(Strickland) Opening Brief FINAL

IN THE COURT OF APPEALS OF THE STATE OF OREGON
____________
STATE OF OREGON, ) Multnomah County Circuit Court

)
Plaintiff-Respondent, ) Case No.16CR41718
)
vs. ) Court of Appeals
) No. A165019
MICHAEL AARON STRICKLAND,)
)
Defendant-Appellant. )
____________
APPELLANT‘S BRIEF AND EXCERPT OF RECORD

____________
An Appeal from a Judgment of the Circuit

Court for Multnomah County,
the Honorable Thomas Ryan, Judge
____________
ROBERT E. BARNES, CA Bar # 235919
BARNES LAW
601 S Figueroa Street, Suite 4050
Los Angeles, CA 90017
Tel: (310) 510-6225
MARK J. GEIGER, #840473

317 Court Street NE, #211
Salem, OR 97301
Tel: (503) 588-1723
Attorneys for Defendant-Appellant
TODD JACKSON # 114240 Deputy District Attorney

KATHARINE MOLINA #123989 Deputy District Attorney
1021 S.W. Fourth Avenue, Room 600
Portland, OR 97204
Attorneys for Plaintiff-Respondent
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TABLE OF CONTENTS
STATEMENT OF THE CASE ...................................................................... 1

Nature of the Proceeding ............................................................................ 1
Nature of the Judgment ............................................................................... 1
Jurisdiction .................................................................................................. 1
Notice of Appeal ......................................................................................... 1
Questions Presented .................................................................................... 2
Summary of the Arguments ........................................................................ 3
Introduction ............................................................................................. 3
Summary of Assignments of Error .......................................................... 3
Summary of Material Facts ......................................................................... 7
FIRST ASSIGNMENT OF ERROR ............................................................ 10
The trial court erred when it denied Defendant’s motion for a change of
venue because the pre-trial coverage in the community had been
pervasive, and the prosecutor made a damaging and untrue statement
about Defendant in front of local media during the arraignment.............. 10
A. Summary.................................................................................... 10
B. Preservation of Error ................................................................. 10
C. Standard of Review ................................................................... 12
D. Argument ................................................................................... 13
SECOND ASSIGNMENT OF ERROR ....................................................... 17
The trial court erred when it granted the state’s motion to exclude
evidence of unrelated prior altercation because the prior altercation was
relevant and necessary for the fact-finder to understand Defendant’s state
of mind at the time he committed the charged acts, and Defendant relied
on the defense of self-defense. .................................................................. 17
A. Summary.................................................................................... 18
D. Argument ................................................................................... 19
1. The Evidence of the Prior Altercation Was Relevant ............ 19
2. The Exclusion of the Evidence of the Prior Altercation Was
ii
Harmful................................................................................... 20
THIRD ASSIGNMENT OF ERROR .......................................................... 22
The trial court erred when it excluded certain testimony by Detective
Cavalli as hearsay because that testimony was not offered to prove the
truth of the matter asserted, but was offered as indirect or circumstantial
evidence of state of mind and objective reasonableness of a person’s state
of mind. ..................................................................................................... 22
A. Summary.................................................................................... 22
D. Argument ................................................................................... 24
1. Detective Cavalli’s excluded testimony was relevant and
admissible because it pertained directly to Defendant’s state of
mind at the time of the incident, was not hearsay because it
was not offered to prove the truth of the matter asserted, and
even if considered hearsay, would be admissible under
exceptions for statements offered as indirect or circumstantial
evidence of the declarant’s state of mind. .............................. 24
2. The Exclusion of the Testimony of Detective Cavalli Was
Harmful................................................................................... 31
FOURTH ASSIGNMENT OF ERROR ....................................................... 32
The trial court erred when it allowed the prosecution in this case to put
forward a surprise rebuttal witness because the State had not properly
notified the Defense of the witness. .......................................................... 32
A. Summary.................................................................................... 32
D. Argument ................................................................................... 34
1. The State Committed a Discovery Violation.......................... 34
2. The Trial Court Abused Its Discretion by Refusing to Exclude
Rasmussen .............................................................................. 36
3. The Trial Court’s Error Was Prejudicial ................................ 37
FIFTH ASSIGNMENT OF ERROR............................................................ 41
The trial court erred when it denied Defendant’s demurrer to the
iii
indictment because the indictment described two different theories

regarding the mens rea, as well as two different theories regarding the
actus reus, for the charged crime of unlawful use of a weapon. .............. 41
A. Summary.................................................................................... 41
D. Argument ................................................................................... 42
SIXTH ASSIGNMENT OF ERROR ........................................................... 44
A. Summary.................................................................................... 45
D. Argument ................................................................................... 45
CONCLUSION ............................................................................................ 47
EXCERPT OF RECORD
Docket.......................................................................................................ER-1
Judgment.................................................................................................ER-14
Motion for Change of Venue with Supporting Exhibits.........................ER-36
Order Denying Change of Venue.........................................................ER-174
Excerpts from Transcript re: Defense Motion for Change of Venue....ER-175
Excerpts from Transcript re: State’s Motion to Exclude Evidence of
Unrelated Prior Altercation...................................................................ER-202
Excerpts from Transcript re: Defense Motion for Demurrer................ER-212
Excerpts from Transcript re: Testimony of Detective Cavalli..............ER-227
Excerpts from Transcript re: Argument on Rebuttal Witness..............ER-247
Excerpts from Transcript re: Testimony of Ryan Rasmussen..............ER-252
Transcript of Sentencing.......................................................................ER-341
iv
TABLE OF AUTHORITIES
CASES
Irvin v. Dowd,
366 US 717, 81 S.Ct 1639, 6 LEd2d 751 (1961) ...................................... 14
Rideau v. Louisiana,
373 US 723, 83 S.Ct 1417,10 LEd2d 663 (1963) ..................................... 14
State v. Arellano,
149 Or.App 86, 941 P.2d 1089 (1997) ..................................................... 19
State v. Bement,
284 Or.App. 276, 391 P.3d 838 (2017) .................................. 19, 29, 30, 31
State v. Ben,
310 Or. 309, 798 P.2d 630 (1990) ............................................................ 36
State v. Booth,
124 Or.App 282, 862 P.2d 518 (1993), rev *24 den, 319 Or.81,
cert den ...................................................................................................... 25
State v. Briggen,
112 Or. 681 (1924).............................................................................. 43, 44
State v. Brown,
232 Or.App 472 (2009) ............................................................................. 43
State v. Cervantes,
130 Or.App 147 881 P.2d 151 (1994) ...................................................... 34
State v. Davis,
336 Or. 19, 77 3d 1111 (2003)...................................................... 20, 21, 31
State v. Fanus,
336 Or. 63, 79 P.3d 847 (2003) ................................................................ 13
State v. Grey,
101 Or.App 421 790 P.2d 1203, rev den 310 Or. 205 (1990) .................. 34
State v. Harris,
126 Or.App 516, 869 P.2d 868, modified on recons,
127 Or.App 613, 872 P.2d 445, rev den, 319 Or.281 (1994) ................... 25
State v. Herrera,
32 Or.App 397,574 P.2d 1130 (1978), rev'd on other grounds,
286 Or .349, 594 P.2d 823 (1979) ............................................................ 13
State v. Huckins,
176 Or.App 276, 31 P.3d 485 (2001) ....................................................... 42
State v. Jensen,
v

209 Or. 239, 296 P.2d 618 (1956) ............................................................ 14
State v. Johnson,
225 Or.App. 545, 202 P.3d 225 (2009) .............................................. 21, 32
State v. Langley,
314 Or. 247, 839 P.2d 692 (1992) ............................................................ 13
State v. Lindquist,
141 Or.App. 84, 917 P.2d 510 (1996) ...................................................... 34
State v. Little,
249 Or 297, 431 P2d 810 (1967) .............................................................. 13
State v. Martin,
282 Or. 583 (1978).................................................................................... 46
State v. Montez,
324 Or. 343, 927 P.2d 64 (1996) .............................................................. 15
State v. Richards,
263 Or.App. 280, 328 P.3d 710 (2014) .............................................. 21, 32
State v. Rogers,
313 Or. 356, 836 P.2d 1308 (1992) .......................................................... 13
State v. Sanders,
280 Or. 685 (1977).................................................................................... 43
State v. Sarratt,
52 Or.App 443, 628 P.2d 752 (1981) ....................................................... 37
State v. Schroeder,
55 Or.App 932, 640 P.2d 688 (1982) ....................................................... 13
State v. Smith,
182 Or. 497 (1948).................................................................................... 43
State v. Sparks,
336 Or. 298, 83 P.3d 304,321 (2004) ...................................................... 15
State v. Turnidge,
359 Or. 507, 373 P.3d 138, cert. den., 137 S.Ct. 569,
196 L.Ed.2d 449 (2016) ............................................................................ 19
State v. Voits
186 Or.App. 643, 64 P.3d 1156, rev. den., 336 Or. 17,
77 P.3d 320 (2003).................................................................................... 30
CONSTITUTIONAL AUTHORITIES AND STATUTES

Or Const, Art I, §11 .......................................................................... 11, 41, 43
Or Const, Art VII (Amended), §3 ................................................................ 37

vi
OEC 103(1) .................................................................................................. 37

OEC 801 ................................................................................................. 22, 23
OEC 801 to 806 ............................................................................................ 24
OEC 801(1) .................................................................................................. 24
OEC 801(3) ............................................................................................ 24, 28
OEC 802 ....................................................................................................... 24
OEC 803(3) ................................................................................ 23, 28, 29, 30
Or. R. App P. 5.45(1) ................................................................................... 44
Or. Rev. Stat. Sect. 138.040 ......................................................................... 44
Or. Rev. Stat. Sect. 138.050 ................................................................... 44, 45
ORS 131.345 ................................................................................................ 10
ORS 131.355 .................................................................................... 10, 11, 12
ORS 131.363 .................................................................................... 10, 11, 12
ORS 132.560(1)(a) ................................................................................. 41, 43
ORS 135.630 .......................................................................................... 41, 42
ORS 135.815(1)(a) ................................................................................. 34, 35
ORS 135.845 .......................................................................................... 34, 35
ORS 135.865 ................................................................................................ 35
ORS 138.040 .................................................................................................. 1
ORS 138.240 ................................................................................................ 46
ORS 161.209 .................................................................................... 19, 21, 31
ORS 163.190 .................................................................................................. 1
ORS 166.025 .................................................................................................. 1
ORS 166.220 ................................................................................ 1, 41, 42, 43
ORS 40.450 to 40.475 .................................................................................. 24
US Const, Amend VI ................................................................................... 11
OTHER AUTHORITIES
Laird C. Kirkpatrick, Oregon Evidence, § 801.01[3][d],
704 (6th ed. 2013) ..................................................................................... 25
Matthew Mastromauro, Pre-Trial Prejudice 2.0: How Youtube Generated
News Coverage Is Set to Complicate the Concepts of Pre-Trial Prejudice
Doctrine and Endanger Sixth Amendment Fair Trial Rights,
10 J. High Tech. L. 289 (2010) ................................................................. 17
1
STATEMENT OF THE CASE
Nature of the Proceeding
This is a criminal appeal in which Defendant respectfully requests this
Court vacate his conviction for ten counts of unlawful use of a weapon, ten
counts of menacing, and one count of disorderly conduct in the second
degree.
A Multnomah County grand jury indicted Defendant for ten counts of
unlawful use of a weapon, ORS 166.220; ten counts of menacing, ORS
163.190; and one count of disorderly conduct in the second degree, ORS
166.025.
Nature of the Judgment
Defendant waived his right to a jury trial and had his case heard by the
Hon. Thomas M. Ryan, judge in the Circuit Court of the State of Oregon for
the County of Multnomah, and was found guilty on all counts.
Jurisdiction
This Court has jurisdiction under ORS 138.040.
Notice of Appeal
The Multnomah County Circuit Court entered judgment on May 3,
2017. Defendant timely filed the notice of appeal on May 30, 2017.
Defendant filed an amended notice of appeal on June 8, 2017.

2
Questions Presented
1. May a trial court deny a change of venue where pre-trial coverage in
the community has been pervasive, and where the prosecutor made a
damaging, untrue statement about defendant in front of local media
during the arraignment?
2. May a trial court grant a motion to exclude evidence of unrelated prior
altercation when the prior altercation was relevant and necessary for the
fact-finder to understand both defendant’s state of mind at the time he
committed the charged acts, and what a reasonable person would do in his
shoes?
3. May a trial court exclude certain testimony as hearsay when that
testimony is not offered to prove the truth of the matter asserted, but is
offered as indirect or circumstantial evidence of the declarant’s state of
mind, such as to prove motive, knowledge, or good faith?
4. May a trial court allow the prosecution in a criminal case to put
forward a surprise rebuttal witness after the defense rests its case and
with less than a day’s notice to the defense?
5. May the trial court deny a demurrer to the indictment when the
indictment describes two different theories regarding mens rea, as well as
two different theories regarding actus reus, for the charged crime of
3
unlawful use of a weapon?
6. May the trial court violate a defendant’s constitutional rights through
a special condition of probation?
Summary of the Arguments
Introduction
In a trial by ambush that started with an attack by ambush of a citizen
journalist filming a protest, the prosecution inflamed the local jury pool with
inaccuarate irrelevant statements, personally vouched for the guilt of the
defendant, used an indictment that left the Defendant guessing as to how to
defend himself, chose a venue that effectively forced the defendant to forfeit
a jury trial, and systematically excluded evidence necessary and essential to
the defense. After securing their guilty verdict, the prosecution then
demanded a sentence that prevented the defendant from exercising his First
Amendment rights. This appeal follows. Attack by ambush followed by trial
by ambush followed by verdict by ambush. This is not the Oregon standard
for the rule of law, due process, or a fair trial. Reversal is more than
warranted; it is required.
Summary of Assignments of Error
1. Before Defendant’s trial, many news articles were published
containing false information about Defendant, including political views that

4
he does not hold. Further, the news articles contained information excluded
from trial due to its prejudicial effect. During arraignment, the State falsely
stated on the record that Defendant held white supremacist views, which was
reported further in the news as true. Many of the news outlets were local
outlets, and therefore, jurors heard the false and prejudicial information
before hearing Defendant’s case. The jurors also heard information that was
intentionally withheld during the trial because of its prejudicial effect. The
trial court committed reversible error when it denied Defendant’s motion for
a change of venue.
2. While Defendant was filming in a public place as part of his
employment as a videographer, Defendant was attacked, and thrown to the
ground, sustaining serious injury to his arm and shoulder. This incident
caused Defendant to fear for his safety, and compelled him to become a
concealed permit holder. The prior incident, which was excluded, would
have helped the jury understand why Defendant felt the need to protect
himself during the incident at hand. Without the evidence of the prior
incident, the jury was unable to properly understand Defendant’s state of
mind when he committed the charged acts. Such state of mind evidence is
necessary to prove self-defense. Further, Defendant was precluded from
presenting crucial context evidence as to why he carried ammunition and

