with
a peace officer’s arrest that does not involve violence or
active measures, but can involve verbal[ ] refusals, what-
ever the motivation for the noncooperation and regard-
less of whether the noncooperation takes the form of acts,
techniques, or methods commonly associated with the civil
rights movement. The State is required to disprove beyond
a reasonable doubt that [defendant] did not engage in ‘pas-
sive resistance’ to his arrest.”
The prosecutor argued that the requested instruction “mis-
state[d] the law” by suggesting that passive resistance was
a defense to resisting arrest. Defense counsel argued that,
under McNally, passive resistance was a defense to both
IPO and resisting arrest. The court concluded that, because
McNally did not involve a charge of resisting arrest—and
only involved IPO—the case did not support defendant’s
contention that passive resistance applied to the charge of
resisting arrest. It therefore declined to give defendant’s
requested instruction.
Despite that ruling, the court provided the jury an
instruction regarding resisting arrest that tracked the lan-
guage of ORS 162.315(2)(c), including that “[p]assive resis-
tance does not constitute behavior intended to prevent being
taken into custody.” Evidently, neither the parties nor the
court took notice that the statute itself provided that “pas-
sive resistance” does not constitute resisting arrest.
We review a trial court’s refusal to give a jury
instruction for legal error and consider the evidence sup-
porting the instruction in the light most favorable to the
Cite as 341 Or App 318 (2025) 327

party who requested the instruction. State v. Nebel, 237
Or App 30, 32, 238 P3d 423, rev den, 349 Or 370 (2010). “A
criminal defendant is entitled to have the jury instructed in
accordance with his or her theory of the case if the instruc-
tion correctly states the law and there is evidence to support
giving it.” McNally, 361 Or at 320.
Defendant argues that his requested jury instruc-
tion correctly stated the law and was warranted by the facts
of the case. He contends that, despite the court providing
an accurate definition of “resists” under ORS 162.315(2)(c),
the court’s failure to provide the instruction was harmful
because the jury was likely misled by the state’s objection
during Whetzel’s cross-examination.
The state does not contend on appeal that defen-
dant’s requested instruction was a misstatement of law but
argues that any error was harmless because the instruc-
tion that the court did provide followed the language of the
statute, including the exclusion for “passive resistance.” The
court also provided defendant’s requested instruction on
passive resistance for the IPO charge, which the state con-
tends “was not substantively different” from the instruction
the court declined to give for the resisting arrest charge.
Thus, the state contends that the jury was properly apprised
that passive resistance was a defense to resisting arrest.
A court’s failure to provide an instruction is harm-
less if we determine that “there was ‘little likelihood that the
error affected the verdict.’ ” State v. Owen, 369 Or 288, 323,
505 P3d 953 (2022) (quoting State v. Davis, 336 Or 19, 33, 77
P3d 1111 (2003)). To make that determination, “we consider
the instructions ‘as a whole and in the context of the evi-
dence and record at trial, including the parties’ theories of
the case with respect to the various charges and defenses at
issue.’ ” Id. (quoting State v. Payne, 366 Or 588, 609, 468 P3d
445 (2020)). An instructional error is prejudicial if the jury
instruction, or its absence, “probably created an erroneous
impression of the law in the minds of the jury members and
if that erroneous impression may have affected the outcome
of the case.” State v. McKinney/Shiffer, 369 Or 325, 335, 505
P3d 946 (2022) (internal quotation marks omitted).
328 State v. Bracken

Here, we first determine that defendant’s requested
instruction included a misstatement of law. That determi-
nation requires us to conclude that the court did not err in
refusing to provide the instruction. Despite that conclusion,
we agree that the context in which the court declined to pro-
vide defendant’s requested instruction had a probability of
creating an erroneous impression of the law that may have
affected the outcome of the case. Further, as we will explain
below, defendant’s third challenge in this case requires that
his conviction for resisting arrest be reversed and remanded.
Therefore, because the jury instruction issue may arise on
remand, we write to explain why defendant was entitled to
an instruction similar to the one he requested, barring the
misstatement of law. We start with the misstatement.
The second sentence of defendant’s proffered
instruction misstated the law. That sentence asserted that
the state “is required to disprove beyond a reasonable doubt
that [defendant] did not engage in ‘passive resistance’ to his
arrest.” (Emphasis added). An accurate reading of the dou-
ble negative in that sentence would suggest that the state
was required to prove that defendant did engage in passive
resistance. In fact, the law required the opposite; the state
was required to prove beyond a reasonable doubt that defen-
dant did not engage in passive resistance to his arrest. The
incorrect statement requires us to conclude that the court
did not err in refusing defendant’s requested instruction.
See State v. Worthington, 251 Or App 110, 113, 282 P3d 24
(2012) (“If a proffered instruction is refused * * * there is no
error if the instruction is not a correct statement of the law.”
(Internal quotation marks omitted.)).
Nevertheless, the first sentence in defendant’s
instruction—which was the only sentence in dispute below
and is the focus of the parties’ arguments on appeal—was
a correct statement of law. There is no dispute that, where
a person’s only resistance to an officer making an arrest is
passive, the resistance “does not constitute behavior” that
can be prosecuted under ORS 162.315. Thus, defendant’s
contention at trial that he passively resisted the arrest was
a legally sound theory of defense. The first sentence in defen-
dant’s requested jury instruction, referenced above, properly
Cite as 341 Or App 318 (2025) 329

