State v. Mendoza-Ramos
CourtCourt of Appeals of Oregon
Date FiledSeptember 23, 2026
DocketA185983
JudgeTookey
StatusPublished
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Full Opinion
176 September 23, 2026 No. 882
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Appellant,
v.
DANIEL MENDOZA-RAMOS,
Defendant-Respondent.
Washington County Circuit Court
23CR51681; A185983
Janelle F. Wipper, Judge.
Argued and submitted June 16, 2026.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for appellant. Also on the opening brief were Dan
Rayfield, Attorney General, and Paul L. Smith, Solicitor
General. Also on the reply brief were Dan Rayfield, Attorney
General, and Benjamin Gutman, Solicitor General.
James Brewer, Deputy Public Defender, argued the cause
for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
TOOKEY, P. J.
Appeal dismissed.
Cite as 353 Or App 176 (2026) 177
TOOKEY, P. J.
The state appeals the trial court’s pretrial ruling
that the admissibility of a police officer’s bodycam record-
ing “would depend on witness testimony,” that it might be
cumulative, and that it would not issue a final ruling on the
admissibility of the recording prior to hearing the witness’s
testimony. Starting with the question of appealability, the
state may take an appeal from an order “made prior to trial
suppressing evidence.” ORS 138.045(1)(d). Here, although we
are troubled by the trial court’s determination that the wit-
ness had to testify first, we conclude that the pretrial order
is not appealable because it does not suppress evidence. We
therefore dismiss the state’s appeal.
FACTS
The relevant facts are procedural. In October 2023,
police officers responded to a 9-1-1 call made by C. When
the police arrived, an officer recorded his encounter with C
on his bodycam. Based on the incident, the state charged
defendant with fourth-degree assault constituting domestic
violence and harassment.
At a hearing before his bench trial, defendant
argued against the admissibility of the bodycam recording.
Defendant argued that the recording was cumulative and
should be excluded under OEC 403 because C was present to
testify. The state responded that the recording was not cumu-
lative because it would show “the demeanor of the victim on
the scene at the time,” and that it was admissible under the
domestic violence hearsay exception in OEC 803(26).
After further exchanges, the trial court determined
that it would require the witness, who was present, to testify
before it ruled on the admissibility of the bodycam recording
and that it would “not make a ruling finally until after the
witness testifies.” When the state indicated that it “would
be interested in appealing this before we have a trial,” the
trial court noted that it was unlikely that C would testify in
the same way as what was depicted on the recording. The
state responded that it had the burden of proof and that the
bodycam recording was admissible as substantive evidence
as part of the state’s case-in-chief.
178 State v. Mendoza-Ramos
After a recess, the trial court noted that it had
reviewed the domestic violence exception to hearsay in OEC
803(26), that the statute did not address whether a record-
ing could be played before an available witness had testified,
but given Confrontation Clause concerns, the trial court
observed that it would be “problematic” to play the record-
ing before the witness testified. Although the trial court
initially seemed inclined to think that the recording would
be admissible only for impeachment purposes or to refresh
the witness’s recollection, later the trial court acknowledged
that the recording would be admissible if “the State feels
that the video shows something different than what the wit-
ness is testifying to.” However, the trial court adhered to
its position that the state would be required to present the
witness’s testimony first.
The state requested an OEC 104 hearing to make a
record for purposes of appeal. At the hearing, the trial court
admitted the bodycam recording as an exhibit. The state did
not request that C testify at the hearing. After the hearing,
the state requested a written order. It provides in part:
“THIS MATTER came before the Court for trial on
October 10th, 2024. * * * Prior to trial the Court heard in
limine motions regarding trial evidence.
“THE COURT RULED that admissibility of the
body camera would depend on witness testimony. If the
witness testified consistently with the statements on the
body camera, it would be irrelevant and cumulative. If wit-
ness statements were not consistent, then the body camera
would be relevant and admissible.
“The court declined to rule prior to trial that the body
camera would be admissible as substantive evidence out-
side of its ruling in this Order.”1
ANALYSIS
On appeal, in a single assignment of error, the state
argues that the trial court erred “when it suppressed the
bodycam video depicting the officer’s interview of the alleged
victim.” Defendant responds that the trial court “did not err
1
The state points out that, in the second sentence of the second paragraph,
the trial court likely meant “relevant and cumulative,” not “irrelevant and
cumulative.”
Cite as 353 Or App 176 (2026) 179
by ruling that the body camera video would be cumulative
of [C’s] trial testimony if [C’s] trial testimony was consistent
with the statements on the video.” We begin with the ques-
tion of our jurisdiction to consider the state’s appeal.
Although the parties do not dispute appealability,
“ ‘we have an independent obligation to consider matters
concerning jurisdiction sua sponte.’ ” Hanley Engineering v.