5
possessed a firearm under a concealed carry permit, while the State was
permitted to admit evidence concerning the amount of ammunition carried
by Defendant. The trial court committed reversible error when it granted the
State’s motion to exclude evidence of an unrelated prior altercation.
3. During cross-examination of the State’s witness, Detective Cavalli,
the defense began asking questions regarding Defendant’s state of mind.
The State objected to the line of questioning, and the court allowed the line
of questioning to continue, though ruled to exclude it, holding that it did not
meet the definition of the exception to the definition of hearsay. The
testimony of Cavalli related directly to Defendant’s state of mind, including
whether Defendant feared for his life and why he believed he was a targeted
individual. Such testimony was offered as indirect or circumstantial
evidence of the declarant’s state of mind as to prove motive, knowledge or
good faith. Such evidence would have supported Defendant’s self-defense
claim. The trial court committed reversible error when it excluded certain
testimony as hearsay, because the testimony was not offered to prove the
truth of the matter asserted, but instead was offered as indirect or
circumstantial evidence of the declarant’s state of mind.
4. Weeks before trial, the State was notified that Jason Servo was serve
as an expert witness and was given his resume and a summary of his
6
anticipated testimony. Prior to trial, the State was aware that Servo would
testify as to the reasonableness of Defendant’s actions based on his
experience and training. On January 27, 2017, the State filed a motion as to
Servo’s testimony. Despite the advance notice of Servo’s testimony, the
State only notified the defense as to its intent to call a rebuttal witness after
the defense rested its case on February 9, 2017. The State’s rebuttal witness,
Ryan Rasmussen testified directly before closing arguments, and was used
by the State to essentially testify that none of Defendant’s actions could be
viewed as reasonable. Rasmussen rebutted Defense’s expert testimony
regarding handling of a firearm and self-defense protocol. Defense was
given less than half a day to prepare for the State’s rebuttal witness, and was
not given the opportunity to appropriately rebut Rasmussen’s testimony due
the State’s failure to appropriately notify the defense. The trial court
committed reversible error when it allowed the prosecution to put forward a
surprise rebuttal witness because the State had not properly notified the
defense of said witness.
5. Defendant filed his Demurrer and Memorandum in Support of
Demurrer to Indictment, relying on the specificity in indictments required by
the Oregon Constitution. According to said Constitution, a defendant can
demur to the indictment when it appears that the indictment charges more
7
than one offense not separately stated or is not definite or certain. The
language in Defendant’s indictment describes two different theories
regarding mens rea (attempt and intent) and two different theories regarding
actus reus (unlawful attempt to use a weapon and carry with intent to use
and possess with intent to use and possess with intent to use unlawfully
against another person). It also offered vague descriptions of the alleged
victims, rather than naming them. The court denied the demurrer, holding
that the prosecution can charge in the alternative. The trial court committed
reversible error when it denied Defendant's demurrer, although the
indictment charged more than one defense not separately stated and it was
not definite or certain.
6. The trial court prohibited Defendant from filming or video recording
as a special condition of Defendant’s probation. In addition to the myriad of
prejudicial decisions against Defendant, the trial court committed an error
when it violated Defendant’s constitutional rights guaranteed by the first
amendment.
Summary of Material Facts
Defendant Michael Strickland is an investigative journalist and
videographer. On July 7, 2016, he attended a protest in downtown Portland
organized by Don’t Shoot PDX. (Tr. 588). Defendant was not there as a
8
protester or counter protestor, but was there to film the protest. He did not
instigate any trouble with any of the protestors.
The protest first began at Pioneer Courthouse Square and gradually
continued until it settled in front of the Multnomah County Justice Center.
(Tr. 588). In the afternoon, approximately 5:30 p.m., as the protest had
settled in front of the Justice Center, a group of five to six individuals
carrying flagstaffs congregated on the Justice Center steps. (Exhibit, 15
Hatfield Building Surveillance Video). Some of the individuals were
masked, some were wearing all black, and some wore scarves to cover their
faces. (Exhibit 16, Video of Michael Strickland). They looked angry and
were dressed to intimidate. (Tr. 594). At the time, Defendant was standing to
the back left of the crowd and filming the main speakers who had began
giving speeches over megaphones to the crowd gathered in front of the
Justice Center. (Tr. 591). By that point, a few individuals had already
accosted Defendant; some shouting and calling him a racist, others asking
what he was doing there. (Tr. 591-2). Defendant did not appear to be
engaging with those individuals or instigating them in any way. (Tr. 592).
Shortly after the group of masked individuals congregated on the Justice
Center steps, they descended into the crowd and began to descend upon
Defendant. (Ex. 16). Among the group of masked individuals descending on

9
Defendant, at least one had a flagstaff with a pointed end pointed directly at
Defendant. (Tr. 594). A large man, Benjamin Kerensa, led the crowd of
masked individuals, which at this point numbered between six to ten. (Tr.
595). Kerensa was dressed in a dark blue hoodie, with the hood up, and had
a black bandana over his face so that only his eyes could be seen. (Ex. 16).
The masked individuals surrounded Defendant, shouting profanities and
calling Defendant a racist. (Ex. 16). As Kerensa approached Defendant, he
began shouting and proceeded to shove Defendant backwards. (Ex. 16). In
response, Defendant yells at the crowd not to touch him. (Ex. 16). As the
confrontation is unfolding, Defendant is constantly stepping backwards and
retreating as the crowd of masked individuals continues to march towards
him. (Ex. 16). Then, Defendant flips open his jacket to reveal that he has a
firearm. (Ex. 16). Despite this, the group continues to march toward
Defendant. (Ex. 16). One individual sheds his backpack as he approaches
Defendant. (Ex. 16). Meanwhile, Kerensa begins to move away from the
group and then circles around to Defendant’s left, Defendant’s blindside.
(Ex. 16). It is at this moment that Defendant pulls out his legally-owned and
legally-concealed firearm and scans it approximately two to three times in a
left to right motion in front of the crowd of masked individuals. (Ex. 16).
Defendant then immediately holsters his firearm and continues his retreat.
10
(Ex. 16). He is arrested shortly after.
Defendant elected to have a trial by court, which lasted five days. (Tr.
203.) During trial, the trial court made at least two evidentiary rulings in
error that effectively precluded Defendant from presenting his defense of
self-defense. (Tr. 82, 691.) It additionally allowed the State to put on a
surprise rebuttal witness for which the defense was unable to adequately
prepare. (Tr. 808.)
FIRST ASSIGNMENT OF ERROR
The trial court erred when it denied Defendant’s motion for a change of
venue because the pre-trial coverage in the community had been
pervasive, and the prosecutor made a damaging and untrue statement
about Defendant in front of local media during the arraignment.
A. Summary
Defendant lost his right to a jury trial by being forced to choose
between a partial, media-prejudiced jury—including prejudice induced by
false statements from the prosecution and the police in this case—and no
jury trial at all. This occurred due to the denial of his request for a transfer of
the venue.
B. Preservation of Error
11
Defendant’s Motion for Change of Venue was filed on January 16,
2017. Defendant’s Memorandum in Support of Motion for Change of Venue
was based upon ORS 131.345, 131.355, and 131.363, Article I, Section 11
of the Oregon Constitution and the Sixth Amendment to the United States
Constitution. (Id.) In his memorandum of law, Defendant first made the
following argument: “In accordance with ORS 131.355, upon the motion of
Defendant, the court ‘shall order the place of the trial to be changed to
another county if the court is satisfied that there exists in the county where
the action is commenced so great a prejudice against the defendant that the
defendant cannot obtain a fair and impartial trial.’” (Id.) Second, Defendant
argued that ORS 131.363 gives broader discretion to the trial court as to
whether a motion for change of venue can be granted in that it allows the
court to change the place of trial to another county: “For the convenience of
the parties and the witnesses, and in the interest of justice...” (Id.) Third,
Defendant argued that the district attorney’s office, by and through
Katharine Molina, further hampered Defendant’s ability to obtain a fair and
impartial trial when, during Defendant’s arraignment, where several major
local news outlets video recorded her comments, she falsely stated on the
record that Defendant held white supremacist views. (Id.) Further, at the oral
argument on Defendant’s Motion for Change of Venue, the defense argued

12
that cases relied on by the State that held that a few months could be enough
time to diffuse prejudice caused by media coverage were all decided before
the advent of the internet, and that in the modern age news articles are
frequently read and dispersed on social media long after their initial
publication date. (Tr. 71). Defendant attached to his memorandum
approximately 130 pages of various news articles that were prejudicial to
Defendant, noting that at least 45 articles had been published in the Portland
Metro Area alone. (ER-43 Many of those articles falsely attributed certain
political views to Defendant, outright insulted him, or otherwise described
him in a manner that assumed his guilt. (Id.)
At the hearing for the Motion held on January 30, 2017, after hearing
argument from both sides, the trial court decided to further review the
exhibits attached to Defendant’s Motion before making its ruling. (Tr. 82.)
The court denied Defendant’s Motion by written order on January 31, 2017.
(ER-174) In its order, the Court stated:
“I find that there is no reasonable likelihood that prejudicial

news in this case will prevent a fair trial. I further find that the
interests of justice, as expressed in ORS 131.363 and the
Oregon and United States Constitutions, do not require change
in venue.”
(ER-174)
C. Standard of Review
13
This court reviews this assignment of error for abuse of discretion.
State v. Little, 249 Or 297,312, 431 P.2d 810 (1967).
D. Argument
Under ORS 131.355, a trial court must grant a motion for change of
venue when there is a reasonable likelihood that prejudicial pretrial publicity
will prevent defendant from obtaining a fair and impartial trial in the county
in which the trial is set. Although a motion for change of venue based upon
ORS 131.355 "is addressed to the sound discretion of the trial court," State
v. Schroeder, 55 Or.App 932, 640 P.2d 688 (1982), appellate courts are
empowered to evaluate the circumstances independently to determine
whether the trial court took sufficient measures to assure that the jury was
free from outside influence. State v. Herrera, 32 Or.App 397,574 P.2d 1130
(1978), rev'd on other grounds, 286 Or .349,594 P.2d 823 (1979).
A trial court must evaluate the likelihood of prejudice from both the
character and the extent of any pretrial publicity about the case; from the
degree of any difficulty in obtaining impartial jurors; and from any other
factor that might be indicative of prejudice against defendant. State v. Fanus,
336 Or. 63, 79, 79 P.3d 847 (2003); see also State v. Langley, 314 Or. 247,
839 P.2d 692 (1992) (considering media publicity about case and ability to
obtain impartial jurors); State v. Rogers, 313 Or. 356, 836 P.2d 1308 (1992)
14

(same); State v. Jensen, 209 Or. 239,254, 296 P.2d 618 (1956) ("in
determining whether trial court abused its discretion in denying motion for
change of venue, this court considers any unusual difficulty in obtaining fair
and impartial jury"); Rideau v. Louisiana, 373 US 723, 83 S.Ct 1417,10
LEd2d 663 (1963) (prejudice presumed when community where trial took
place repeatedly exposed to televised "confession" by defendant); Irvin v.
Dowd, 366 US 717,728, 81 S.Ct 1639, 6 LEd2d 751 (1961) (prejudice
presumed when extremely inflammatory publicity pervaded trial and two
thirds of jurors believed defendant guilty before trial).
The pretrial publicity in Defendant’s case is comparable to the above-
cited Supreme Court decisions as it demonstrates a “pattern of deep and
bitter prejudice” against Defendant within his community. 366 US at 725-
28. In Defendant’s case, there was an abundance of pretrial publicity, at least
45 articles written in the Portland metro area, none of which were favorable
to Defendant, and the majority included lies or facts that were meant to be
kept from the jury. (ER-42) Instead of impartial coverage, Defendant was
insulted, made out to be a pariah based on misassumptions about his political
beliefs. (Id.) Headlines covering the incident read: “’He’s Got a Gun!’ An
Infamous Local Right-Winger Nearly Shoots at Black Lives Matter
Protestors”; “Good Morning News: An Ambush in Dallas, A Jackass in

15
Portland, and More Awful Things”; “He’s Got a Gun”; and “Gun Waver
Banned.” (ER 125, ER 128, ER 153 (emphasis added).) Within the articles,
misinformation concerning Defendant was widespread and included falsely
alleging Defendant was a “white nationalist anarchist”; falsely stating that
Defendant was at the protest to instigate others; falsely describing Defendant
as a “counter protestor”, “right-wing troll”, and “crazy guy”; and falsely
claiming Defendant came to the protest “prepared for battle” and “nearly
shot [the protestors].” (ER 43-173) Most articles also mentioned that
Defendant was carrying a knife at the time of the incident, which was a
prejudicial fact excluded from the evidence in the case. (ER 42.)
Further exacerbating this pretrial prejudice was that some of the
misinformation prejudicing Defendant was being promulgated through
official channels. It is well established in Oregon that a prosecutor’s
comments can have an adverse affect on a defendant’s constitutional right to
a fair trial. See State v. Sparks, 336 Or. 298, 327, 83 P.3d 304,321 (2004);
State v. Montez, 324 Or. 343,357, 927 P.2d 64 (1996) (discussing in context
of a motion for mistrial). Likewise, Oregon Rules of Professional Conduct
3.6 warns attorneys involved in litigation against making extrajudicial
statements that they know could be disseminated by the press. At
arraignment, State Attorney Katharine Molina told the press that Defendant
16
had a past police report involving a situation wherein an attendee of a vigil
for the Orlando nightclub shooting was sent harassing text messages of a
race based nature after asking Defendant to leave the vigil. (ER 45) The
State pushed this story to the press despite there being no proof that
Defendant had anything to do with it. (ER 45) The State essentially accused
Defendant of being a racist to the press, in a time where racial issues are at
the forefront of American politics, despite no proof existing for the claim.
(ER 45) Also, Portland Chief of Police Mike Marshman, in a memo sent to
the Portland Police Bureau that was later spread by the press, described
Defendant as someone who “menaced other protestors” and claimed that as a
result the protest “could have turned deadly.” (ER 135.)
Additionally, at trial the State argued that the prejudicial articles,
many being published between July and August of 2016, were too far
removed from the January 2017 trial to have tainted the jury. (Tr. 64-5.)
However, this ignores the reality of how news, particularly the type of news
surrounding this case, is consumed in the modern age. As the defense argued
at trial, news media today is not comparable to the age of newspapers, when
articles would be thrown after their initial publication. (Tr. 71-2.) Online
articles are routinely shared on social media months after their publication
date. (Id.) Further, what is unique in this case is that the incident was caught
17
on video, with multiple videos and accounts being uploaded on video
sharing websites like YouTube. (Tr. 52.)
“The first challenge a court must face when reviewing news

coverage on YouTube for pre-trial prejudicial impact, is that
coverage presented on YouTube does not follow a typical news
cycle moreover its coverage is world-wide. YouTube videos,
unlike newspaper articles or television broadcasts, do not have a
set life-cycle. This means that on the day of jury selection
the videos are just as easily accessible to a potential juror as
they were three months before.
Matthew Mastromauro, Pre-Trial Prejudice 2.0: How Youtube Generated

News Coverage Is Set to Complicate the Concepts of Pre-Trial Prejudice
Doctrine and Endanger Sixth Amendment Fair Trial Rights, 10 J. High
Tech. L. 289 (2010) (emphasis added).
Here, evidence during voir dire, in which over half of the potential
jurors admitted to being exposed to pretrial media concerning Defendant,
and the unique circumstances surrounding the incident’s widespread
proliferation over local media and YouTube, make clear that in denying
Defendant’s Motion for a Change of Venue the trial court has abused its
discretion.
SECOND ASSIGNMENT OF ERROR
The trial court erred when it granted the state’s motion to exclude
evidence of unrelated prior altercation because the prior altercation was
relevant and necessary for the fact-finder to understand Defendant’s
state of mind at the time he committed the charged acts, and Defendant
18
relied on the defense of self-defense.
A. Summary
The trial court excluded evidence essential to the state of mind of both
Defendant and any reasonable person in Defendant’s shoes—the two-
pronged relevant inquiry for a case of self-defense. The court assessed
Defendants’ actions without regard to the history of violence against him in
his videographer career, thus depriving him of a fair trial.
The state filed its Motion to Exclude Evidence of Unrelated Prior
Altercation on January 27, 2017. (ER 10). The state’s Motion argued that the
defense should not be allowed to present evidence concerning a prior
altercation that involved Defendant being attacked and sustaining a broken
arm while he was recording in a restaurant. (Id.) At trial, the defense argued
the evidence of the prior altercation was crucial to understanding what was
going on in Defendant’s mind at the time of the charged incident. The
defense argued that Defendant was relying on self-defense and thus the
appropriate standard for that defense is what would be reasonable to a
person in his shoes; the evidence of the prior incident—where he had been
attacked by an individual for filming the individual, sustained injury as a
result of the attack, and had his camera forcibly stolen by the individual—
19
was directly relevant to establishing what was going on in Defendant’s mind
at the time of the present incident, and why he felt he needed to protect
himself at the time. (Tr. 75-9.) At trial, the court ruled that the evidence was
not relevant and granted the State’s motion. (Tr. 82).
This assignment is reviewed for error of law. See State v. Arellano,
149 Or.App 86,90, 941 P.2d 1089 (1997).
D. Argument
1. The Evidence of the Prior Altercation Was Relevant
The statutes provide a “very low” threshold for admissibility: “[A]s
long as the evidence, based on logic and experience, can support a
reasonable inference that is material to the case, then the evidence is
sufficiently relevant to be admissible, even if that is not the only inference
that the evidence would support.” State v. Bement, 284 Or App. 276,290,
391 P.3d 838,846 (2017), quoting State v. Turnidge, 359 Or. 507,512-13,
373 P.3d 138, cert. den., 137 S.Ct. 569,665, 196 L.Ed.2d 449 (2016).
Here, the evidence of the prior incident in which Defendant was
injured while filming was relevant and crucial to his case, and the trial
court’s decision to exclude that evidence prejudiced his defense.
Under ORS 161.209, when arguing self-defense, the proper standard

