STATE v. MENDOZA RAMOS (2026)

The state appeals the trial court's pretrial ruling that the admissibility of a police officer's bodycam recording “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 witness 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 cumulative 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.

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 recording 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 recording 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 witness 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 witness 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 outside 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 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 question 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 suppressing evidence.” We have interpreted the phrase “suppressing evidence” broadly, and it includes “orders that exclude evidence 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 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 witness's statements on the bodycam recording, if the recording 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 witness 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 violence 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 jurisdiction on this court to hear and decide appeals by the state in criminal cases,” and dismissing state's appeal from a pretrial 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 determined 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 “preclude[d] the state from calling [the witness] to testify under those circumstances.”

By contrast here, it is far less clear that the pretrial 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 inadmissible as cumulative, but the trial court also indicated that it was unlikely the witness's testimony and the bodycam 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 bodycam 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 dismiss the state's appeal.²

Appeal dismissed.

FOOTNOTES

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.”

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.

TOOKEY, P. J.