State v. Zieg

256 September 23, 2026 No. 890 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MOHAMMAD SHAFI ZIEG, Defendant-Appellant. Washington County Circuit Court 23CR36602; A184883 Ricardo J. Menchaca, Judge. Argued and submitted May 21, 2026. Peter G. Klym, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Kirsten M. Naito, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General. Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge. HELLMAN, J. Reversed and remanded. Cite as 353 Or App 256 (2026) 257 258 State v. Zieg HELLMAN, J. Defendant appeals a judgment of conviction for assault in the fourth degree, ORS 163.160(1)(a), committed against his wife, T. On appeal, he raises two assignments of error. First, defendant assigns error to the trial court’s denial of his motion for judgment of acquittal, both because the state failed to disprove defendant’s self-defense claim beyond a reasonable doubt and the evidence was not suffi- cient to show T had suffered a physical injury. Second, defen- dant assigns error to the trial court’s decision to declare T “unavailable” for the purposes of admitting her hearsay statements in a 9-1-1 call. We conclude that defendant failed to preserve his challenge to the sufficiency of the evidence on physical injury and that his asserted error is not plain. We further conclude that the trial court did not err in deny- ing defendant’s motion for judgment of acquittal on self- defense because there was sufficient evidence from which a jury could conclude that the state met its burden to disprove the defense. However, we conclude that the trial court erred when it concluded that T was unavailable for purposes of admitting her hearsay statements through the 9-1-1 call. On the record, defense counsel and the trial court identified two reasonable measures to serve T that officers did not uti- lize. Because a finding of unavailability requires officers to have utilized all reasonable measures, the trial court erred when it determined that T was unavailable. Accordingly, we reverse and remand. I. BACKGROUND As relevant on appeal, defendant was charged with assault in the fourth degree constituting domestic violence, ORS 163.160, based on an altercation that occurred between defendant and T.1 Prior to trial, the state moved to have T declared unavailable so that it could introduce her hearsay state- ments through a 9-1-1 call. In support of that motion, the state presented evidence about the numerous efforts made to serve T with a subpoena to appear at trial. Those efforts 1 The state also charged defendant with strangulation, ORS 163.187, and interference with making a report, ORS 165.572, but the trial court dismissed those counts pretrial on the state’s motion. Cite as 353 Or App 256 (2026) 259 included 15 attempts to serve T at the apartment she shared with defendant, more than six telephone calls to numbers associated with T, visits to other addresses where T had stayed in the past, emails from a victim advocate, using records from animal control and the DMV, and in-person conversations with neighbors and the apartment manager. The state also provided context for those efforts; specifically, that defendant and T were Afghani immigrants and English was not their first language, T had no family in Oregon, T did not work outside the home, and T relied on defendant for money. After hearing the testimony, the trial court held that T was unavailable. The trial court concluded: “I do find that law enforcement has exhausted all efforts. “Again, communication through the DA’s Office, 14-plus attempts to serve the complaining witness at her apart- ment, conversations with neighbors, conversation with the management office, efforts through animal services, efforts through DMV, phone calls, voicemails left, notes left. “And then I will also note that there is some inference that the complaining witness is avoiding service, based not only on the conversations that law enforcement personnel had with the leasing office, but based on the fact that the DA’s Office was able to communicate with her. “She got the messages. And again, I think the inference is that she’s evading * * * service. So under the principles laid out in Belden, I do find that the State has reasonably made all efforts to secure the testimony of this witness.” After the trial court made that ruling, defense counsel inquired whether the court would find “that it would not have been a reasonably available measure for the police offers to leave their business cards with the neighbors and ask them to call if they saw [T]?” The court responded “I think that would have been a reasonable measure. They didn’t do it. It wasn’t really part of my analysis, but it’s a good point.” Defense counsel confirmed that “that’s a rea- sonably available measure that they didn’t take” to which the court responded “Correct.” The court went on to explain that the “other reasonable measures that