20
is what force the defendant reasonably believed to be necessary to defend
himself in the moment. The prior incident had taken place in the two years
before the protest, and like the protest, involved Defendant filming in a
public place in his employment as a videographer. (Tr. 76.) While filming
during the prior incident, Defendant was attacked, thrown to ground, and
sustained serious injury to his arm and shoulder. (Tr. 76-7.) Had the
evidence been allowed, it not only would have aided in understanding why
Defendant feared for his safety at the time he committed the charged acts,
but it also would have explained why Defendant felt the need to protect
himself and what compelled him to become a concealed carry permit holder
at the outset. (Tr. 77-79.)
2. The Exclusion of the Evidence of the Prior Altercation Was
Harmful
A reviewing court asks, “Is there little likelihood that the particular
error affected the verdict?” State v. Davis, 336 Or. 19,32, 77 3d 1111 (2003).
Under the Davis test, this Court must consider the entire record but
does not engage in “weighing the evidence and, essentially, retrying the
case, while disregarding the error committed at trial, to determine whether
the defendant is guilty.” Id. Instead, the focus “is on the possible influence
of the error on the verdict rendered, not whether this court, sitting as a fact-
21

finder, would regard the evidence of guilt as substantial and compelling.” Id.
“If erroneously admitted or excluded evidence relates to a ‘central factual
issue’ in the case, it is more likely to have affected the trier of fact's
determination than if it deals with a tangential issue.” State v. Richards, 263
Or.App. 280,283, 328 P.3d 710 (2014) (citing State v. Johnson, 225 Or.App.
545,550, 202 P.3d 225 (2009)).
Here, there is no doubt that the evidence would have influenced the
verdict rendered. Without it, Defendant was unable to properly inform the
fact-finder of his state of mind at the time he committed the charged acts,
which is crucial for proving self-defense under ORS 161.209. Further, while
the State was able to admit evidence concerning the amount of ammunition
carried, Defendant was precluded from presenting the evidence of the prior
incident which would have provided crucial context to the fact-finder as to
why Defendant carried the ammunition and possessed a firearm with under a
concealed carry permit in the first instance. Moreover, Defendant requests
that when assessing the harm caused by this assignment of error, the Court
consider it in conjunction with the harm caused by Defendant’s third
assignment of error because both work hand-in-hand to fundamentally
prevent Defendant from providing evidence concerning his state of mind at
the time of incident—an element that is crucial to Defendant’s claimed

22

defense of self-defense under ORS 161.209.
THIRD ASSIGNMENT OF ERROR
The trial court erred when it excluded certain testimony by Detective
Cavalli as hearsay because that testimony was not offered to prove the
truth of the matter asserted, but was offered as indirect or
circumstantial evidence of state of mind and objective reasonableness of
a person’s state of mind.
A. Summary
In an unsettling and unfortunate pattern, the court excluded the best
testimonial evidence of Defendant’s state of mind, and the reasonableness of
that state of mind, by excluding Defendant’s own words to an officer at the
time of the arrest. The exclusion of that made the incident appear entirely in
isolation, without any context. It would be like assessing a police officer’s
reaction to a scene without considering the police officer’s experience and
knowledge filtering out what threats he sees, and why.
During the defense’s cross-examination of the State’s witness
Detective Cavalli, the defense alerted the court that it would be asking
several questions regarding a conversation Defendant had with the witness,

23
the response to which it considered to be admissible as exclusion to the
hearsay rule. (Tr. 678.) In response, the court instructed the defense to go
ahead and begin asking its questions. (Id.) The defense then asked its first
question regarding the conversation, at which point the State objected
claiming that the response would be hearsay. (Id.) In response, the defense
argued that under Rule of Evidence 801 there is an exception to the hearsay
rule for statements that are offered other than for the truth of the matter
asserted, that are offered to prove circumstantially the state of mind of the
declarant. (Tr. 682-3.) Specifically, the defense argued that the text of Rule
801, which says, “To prove circumstantially the state of mind of the
declarant, a statement is not hearsay if it is offered as indirect or
circumstantial evidence of the declarant’s state of mind such as to prove
motive, knowledge, or good faith”, was directly applicable to the testimony
being sought. (Tr. 683.) Further, the defense relied on State v. Booth to argue
against the State’s assertion that the statement was not timely in relation to
the incident itself. (Tr. 683-4.) After hearing arguments from both sides, the
court decided to treat the proposed line of questioning as a 104 hearing and
allowed the defense to ask the questions to the witness, Detective Cavalli.
(Tr. 686-7.) After hearing the proposed line of questions, the court ruled to
exclude the testimony and held that the testimony did not meet the definition
24
of the exception or the definition of hearsay, and therefore did not qualify as
an exception under Rules 803(3) or 801. (Tr. 691-2.)
This assignment is reviewed for error of law. See Arellano, 149
Or.App at 90.
D. Argument
1. Detective Cavalli’s excluded testimony was relevant and
admissible because it pertained directly to Defendant’s state of
mind at the time of the incident, was not hearsay because it was not
offered to prove the truth of the matter asserted, and even if
considered hearsay, would be admissible under exceptions for
statements offered as indirect or circumstantial evidence of the
declarant’s state of mind.
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” OEC 801(3). A “statement” is “(a) An oral or written
assertion; or (b) Nonverbal conduct of a person, if intended as an
assertion.” OEC 801(1). Thus, “hearsay” is an out-of-court statement offered
in court to prove the truth of the matter asserted. Hearsay is generally
inadmissible. OEC 802. (“Hearsay is not admissible except as provided

25

in OEC 801 to OEC 806 (ORS 40.450 to 40.475) or as otherwise provided
by law.”)
Evidence is not hearsay when it is not offered to prove the truth of the
matter asserted. One type of nonhearsay out-of-court statements are those
statements offered “[t]o prove circumstantially the state of mind of the
declarant.” Laird C. Kirkpatrick, Oregon Evidence, § 801.01[3][d], 704 (6th
ed. 2013); see State v. Harris, 126 Or.App 516,521, 869 P.2d 868, modified
on recons, 127 Or.App 613, 872 P.2d 445, rev den, 319 Or.281
(1994) (letters between defendant and another not hearsay when offered to
show existence of a relationship); State v. Booth,124 Or.App 282,292, 862
P.2d 518 (1993), rev *24 den, 319 Or.81, cert den, (child's statement
“Mommie said I can't talk about my daddy” not hearsay when offered to
show child's state of mind at interview).
At trial, the court held a 104 hearing on the questions the defense
wished to ask Cavalli, and the following testimony occurred:
MR. SHORT:
Q. Detective, when speaking to Mr. Strickland, did he

indicate to you that he feared for his life when he was --
when a crowd with flags and where people holding
flagstaffs were using those as weapons?
A. Yes.
Q. And did you ask him questions specifically if he drew

26
his weapon from his holster?
A. I did.
Q. And did he say that he did?
A. He said he did, yes.
Q. And did he tell you that he was surrounded by several

people, some of them holding flag -- or flagstaffs?
A. He did.
Q. Did he tell you that he had at one point his weapon at

them because he -- they kept advancing towards him?
A. Similar to that, yes.
Q. Did he also tell you that prior to the rally he had

recently received death threats on social media, and
because of those death threats he fears for his own
safety?
A. Yes.
Q. Did he talk about how he believes he might be a

targeted individual for what he does?
A. Yes.
Q. And did he tell you when he first arrived, that

certain protests at Pioneer Square, certain protestors
recognized him?
A. Yes.
Q. Did he also tell you that they started to insult him

and attempted to rally other people against him?
A. Yes.
27

Q. And did he tell you that he had his concealed weapon
with him the entire time from Pioneer Square?
A. Yes.
Q. And he indicated that it was concealed, it wasn’t

openly carried?
A. Correct.
Q. Did you ask him why he carried a concealed handgun or

why he carried one to the rally?
A. To the rally, correct. I did ask that question.
Q. And did he tell you that he carries concealed all the

time and routinely carries because he’s been receiving
death threats?
A. Correct.
Q. And did he tell you that he wanted to be able to

protect himself?
A. Yes.
Q. And protect himself if the rally got out of control?
A. Correct.
Q. Did you ask him if he could identify any of the

individuals that threatened him?
A. Yes.
Q. And was he able to tell you that most were wearing

scarves over their faces?
A. Correct.
Q. Did he describe one as being a heavyset individual

28

with the first name of Ben?
A. He did.
Q. Did he tell you that he did not know Ben’s last name?
A. Correct.
Q. Did he describe how the majority of the aggressors

were dressed like anarchists?
A. He did.
Q. And staffs that were thick wooden dowels?
A. Correct.
Q. Did he tell you that at the time of the -- the time of

the incident he believed that they were going to hit him
with the staffs and because of this he drew his weapon?
A. Yes.
(Tr. 687-90.)
MR. SHORT:
Q. That he told you that he saw an angry crowd of
aggressors advancing towards him?
A. Yes.
Q. And then one more thing. That he could not turn his
back because he thought if he turned his back the crowd --
or those individuals would attack him?
A. Correct.
(Tr. 690.)
The defense argued that the majority of the testimony, particularly the
questions about Defendant’s state of mind, were admissible under either

29
OEC 801(3) because they were not offered to prove the truth of the matter
asserted and independently admissible under the OEC 803(3) as exceptions
for statements offered as indirect or circumstantial evidence of the
declarant’s state of mind such as to prove motive, knowledge, or good faith.
(Tr. 692.)
This case presents a similar issue to the one recently decided before
this Court in State v. Bement, 284 Or.App 276,290. In Bemet, the defendant
was charged and convicted with aggravated murder for the murder of “G”, a
man who had worked with the defendant dealing drugs. 284 Or.App at 279.
Defendant did not deny shooting G, but claimed it was done in self-defense
as G attempted to rob defendant at gunpoint. Id. In support of his defense,
defendant sought to introduce emails written by G that showed G had grown
progressively more paranoid about his financial solvency in the months
leading up to the shooting. Id. Defendant argued the emails were relevant as
circumstantial evidence of G’s state of mind and were probative of G’s
motive for pulling a gun on defendant. Id at 286. Defendant further argued
the emails were probative of G’s state of mind regardless of whether the
financial details contained within them were true and were thus admissible
as either non-hearsay or as hearsay subject to the OEC 803(3) exception.
The Bemet court ultimately admitted some of the emails, but chose to
30
exclude others because they were “not really state of mind” or not “terribly
relevant” given that the shooting occurred months after the emails were sent.
Id at 288-9.
On appeal, this Court, relying on its decision in State v. Voits, 186
Or.App. 643,654, 64 P.3d 1156, rev. den., 336 Or. 17, 77 P.3d 320 (2003),
reversed the trial court’s order excluding the emails reasoning that: 1) the
emails satisfied the minimal standard for relevance, either as direct or
circumstantial evidence that G was concerned about his finances, or as
context for the statements that were independently relevant to G’s state of
mind; 2) that the emails were not too remote to be relevant because although
they were made at an earlier time than the shooting, and the defense needed
to show G’s state of mind at the time of the shooting, the emails made it
“more probable that G reached a state of mind on March 13, 2010, that
provided a ‘motive to act desperately and violently to get money from
[defendant]’”; and 3) the emails were “relevant either as direct or
circumstantial declarations of G's state of mind or as contextual and
background information to aid in understanding direct or circumstantial
declarations of G's state of mind” and thus admissible for the purpose of
OEC 803(3). Id at 290-6.
Here, the analysis is virtually the same. Detective Cavalli’s excluded

31
testimony discussed statements made by Defendant that were not offered to
show the truth of the matter asserted, that Defendant had received death
threats and was in fear for his life, but were offered as direct or
circumstantial evidence of Defendant’s state of mind at the time of the
incident. (Tr. 693). Additionally, the State argued at trial the statements were
too far removed in time from the incident to be offered as proof of
Defendant’s state of mind at the time of the incident. (Tr. 681.) However, as
in Bemet, the statements at issue here made it more probable that Defendant
had a certain state of mind, fear for his life, at the time of the incident and
were thus relevant either as direct or circumstantial declarations of
Defendant’s state of mind or as contextual and background information to
aid in understanding direct or circumstantial declarations of
Defendant's state of mind. 284 Or.App at 294. Further, the statements in
Bemet, were made months in advance of the incident in question, whereas
here they were made only hours after the incident in question. Id. (Tr. 681.)
Accordingly, the trial court erred when it excluded the above-quoted
testimony of Cavalli.
2. The Exclusion of the Testimony of Detective Cavalli Was Harmful
A reviewing court asks, “Is there little likelihood that the particular
error affected the verdict?” State v. Davis, 336 Or. 19,32, 77 3d 1111 (2003).
32
“If erroneously admitted or excluded evidence relates to a ‘central factual
issue’ in the case, it is more likely to have affected the trier of fact's
determination than if it deals with a tangential issue.” State v. Richards, 263
Or.App. 280,283, 328 P.3d 710 (2014) (citing State v. Johnson, 225 Or.App.
545,550, 202 P.3d 225 (2009)).
Here, the error in excluding Detective Cavalli’s testimony was highly
likely to have effected the verdict because either considered alone, or in
conjunction with the error committed in assignment two, it effectively
precluded Defendant from introducing any evidence as to his state of mind
at the time of the incident, which is a crucial fact for the jury when arguing
the defense of self-defense as provided for in ORS 161.209.
FOURTH ASSIGNMENT OF ERROR
The trial court erred when it allowed the prosecution in this case to put
forward a surprise rebuttal witness because the State had not properly
notified the Defense of the witness.
A. Summary
While Defendant was gutted of the best evidentiary parts of his
defense, the court allowed the prosecution to escape consequences for its
inflammatory and inaccurate pre-trial comments and then permitted the

33
prosecution to ambush the defense with a previously unidentified expert
witness as an undisclosed “rebuttal” witness.
On February 9, 2017, following the defense resting its case, the
prosecution announced its intent to put forward a surprise rebuttal witness
based on their alleged surprise at certain testimony put forward by defense
witness Jason Servo. Specifically, the State alleged that it did not expect
Servo to testify as to the reasonableness of Defendant’s actions. During an in
chambers discussion, the trial court determined it would allow the
prosecution to put forward the surprise rebuttal witness. At trial, defense
argued that the trial court should exclude the rebuttal witness for the
following reasons: 1) the State had ample notice of Servo’s anticipated
testimony, which was evidenced by the fact that they were given his resume
weeks in advance, they filed a motion to exclude his testimony that was
heard by the court, and a hearing was held as to the content of his testimony;
2) the State had ample time during their case-in-chief to obtain an expert to
discuss the same topics as the rebuttal expert, but they chose not to; 3) the
state put on multiple witnesses during its case-in-chief who could have
testified as to the same topic as the rebuttal witness, but they chose not to
introduce that evidence; and 4) there was insufficient notice given for the
34

defense to prepare for the surprise rebuttal witness testimony, as they
testified less than day after being announced and less than a day from the
defense receiving any resume or even knowing their name. (Tr. 807-810.)
When reviewing discovery rulings, the Court of Appeals is bound by
the trial court’s factual findings, provided they are supported by evidence in
the record. State v. Lindquist, 141 Or.App. 84,87, 917 P.2d 510 (1996).
Whether or not a party has committed a discovery violation is a question of
law. State v. Cervantes, 130 Or.App 147,152, 881 P.2d 151 (1994). An
appellate court reviews a trial court's choice of sanction for the discovery
violation for an abuse of discretion. State v. Grey, 101 Or.App 421,424, 790
P.2d 1203, rev den 310 Or. 205 (1990).
D. Argument
1. The State Committed a Discovery Violation.
ORS 135.815(1)(a) requires the state to disclose the names and
addresses of persons whom the district attorney intends to call as witnesses
at any stage of the trial, together with their relevant written or recorded
statements or memoranda of any oral statements of such persons. ORS
135.845 provides that the disclosure shall be performed as soon as
practicable following the filing of the indictment, but if the state learns of

35
new witnesses or their statements during trial, it must “promptly” notify
defendant.
At trial, the State argued that when defense expert Servo testified to
Defendant’s specific actions and to his final opinion on whether he thought
Defendant’s actions were reasonable given Servo’s experience and training,
that it was a complete surprise to the State. (Tr. 810.) The trial court agreed
and allowed the State to put forward a rebuttal witness, later discovered to
be Ryan Rasmussen. (Id.) However, contrary to the State’s assertion, and the
trial court’s finding, the record makes clear that there was no surprise to the
State as a result of Servo’s testimony.
As the defense argued, the State was notified that Servo would serve
as an expert witness and was given a summary of his anticipated testimony
and resume weeks in advance of the trial. (Tr. 808). The State was also
aware, as early as January 27, 2017, that Servo would testify as to the
reasonableness of Defendant’s actions based upon Servo’s experience and
training. This is made evident by the State filing a motion on that date that
argued that exact point. When arguing his objection to Servo’s testimony,
District Attorney Todd Jackson even directly states that the reasonableness
issue was the exact issue argued in the State’s brief. (Tr. 764.) The State
chose to notify the defense of its intent to call a rebuttal witness after the
36
defense rested its case on February 9, 2017—a full ten days later—allowing
the defense less than half a day to prepare. (Tr. 807.) Accordingly, the State
committed a discovery violation when it failed to comply with ORS
135.815(1)(a) and 135.845.
2. The Trial Court Abused Its Discretion by Refusing to Exclude
Rasmussen
ORS 135.865 provides that a court may enter such order it considers
appropriate for a discovery violation including granting a continuance or
refusing to permit the witness to testify. Remedies short of preclusion, such
as a recess or postponement, can usually avoid any prejudice caused by the
late disclosure. State v. Ben, 310 Or. 309, 317, 798 P.2d 630 (1990). A court
may preclude testimony for a discovery violation only when the party has
been unfairly prejudiced and no sanction short of preclusion effectively will
avoid the prejudice which the party's lack of compliance created. Ben, 310
Or. at 316-17.
Prejudice for a pretrial violation is determined by a two-pronged test:
(1) What was the extent of any surprise? and (2) What would the party have
done differently prior to trial had he been afforded discovery? Only if a
defendant has been “misled into a course of action or inaction which would
not otherwise have happened,” can prejudice be shown. State v. Sarratt, 52