Weitz & Company, 321 Or App 323, 325, 516 P3d 1192 (2022)
(quoting Walton v. Board of Parole, 267 Or App 673, 676, 341
P3d 828 (2014)). The right to appeal is statutory. State v.
Jackson, 368 Or 705, 712, 498 P3d 788 (2021). Both parties
rely on ORS 138.045(1)(d), which provides that the state may
take an appeal from an order “made prior to trial suppress-
ing evidence.” We have interpreted the phrase “suppressing
evidence” broadly, and it includes “orders that exclude evi-
dence on any grounds.” Jackson, 368 Or at 715.
The challenge here is that, even construing the
pretrial order broadly, we do not view it as an order that
excludes evidence. Instead, it had the effect of requiring
the state to present C’s testimony first, but that goes to the
question of how the state was required to present its case,
not what evidence it could present. Certainly, the trial court
indicated that the bodycam recording might be inadmissible
as cumulative under OEC 403, but the trial court also noted
that it was unlikely that C’s testimony would be the same
as what was depicted on the recording. Thus, in our view,
the pretrial order was too provisional to qualify as an order
suppressing evidence.
In response to the Appellate Commissioner’s order
to show cause why the order was appealable, the state
argued that the trial court’s order precluded the state from
presenting the bodycam recording as substantive evidence
in its case-in-chief, and the trial court allowed the evidence
only for possible impeachment purposes. We view the record
differently. The trial court expressly indicated that the state
could play the bodycam recording after the witness testified
if “the State feels that the video shows something different
than what the witness is testifying to.” And in its written
order, perhaps somewhat ambiguously, the trial court stated
that it “declined to rule prior to trial that the body camera
180 State v. Mendoza-Ramos
would be admissible as substantive evidence outside of its
ruling in this Order.” We read those statements to mean that
even if the witness’s testimony was consistent with the wit-
ness’s statements on the bodycam recording, if the record-
ing showed something different—for example, the witness’s
demeanor at the time of the recording—then the state could
play the bodycam recording as substantive evidence in its
case-in-chief. However, as noted, the trial court would not
allow the state to play the bodycam recording before the wit-
ness testified.
We are troubled by the trial court’s determination
that the state was required to offer C’s testimony before it
would rule on the admissibility of the bodycam recording. In
making that determination, the trial court appears to have
accepted defendant’s framing of the issue, but we are not
aware of any authority that prevents the state from playing
a police officer’s bodycam recording before a witness depicted
in the recording testifies, especially given the domestic vio-
lence exception to hearsay in OEC 803(26). However, the
question of whether the trial court could require the witness
to testify first is distinct from the question of whether the
trial court suppressed evidence. Because the pretrial order
did not suppress or exclude evidence, the state could not rely
on ORS 138.045(1)(d) to appeal it. See State v. Wenning, 282
Or App 21, 23, 386 P3d 1 (2016), rev den, 360 Or 852 (2017)
(noting that “[t]he legislature has conferred limited jurisdic-
tion on this court to hear and decide appeals by the state in
criminal cases,” and dismissing state’s appeal from a pre-
trial order determining that statements were confessions
because the order did not “suppress evidence” so as to make
it appealable under former ORS 138.060 (2015), renumbered
as ORS 138.045 (2017)).
In arguing that the order is appealable, the parties
point to State v. Oatney, 369 Or 555, 508 P3d 482 (2022),
a murder case that was on remand after the defendant
obtained post-conviction relief, and in which the court deter-
mined that the state was precluded from calling a witness
at the defendant’s second trial even if the defendant made
certain arguments relating to that witness. Id. at 566-67.
That order was appealable under ORS 138.045 because it
Cite as 353 Or App 176 (2026) 181
“preclude[d] the state from calling [the witness] to testify
under those circumstances.”
By contrast here, it is far less clear that the pre-
trial order will preclude the state from playing the bodycam
recording. The trial court indicated that if the recording is
consistent with the witness’s testimony, then it may be inad-
missible as cumulative, but the trial court also indicated
that it was unlikely the witness’s testimony and the body-
cam recording would be consistent, and, even if they were,
the state could play the recording if it revealed something
more or different than the witness’s testimony. Although the
pretrial order did preclude the state from playing the body-
cam recording before the witness testified, it simply stretches
the language of the statute too far to view the order as one
that “suppresses evidence” under ORS 138.045(1)(d). We
therefore conclude that the order is not appealable and dis-
miss the state’s appeal.2
Appeal dismissed.
2
We highlight that our reasoning might have been different if the state had
requested that C testify at the OEC 104 hearing. Then the trial court could have
compared her testimony and the bodycam recording and made a pretrial ruling
on whether the bodycam recording would be excluded. But that is not the order
before us.