State v. Hernandez

504 November 12, 2026 No. 1087 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. ARACELY G. HERNANDEZ, Defendant-Appellant. Washington County Circuit Court C151658CR; A185506 Brandon M. Thompson, Judge. Submitted September 24, 2026. Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Kistler, Senior Judge. LAGESEN, C. J. Reversed and remanded. Cite as 354 Or App 504 (2026) 505 506 State v. Hernandez LAGESEN, C. J. Defendant appeals a judgment of conviction, pur- suant to a jury trial, for first-degree assault. Defendant’s conviction resulted from a retrial after a previous conviction was set aside because the jury had not been unanimous in its verdict. By the time of retrial, the complaining witness had been deported to Mexico and, over defendant’s confron- tation rights objection, the trial court admitted the tran- script of the complaining witness’s testimony from the first trial. Defendant assigns error to (1) the trial court’s instruc- tion to the jury that a mental state of criminal negligence applied to the “dangerous weapon” element of first-degree assault; and (2) the trial court’s admission of the transcript of the complaining witness’s testimony. We conclude that the trial court’s instruction was erroneous and that the error requires reversal. Although that conclusion obviates the need to reach defendant’s second assignment of error, we do so for the purpose of avoiding a repeat of any error, should the issue recur on remand. We conclude that, on this record, the state failed to establish that the complaining witness was unavailable because the state did not establish that it took reasonable steps to secure the complaining witness’s testimony, as required by Article I, section 11, and State v. Smyth, 286 Or 293, 299, 593 P2d 1166 (1979), and, for that reason, the trial court erred in admitting the transcript of the complaining witness’s previous testimony. Jury instruction. We start with the jury instruction issue. As noted, the trial court instructed the jury that it had to find that defendant was criminally negligent with respect to the “dangerous weapon” element of first-degree assault under ORS 163.185(1)(a). On appeal, the state correctly con- cedes that, under State v. Fletcher, 263 Or App 630, 633, 330 P3d 659 (2014), the instruction was incorrect; having charged defendant with first-degree assault, the state was required to prove that defendant acted intentionally with respect to the “dangerous weapon” element.1 The remaining question is whether that error prejudiced defendant, so as 1 Although Fletcher addressed the issue in the context of a conviction for second-degree assault under ORS 163.175(1)(b), its rationale applies with equal force to the provisions of ORS 163.185(1)(a). Cite as 354 Or App 504 (2026) 507 to require reversal. “A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error permits the jury to reach a legally erroneous result.” State v. Harper, 296 Or App 125, 126, 436 P3d 44 (2019) (internal quotation marks omitted). Here, the instruction on its face permitted the jury to reach a legally erroneous result because it per- mitted the jury to find defendant guilty based on a find- ing that defendant was criminally negligent with respect to whether the scalding water that she threw at the victim was a dangerous weapon, without requiring it to find that defendant intended the water to be a dangerous weapon. Moreover, contrary to the state’s argument that it is infer- able that the jury in fact found that defendant intended the scalding water to be a dangerous weapon (even though it was not instructed on that point), that inference is unlikely on this record. That is because the state leaned heavily on the criminal negligence standard in its closing argument, arguing that the jury could convict defendant based on find- ings that defendant intentionally threw water in the com- plaining witness’s face and that defendant was criminally negligent with respect to the water constituting a dangerous weapon: “You’ve got burning hot liquid, you’re intending to do harm to somebody else, and you go out and throw it on them. That’ll be criminal negligence.” Confrontation clause. Defendant additionally con- tends that the trial court erred in concluding that the complaining witness was unavailable to testify for pur- poses of the confrontation clauses of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, so as to permit the state to introduce the transcript of the complaining witness’s prior testimony over defendant’s confrontation objections. As noted, we address the issue because it may recur on remand. Our review is for legal error. State v. Belden, 369 Or 1, 11-12, 499 P3d 783 (2021). To establish that a witness is unavailable for the purpose of admitting prior sworn testimony over a confron- tation objection, “[t]he burden is on the prosecutor to pro- duce evidence to show the trial court what circumstances 508 State v. Hernandez exist which make the use of prior recorded testimony genu- inely necessary.” State v. Herrera, 286 Or 349, 355, 594 P2d 823 (1979). The state must show that it “exhausted all rea- sonably available means of producing the witness.” State v. Harris, 362 Or 55, 66, 404 P3d 926 (2017). Where, as here, a witness is outside the country and beyond the reach of state judicial process, to satisfy the Article I, section 11, confrontation clause, the state must demonstrate “at least a good faith but unsuccessful effort to notify the witness and request [her] attendance.” Smyth, 285 Or at 301. In this case, the state’s efforts to locate the witness and notify her about the trial were lackluster at best. The state became aware months before trial that the witness had been deported. Although the state was aware that the witness called her father from different numbers, the state did not follow up with the father after he failed to provide those numbers. The state did not contact the United States Immigration and Naturalization Service (INS) until the day before trial, and did not hear back from the INS by the time of trial. The state did not contact the Mexican consulate. The state did not try to find out where the witness was in Mexico or attempt to contact her by phone. Those minimal efforts do not constitute a good faith effort to notify the wit- ness about the trial and request her presence at trial and, for that reason, do not satisfy Article I, section 11, as con- strued in Smyth. In concluding otherwise, the trial court appears to have reasoned that the witness’s deportation made the wit- ness unavailable as a matter of law because, in the trial court’s view, the witness’s deportation precluded her from returning to the United States. In so doing, the trial court rejected defendant’s contention that, under those circum- stances, the witness, if otherwise unavailable, could testify remotely by video. The court reasoned that video testimony would not satisfy defendant’s confrontation rights and that, therefore, the state had no obligation to pursue any efforts to obtain the witness’s testimony as prerequisite to intro- ducing the transcript of the witness’s prior testimony. That reasoning is incorrect. The issue before the trial court was whether the state would be permitted to Cite as 354 Or App 504 (2026) 509 introduce transcribed testimony, thereby depriving defen- dant of her right to confront the complaining witness. To do so, the state was required to show that the witness was unavailable to testify. Assuming the court was correct that the witness could not travel to the United States, because ORS 131.045 allows for testimony by “simultaneous elec- tronic transmission,” a witness cannot be said to be unavail- able simply because the witness cannot travel to the United States, if the witness is available to testify remotely, at least absent some demonstrated need for the testimony to be in person. That necessarily means that in circumstances like these, where there is a legal impediment that would pre- clude a witness from appearing in person, to demonstrate that a witness is unavailable for purpose of the confrontation clause, the state must make a good faith effort to secure the witness’s testimony via remote means before a trial court may permit the state to introduce into evidence a transcript from a prior proceeding.2 Because the state made no such efforts here, the trial court erred in admitting the transcript over defendant’s confrontation objection. That error, like the instructional error, is an independent ground for reversal because the erroneously admitted transcript likely affected the jury’s verdict. For the foregoing reasons, we reverse and remand for a new trial. Reversed and remanded. 2 It is worth noting that where a witness is unavailable to testify in person because the witness is legally precluded from returning to the United States, but is available to testify by remote means, a defendant’s objection to testimony by remote means would be the cause of the witness’s unavailability, so as to open the door to the admission of the transcribed testimony. An objection to remote testimony would not have the same effect where there was no impediment to the witness testifying in person.