37
Or.App 443,447-48, 628 P.2d 752 (1981).
Here, there can be no doubt that: 1) the extent of the surprise was
great; and 2) the Defense would have prepared differently had they been
properly notified of the witness. As the Defense explained to the trial court,
at the time the trial court determined it would allow the rebuttal witness, the
Defense did not know the identity of the witness, their resume, or their
training. (Tr. 809.) This information would not be provided to the Defense
until late, after work hours, the night before the witness was to testify. Had
the Defense been properly notified, they would have had time to adequately
research the witness and prepare for his testimony. In response to Defense’s
objections that this lack of adequate notice would prejudice Defendant, the
trial court did nothing. Instead, the trial court merely instructed the State to
provide the Defense with the witness’s identity “as soon as they identify a
witness” and to get the witnesses paperwork to the Defense “as soon as
practical [that] evening.” (Tr. 811.)
3. The Trial Court’s Error Was Prejudicial
Error is harmless if there is little likelihood the error affected the
verdict. OEC 103(1); Art VII (Amended), §3, of the Oregon
Constitution; State v. Davis, 336 Or. 19, 77 P.3d 1111 (2003).
Here, there can be no doubt that a surprise expert witness, for whom
38
the defense had less than a half day to prepare, and testified directly before
closing arguments, affected the verdict. Rasmussen was called by the State
to essentially testify that none of Defendant’s actions at the time of incident
could be viewed as reasonable, to use his training to directly rebut much of
the defense’s expert’s testimony regarding proper handling of a firearm and
self defense protocol, and at one point he even used a mock firearm to
display proper procedures for drawing a firearm–all testimony the defense
could have properly prepared for had they received his name, resume, or any
indicative of his training or potential testimony with proper notice. (Tr. 846-
9.) The following testimony is just a sample of what was offered on direct,
that the defense was not able to appropriately rebut due to the State’s failure
to appropriately notify the defense:
Q. Officer Rasmussen, do you train people to pull their

guns on others when they are not in life threatening
circumstances?
A. No.
Q. You do not train people to do that?
A. I do not train people to pull their guns unless there

is a reason, meaning they’re -- they think that their life
is in danger or somebody else’s life is in danger.
Q. Okay. And so if that’s the circumstance where you

would train someone to actually pull their gun, would you
expect that person after re-holstering to just stand there
39
in front of the people he just pulled on?
A. No.
(Tr. 840.)
Q. What do you see happening there in that clip?
A. It looks like Mr. Strickland is backing up and he’s

creating distance between himself and the people that were
in front of him.
Q. And the people that were in front of him stopped

moving forward?
A. Yes.
Q. Okay. Is that an important consideration when

evaluating the level of risk and what the appropriate
response is?
A. Yes. If he’s asking people to get back and then they

stop and he’s able to create distance, yes, they’re doing
what he asked them to do.
(Tr. 841-2.)
Q. Okay. And so how would you expect somebody -- now,

let’s strip away -- let’s strip away the innocents, as you
are calling them, or the people that have kind of come in,
and just talk about if he had one -- one perceived threat
here and one perceived threat here, how would you train
someone to address those two threats?
A. So in a sterile environment, meaning that there is no

other innocents within this area, I’ve got a threat here
and a threat here, and I’ve got a consistent backdrop
which is what we would have, if we have brick buildings.
It would necessarily be appropriate to go to -- and draw
40
-- I wouldn’t train police officers to point their guns at

somebody, but other departments do do that, that is --
that is within the industry, that’s something that other
police departments do. So drawing and addressing and then
transitioning to another threat is not unreasonable. With
no other innocents within the -- within the area that you
are pointing this gun. When you add in what we’re looking
at here with a crowd of 100 people plus all of the other
innocents within that area, it would not be appropriate to
then draw -- I don’t even have a problem with Mr.
Strickland drawing and immediately addressing the
individual to the left.
(Tr. 844-5.)
Q. Okay. So Officer Rasmussen, based on all of the

videos that you have observed concerning the events on
July 7th, 2016, and Mr. Strickland’s behavior, do you have
an opinion as a firearms expert as to whether the degree
of force Mr. Strickland displayed or used against all
these people was reasonable?
A. This was not reasonable use of force.
Q. What Mr. Strickland did --
A. Correct.
Q. -- on July 7th, 2016?
A. Correct.
(Tr. 855.)
Accordingly, the trial court’s error in refusing to preclude the
testimony of Rasmussen was prejudicial.

41
FIFTH ASSIGNMENT OF ERROR
The trial court erred when it denied Defendant’s demurrer to the
indictment because the indictment described two different theories
regarding the mens rea, as well as two different theories regarding the
actus reus, for the charged crime of unlawful use of a weapon.
A. Summary
The prosecution filed an indictment that left Defendant guessing as to
what precisely they were alleging and what precisely Defendant could
defend himself with, especially as to state of mind evidence in a case all
about state of mind. The trial court erred by denying Defendant’s demurrers
to the indictment trying to filter out and fix exactly what the theory of the
prosecution’s indictment criminal allegations.
On February 3, 2017, Defendant filed his Demurrer and Memorandum
in Support of Demurrer to the Indictment, which relied on ORS 135.630 and
Article I, Section 11 of the Oregon Constitution. (ER 11). Defendant argued
said Constitution requires specificity in indictments, and that ORS 135.630
allows a defendant to demur to the indictment when it appears that the
indictment charges more than one offense not separately stated or is not
definite or certain. (Id.) Here, Defendant was charged in counts 1, 3, 5, 7, 9,

42
11, 13, 15, 17, and 19 of the indictment, with Unlawful Use of a Weapon
under ORS 166.220, which outlines multiple theories that can be used to
charge an individual with the offense. Defendant further argued that the
language used in his indictment described two different theories regarding
mens rea, attempt and intent, and two different theories regarding actus reus,
unlawfully attempt to use a weapon and carry with intent to use and possess
with intent to use unlawfully against another person, and was thus subject to
demurrer. At trial, the defense argued the indictment failed to name the
alleged victims, but instead only offered vague descriptions of them, causing
further uncertainty in the indictment. (Tr. 134). At trial, the Court denied the
demurrer, holding ORS 132.560(1)(a) allows charging in the alternative, and
no constitutional requirement was violated. (Tr. 144.)
A trial court’s denial of a demurrer is reviewed for legal error. State v.
Huckins, 176 Or.App 276,281, 31 P.3d 485 (2001).
D. Argument
ORS 135.630 states, in relevant part: "[t]he defendant may demur to
the accusatory instrument when it appears upon the face thereof ... (3) [t]hat
the accusatory instrument charges more than one offense not separately
stated ... "or "[t]hat the accusatory instrument is not definite and certain."
43
Specificity in accusatory instruments is also required by Article I, section 11,
of the Oregon Constitution, which provides: "In all criminal prosecutions,
the accused shall have the right ... to demand the nature and cause of the
accusation against him ... " This section has been interpreted to require
specificity in accusatory instruments. State v. Smith, 182 Or. 497 (1948);
State v. Sanders, 280 Or. 685 (1977); State v. Brown, 232 Or.App 472
(2009) (a defendant may demur when the facts stated in the accusatory
instrument are not sufficient to constitute whatever offense that particular
accusatory instrument purports to charge); State v. Briggen, 112 Or. 681
(1924) (when it appears from the face of indictment that more than one
crime is charged therein, the proper remedy is demurrer to the indictment,
and not by objection to evidence).
Where, as with unlawful use of a weapon (ORS 166.220), there are
multiple, independent theories of an offense as outlined in the statute which
could be used to charge an individual, the state is obligated to choose a
single theory to put in the charging instrument and to present to a judge or
jury at trial. Alleging multiple theories of the same crime in a single offense
in a charging instrument subjects the charging instrument to dismissal via
demurrer. While ORS 132.560(1)(a) allows for the charging instrument to
allege means in the alternative when the offense may be committed by the
44
use of different means, it does not allow a charging instrument to allege
multiple theories regarding both mens rea and actus reus for a charged
offense.
Here, Defendant was charged with unlawful use of a weapon in
violation of ORS 166.220. The indictment alleges, in counts 1, 3, 5, 7, 9, 11,
13, 15, 17, and 19, that Defendant "did, unlawfully attempt to use, carry with
intent to use and possess with intent to use unlawfully against another
person, to wit: [relevant person's general description], a firearm, a dangerous
and deadly weapon[.] The indictment further states that during the
commission of this felony, Defendant used and threatened the use of a
firearm."
The indictment language describes two different theories regarding
mens rea, attempt and intent, and two different theories regarding actus reus,
unlawfully attempt to use a weapon and carry with intent to use and possess
with intent to use unlawfully against another person. Thus, the indictment
appears on its face to charge “more than one offense not separately stated"
and that it "is not definite and certain." Briggen, 112 Or. 681. The trial court
erred in denying Defendant’s Demurrer.
SIXTH ASSIGNMENT OF ERROR

45
A. Summary
The trial court erred when it granted the state’s special condition of
probation, which would not permit Defendant to video record or film any
person before January 1, 2018, and after can film with the permission of
Defendant’s probation officer. Such a prohibition is a violation of
Defendant’s constitutional rights.
Under Or. R. App P. 5.45(1), the court may consider an unpreserved
error only if it is an error of law apparent on the record.
Under Or. Rev. Stat. Section 138.040 which provides, in part, that a
judgment placing a defendant on probation shall be deemed a judgment on a
conviction, and is thus appealable. The trial court has discretion to
determine whether to grant probation, but Or. Rev. Stat. Sections 138.040
and 138.050 limit the discretion as to permissible conditions of probation.
Under Or. Rev. Stat. Section 138.050, the appellate court can consider
whether an excessive fine or excessive, cruel or unusual unpunishment is not
proportionate to the offense that has been imposed.
D. Argument
As a special condition to Defendant’s probation, the State requested

46
that the Defendant be prohibited from posting videos on political
issues. (Tr. 984:5-7). Defendant earns his income from his employment as
a videographer. For the past three years, Defendant has been self-employed
and his primary source of income has been filming and posting related to
political activities. The trial court prohibited Defendant from video
recording or filming any person before January 1, 2018. Defendant is only
allowed to film after January 1, 2018 with the prior permission of his
probation officer. (Tr.996: 9-12).
Such a prohibition violates Defendant’s constitutional rights,
including Defendant’s First Amendment right to free speech.
Under the proportionality principle of Or. Rev. Stat. § 138.050 (1975),
the justification for interfering with statutory rights of a probationer must be
greater than the justification for a lesser invasion, and where fundamental
rights are involved the sentencing court has less discretion to impose
conditions in conflict therewith. State v. Martin, 282 Or. 583, 589
(1978). Here, the sentencing court did not consider a lesser invasion of
Defendant’s fundamental First Amendment right.
In addition to the myriad of prejudicial decisions against Defendant,
the trial court committed an error when it violated Defendant’s constitutional
rights guaranteed by the First Amendment.

47
CONCLUSION
For the reasons detailed above, this Court should reverse and remand
for a new trial. ORS 138.240.
Respectfully submitted,
s/ Robert E. Barnes
BARNES LAW
CA Bar #236919
Tel: (310) 510-6225
robertbarnes@barneslawllp.com
s/ Mark J. Geiger
Attorney at Law
Salem, OR 97301
Tel: (503) 588-1723
mark@markgeiger.com
EXCERPT OF RECORD
Docket.......................................................................................................ER-1
Judgment.................................................................................................ER-14
Motion for Change of Venue with Supporting Exhibits.........................ER-36
Order Denying Change of Venue..........................................................ER-
174
Excerpts from Transcript re: Defense Motion for Change of Venue....ER-175
Excerpts from Transcript re: State’s Motion to Exclude Evidence of
Unrelated Prior Altercation...................................................................ER-202
Excerpts from Transcript re: Defense Motion for Demurrer................ER-212
Excerpts from Transcript re: Testimony of Detective Cavalli..............ER-227
Excerpts from Transcript re: Argument on Rebuttal Witness...............ER-
247
Excerpts from Transcript re: Testimony of Ryan Rasmussen................ER-
252
Transcript of Sentencing.......................................................................ER-341
5/25/2017 https://publicaccess.courts.oregon.gov/PublicAccessLogin/CaseDetail.aspx?CaseID=29427281
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REGISTER OF ACTIONS
CASE NO. 16CR41718
State of Oregon vs Michael Aaron Strickland § Case Type: Offense Felony

§ Date Filed: 07/08/2016
§ Location: Multnomah
§ Booking Number: 1378403
§ District Attorney Number: 2343964-1C
§ Security Receipt Number: 651053
§
§
P ARTY INFORMATION
Attorneys
Defendant Strickland, Michael Aaron Also Known Male White JASON GLENN SHORT
As Strickland, Michael DOB: 1979 Retained
5' 11", 175 lbs 503 747-7198(W)
2650 SE Courtney Ave Apt 37

Portland, OR 97222
Christopher M Trotter
SID: OR18972761
Retained
Other Agency Numbers
503 747-7198(W)
798458 Multnomah County Sheriff
Christopher M Trotter
Retained
503 747-7198(W)
Plaintiff State of Oregon Kate Molina

503 988-3162(W)
TODD T JACKSON
503 988-3162(W)
CHARGE INFORMATION
Charges: Strickland, Michael Aaron Statute Level Date

1. Unlawful Use of a Weapon 166.220 Felony Class C 07/07/2016
2. Menacing 163.190 Misdemeanor Class A 07/07/2016
10.Menacing 163.190 Misdemeanor Class A 07/07/2016
11.Unlawful Use of a Weapon 166.220 Felony Class C 07/07/2016
21.Disorderly Conduct in the Second Degree 166.025 Misdemeanor Class B 07/07/2016
EVENTS & ORDERS OF THE COURT
DISPOSITIONS
https://publicaccess.courts.oregon.gov/PublicAccessLogin/CaseDetail.aspx?CaseID=29427281 1/13
ER-2
08/05/2016 Plea (Judicial Officer: Cobb, Rita Batz)
21. Disorderly Conduct in the Second Degree
Not Guilty
2. Menacing
Not Guilty
1. Unlawful Use of a Weapon
Not Guilty
Not Guilty
4. Menacing
Not Guilty
6. Menacing
Not Guilty
8. Menacing
Not Guilty
10. Menacing
Not Guilty
12. Menacing
Not Guilty
14. Menacing
Not Guilty
16. Menacing
Not Guilty
18. Menacing
Not Guilty
20. Menacing
Not Guilty
Not Guilty
Not Guilty
Not Guilty
Not Guilty
Not Guilty
Not Guilty
Not Guilty
Not Guilty
Created: 08/05/2016 10:00 AM
02/10/2017 Disposition (Judicial Officer: Ryan, Thomas M)