asserted as much by tracking the language the Supreme
Court used in defining “passive resistance” as it relates to
ORS 162.247. See McNally, 361 Or at 334 (explaining that
“passive resistance” in ORS 162.247 “refers to noncoopera-
tion with a peace officer’s lawful order that does not involve
violence or active measures, whatever the motivation for the
noncooperation and regardless of whether the noncooper-
ation takes the form of acts, techniques, or methods com-
monly associated with civil rights or other organized pro-
test”). And, viewed in the light most favorable to defendant,
a reasonable juror could have agreed with defendant’s theo-
ries and found that his resistance to the arrest was passive
and that he acted in self-defense. and in self-defense.
Importantly, the prosecutor’s argument that pas-
sive resistance was “literally not” a defense to resisting
arrest, and that case law supported that contention, was an
incorrect statement of the law that directly undercut defen-
dant’s theory of defense. Not only did the prosecutor make
that erroneous argument in front of the jury, but, by object-
ing during defense counsel’s cross-examination of Whetzel,
it limited defendant’s ability to continue his line of question-
ing related to passive resistance.
Further, the court provided defendant’s requested
“passive resistance” instruction for the IPO charge but did
not for the resisting arrest charge. Although the trial court’s
instruction related to resisting arrest properly included a
definition of “resists” as stated in ORS 162.315, the court’s
omission of a specific “passive resistance” instruction for the
resisting arrest charge—when considered in the context of
the prosecutor’s erroneous statements—could have led a
reasonable juror to conclude that the court had agreed with
the prosecutor’s argument. Therefore, defendant would have
been entitled to an instruction on passive resistance for the
charge of resisting arrest had he provided one that correctly
stated the law. Because he did not, the court did not err.
DISCLOSURE OF IN CAMERA EVIDENCE
Finally, defendant contends that the court erred
by failing to disclose relevant impeachment or exculpatory
evidence to the defense. Prior to trial, defendant issued a
330 State v. Bracken

subpoena duces tecum to the Douglas County Sheriff’s
Office, requesting the “complete disciplinary file” of Deputy
Whetzel. Douglas County moved to quash the subpoena,
arguing that defendant had failed to make the required
showing of materiality, and that an officer’s personnel
records were confidential and privileged. Defendant then
issued another subpoena to the county, requesting three
categories of material:
“[Packet] 1. The complete disciplinary file of Deputy
Travis Whetzel, * * * and specifically including any and all
complaints, whether or not investigated, whether or not
dismissed, and whether or not any adverse findings were
made, to include any reports made by Apryl Morris and
all arising out of interactions at or around the Point 9,
Canyonville establishment;
“[Packet] 2. All reports and recordings, including the
body worn camera of or which refer to Travis Whetzel in
that relate in any fashion (subject, witness, defendant) to
[defendant] and/or the Point-9, Canyonville establishment
in the past ten (10) years;
“[Packet] 3. All reports and recordings, including the
body worn camera of or which refer to [State] v. Daniel
Schrack; 21CR05983.”
Eventually, the parties stipulated to have the court
conduct an in camera review of all three packets of mate-
rial. After its review, the court allowed the information in
Packet 2 to be discovered by the parties. The court did not
release any material from Packets 1 or 3. For Packet 3, the
court determined that it involved information related to an
ongoing investigation. For Packet 1, the court determined
that the information was protected under the public officer
privilege, OEC 509, and was exempt from discovery.
On appeal, defendant argues that the court erred
by failing to release the information contained in Packets
1 and 3. He asks that we conduct our own review of the
material to determine whether they contain exculpatory
or impeachment evidence. The state does not object to our
review, which we conduct de novo. State v. Hernandez-
Sanchez, 310 Or App 231, 236, 486 P3d 806 (2021) (conduct-
ing de novo review of undisclosed evidence that the trial
Cite as 341 Or App 318 (2025) 331

court reviewed in camera). Having reviewed the evidence in
Packets 1 and 3, we conclude that the court erred in failing
to disclose the materials contained in Packet 1 because it
contains evidence favorable to defendant, and he was preju-
diced by its suppression.
“The due process clause of the federal constitution
prohibits a prosecutor from withholding evidence favorable
to the defense and material to the question of guilt or pun-
ishment.” State v. Warren, 304 Or 428, 430, 746 P2d 711
(1987) (citing Brady v. Maryland, 373 US 83, 87, 83 S Ct
1194, 10 L Ed 2d 215 (1963)). 3 The duty to disclose such evi-
dence “encompasses impeachment evidence as well as excul-
patory evidence.” Strickler v. Greene, 527 US 263, 280, 119
S Ct 1936, 144 L Ed 2d 286 (1999). For a “true Brady viola-
tion” to occur, there must be evidence that is favorable to the
defense, either because it is exculpatory or impeaching; the
state must have willfully or inadvertently failed to produce
the evidence; and the suppression must have prejudiced the
defendant. Id. at 281-82.
Here, there is no dispute that the state sought
to suppress the evidence; the only issues are whether the
undisclosed material contained evidence favorable to defen-
dant and whether he was prejudiced by its suppression.
We readily conclude that the evidence in Packet 1,
which included Whetzel’s disciplinary file, would have been
favorable to defendant.4 The central issue in this case was
one of credibility and the file contains information that is
favorable to defendant on that issue. The state relied on
Whetzel’s testimony to prosecute its case—he was the only