they took, in my 260 State v. Zieg mind, were enough.” Defense counsel argued that “case law specifically says they have to take all reasonably available measures” to which the court responded, “and again, under these circumstances with all that they did, I did find that.” Defense counsel subsequently asked whether the court found that “[sitting] in a stake-out,” as one officer testi- fied, was another reasonably available measure that officers did not take. The trial court responded, “Yes. * * * It’s just not a precedent that I think at least I’m willing to take now.” The court did not change its ruling on T’s unavailability. At trial, the state introduced evidence that T called 9-1-1 from a TriMet MAX train station. She was crying and upset and told the dispatcher that defendant “hit me a lot” and that defendant “hits me a lot.” When officers met T at the MAX station, they observed that she was crying and very upset. She had bruising and redness on her face, a scrape on her forehead, and scratches on her back. T continued to cry during the 30 to 60 minutes that the officers interacted with her, and over that time her bruising became darker, and her facial scrape started to swell. When officers contacted T again two days later, the injuries were still visible. Officers interviewed defendant outside of his apart- ment and defendant told them that he and T had argued when she tried to leave the house and that he had pushed her and grabbed her hand. Defendant was not sure how T got the bruise on her face. He denied hitting T but opined that the bruise may have occurred when he grabbed her or when she pushed him. Defendant explained that he and T were grabbing and pushing each other during the argument. At the close of the state’s case-in-chief, defendant moved for judgment of acquittal on the grounds that the state failed to disprove defendant’s self-defense claim beyond a reasonable doubt. Defendant argued that his statements to law enforcement demonstrated that T was the initial aggressor in the encounter. He took the position that the evidence—photographs of T’s injuries, the 9-1-1- call, testi- mony of T’s demeanor, and the “alleged bruising on her face, without any other statements about what had occurred on that night”—was insufficient to sustain the state’s burden Cite as 353 Or App 256 (2026) 261 to disprove that he acted in self-defense. The trial court denied the motion. Defendant testified in his own defense. He told the jury that he and T had an argument, that she hit him with a spatula, tried to prevent him from making a telephone call, came at him with a kitchen knife, scissors, and a dish dry- ing rack, and that to defend himself he grabbed and twisted her hands which caused her to fall over a kitchen chair and onto the floor. The jury convicted defendant of assault in the fourth degree. This appeal followed. II. ANALYSIS A. Motion for Judgment of Acquittal In his first assignment of error, defendant puts forth two reasons why the trial court erred when it denied his motion for judgment of acquittal: first, that the state failed to disprove that defendant acted in self-defense; and second, that the evidence was insufficient to prove beyond a reason- able doubt that claimant had suffered a physical injury, as required under ORS 163.160(1)(a). We review motions for judgment of acquittal “by examining 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[s] of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994). As a threshold matter, we conclude that defendant’s general argument regarding the insufficiency of the evi- dence did not preserve his specific argument that the state presented insufficient evidence that T suffered a physical injury. See State v. Paragon, 195 Or App 265, 268, 97 P3d 691, 693 (2004) (“The motion must state the specific the- ory on which the state’s proof was insufficient.”). Defendant nonetheless asks us to review this assignment of error as plain error, because the absence of evidence on an element is “an obvious legal error.” An error is plain when it is “an error of law, obvious and not reasonably in dispute, and apparent on the record 262 State v. Zieg without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). This is not a case in which there is a complete absence of any evidence about T’s injuries. Instead, this is a case in which the record on the nature and severity of T’s injuries is open to competing interpretations, as evidenced by the parties’ briefing. Given that, any error is not appar- ent on the record and therefore is not plain. We thus turn to defendant’s argument that the state failed to disprove he acted in self-defense. ORS 161.209 establishes the conditions under which a person may act in self-defense, providing: “[A] person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or immi- nent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.” Thus, we have explained that “a self-defense claim generally entails two issues. The first issue is when a person may use physical force to defend themselves; on that issue, ORS 161.209 provides that a person may use force to defend against what the person ‘reasonably believes to be [another person’s] use or immi- nent use of unlawful physical force.’ The second issue is the degree of force that may be used; on that issue, ORS 161.209 provides that a person may use the degree of force that the person reasonably believes ‘to be necessary for the purpose’ of self-defense.” State v. Greinier, 311 Or App 207, 214-15, 486 P3d 839 (2021) (citing State v. Stapp, 266 Or App 625, 632, 338 P3d 772 (2014)). “Once raised, the state has the burden to disprove self-defense beyond a reasonable doubt.” State v. Phillips, 313 Or App 1, 4, 493 P3d 548 (2021) (citing ORS 161.055(1)). To make that determination, the “factfinder must weigh (1) whether the defendant reasonably believed that the vic- tim used or threatened to use unlawful physical force against the defendant; and (2) whether the defendant used a degree of force in self-defense that the defendant reasonably believed Cite as 353 Or App 256 (2026) 263 was necessary.” State v. Butterfield, 332 Or App 526, 530-31, 549 P3d 545 (2024) (internal quotation marks omitted). On this record, a reasonable juror could conclude that the state met its burden to disprove self-defense. Here, the record includes evidence that T called 9-1-1 and indi- cated that defendant “hit her a lot.” Officers who responded observed that T had an abrasion and bruising on her face, and that over the time they spoke with T, those marks got darker and started to swell. That day, defendant told the investigating officers that he and T had an argument and that, when she tried to leave the house, he grabbed her and told her that she could not leave. Defendant was not sure how T got the bruises on her face but opined that it could have occurred when he tried to grab her hand or when she pushed him. Defendant explained that, at one point during the argument, both he and T were pushing each other. If the jury credited those facts, they could conclude that defen- dant did not reasonably believe that T “used or threatened to use unlawful physical force” against him. In addition, the jury could conclude from those facts that the degree of force that defendant used was an unreasonable degree of force in response to the use of force from T. Although defendant’s trial testimony presented a very different version of events, with the victim as the initial, violent aggressor, the jury was free to disbelieve that testimony. We disagree with defen- dant’s argument that, if the jury decided not to credit his trial testimony, there would be no evidence from which they could determine what occurred. Together the 9-1-1 call, the officer’s observations of T, and defendant’s statements on the day in question would permit a jury to conclude that defen- dant assaulted T because he did not want her to leave the house, not because he was acting in self-defense. Because a jury could reasonably conclude that the state disproved self- defense, the trial court did not err in denying defendant’s motion for judgment of acquittal. B. Unavailability for Purposes of Introducing Hearsay in Compliance with Article I, section 11 In his second assignment of error, defendant argues that the trial court erred in declaring T unavailable for pur- poses of introducing her 9-1-1 hearsay statements because 264 State v. Zieg the trial court identified two reasonably available mea- sures the police could have taken to serve T, which they did not utilize. Defendant argues that, as a result, T was not “unavailable” as a matter of law. We agree with defendant’s argument. “[W]hether a witness is ‘unavailable’ for purposes of overcoming defendant’s Article I, section 11, confrontation right is a question of law.” Belden, 369 Or 1 at 11-12. Our review is thus for legal error. State v. Anderson, 343 Or App 436, 44142, 578 P3d 736 (2025). “[T]o the extent that appli- cation of the legal standard turns on disputed questions of fact, this court is bound by the trial court’s findings if sup- ported by any evidence in the record.” Belden, 369 Or at 13. “Article I, section 11, of the Oregon Constitution guarantees a criminal defendant the right ‘to meet the wit- nesses face to face.’ ” State v. Harris, 362 Or 55, 57, 404 P3d 926 (2017) (internal citations omitted). However, that right is not absolute. Id. If the state can show that “a witness is ‘unavailable,’ it may offer reliable hearsay evidence without presenting a live witness at trial.” Id.; see also Anderson, 343 Or App at 436(recognizing that the state “is generally prohibited from introducing the hearsay statements of an absent declarant—that is, unless the state can establish that (1) the declarant is ‘unavailable,’ and (2) the statements bear adequate indicia of reliability”). The use of hearsay evidence against a criminal defendant is only possible when the use of such evidence is “genuinely necessary” due to a witness’s unavailability. Harris, 362 Or at 62. Because the right to confrontation is a constitutional one, the bar to prove a witness’s unavail- ability is a “demanding” one. Id. at 65. To prove that a wit- ness is “unavailable,” the state must exhaust all reasonably available measures for producing the witness for trial. Id at 67. That requirement “does not ask whether the state had exhausted measures that are reasonably likely to produce the witness for trial; it asks whether the state has exhausted measures that are ‘reasonably available’ to produce the wit- ness for trial.” State v. Belden, 369 Or 1, 11, 499 P3d 783 (2021) (emphasis in original). That is, “[u]navailability does not turn on a factual inquiry into the likelihood that a Cite as 353 Or App 256 (2026) 265 particular measure would have been successful in produc- ing the witness.” Id. (internal quotation marks omitted). Even though the bar is high, the law does not require the state to engage in futile measures to obtain the witness’s presence at trial. Id. As we recently summarized, “the question is whether there remains a ‘measure [that] is ‘reasonably available’ for producing the witness,’ which the state has not exhausted, and which is not futile.” Anderson, 343 Or App at 443. The record here compels us to conclude that the trial court erred when it concluded that T was unavailable. After the trial court granted the state’s motion and determined that T was unavailable, defendant identified two actions that the state could have taken to serve T: leaving a card with neighbors asking them to call if they saw T and conduct- ing a stakeout of the apartment. The trial court found that those measures were “reasonable” and that the state did not take them. In response to defense counsel’s inquiry whether it was “a reasonable available measure for the police officers to leave their business cards with the neighbors and ask them to call if they saw [T]” the trial court stated, “I think that would have been a reasonable measure. They didn’t do it.” In response to defense counsel’s question about whether “sitting in a stake out” was a reasonably available measure that officers did not take, the trial court responded, “Yes.” We disagree with the state’s argument that the trial court’s use of the term “reasonable” was, “in context” the trial court “merely agreeing with defendant that other possible measures existed that the state could have taken.” “Reasonable measure” is term of art in the context of an unavailability inquiry and refers to measures to produce a witness for trial that were “reasonably available” to the state at the time they were attempting to obtain the witness’s presence at trial. Belden, 369 Or at 11 (emphasis in origi- nal). Here, the trial court did not say “possible measures”; instead, it used the term “reasonable measure” to refer to leaving a business card with instructions and agreed with defense counsel’s characterization that a stakeout was a rea- sonably available measure. Because the term “reasonable measure” carries a precise legal term in this context, we 266 State v. Zieg decline to interpret the trial court’s findings in the manner proposed by the state. Moreover, this case does not involve a challenge to the trial court’s findings that the identified measures were reasonable, and without an opportunity for the trial court to have confirmed, clarified, or corrected its findings, we will not redefine the words that the trial court used. As a matter of law, T could not be considered “unavailable” once the trial court found that there were rea- sonable measures officers could have taken but did not. E.g., Anderson, 343 Or App at 443 (reversing and remanding because the record demonstrated a single reasonably avail- able measure for service that officers did not take). Under Belden and Harris, it was incorrect to find, as the trial court did here, that there were available reasonable measures that officers did not take and at the same time conclude that the “reasonable measures they took * * * were enough.” If there were available reasonable measures, the law holds that what the officers did was not enough to permit a deter- mination that the witness was unavailable. To be sure, the law does not require officers to pur- sue futile measures to secure a witness’s appearance at trial, Belden, 369 Or at 11, and the trial court observed that there was some indication that T was actively avoiding ser- vice. But the trial court did not ground its ruling in futility, and futility is not an issue before us on appeal. In sum, the trial court determined that there were two reasonable measures that were available to secure T’s presence at trial, but that officers did not utilize either of them. Therefore, under Belden, Harris, and Anderson, T was not “unavailable.” Reversed and remanded.