Deferred
2. Menacing
Deferred
Deferred
Deferred
4. Menacing
Deferred
6. Menacing
Deferred
8. Menacing
Deferred
10. Menacing
Deferred
12. Menacing
Deferred
14. Menacing
Deferred
16. Menacing
Deferred
18. Menacing
Deferred
20. Menacing
Deferred
Deferred
Deferred
Deferred
Deferred
Deferred
Deferred ER-3
Deferred
Deferred
Created: 02/10/2017 5:11 PM
05/03/2017 Amended Disposition (Judicial Officer: Ryan, Thomas M) Reason: Court Order
Convicted
2. Menacing
Convicted
Convicted
Convicted
4. Menacing
Convicted
6. Menacing
Convicted
8. Menacing
Convicted
10. Menacing
Convicted
12. Menacing
Convicted
14. Menacing
Convicted
16. Menacing
Convicted
18. Menacing
Convicted
20. Menacing
Convicted
Convicted
Convicted
Convicted
Convicted
Convicted
Convicted
Convicted
Convicted
Created: 05/03/2017 11:38 AM
05/03/2017 Sentence
Statutory Provisions
Provision Type: Blood and Buccal Sample, Blood Sample for DNA Testing
Sentencing Details
Decision Date: 05/03/2017
Sentencing Guidelines
Crime Severity: 6
Criminal History: I
Other Factors: Gun minimum is suspended under ORS 161.610(5)((b) as stated on the record.
Dispositional Departure: Down
Probation Supervised (Active)
Start Date: 05/03/2017
Duration: 3 Years
Estimated End Date: 05/02/2020
Judicial Officer: Ryan, Thomas M
Condition Behavior: All General Conditions apply
Special Conditions: Answer Court Inquires, 05/03/2017, Be assigned to Judge Thomas Ryan for judicial supervision of probation.
Special Condition 1, 05/03/2017, Confiscate/destroy weapon and ammunition.
Not Possess Weapons, 05/03/2017, Not possess weapons, firearms or ammunition.
No Contact - Victim(s), 05/03/2017, No personal contact with the victims, Benjamin Kerensa or Malcolm Chaddock.
Special Condition 2, 05/03/2017, Defendant cannot film/video record any person before January 1, 2018. After January 1, 2018,
defendant may film/video record people only with prior permission of the P.O.
Special Condition 3, 05/03/2017, All classes/counseling as directed by P.O.
Special Condition 4, 05/03/2017, Defendant should be closely supervised, at least initially. Defendant should NOT be supervised
by reduced supervision team.
Fee Totals:
Amount Reduction Owed
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/10/2017 3:24 PM
05/03/2017 Sentence
ER-4
2. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Community Service Work, 05/03/2017, Perform 240 hours of community service by June 1, 2018.
Special Condition 1, 05/03/2017, Conditions concurrent with Count 1.
Incarceration
Duration: 40 Days
Agency: County Jail
Credit Time Served
Report To: TSI - MCSO
Report Date and Time: 05/03/2017
Statute: 137.752
Eligibility: Eligible
Other Eligibility: TSI jail sentence to begin after 8/1/17. Weekends are OK.
Fee Totals:
Fine - Misdemeanor $100.00 $100.00
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/10/2017 3:36 PM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Special Factors: This is a Presumptive Sentence
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/10/2017 3:41 PM
05/03/2017 Sentence
4. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/10/2017 3:52 PM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Special Factors: This is a Presumptive Sentence ER-5
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/10/2017 3:55 PM
05/03/2017 Sentence
6. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/10/2017 4:06 PM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/10/2017 4:10 PM
05/03/2017 Sentence
8. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/10/2017 4:12 PM
05/03/2017 Sentence
Provision Type: Blood and Buccal Sample, Blood Sample for DNA Testing ER-6
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/10/2017 4:16 PM
05/03/2017 Sentence
10. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/10/2017 4:38 PM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/10/2017 4:43 PM
05/03/2017 Sentence
12. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier ER-7
Created: 05/11/2017 9:51 AM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/11/2017 9:59 AM
05/03/2017 Sentence
14. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/11/2017 10:06 AM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/11/2017 10:09 AM
05/03/2017 Sentence
16. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
ER-8
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/11/2017 10:12 AM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/11/2017 10:15 AM
05/03/2017 Sentence
18. Menacing
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/11/2017 10:18 AM
05/03/2017 Sentence
Sentencing Details
Crime Severity: 6
Criminal History: I
Duration: 3 Years
Fee Totals:
Fine - Felony $200.00 $200.00
Fee Totals $ $200.00 $200.00
Fee Modifier
Created: 05/11/2017 11:25 AM
05/03/2017 Sentence
20. Menacing
Sentencing Details
Suspend Imposition
Probation Supervised (Active) ER-9
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/11/2017 11:29 AM
05/03/2017 Sentence
Sentencing Details
Suspend Imposition
Duration: 3 Years
Fee Totals:
Fee Totals $ $100.00 $100.00
Fee Modifier
Created: 05/11/2017 11:32 AM
OTHER EVENTS AND HEARINGS

07/08/2016 Arraignment (2:30 PM) (Judicial Officer Bottomly, Leslie G)
07/08/2016 Reset by Court to 07/08/2016
Result: Held
Created: 07/08/2016 5:32 AM
07/08/2016 Motion - Recognizance Release
Created: 07/08/2016 7:52 AM
07/08/2016 Agreement - Recognizance Release
Created: 07/08/2016 8:47 AM
07/08/2016 Arraignment (Judicial Officer: Bottomly, Leslie G )
Created: 07/08/2016 2:23 PM
07/08/2016 Affidavit - Probable Cause
Created: 07/08/2016 4:39 PM
07/08/2016 Order - Appear (Judicial Officer: Bottomly, Leslie G )
Signed: 07/08/2016
Created: 07/08/2016 4:39 PM
07/08/2016 Notice - Representation
Created: 07/08/2016 4:40 PM
07/08/2016 Motion - Pretrial Discovery
Created: 07/08/2016 4:40 PM
07/08/2016 Information
Created: 07/08/2016 4:44 PM
07/12/2016 Order (Judicial Officer: Bottomly, Leslie G )
Motion & Affidavit to increase bail. Bail in increased to $250,000.
Signed: 07/08/2016
Created: 07/12/2016 8:17 AM
07/13/2016 Motion
Created: 07/14/2016 8:37 AM
07/15/2016 Report
DENIAL OF RELEASE
Created: 07/15/2016 9:43 AM
07/15/2016 Order - Appear (Judicial Officer: Litzenberger, Marilyn E )
Signed: 07/15/2016
Created: 07/18/2016 7:15 AM
07/18/2016 Hearing - Motion (1:30 PM) (Judicial Officer Albrecht, Cheryl A.)
Transport
Created: 07/15/2016 2:07 PM
07/19/2016 Agreement - Security Release
$25,000.00 #651053 7/18/16
Created: 07/19/2016 8:22 AM
07/20/2016 Call (9:15 AM) (Judicial Officer Waller, Nan G)
Motion for Release Hearing/Bail reduction Arr Date: 07/08/16 Preliminary on 07/29/16 at 9:30am
Result: Held
Created: 07/18/2016 3:56 PM
07/20/2016 Order - Appear (Judicial Officer: Albrecht, Cheryl A. )
Call: 7/20/16 at 9am (Incorrect Case # Used)
Signed: 07/18/2016
Created: 07/20/2016 10:28 AM ER-10
07/28/2016 Order - Appear (Judicial Officer: Walker, Kenneth R )
Signed: 07/28/2016
Created: 07/28/2016 3:39 PM
08/04/2016 Indictment
Created: 08/04/2016 1:48 PM
08/04/2016 Warrant - Cancelled or Recalled or Rescinded
Created: 08/04/2016 4:35 PM
08/04/2016 Order - Rescinding Warrant (Judicial Officer: Waller, Nan G )
Signed: 08/04/2016
Created: 08/04/2016 4:35 PM
08/05/2016 CANCELED Hearing - Preliminary (9:30 AM) (Judicial Officer Cobb, Rita Batz)
Indicted
STIP S/O from 7-29-16
07/18/2016 Reset by Court to 07/29/2016
07/29/2016 Reset by Court to 08/05/2016
Created: 07/08/2016 2:33 PM
08/05/2016 Arraignment (9:30 AM) (Judicial Officer Cobb, Rita Batz)
Result: Held
Created: 08/04/2016 4:17 PM
08/05/2016 Warrant - Return Not Served
Created: 08/05/2016 8:33 AM
08/05/2016 Arraignment (Judicial Officer: Cobb, Rita Batz )
Created: 08/05/2016 10:00 AM
08/05/2016 Order - Appear (Judicial Officer: Cobb, Rita Batz )
Signed: 08/05/2016
Created: 08/05/2016 5:01 PM
08/16/2016 Order (Judicial Officer: Ryan, Thomas M )
Audio from 4:01:13pm to 4:38:11pm is sealed by order of the court. The speakers on this sealed audio record are Todd Jackson, Chris Trotter
and Judge Thomas Ryan.
Signed: 08/15/2016
Created: 08/16/2016 4:21 PM
memorandum & affidavit
Signed: 08/15/2016
Created: 08/16/2016 4:30 PM
09/23/2016 Call - Regular (9:00 AM) (Judicial Officer Waller, Nan G)
Arr Date: 08/05/16 JSC on 10/13/16 at 4pm w/ GFS
Result: Held
Created: 08/05/2016 10:00 AM
10/07/2016 Call (9:15 AM) (Judicial Officer Waller, Nan G)
For New Dates Arr Date: 08/05/16 JSC on 10/13/16 at 4pm w/ GFS
Result: Held
Created: 09/23/2016 9:28 AM
10/13/2016 Hearing - Settlement Conference (4:00 PM) (Judicial Officer Silver, Gregory F)
Result: Held
Created: 08/04/2016 12:28 PM
12/28/2016 Hearing - Settlement Conference (11:00 AM) (Judicial Officer Bergstrom, Eric J.)
Created: 12/22/2016 3:40 PM
01/13/2017 Motion - Compel Discovery
Created: 01/13/2017 2:10 PM
Created: 01/18/2017 9:45 AM
01/17/2017 Motion - Change Venue
Created: 01/18/2017 1:20 PM
01/17/2017 Motion - In Limine
Created: 01/18/2017 1:20 PM
01/18/2017 Affidavit - Eligibility - ACP
Created: 01/18/2017 4:59 PM
01/18/2017 Notice - Advise Appeal Rights
Created: 01/19/2017 10:55 AM
01/20/2017 Order (Judicial Officer: Waller, Nan G )
The Defendant is Approved for Indigent Expenses Only.
Signed: 01/20/2017
Created: 01/20/2017 3:35 PM
Created: 01/24/2017 2:18 PM
01/26/2017 CANCELED Call (9:15 AM) (Judicial Officer Greenlick, Michael A)
Continued
Motion for change of venue, for language order hearing Arr date: 8/5/2016 Call 2/3/2017 @9am w/NGW
Created: 01/23/2017 10:23 AM
01/27/2017 Motion - Quash
Created: 01/27/2017 4:08 PM
Sealing documents
Signed: 01/27/2017
Created: 01/30/2017 2:42 PM
01/30/2017 Hearing - Motion (9:00 AM) (Judicial Officer Ryan, Thomas M)
Pre-trial motions
Result: Held
Created: 01/27/2017 9:06 AM
Signed: 01/30/2017
Created: 01/31/2017 7:54 AM ER-11
Signed: 01/30/2017
Created: 01/31/2017 7:56 AM
01/30/2017 Order (Judicial Officer: Waller, Nan G )
Assigning case to Judge Ryan
Signed: 01/25/2017
Created: 01/31/2017 2:37 PM
Denying change of venue
Signed: 01/31/2017
Created: 01/31/2017 12:48 PM
02/03/2017 CANCELED Call - Regular (9:00 AM) (Judicial Officer Waller, Nan G)
Continued
Arr Date: 08/05/16 Date Certain
Created: 10/07/2016 10:15 AM
02/03/2017 Demurrer
Created: 02/03/2017 3:26 PM
02/03/2017 Jury Instructions - Proposed
Created: 02/03/2017 3:51 PM
02/06/2017 Trial - Twelve Person Jury (8:30 AM) (Judicial Officer Ryan, Thomas M)
02/06/2017, 02/07/2017, 02/08/2017, 02/09/2017, 02/10/2017
Result: Held
Created: 01/26/2017 2:58 PM
02/06/2017 Notice
of Defense
Created: 02/06/2017 9:01 AM
denying demurrer to the indictment
Signed: 02/08/2017
Created: 02/08/2017 12:57 PM
02/08/2017 Waiver - Jury Trial
Signed by Judge Ryan on 2/7/17
Created: 02/09/2017 9:17 AM
On City of Portland's ominbus motion to quash criminal subpoena and subpoena duces tecum of Chief of Police Michael Marsham
Signed: 02/09/2017
Created: 02/09/2017 4:28 PM
02/13/2017 Order - Presentence Investigation (Judicial Officer: Ryan, Thomas M )
Trial: 2/10/17
Signed: 02/10/2017
Created: 02/14/2017 9:06 AM
02/13/2017 Order - Appear (Judicial Officer: Ryan, Thomas M )
Sent'g Hrg: 5/3/17 at 9am
Signed: 02/10/2017
Created: 02/14/2017 9:48 AM
02/28/2017 Exhibit - List
Election
Created: 02/28/2017 11:43 AM
Election
Created: 03/03/2017 1:42 PM
05/01/2017 Memorandu m
Created: 05/01/2017 11:34 AM
05/03/2017 Hearing - Sentencing (9:00 AM) (Judicial Officer Ryan, Thomas M)
Guilty finding on all counts on 2/10/17.
Result: Held
Created: 02/10/2017 5:09 PM
05/03/2017 Order - Pending Judgment (Judicial Officer: Ryan, Thomas M )
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05/03/2017 Judgment - Offense General Creates Lien
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Election
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05/17/2017 Closed
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06/09/2017 Hearing (8:30 AM) (Judicial Officer Ryan, Thomas M) ER-13
Probation Conditions
Created: 05/03/2017 11:37 AM
F INANCIAL INFORMATION
Defendant Strickland, Michael Aaron

Total Financial Assessment 3,100.00
Total Payments and Credits 0.00
Balance Due as of 05/25/2017 3,100.00
05/10/2017 Transaction Assessment 200.00

ER-14
State of Oregon vs Michael Aaron Strickland, Case No. 16CR41718
IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF

MULTNOMAH
State of Oregon, )
Plaintiff )
) Case No.: 16CR41718
vs. )
) JUDGMENT
)
Michael Aaron Strickland, ) Case File Date: 07/08/2016
Defendant ) District Attorney File #: 2343964-1C
DEFENDANT
True Name: Michael Aaron Strickland Sex: Male
Date Of Birth: 12/28/1979 State Identification No (SID): 18972761OR
Fingerprint Control No (FPN): JMUL116837817
Alias(es): Michael Strickland
HEARING
Proceeding Date: 05/03/2017
Court Reporter: Recording, FTR
Defendant appeared in person and was not in custody. The defendant was represented by Attorney(s) JASON GLENN
SHORT, OSB Number 003860, Attorney(s) Christopher M Trotter, OSB Number 135071. Plaintiff appeared by and
through Attorney(s) Kate Molina, OSB Number 123989, Attorney(s) TODD T JACKSON, OSB Number 114240.
COUNT(S)
It is adjudged that the defendant has been convicted on the following count(s):
Count 1 : Unlawful Use of a Weapon - Fir ear m

Count number 1, Unlawful Use of a Weapon - Firearm, 166.220, Felony Class C, committed on or about 07/07/2016.
Conviction is based upon a Court Verdict of Guilty on 02/10/2017.
The Crime Severity Classification (CSC) on Count Number 1 is 6 and the Criminal History Classification (CHC) is I.
This sentence is pursuant to the following special factors:

Gun minimum is suspended under ORS 161.610(5)((b) as stated on the record.
The court finds substantial and compelling reason for a Downward Dispositional Departure, as stated on the record.
This departure is pursuant to the following aggravating or mitigating factor(s):
Document Type: Judgment Page 1 of 22 Printed on 05/11/2017 at 11:33 AM
ER-15
Pr obation
Defendant is sentenced to Supervised Probation for a period of 3 year(s) and shall be subject to the following conditions
of Probation:
Defendant is subject to all general conditions of probation (ORS 137.540).

Furthermore, Defendant is subject to the following Special Conditions of Probation (ORS 137.540(2)):
Defendant shall:
Be assigned to Judge Thomas Ryan for judicial supervision of probation.
Confiscate/destroy weapon and ammunition.
Not possess weapons, firearms or ammunition.
No personal contact with the victims, Benjamin Kerensa or Malcolm Chaddock.
Defendant cannot film/video record any person before January 1, 2018. After January 1, 2018,
defendant may film/video record people only with prior permission of the P.O.
All classes/counseling as directed by P.O.
Defendant should be closely supervised, at least initially. Defendant should NOT be supervised by
reduced supervision team.
Statutor y Pr ovisions
Defendant is ordered to submit blood or buccal sample and thumbprint pursuant to ORS 137.076.
Monetar y Ter ms
Defendant shall be required to pay the following amounts on this count:
Fees and Assessments: Payable to the Cour t.

Type Amount Modifier Reduction Actual Owed
Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 2 : Menacing
Count number 2, Menacing, 163.190, Misdemeanor Class A, committed on or about 07/07/2016. Conviction is based
upon a Court Verdict of Guilty on 02/10/2017.