3
Defendant also asserts a violation of his compulsory right to process under
Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the
United States Constitution. The Oregon Constitution does not contain a due pro-
cess provision, and we have previously adopted the federal due process analysis
for challenges to the state’s withholding of material favorable evidence under the
compulsory process clauses. See, e.g., Hernandez-Sanchez, 310 Or App at 235-36
(applying federal due process analysis to claims made under compulsory process
clauses); State v. Zinsli, 156 Or App 245, 252, 966 P2d 1200, rev den, 328 Or 194
(1998) (explaining that Oregon’s compulsory process analysis “is identical to” the
federal due process analysis). Accordingly, we apply that analysis here.
4
We conclude that the court properly excluded the information from Packet
3 because that information was not “evidence favorable to the defense” and there
was no prejudice to defendant by the lack of disclosure.
332 State v. Bracken

witness the state called. Whetzel testified about his previ-
ous interactions with defendant, including giving citations
to the bartenders at Point 9 and giving defendant a warning
“on a previous occasion.” Despite their history, Whetzel tes-
tified that he had “always gone in [to Point 9] to do [his] job.”
On redirect, after asking Whetzel to opine on defen-
dant’s legal theory, the prosecutor asked about Whetzel’s
own credibility:
“Q [by the prosecutor]: So was this, given your train-
ing and experience, [defendant’s] behavior that night, pas-
sive resistance under the law?
“A [by Whetzel]: No.
“* * * * *
Q: “Deputy, have you ever been reprimanded for lying
in your official capacity?
“A: No.
“Q: Have you ever been told in your 17-year career
that you have veracity issues?
“A: No.”
Given the state’s heavy reliance on Whetzel’s testimony, and
Whetzel’s testimony regarding his own veracity, any evi-
dence that would have contradicted his answers would have
been favorable to defendant. See Milke v. Ryan, 711 F3d 998,
1012 (9th Cir 2013) (explaining that evidence that would
“tend to call the government’s case into doubt is favorable
for Brady purposes”).
Suppressing the evidence was also prejudicial
to defendant. Defendant’s theory of defense was that he
engaged in passive resistance and self-defense in response
to Whetzel’s orders and arrest. He argued that, due to a
long history of animosity between defendant and Whetzel,
Whetzel “lost perspective” and “just turn[ed] it up right
away.” In support of his theory, defendant called as a wit-
ness a former Point 9 employee, who testified that Whetzel
came into the bar “two or three times a week” to do “walk-
throughs.” She testified that Whetzel was always “nega-
tive,” “angry,” and that interactions between defendant
Cite as 341 Or App 318 (2025) 333

and Whetzel “always looked like there was going to be a
confrontation.” Thus, evidence supporting defendant’s nar-
rative—and contradicting the state’s—would have raised a
reasonable probability of a different result. See Milke, 711
F3d at 1018 (explaining that to find prejudice under Brady,
“it isn’t necessary to find that the jury would have come out
differently” so long as there is “a reasonable probability of a
different result” (internal quotation marks omitted)).
We therefore conclude that the information in
Packet 1 contains evidence, “which, if believed by a trier of
fact, would be seriously considered by that trier of fact in
determining guilt or innocence.” State v. Fleischman, 10 Or
App 22, 33, 495 P2d 277 (1972) (internal quotation marks
omitted). The trial court erred by failing to disclose it to
defendant.5
Conviction on Count 2 reversed; conviction on Count
1 reversed and remanded.

5
The parties ask that if we conclude that the court should have disclosed evi-
dence, as we have here, they be allowed to file supplemental briefing—defendant
to argue that the evidence was prejudicial, and the state to argue whether any
asserted privilege prevents disclosure. As we have explained, however, defendant
was prejudiced. And a defendant’s right to material exculpatory and impeaching
evidence is guaranteed, regardless of whether such evidence is privileged. See
Fleischman, 10 Or App at 32 (“When the state chooses to prosecute an individ-
ual for a crime, it is not free to deny him access to evidence that is relevant to
guilt or innocence, even when otherwise such evidence is or might be privileged
against disclosure.”). The state also asks, should this court find that disclosure is
required, that it be allowed to file supplemental briefing to address the question
of “under what conditions” disclosure must occur. We do not address that issue
but, on remand, if necessary, in the trial court, the parties can litigate the ques-
tion of appropriate conditions for disclosure.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11076675. Public record. Not legal advice.