State v. Snyder ( 2024 )

No. 56 January 31, 2024 477
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHAWN IAN SNYDER,
Defendant-Appellant.
Deschutes County Circuit Court
21CR31261; A178860
Walter Randolph Miller, Jr., Judge.
Submitted November 13, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Hadlock, Judge Pro Tempore.
JOYCE, J.
Affirmed.
478 State v. Snyder
JOYCE, J.
A jury found defendant guilty of two counts of
attempted second-degree assault, ORS 163.175(1)(b) and
ORS 163.175(1)(a) (Counts 1 and 2); one count of unlawful
use of a weapon, ORS 166.220(1)(a) (Count 3); and one count
of menacing, ORS 163.190 (Count 4). The trial court merged
Counts 1, 2, and 3 into a single conviction. On appeal, defen-
dant argues that the trial court erred in denying his motion
for a continuance.1 We affirm.
On the morning of trial, defendant moved for a con-
tinuance, arguing that he needed more time to prepare—spe-
cifically, to do further investigation—because the state had
disclosed additional discovery in the five days leading up to
trial. The trial court denied the motion, concluding that the
production of the discovery was not the type of unanticipated
circumstance that required delaying trial because defendant
had reason and an opportunity to do the investigation that
he sought to do long before trial, and because the additional
material should not have come as a surprise to defendant.
Defendant assigns error to that denial. We review
a denial of a motion for a continuance for abuse of discre-
tion, and we defer to the trial court’s ruling unless the court
exceeded the permissible limits of its discretion. State v.
Powell, 322 Or App 37, 44, 518 P3d 949 (2022), rev den, 370
Or 740 (2023). “ ‘[U]nanticipated circumstances’ may require
a trial court to grant a continuance, even on the date sched-
uled for trial.” State v. Sassarini, 300 Or App 106, 117, 452
P3d 457 (2019). However, we have held that a continuance is
not necessary, at least in the absence of a discovery violation,2
1
Defendant also contends, in his second and third assignments of error, that
the trial court plainly erred by failing to instruct the jury that defendant must
have acted with criminal negligence with respect to the physical injury elements
of the attempted second-degree assault charges. In his fourth and fifth assign-
ments of error defendant argues that the trial court plainly erred by failing to
instruct the jury that defendant must have acted with intent or knowledge with
respect to the dangerous weapon elements of Count 1 of attempted second-degree
assault and Count 3 of unlawful use of a weapon. We are unpersuaded that it is
“obvious” for plain error purposes that the trial court erred in not instructing the
jury that defendant must have acted with criminal negligence as to the attempt
crimes. As to defendant’s fourth and fifth assignments of error, we conclude that
any instructional error was harmless on this record.
2
In this case, as in Sassarini, defendant does not contend that the late dis-
closure was a discovery violation. 300 Or App at 118 (noting that the defendant
Cite as 330 Or App 477 (2024) 479
when defense counsel should have known of material pro-
vided shortly before trial and counsel has had an opportu-
nity to investigate the underlying circumstances and obtain
the material. Id. at 118-19; cf. State v. Ferraro, 264 Or App
271, 284, 331 P3d 1086 (2014) (holding that a trial court had
abused its discretion in denying a continuance when defense
counsel “had not had a reasonable period of time to prepare
[defendant’s] defense for trial”).
Five days before trial, the state disclosed additional
discovery to defendant: an analysis that established the
time gap between two videos recorded by Bonfert, a state’s
witness; a video from 2019 of defendant telling a deputy, in
the presence of the victim and a third individual who was
also a state’s witness, that he wanted to “beat the fuck out
of” the victim because of an ongoing dispute; and a video
that defendant had sent to another witness, taken on the
day of the incident. The day before trial, the state also dis-
covered four additional short videos from Bonfert’s phone
that showed the setting and the scene on the day of the
incident.
On appeal, defendant contends that the state’s dis-
closure of that material shortly before trial required the
trial court to grant a continuance to permit defendant to
investigate further. Defendant does not address each type of
material separately; instead, we understand him to contend
that, considered together, the state’s disclosures of additional
material created the type of “unanticipated circumstances”
that require a trial court to grant a continuance for further
defense investigation. As explained below, we disagree.
The trial court’s explanation of its reasoning with
respect to the key pieces of evidence undermines defendant’s
argument. As to the analysis of the time gap between the
two videos, which defendant identified as the most import-
ant of the newly disclosed material, as the state observed
before the trial court, defendant had the information on
which that analysis was based—the two videos and their
metadata—almost a year before trial, and the analysis
merely confirmed the time gap estimated by witnesses of
“is not arguing that a continuance was required because of a discovery or Brady
violation by the state”).
480 State v. Snyder
whose accounts defendant also knew. In arguing the motion
to continue, defense counsel also contended that he needed
to, but had not, investigated the history of the previous dis-
pute between the parties, which, he asserted, was exem-
plified by the 2019 video. However, defense counsel knew
about that dispute from other evidence that the state had
produced to defendant well before trial. As counsel appeared
to acknowledge below, the new video may have caused coun-
sel to realize that he should have conducted further inves-
tigation based on information he previously had, but it did
not alert him to new or different circumstances than those
he previously had time and reason to investigate. In sum,
because the analysis of the length of the gap between the
two videos and the 2019 video did not raise any issues that
defendant had not already had reason and the opportunity
to investigate, they did not constitute unanticipated cir-
cumstances that required a continuance. See Sassarini, 300
Or App at 117-18.
That leaves the video from defendant’s phone that
defendant had sent to a state’s witness, as well as the four
brief videos from Bonfert’s phone. Defendant contends,
briefly, that the trial court was incorrect insofar as it rea-
soned that the material did not require additional inves-
tigation because it depicted defendant’s own conduct. He
did not argue below and does not explain on appeal, how-
ever, how counsel lacked knowledge of or an opportunity
to obtain those items or how the disclosure of those items
alone amounts to unanticipated circumstances requiring a
continuance.
Further, the record does not support defendant’s
argument that the trial court impermissibly evaluated the
material and denied the motion based on a conclusion that
further investigation would be futile. The trial court’s rea-
soning was not that any new investigation would be futile,
but that none of the newly disclosed material was a surprise.
As explained above, that reasoning was a proper basis for
the trial court to deny the motion, and under our deferential
standard of review, where “we have historically been loath
to second-guess trial courts’ denials of motions for post-
ponement or continuance[,]” the trial court did not abuse its
Cite as 330 Or App 477 (2024) 481
discretion in denying defendant’s motion for a continuance.
State v. Kindler, 277 Or App 242, 250, 370 P3d 909 (2016).
Affirmed.