ER-16
Suspended Imposition of Sentence
Imposition of sentence is suspended.
Pr obation
Defendant is placed on Supervised Probation for a period of 3 year(s) and shall be subject to the following conditions of
Probation:

Defendant shall:
Perform 240 hours of community service by June 1, 2018.
Conditions concurrent with Count 1.
J ail as a Condition of Pr obation
Defendant is confined to jail for 40 day(s). Defendant is to report to TSI - MCSO by 05/03/2017. Defendant may
receive credit for time served. TSI jail sentence to begin after 8/1/17. Weekends are OK.
The Defendant may be considered by the supervisory authority for any form of alternative sanction authorized by ORS
423.478, and the defendant shall pay any required per diem fees.
Monetar y Ter ms

Total $100.00 $100.00


ER-17

This is a Presumptive Sentence
Pr obation
of Probation:

Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 4 : Menacing

ER-18
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00



ER-19
Pr obation
of Probation:

Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 6 : Menacing

ER-20
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00


Pr obation
ER-21
of Probation:

Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 8 : Menacing
Pr obation
Probation:


ER-22
Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00


Pr obation
of Probation:

Defendant shall:

ER-23
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 10 : Menacing
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

ER-24

Total $100.00 $100.00


Pr obation
of Probation:

Defendant shall:
Monetar y Ter ms

ER-25

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 12 : Menacing
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00

ER-26

Pr obation
of Probation:

Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 14 : Menacing

ER-27
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00


ER-28
Pr obation
of Probation:

Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 16 : Menacing

ER-29
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00



ER-30
Pr obation
of Probation:

Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 18 : Menacing
Pr obation

ER-31
Probation:

Defendant shall:
Monetar y Ter ms

Total $100.00 $100.00


Pr obation
of Probation:

ER-32
Defendant shall:
Monetar y Ter ms

Fine - Felony $200.00 $200.00
Total $200.00 $200.00
Count 20 : Menacing
Pr obation
Probation:

Defendant shall:

ER-33
Monetar y Ter ms

Total $100.00 $100.00
Count 21 : Disor der ly Conduct in the Second Degr ee

Count number 21, Disorderly Conduct in the Second Degree, 166.025, Misdemeanor Class B, committed on or about
07/07/2016. Conviction is based upon a Court Verdict of Guilty on 02/10/2017.
Pr obation
Probation:

Defendant shall:
Monetar y Ter ms

ER-34

Total $100.00 $100.00
If convicted of a felony or a crime involving domestic violence, you may lose the right to buy, sell, transport, receive, or
possess a firearm, ammunition, or other weapons in both personal and professional endeavors pursuant to ORS 166.250,
ORS 166.291, ORS 166.300, and/or 18 USC 922(g).
MONEY AWARD
J udgment Cr editor : State of Or egon
J udgment Debtor : Michael Aar on Str ickland
Payees are to be paid as ordered under Monetary Terms.
Defendant is ordered to pay the following monetary totals, including restitution or compensatory fine amounts stated
above, which are listed in the Money Award portion of this document:
Type Amount Owed

Fine - Felony $2,000.00
Fine - Misdemeanor $1,100.00
Total $3,100.00
The court may increase the total amount owed by adding collection fees and other assessments. These fees and
assessments may be added without further notice to the defendant and without further court order.
Subject to amendment of a judgment under ORS 137.107, money required to be paid as a condition of probation
remains payable after revocation of probation only if the amount is included in the money award portion of the
judgment document, even if the amount is referred to in other parts of the judgment document.
Any financial obligation(s) for conviction(s) of a violation, which is included in the Money Award, creates a judgment
lien.

ER-35
Payment Schedule
Payment of the fines, fees, assessments, and/or attorney's fees noted in this and any subsequent Money Award shall be
scheduled by the clerk of the court pursuant to ORS 161.675.
Payable to:
Multnomah County Cir cuit Cour t
1021 SW Four th Avenue
Por tland, Or egon 97204
P: 503-988-3235, option 3
F: http://cour ts.or egon.gov/multnomah
Dated the day of , 20
Signed: 5/13/2017 02:26 PM

Signed:

1/17/2017 2:43:04 PM
16CR41718
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City of Portland’s Motion to Quash 48
Subpoena Duces Tecum
Court’s Ruling
1 THE COURT: Or for -- yeah. But give it to the

2 parties.
3 MS. BARRACLOUGH: Of course.
4 THE COURT: Yeah. You don’t need to give it to
5 me.
6 MS. BARRACLOUGH: Okay.
7 THE COURT: Just give it to them.
8 All right. Anything else on the City of Portland
9 issues?
10 MR. TROTTER: I don’t believe so, Your Honor.
11 THE COURT: State?
12 MS. MOLINA: Nothing from the State, Your Honor.
13 THE COURT: Ms. Barraclough?
14 MS. BARRACLOUGH: Nothing, Your Honor.
15 THE COURT: Okay. Thank you, very much.
16 MS. BARRACLOUGH: Thank you, Your Honor, for
17 calling this early.
18 THE COURT: Sure. Okay.
19 All right. We’ll probably have to interrupt this
20 at some point because, you know, we have that 10:00
21 hearing that I had to take in the last minute.
22 Now, turning to the Motion for Change of Venue.
23 Now, Odyssey reflects that there was 131 pages of exhibits
24 filed with the motion.
25 MR. TROTTER: I have a courtesy copy if the Court
ER-176
Defense Motion for Change of Venue 49
1 would like to view that attachment.

2 THE COURT: Well, does the State agree that those
3 are admissible for purposes of the motion?
4 MS. MOLINA: I think for the purposes of the
5 motion, it would be, Your Honor. The case law does show
6 that exhibits or publicity that was conducted or
7 distributed prior to the trial would be something that the
8 Court could consider.
9 THE COURT: I didn’t read these over the weekend
10 because I wasn’t sure that the parties had agreed that
11 they were -- that they were -- going to come in as
12 evidence. So -- so I need to read these.
13 MR. TROTTER: If I may, Your Honor. I would
14 suggest that in the arguments we’re going to make and
15 what’s stated within the motion would probably be
16 sufficient to get us to where -- a sense of what the
17 arguments are as to why those are objectionable.
18 THE COURT: Okay.
19 MR. TROTTER: In the Court’s efficiency it might
20 be...
21 THE COURT: Well, maybe what we’ll do is we’ll
22 hear some argument now, we’ll break around 10:00, we’ll
23 have you come back at 11. And I know that’s more
24 convenient for the district attorneys than Mr. Trotter.
25 And then I’ll -- I’ll try to get as much read in that time
ER-177
1 as I can. If we need to spill these hearings into this

2 afternoon, can we do that?
3 MR. TROTTER: I have to be in Oregon City for a
4 hearing.
5 THE COURT: At?
6 MR. TROTTER: At 1:30, Your Honor. I’m supposed
7 to be there at 12:30 to meet a client.
8 THE COURT: Okay. Well, we’ll -- we’ll find time
9 if we have to. And I have a noon meeting here that
10 involves a lot of people that I really can’t reschedule,
11 so...
12 MR. TROTTER: I would say that that 10:00 hearing,
13 State v. Randy Johnson, I’m actually co-counsel on that
14 case, I don’t imagine it would take more than 30 minutes
15 at most.
16 THE COURT: Oh, yeah, I’m hoping that. Are you
17 doing that? You’re not doing that hearing, I guess?
18 MR. TROTTER: Well, I wasn’t planning on it. Mr.
19 Jeff Napoli was going to argue that before Judge
20 Bergstrom, and then he’s over at the J.C. so it’s here.
21 So I guess I’m going to be here the whole time.
22 THE COURT: Okay. All right. Okay. So let’s
23 start with argument on the venue.
24 Let’s see, well, it’s your motion, go ahead.
25 MR. TROTTER: Thank you, Judge.
ER-178
Defense Argument
1 So as you’ll see, and it sounds like you did read

2 the motion. I appreciate that. The -- there are two --
3 THE COURT: Let me ask you something. Don’t you,
4 to some extent, need to show not only that there was a
5 production of information -- and we’ll mark this, Mr. Ko,
6 as Defendant’s Exhibit 101, for purposes of this motion,
7 and it will be received for that purpose. But you have to
8 show that it was consumed and that it still has a negative
9 or potentially negative impact on the jurors, right?
10 MR. TROTTER: Well, it’s interesting. There are,
11 well, technically I guess you’d have four different bases
12 to grant a change of venue, that I’m aware of. You have,
13 obviously, your due process constitutional arguments under
14 state and federal constitutions, which, as I believe is
15 conceded by the State in their motion, is the case law, as
16 I understand it, basically puts the statute on par with
17 the same sort of standard for constitutional provisions,
18 at least for Oregon.
19 So there’s two different statutory bases, which I
20 think sort of incorporate the constitutional due process
21 argument. One, which is the one you would be -- I believe
22 you’d be referring to, is ORS 131.355. And that is this
23 interesting statute which -- which states that the Court
24 shall order the place of the trial to be changed to
25 another county if the Court is satisfied that there exists
ER-179
Defense Argument
1 in the county, where the action is commenced, so great a

2 prejudice against the Defendant that the Defendant cannot
3 obtain a fair trial.
4 THE COURT: Let me ask you something. Is this --
5 is the factual predicate for this motion different now
6 than in a day when Portland had a really dominant
7 newspaper and maybe three or four television stations that
8 ran pretty widely viewed local television news and maybe
9 one or two radio stations? Is it different now because
10 media is more diffuse?
11 MR. TROTTER: I think it --
12 THE COURT: And harder for a defendant maybe.
13 MR. TROTTER: Maybe. I think that it’s -- it’s
14 actually a double edged sword really, because you have
15 more sources of media.
16 THE COURT: Right.
17 MR. TROTTER: But also you have more access.
18 Because what you have is so many resources online and
19 people viewing.
20 THE COURT: So it’s less concentrated, but it’s
21 everywhere.
22 MR. TROTTER: Well, technically, yes, unless
23 you’re in North Korea and they turn off the internet. But
24 yes, that’s correct. But what you have also is you have,
25 and you’ll see the sampling in there of the exhibit,
ER-180
Defense Argument
1 there’s -- it’s not just from one resource. So it is more

2 diffuse, but it was covered in all the major and non-major
3 local media outlets. And there’s also YouTube channels.
4 There are, you know, online social media postings.
5 There’s so many different things that people are more
6 connected with now.
7 So yeah, I think it’s -- it could cut both ways,
8 but I do believe the access is -- it’s a changing thing,
9 and more people do have access to news. Accurate or not,
10 it’s available.
11 THE COURT: Okay. Let me ask you this. What
12 about the publicity would be so impactful as to cause a
13 juror to disregard both their oath and the jury
14 instructions?
15 MR. TROTTER: Well, it’s -- what we’re trying, of
16 course -- I think the baseline is you want a fair and
17 impartial jury, right?
18 THE COURT: Yes.
19 MR. TROTTER: Now, obviously, something that’s
20 built in to safeguard that is the jury selection voir dire
21 process. And that, in the State’s motion, is really the
22 crux of what they’re focusing on as far as that’s the
23 appropriate time to challenge that. And -- and of course
24 that’s part of it. However, the statute allows for -- it
25 doesn’t directly point to voir dire, the statute exists
ER-181
Defense Argument
1 for a purpose. And I will get to your question, I haven’t

2 forgotten. And that’s why the statute -- this provision
3 of the statute’s here is for this sort of challenge, and I
4 believe it is the appropriate time to do so, if there’s
5 sufficient showing. And what -- what happens is, number
6 one, the big concern is getting false information or
7 specifically inflammatory things. You’ll see in there
8 that there’s allegations about my client having
9 connections with white supremacist groups, which he does
10 not, which would be irrelevant anyway, even if he did.
11 Things calling him directly, just insults.
12 THE COURT: Well, it’s not that he’s -- an
13 allegation that he’s connected to a white supremacist
14 group is not irrelevant to the venue motion, right?
15 MR. TROTTER: No, it’s not.
16 THE COURT: Yeah.
17 MR. TROTTER: It wouldn’t be relevant at trial --
18 THE COURT: Sure.
19 MR. TROTTER: -- is my point.
20 But I think what could cause that, is if you have
21 jurors coming in that are on the jury that say, “Yeah, I
22 can be fair and impartial,” but they’ve read articles
23 saying things, for instance, as that this person’s a
24 jackass, that -- other sorts of insults. And that was one
25 of the one’s that’s a headline. Not to mention all the
ER-182
Defense Argument
1 blogs and the postings and comments. And injecting -- the

2 concern is that there is so much inflammatory non-
3 admissible information that’s readily available and viewed
4 by so many people, I think that yes, it’s going to affect
5 their ability to be fair and impartial, absolutely.
6 THE COURT: What’s your response to the State --
7 the State lists a series of cases, appropriately so, that
8 are mostly notorious Murder and Aggravated Murder cases
9 that, in which the appellate court said refusal -- denial
10 of a motion for change of venue was not an abuse of
11 discretion, was not erred by the trial court. What’s your
12 response to the -- and many of those, not all of them,
13 were in relatively smaller communities or counties where
14 presumably the risk of tainting the jury pool in a county
15 of say 60,000 is greater than in a county of 700,00.
16 What’s your response to that?
17 MR. TROTTER: I think the primary response would
18 be that it was found to not be an abuse of discretion,
19 which doesn’t mean that that -- if -- so --
20 THE COURT: Right. It wouldn’t have been -- it
21 wouldn’t have necessarily been error for the trial judge
22 to do the other thing, to change venue.
23 MR. TROTTER: That’s correct. That’s correct. So
24 what I’m asking the Court to do is -- I think the most
25 recent case cited, the most recent case that I’m aware of
ER-183
Defense Argument
1 that’s available is from about 2003. So we’re at 2017

2 now. The access to people in the community, to the
3 internet, this information is ever increasing, and people
4 will be more connected, more online and less social,
5 probably not good for society, but there it is. And so I
6 think it does take a fresh look, given that we’re in a
7 different situation in society. But what I would ask is
8 that we look to the standard itself, because I think you
9 have a lack of case law of the State appealing a decision
10 to grant the change of venue. I don’t even know that they
11 would have a basis to do that. But regardless, what we
12 have is it’s not --
13 THE COURT: No, but they -- they could cross-
14 appeal.
15 MR. TROTTER: Okay. And then I don’t -- but I’m
16 not aware of any case law on that issue.
17 So, what I would ask, is you look to that standard,
18 look to the statute itself, and then the case law further
19 flushes out, what does that mean, what’s the statutory
20 intent?
21 And in State v. Gallop, hot off the press from
22 1989, it says that (inaudible), “In exercising its
23 discretion, the trial court should grant a change of venue
24 where there is a reasonable likelihood that prejudicial
25 news prior to trial will prevent a fair trial.”
ER-184
Defense Argument
1 I think that what we find ourself in a situation is

2 that when you review what’s out there, what has been
3 covered, there is a reasonable likelihood, it’s not --
4 it’s not an impossibility, a reasonable likelihood that
5 prejudicial news -- number one, it has to be prejudicial
6 news, which there unquestionably is -- will prevent a fair
7 trial.
8 Being that we’re not omnipotent, of course we don’t
9 -- we can’t read minds, as much as I try in voir dire.
10 What I’m asking the Court to do is to use its discretion
11 on the basis of this statute to find that there is a
12 reasonable likelihood that the prejudicial news will
13 prevent a fair trial. And if that’s the finding that as
14 explained in Gallop, the trial court should grant it.
15 And moreover, if we’re in some sort of gray area
16 where there could be this prejudice, but there’s a
17 reasonable likelihood, why on earth would we not err on
18 the side of caution to try to ensure that there is a fair
19 trial? I -- I -- it just -- it seems like the logical
20 thing we would do as trying to protect the constitutional
21 and statutory right to a fair trial.
22 THE COURT: Does moving this trial to Clackamas
23 County or Washington County complain -- or solve the
24 concern you express?
25 MR. TROTTER: Not entirely. I would think it
ER-185
Defense Argument
1 would be better to move to a different venue that would be

2 somewhat farther away. However, I do think that it would
3 address it in part, the people in this community --
4 although it’s -- you could be anywhere in the world almost
5 and access it --
6 THE COURT: Right.
7 MR. TROTTER: -- it’s of little concern to you,
8 and you’re not likely to be looking that up.
9 The other thing to keep in mind is, Portland
10 specifically, in subsequent protests, has -- obviously has
11 huge problems, you know, related to the election and the
12 damages caused by mob protestors and things like that, has
13 peaked the interest of people especially here in the
14 Portland community to look into protesting and to search
15 online to find out about things like that. That
16 undoubtedly has increased exposure to not only those
17 cases, but this protest as well. And I do think that it’s
18 more concentrated here in the Portland area.
19 THE COURT: Let me -- let me ask you something
20 that drew my attention in your motion, and that is page 3,
21 starting at line 23 -- or 22, “To make matters worse, the
22 district attorney’s office, by and through Ms. Molina,
23 promulgated these irrelevant and prejudicial false
24 allegations in a public forum by stating them on the
25 record at Mr. Strickland’s arraignment where several major
ER-186
Defense Argument
1 local news outlets video recorded her comments.” What did

2 she say exactly? It’s kind of a serious allegation.
3 MR. TROTTER: Well, I have the FTR, but not with
4 me, I don’t believe. I actually might. But to the best
5 of my recollection, what was stated there as part of the
6 argument for increased security was that -- that Mr.
7 Strickland had ties to white supremacist groups, and
8 exactly the sort of inflammatory statements that we’re
9 talking about. And those were stated on the record with
10 media present.
11 THE COURT: All right.
12 Kevin, keep an eye out for the lawyers on the next
13 matter. You can go out in the hallway to check for them,
14 because when they’re here, we’re going to take their
15 matter.
16 Anything else you wish to say?
17 MR. TROTTER: Yes, Your Honor. So that’s -- as
18 you’ll see, the motion is two different statutes --
19 THE COURT: I got it.
20 MR. TROTTER: -- that are relevant here. And one
21 is the one we’ve been discussing, which has a much higher
22 burden and also the case law sort of explaining things. I
23 do believe that based on that statute, 131.355, there is a
24 sufficient showing based on what you’ll review in those
25 media records that there is a reasonable likelihood the
ER-187
Defense Argument
1 prejudicial news will prevent a fair trial.

2 And once again, I would just emphasize that
3 reasonable likelihood and erring on the side of caution to
4 protect his constitutional statutory rights.
5 The other basis is ORS 131 -- I’ll have to find
6 that real quick.
7 THE COURT: 363.
8 MR. TROTTER: Yes, that’s the one. And this is --
9 this is one that’s interesting because there’s really not,
10 that I’m aware of, any case law flushing this out. It
11 basically grants -- the other one really sort of dilates
12 and restricts what the court’s discretion is, but here
13 you’re granted a broad discretion as a trial court -- as a
14 trial judge, to a totally different standard. Which it
15 just says that -- that the -- it grants the court
16 authority to change venue when doing so is, among other
17 things, in the interest of justice. It says for the
18 convenience of the parties. And the other basis says in
19 the interest of justice.
20 So if Your Honor is convinced that the prior
21 statute -- that there is a reasonable likelihood and that
22 standard’s been met, then I don’t think we even get here.
23 But if not, then there’s this other statutory basis which
24 clearly and legitimately allows for change of venue, if
25 it’s in the interest of justice.
ER-188
Defense Argument
1 What I would ask the Court to do is to -- to use

2 this basis, if you even get there, this statute to avoid
3 the risk of providing the -- to avoid the risk of not
4 having a fair trial by an impartial jury.
5 And what -- what I would say specifically with that
6 is, there’s very little guidance given in the statute.
7 It’s just if the Court finds that it’s in the interest of
8 justice then it can and should be granted.
9 I think many of the arguments are the same, you
10 know, if there’s possible prejudice or likely prejudice
11 and it’s in the interest of justice to move it, I would
12 say let’s err on the side of caution. This is not a
13 common occurrence or a common motion that we have, so much
14 media. Of course it happens with some cases. This is one
15 that in particular the media latched onto. And in light
16 of the current events, especially in the election with --
17 with so much stuff going on with protests and that tension
18 there, it’s going to hit too close to home to a lot of
19 people. And I believe that the likelihood of prejudice is
20 just an unreasonable risk.
21 And if the Court has been granted by the
22 Legislature, the ability to move the venue if it’s in the
23 interest of justice, I would say let’s err on the side of
24 caution. Let’s give him a jury that’s less likely to be
25 prejudiced or tainted. And why take that risk if that’s
ER-189
State’s Argument
1 something that’s available to us. And I would ask Your

2 Honor to do so.
3 THE COURT: Okay. State.
4 Ms. Molina, you’re arguing this?
5 MS. MOLINA: Yes, Your Honor.
6 THE COURT: Can you imagine circumstances in which
7 venue could need to be changed before jury selection
8 started?
9 MS. MOLINA: I think that the case law does point
10 to some instances where that possibly was appropriate,
11 when there was extremely inflammatory publicity about the
12 trial, about the defendant’s background.
13 I think in one case that was cited, it was a
14 federal case, but there was a recording of the confession
15 that was broadcast on local media. Another case where a
16 reporter in a small community was going around kind of
17 basically doing an opinion poll about whether or not, you
18 know, people believed the defendant’s perspective or the
19 victim’s perspective. And let me double check my notes on
20 those.
21 I mean, and a lot of them, even then I believe that
22 there needed to be the vetting process through voir dire
23 before the court had enough information to decide if there
24 was sufficient prejudice to allow for a change of venue.
25 But I certainly think that that level of publicity was not
ER-190
State’s Argument
1 present in this case.

2 THE COURT: Hold on a sec.
3 (Court confers with court clerk)
4 THE COURT: You know, let’s just take our break now
5 on this case. Sorry.
6 (A recess was had at 10:02 a.m. The following
7 proceedings occurred in open court at 10:36 a.m.:)
8 THE COURT: All right. We’re back on the record
9 in Strickland, same lawyers. That obviously took longer
10 than I would have preferred, and that’s -- that’s on me.
11 We were -- the State was arguing its motion for --
12 its position on the motion for change of venue.
13 Ms. Molina, what else do you want to say?
14 MS. MOLINA: Thank you, Your Honor.
15 You had been asking about situations in which it
16 might be appropriate to change venue, I believe your
17 question was even prior to jury selection.
18 THE COURT: Yeah.
19 MS. MOLINA: I think that the court -- or the case
20 law does support in very extreme circumstances that that
21 might be appropriate.
22 THE COURT: Yeah. I was asking you to give me
23 kind of a -- what those circumstances would be.
24 MS. MOLINA: Well I think what’s illustrated in
25 the case law is those type of situations in usually a much
ER-191
State’s Argument
1 smaller community where the local media has basically

2 overrun court proceedings, where there is a lot of
3 information that’s being given out about the defendant,
4 about the defendant’s background, about the facts of the
5 case, to the extent that there, in one case, was a local
6 reporter kind of taking an opinion poll about what local
7 community members felt about the case, or situations where
8 a recorded confession was broadcast on local media, which
9 is not what we have in this situation at all.
10 And I think that Defense’s position --
11 THE COURT: Would you agree that at the time of
12 the incident that this incident got a lot of publicity?
13 MS. MOLINA: I think that there was a fair amount
14 of articles written at the time that this occurred. I did
15 do a spreadsheet based on the articles that Defense did
16 submit. From what I can tell, all but one of the articles
17 that they submitted basically occurred between July 7th,
18 which was the incident date, and then it looks like August
19 7th, which was right around the day that Mr. Strickland
20 was arraigned on the indictment. It did take a while to
21 get through the grand jury process.
22 And one of the factors that a lot of the cases
23 point to is the time delay between the media exposure and
24 then also the date for trial. And there’s other cases
25 that the State had cited that said a six month or five
ER-192
State’s Argument
1 month window was a sufficient lapse to reduce the concerns

2 for prejudice. And that’s exactly what we have here.
3 The one article that Defense provided that was
4 recent was, I believe, from December 1st, 2016, from the
5 Portland Mercury, it was a staff article that just
6 included a blurb -- I believe it’s towards the very end of
7 their submission -- it was a blurb about the case. It’s
8 kind of one of the stories, you know, top stories from
9 2016. Everything else is over seven to six months old at
10 the time that we’ll be going to trial next week. And I
11 think the case law supports that a significant enough
12 delay and absence of media exposure that that does not
13 inherently make it prejudicial. And the case law actually
14 supports that media publicity alone is not enough to grant
15 a change of venue.
16 And I think Defense’s argument that with this
17 proliferation of media outlets, that there’s online
18 sources, print sources, there is still no showing by
19 Defense how often those things were viewed, how often they
20 were actually read. Then the case law is very clear that
21 there has to be an actual showing of prejudice. And the
22 Court has to be satisfied that the prejudice is so great
23 against the defendant, the defendant cannot obtain a fair
24 or impartial trial.
25 And in this situation there’s really no way --
ER-193
State’s Argument
1 THE COURT: Well, that’s under the one statute.

2 Under the other statute it just has to be -- it just --
3 I’m kind of paraphrasing here -- it’s just interest of
4 justice, right?
5 MS. MOLINA: Which I think needs to be supported
6 by something. And just to say that there was publicity is
7 not supported by the case law. And I think, as outlined
8 in the State’s response, the statutes, ORS 131.305, in
9 Article 1, Section 1 of the Oregon Constitution, clearly
10 identifies strong interest in having cases prosecuted in
11 the communities in which the crimes were occurred. And
12 that we should only move them from those venues --
13 THE COURT: Well, it’s not jurisdictional -- it’s
14 not jurisdictional though.
15 MS. MOLINA: What do you mean?
16 THE COURT: Venue is not jurisdictional.
17 MS. MOLINA: No, but --
18 THE COURT: So it’s not that strong an interest.
19 MS. MOLINA: I think that it is, though, Your
20 Honor, because under the statutes --
21 THE COURT: It’s not.
22 MS. MOLINA: -- it says that the criminal actions
23 shall be commenced and tried in the community in which the
24 conduct -- or in which the conduct that constitutes the
25 offense or a result that is an element of the offense
ER-194
State’s Argument
1 occurred.
2 THE COURT: The Supreme Court said it’s a right,
3 not -- not jurisdiction. So if you wish to claim -- if a
4 defense -- if a defendant wishes to assert that a criminal
5 action has been brought in a -- in the incorrect county,
6 they need to raise it by motion or they waive it.
7 MS. MOLINA: And I --
8 THE COURT: Which was not the way that many of us
9 practiced for many years.
10 MS. MOLINA: But that’s also not my understanding
11 of what Defense’s motion is. They’re not claiming this is
12 improper venue --
13 THE COURT: No, they’re not. No.
14 MS. MOLINA: -- because it didn’t occur in
15 Multnomah County.
16 THE COURT: No.
17 MS. MOLINA: They are claiming that the pretrial
18 publicity makes such prejudice that the Defendant cannot
19 receive a fair and impartial trial in Multnomah County.
20 And the State’s position is that they have not met that
21 burden. That the Court really is not -- is not going to
22 have enough information to make an informed decision until
23 the voir dire process is conducted. Because the right to
24 a fair and impartial trial means that the actual jurors
25 who are sitting on the jury are able to listen with open
ER-195
State’s Argument
1 ears to the case.

2 And the case law also supports that just because
3 jurors have some prior knowledge of any pretrial
4 publicity, does not in and of itself make for an impartial
5 jury. Those jurors -- the Court needs to be convinced
6 that those jurors can listen and follow the law in an
7 impartial way.
8 THE COURT: All right. Thank you.
9 MS. MOLINA: Your Honor, if I could just add a
10 couple things briefly.
11 THE COURT: Very briefly.
13 I just wanted to point out to the Court that I
14 believe that it’s misleading in Defense’s motion to
15 identify a situation where the State did provide
16 information at a release hearing argument in open court at
17 arraignment, and then they failed to mention the
18 interviews that defense counsel has given to local media
19 outside and apart from court appearances. And for them to
20 not mention that and then claim that they have somehow
21 been prejudiced, when they themselves have contributed to
22 the proliferation of media exposure in this case. And so
23 I don’t think that the Defense can do that and then say
24 that they have somehow been prejudiced, when particularly
25 a lot of the articles that they have provided --
ER-196
State’s Argument
1 THE COURT: Well, I would imagine that their

2 position in interviewing and talking with the media was
3 trying to ameliorate the negative aspects of this,
4 correct? I mean that’s...
5 MS. MOLINA: That -- I’m not aware of what their
6 motives were, Your Honor, in doing so. But I would --
7 THE COURT: But to your knowledge they weren’t
8 disparaged -- the Defense team wasn’t giving interviews
9 disparaging the Defendant, right?
10 MS. MOLINA: Correct. They were not disparaging,
11 but providing their perspective on the case outside of
12 court proceedings. And the State -- I will also point out
13 that the discovery in this case is under a protective
14 order at the State’s request, which Your Honor did sign,
15 because of the interests in keeping the information in
16 this case outside of the public record to the extent that
17 it could be when it’s not being given out in an open
18 public hearing.
19 THE COURT: Well, I don’t want there to be any
20 suggestion on this record that I signed the protective
21 order to keep it out of the public view. I think the
22 nature of the -- I don’t remember, it was a long time ago
23 that I signed that protective order, but... And I believe
24 it was with the agreement of -- was it with the agreement
25 of the Defense, do you remember Mr. Trotter? Were you on
ER-197
Defense Rebuttal Argument
1 the case at that point in time?

2 MR. TROTTER: I wasn’t.
3 MS. MOLINA: My understanding is that it was not,
4 Your Honor. I wasn’t able to be at that hearing, Mr.
5 Jackson was. But it was actually a sealed record as well.
6 MR. JACKSON: And I think, Judge, that the reason
7 that’s being brought up is not to put --
8 THE COURT: Right. I get it.
9 MR. JACKSON: It’s just to point out that to the
10 extent possible, information about Mr. Strickland in this
11 case has been kept out of the public view. And the last
12 -- the main majority of the media coverage occurred at or
13 around the time of the incident, which was a number of
14 months ago and they just have not established that we
15 cannot empanel a jury --
17 MR. JACKSON: -- of impartial jurors.
19 THE COURT: Mr. Trotter, this is your motion,
20 anything else, briefly?
21 MR. TROTTER: Very very briefly.
22 Your Honor, a couple things. And I think Your
23 Honor already identified one, the issue, or the flaw with
24 the argument that the Constitution provides a right for my
25 client to be tried in a particular venue. Of course we’re
ER-198
1 arguing against that. So he’s implicitly -- and I would

2 be happy to explicitly have him waive that right. So I
3 think that’s a non-issue.
4 Just a couple points is, the State -- the issue of
5 whether -- of course the issue is whether we can get a
6 fair and impartial jury.
7 THE COURT: Right.
8 MR. TROTTER: That is the point. However, these
9 articles, just because the most recent newly written one
10 is in December, means that -- does not mean that it’s been
11 forgotten in the public’s view. And, in fact, that
12 demonstrates a lack of understanding of how news media
13 operates online. What happens is these old articles will
14 still pop up repeatedly and will be viewed by other people
15 in those outlets. And especially --
16 THE COURT: Well, well that’s -- they’re being
17 subject to being reviewed by people in those outlets. We
18 don’t actually have any evidence that they’re actually
19 being reviewed.
20 MR. TROTTER: That’s true. And I’ll concede that
21 point. Yes. But it’s still publicly available. And it’s
22 not like a newspaper where it’s just there and then it’s
23 kind of trashed, it’s continually available.
24 THE COURT: Sure.
25 MR. TROTTER: But I don’t have statistics of
ER-199
1 course.
2 The other thing I want -- a couple of other things
3 I wanted to mention is that I failed to mention earlier
4 that the other concern is that over a five-day period of
5 this trial, there is a concern as to not only -- one, the
6 physical safety of my client with the protests,
7 potentially protesters gathering to protest this
8 particular trial. And I don’t think that -- it is a -- I
9 would say it’s more likely than not that something like
10 that would occur given the history of this case and the
11 general disdain by the folks who do not espouse my
12 client’s political views in the community. And we’ve seen
13 over the past few months, several months, what can happen
14 with these protesters. It is a very real concern, in this
15 particular location, this particular building, where these
16 protests occurred very close to this area and frequently
17 occur. That is a very real concern for my client’s
18 safety, but also my own, frankly.
19 The -- my client, outside of this whole incident,
20 is fairly well known and very much disliked by people in
21 the community. He has a YouTube channel which has in
22 excess of 23,000 subscribers. The focus, because he’s
23 lived here for many years, is on Portland issues. He’s
24 excluded from going to the PSU campus because they don’t
25 like him and his political views, and also because of what
ER-200
1 happened here. They’ve made that known.

2 The bottom line is he’s very unpopular with a very
3 large segment of people right here in this county, from
4 which the jurors will be drawn, of course. So you have
5 what happened itself, the arguments made before, but also,
6 Your Honor, it’s a little different because he is a public
7 figure of sorts that has -- he’s a particular target of
8 negative thoughts and feelings and there’s a general
9 prejudice against him independent of this case itself
10 targeted here especially in this area. So I think that
11 that makes it different.
12 The other issue I wanted to address was just once
13 again, Your Honor’s broad discretion under the -- under
14 the statute that doesn’t require that particular showing
15 that we’ve talked about. I would just say in the interest
16 of justice, given all these things, why not err on the
17 side of caution. It’s not going to prejudice the State.
18 It’s going to increase the likelihood of the interest of
19 justice being served, which is that he has a fair and
20 impartial jury and that he’s safe during the process.
21 Especially over a five-day period, the likelihood of this
22 getting out and being surfaced in the media, I would -- is
23 guaranteed.
24 THE COURT: Kevin, did you put a sticker on this?
25 COURT CLERK: Huh?
ER-201
1 THE COURT: Did you get a sticker on this?

2 COURT CLERK: Oh, no, I didn’t.
3 THE COURT: Put a sticker on it.
4 I’m going to have to take this under advisement,
5 because I feel like I need to spend more time reviewing
6 Defense 101. So, but we’re going to press ahead with the
7 motions that we can do, and I will let you know as soon as
8 I can my ruling, or if we’re coming back on another day
9 before the trial, I could let you know then.
10 So we have approximately an hour left.
11 MR. TROTTER: Your Honor, I apologize. I would
12 just offer to the Court, if there is any information or
13 evidence which could potentially be gathered by the
14 Defense in aiding, once you’re under review, we would be
15 happy to provide anything that may be of assistance in
16 terms of further evidence if that’s something that the
17 Court would --
18 THE COURT: Okay. I’ll keep that in mind.
19 MR. TROTTER: Thank you.
20 THE COURT: It’s unlikely, but...
21 MR. TROTTER: Okay.
22 THE COURT: All right. Does any of the lawyers
23 have a preference for which motion we do next?
24 MR. TROTTER: No, Your Honor.
25 THE COURT: All right. I’m going to do State’s
ER-202
State’s Motion to Exclude Evidence of Unrelated 75
Prior Altercation
Defense Argument
1 Motion to Exclude Evidence of Unrelated Prior Altercation.

2 Let me -- I’ve read everything, but let me refresh.
3 Do you intend to introduce any evidence of this?
4 MR. TROTTER: Yes, we do.
5 THE COURT: Okay. How is it relevant?
6 MR. TROTTER: Thank you, Judge. There is --
7 what’s -- what’s key to -- and it’s probably pretty
8 obvious from this, there’s -- Defense does intend to raise
9 the defense of self-defense. So there’s the issue of, as
10 the standard’s laid out repeatedly, what is the standard
11 to determine the success or failure of that particular
12 defense, is what my client knew at the time as to -- well,
13 at the time, and also, is it objectively reasonable.
14 So what --
15 THE COURT: Would the parties agree for this
16 motion to five minutes oral argument each side?
17 MR. TROTTER: Okay. I think I can do that.
18 THE COURT: Okay. Okay. We’ll start you now. We
19 won’t count the time up ‘til now.
20 Mr. Ko, mark the time. Go ahead.
21 MR. TROTTER: Thank you, Your Honor. Thank you,
22 Your Honor.
23 Two, as specifically the only -- the only argument
24 raised, of course, as Your Honor addressed, is relevance.
25 And as to what’s relevant with this is to what my client’s
ER-203
Prior Altercation
Defense Argument
1 state of mind was at the time. This prior incident was

2 within the last two years. It’s an incident where my
3 client was engaged in a very similar -- in his employment,
4 as a videographer, and as he videoed one of these
5 individuals, his name was Sky Fitzgerald, he ended up
6 being attacked by him and thrown to the ground.
7 THE COURT: Do you agree with the -- you filed no
8 written response to this, right?
9 MR. TROTTER: That’s correct.
10 THE COURT: Do you agree with the State that the
11 only person that is similar -- the only person that is
12 involved in both the March 10th, 2015 incident and the
13 incident that gave rise to the charges is your client,
14 right?
15 MR. TROTTER: Yes.
16 THE COURT: Okay. Go ahead.
18 But what -- and so in terms of what’s addressed in
19 the State’s motion as to this not being, you know, used
20 for his state of mind as the alleged victims would have
21 proclivity for violence or anything like that, that’s not
22 what’s -- what the -- what the theory is. But what is
23 important is my client’s -- what was in his state of --
24 what was in his mind at the time of the incident. And the
25 reason it’s relevant is that he was attacked prior and he
ER-204
Prior Altercation
Defense Argument
1 was seriously injured, has underwent surgery, seriously

2 hurt his arm and shoulder, and did receive serious
3 physical injury. The State investigated here in Multnomah
4 County, the district attorney’s office reviewed the case
5 and it was -- ended up with, they did not file charges.
6 It was either dismissed or no complainant. My client
7 feared for his safety, and part of that was fueled by the
8 fact that he, as was an accurate perception, was not
9 protected by the State. And that went into his --
10 THE COURT: Not protected by the State at the
11 scene or by the filing of charges subsequent, or both?
12 MR. TROTTER: Both. Definitely both. And what --
13 why it’s relevant is not only that, it’s what’s in his
14 state of mind at the time, is his perceived necessity to
15 protect himself at the time. And so that is part of, was
16 it -- that’s part of the formulation to try and figure out
17 was -- were his actions objectively reasonable at the time
18 and subjectively.
19 THE COURT: Tell me what the evidence would be of
20 the March 10th, 2015 incident.
21 MR. TROTTER: The evidence is -- would be that he
22 was attacked by someone prior.
23 THE COURT: In or outside of a restaurant?
24 MR. TROTTER: It was in a parking lot.
25 THE COURT: Oh, in a parking lot. Okay.
ER-205
Prior Altercation
Defense Argument
1 MR. TROTTER: Yeah.

2 THE COURT: And he was attacked and he sustained a
3 broken arm, correct?
4 MR. TROTTER: Yeah. Among other things.
5 THE COURT: And did the police respond?
6 MR. TROTTER: They did, they did. There was --
7 THE COURT: And when the police responded, for
8 lack of a better description, was the incident over and
9 had the parties kind of separated or did they have to pull
10 somebody off of your client? What was the situation when
11 the --
12 MR. TROTTER: I believe by the time they responded
13 at the incident, the person had left at the time.
14 THE COURT: Okay.
15 MR. TROTTER: Well, then -- yeah, had stolen
16 things, but yes.
18 MR. TROTTER: But to cut to the chase is that at
19 the time of the incident when my client felt the need to
20 protect himself, part of this was in his state of mind he
21 had been previously attacked and he was not -- and he had
22 to protect himself. And so this time he’s -- he’s going
23 into, if a person in his situation, in his shoes, which is
24 the appropriate thing, has people coming at him to -- to,
25 as he perceives, to attack and cause serious bodily injury
ER-206
Prior Altercation
Defense Argument
1 or harm, it is relevant to get in his subjective state of

2 mind as to how he’s formulating that thing.
3 Now, I understand that it’s likely to be limited in
4 terms of, you know, there’s a video, you know, not showing
5 the video or going into details or producing even the name
6 of the person, anything of that effect. But when we’re
7 talking about subjectively whether a person felt
8 threatened, I think that it would be precluding or getting
9 rid of relevant evidence as to that subjective component,
10 which is a necessary finding for the self-defense
11 argument.
12 THE COURT: So the only thing you want -- the only
13 way you’re going to put on this evidence is through your
14 client, is that correct?
15 MR. TROTTER: We would have to -- I’m not certain
16 at this moment how or whether my client will testify, or
17 how it would be admitted. It would have to be, of course,
18 be admitted in an otherwise admissible manner. But
19 whether the information itself is admissible, I believe,
20 or is relevant is the only challenge at this point. Not
21 as to foundation or hearsay or anything of that effect,
22 which of course will have to comply with... But whether
23 the information is relevant, and I do believe it is.
25 Kevin, we’ve used the five minutes, right?
ER-207
Prior Altercation
State’s Argument
1 COURT CLERK: Yes.

2 THE COURT: Okay. Who’s arguing this?
3 MR. JACKSON: I am, Your Honor.
4 THE COURT: Go ahead. What about that? What
5 about the fact that he was attacked 18 months or so or
6 last, I guess, 15 months approximately beforehand by a
7 crowd in -- by persons in circumstances in which he was
8 videographing? That’s going to be the evidence, is that
9 right, Mr. Trotter? Is your client video recording at the
10 March 2015 incident?
11 MR. TROTTER: Yes. That’s correct. And just --
12 MR. JACKSON: No, that’s not correct.
13 THE COURT: Mr. Strickland, when I’m talking to
14 the lawyer, I don’t expect you to be talking to the
15 lawyer, all right?
16 THE DEFENDANT: (inaudible)
17 THE COURT: Okay.
18 MR. TROTTER: And just the other thing, Your
19 Honor, I apologize, is that part of the question, before
20 you even get to self-defense is whether this was unlawful
21 use of a weapon. And I think that the jury is going to be
22 missing a big part of the puzzle if they don’t know that
23 the impetus for my client becoming a concealed carry
24 holder and feeling a need to protect himself is based on
25 what happened. And I think that the State will bring up,
ER-208
Prior Altercation
State’s Argument
1 as they have previously, the fact that my client had extra

2 clips, and there’s sort of this implication that maybe
3 there was an intent to do something, why was he carrying a
4 gun in the first place? I think that would certainly open
5 the door if that were to come in. But we want to be able
6 to show why he reasonably feared for himself.
8 MR. TROTTER: And part of that -- okay. Thank
9 you.
10 MR. JACKSON: Judge, just to clarify. The facts
11 of the 2010 incident, the reason that in our briefing
12 we --
13 THE COURT: 2015 incident.
14 MR. JACKSON: Yes.
15 THE COURT: Yeah, okay.
16 MR. JACKSON: The reason that we have repeatedly
17 described that as wholly different circumstances, is that
18 it was not a protest, it was not a march, it was not a
19 group of people, it was one person that Mr. Strickland was
20 sitting down with in a Shari’s restaurant that did not
21 want to be recorded, and Mr. Strickland, despite that,
22 recorded him. The person took the camera, they got into a
23 fight in the parking lot over the camera, the person left
24 with the camera, and then returned it to the Clackamas
25 County Sheriff’s Office, which was then returned to Mr.
ER-209
Prior Altercation
Court’s Ruling
1 Strickland.
2 So the circumstance -- separate and apart from the
3 fact that there are -- that there’s no cross-over of
4 people involved --
5 THE COURT: Right.
6 MR. JACKSON: -- the circumstances are completely
7 different. I don’t think the self-defense statutes
8 encompass any prior violence that a person has been
9 exposed to over the course of their life that then makes
10 it admissible in a particular case with specific
11 circumstances in which they have used force, whether
12 justified or not. That prior incident would not assist
13 the triers of fact in evaluating what he was doing in the
14 middle of a protest march, because that prior incident had
15 nothing to do with a protest march, a group of people, or
16 any of the same people involved in the 2016 incident. And
17 that’s really the main thrust of our argument, it’s
18 completely irrelevant to the case at bar.
20 The State’s Motion to Exclude Evidence of the
21 Unrelated Prior Altercation, and that’s their phrase of
22 the motion, is granted, but the Defendant may re-raise the
23 issue outside the presence of the jury at trial if you
24 wish to do so. And I’ve written this on a minute order
25 here. So you can’t raise it in any way in the presence of
ER-210
Prior Altercation
Court’s Ruling
1 the jury, in jury selection or any other way, but if you

2 wish to raise it, you can do so outside the presence of
3 the jury.
4 And just to loop back to a prior comment, I will
5 take all steps -- I will ask the sheriff to take all steps
6 reasonably necessary to protect the proceedings in the
7 courthouse. From my experience they are very good at
8 doing so, and people are safe in the courthouse.
9 Regardless of how I rule on the venue issue. But if the
10 trial is in this courthouse, you’ll be -- you will be
11 safe. And they usually take steps to secure the front
12 area of the courthouse. But I realize that doesn’t
13 address all your concerns.
14 All right. So let’s turn to -- are there still
15 issues with, Mr. Trotter, with your Motion to Compel?
16 Your Motion to Compel the State to Produce Discovery?
17 MR. TROTTER: There were three different things.
18 I’m just looking. With the records of prior criminal
19 convictions, I have received that and I’ve talked with the
20 State and it seems like they have provided all that they
21 have on that. So I think we’re good on that.
22 I believe that the issue of written memorandums
23 that haven’t been turned over related to the Chief and
24 incident commander. But based on your ruling, that should
25 be -- should be alleviated by this Thursday. And I’m not
ER-211
Defense’s Motion in Limine 84
Defense Argument
1 aware of any other particular items that have not been

2 disclosed.
3 THE COURT: Okay.
4 All right. Let’s turn to Defendant’s Motion in
5 Limine for a Language Order.
6 Five -- we agree to five minutes?
7 MR. TROTTER: Yes, Your Honor.
8 THE COURT: Okay.
10 All right. Your Honor, this is -- there’s a couple
11 different bases. First of all, what we’re asking is that
12 the State and its witnesses not be -- that they be
13 precluded from being able to refer to the individuals
14 named in the indictment as victims.
15 The -- the main basis for this is that it
16 prejudices my client. I think that that’s probably not
17 something that can really be debated much is that it’s not
18 going to be a helpful term. It certainly is something
19 that the State has argued in its motion would be simply a
20 designation that’s almost neutral or close thereto. And
21 the truth is that our position is it’s not.
22 The things that go to that are, as the State has
23 raised, that under the Oregon statutes related to crime
24 victims rights and under the Oregon constitutional
25 amendments, there is this authority given to the district
ER-212
Defense Motion for Demurrer 131
Defense Argument
1 to review both motions, is that correct? The response as

2 well as the --
3 THE COURT: Yes. I read your demurrer and the
4 response.
5 MR. TROTTER: Thank you, Your Honor.
6 As I’m confident that you have read it thoroughly
7 and understand, of course, the arguments related therein,
8 I would just actually rely on the written motion as to the
9 position that we have on --
10 THE COURT: What’s your response to their argument
11 about 132.560(1)(a) that where an offense may be committed
12 by different means the charging instrument may allege the
13 means in the alternative?
14 MR. TROTTER: Yes, Your Honor. My response with
15 that is I would just refer back to the initial argument in
16 -- in our motion, is that what is required under the
17 Constitution as well as the statute is sufficient
18 specificity. And so if you have alternate theories,
19 you’re going to have confusion with the jury, because you
20 have -- you have multiple theories.
21 And then in addition to that, the State’s obligated
22 to pick a specific fact that’s alleged. I don’t think
23 it’s a carte blanche where you can just do every different
24 alternative and then ask the jury to make a decision on
25 whichever one happens to fit.
ER-213
Defense Argument
1 THE COURT: What’s the difference between,

2 particularly in light of the discovery in this case, the
3 difference between carry with intent to use and possess
4 with intent to use?
5 MR. TROTTER: Well, let me look at the exact
6 language, because you have -- it’s actually a little bit
7 different. You have a -- the language itself is --
8 THE COURT: I’m looking at Count 15, but I’ll pick
9 any count you want.
10 MR. TROTTER: Okay. Thank you, Your Honor. Let
11 me just pull that language out right here so I don’t
12 misstate it.
13 THE COURT: Count 1, I guess would make sense.
14 MR. TROTTER: Okay. Thank you, Your Honor.
15 Oh, okay, here it is. You have unlawfully attempt
16 to use a weapon and then carry with intent to use. So one
17 is that you actually, you have to -- I think --
18 THE COURT: So there are three alternatives here
19 or two?
20 MR. TROTTER: We have what’s stated as “unlawfully
21 attempt to use,” and then the other theory, as I see it,
22 would be carry with the intent to use. One is actually
23 your -- I think they both require, of course, possession,
24 but one is “unlawfully attempt to use.”
25 THE COURT: So the -- “and possess with intent to
ER-214
Defense Argument
1 use” is just surplusage.

2 MR. TROTTER: No, I think they’re different
3 theories. One is you carry it -- and the State would have
4 to prove a different mental state. One is that you are
5 carrying it, you’re possessing it, of course, but that you
6 -- you’re proving that carrying it you intend to use it
7 unlawfully. And I think what you envision is a situation
8 there where somebody possesses the weapon and then there’s
9 other evidence which shows that the person had the weapon
10 and they intended to use it unlawfully.
11 The other is that they, in fact, actually attempted
12 it. They are different. They’re different theories and I
13 don’t think that you can just throw both out there.
14 But yeah I do -- I do believe that they are
15 materially different.
16 THE COURT: All right. I’m going to try to drill
17 down a little bit on this. Do you believe there’s a
18 difference between unlawfully attempt to use and carry
19 with intent to use and possess with intent to use as two
20 separate entities? Not unlawfully attempt to use, carry
21 with intent to use, and possess with intent to use as
22 three separate theories?
23 MR. TROTTER: No. I think that the two different
24 theories that I stated are the ones that aren’t materially
25 different, which makes them not definite and certain.
ER-215
Defense Argument
1 The other basis is that lack in certainty is the

2 fact that these -- the Indictment doesn’t actually name
3 the victims, it has a general vague description which adds
4 to the uncertainty.
5 THE COURT: Yeah. Did you make that argument in
6 your written demurrer?
7 MR. TROTTER: I did not include that.
8 THE COURT: Okay. Just checking.
9 MR. TROTTER: And just for the Court, what I would
10 offer is we’re obviously asking for a dismissal of those
11 counts. In the alternative -- and I do believe that they
12 should be dismissed for the reasons stated. But in the
13 alternative, what I would ask is that the State be bound
14 to choose one theory, either that there was possession
15 with an intent that he went, he possessed and had an
16 intent to use it unlawfully, or that he carried the
17 firearm and he actually attempted to use it in an unlawful
18 manner. They are different. They’re similar, but you
19 have actually literally different mental states. I mean,
20 the State’s asking for the -- an instruction on attempt
21 and also for an instruction on intentionally and with
22 intent, or intentionally.
23 THE COURT: Well, you could do an act knowingly
24 and have a specific intent as part of that knowing act,
25 right?
ER-216
Defense Argument
1 MR. TROTTER: (No audible response)

2 THE COURT: You can knowingly -- well, I don’t
3 know if burglary, off the top of my head, if burglary
4 could be charged knowingly. But assuming you could
5 knowingly commit a Burglary in the Second Degree, you
6 could knowingly commit a Burglary in the Second Degree
7 with the intent to commit the crime of theft in the
8 premises, right?
9 MR. TROTTER: Certainly.
10 THE COURT: Okay. All right. So how is this
11 different?
12 MR. TROTTER: It’s -- it’s different because an
13 attempt, you know, if you look at it, is that you don’t
14 actually come to fruition --
16 MR. TROTTER: -- with what you’re doing. And so
17 it’s interesting, it’s kind of like it’s analogous to
18 there’s a statute on Unlawful Purchase of a Weapon, and
19 this is -- I think this is important to illustrate it. Is
20 that it’s called Unlawful Purchase of a Weapon, however,
21 one of the theories is that you actually purchase the
22 weapon. The other theory is that you attempt to purchase
23 the weapon.
25 MR. TROTTER: And you don’t have to actually
ER-217
State’s Argument
1 possess -- you don’t have to actually purchase it, you’re

2 still guilty of it. It doesn’t -- it kind of doesn’t make
3 -- it doesn’t make logical sense, but you would still be
4 guilty. So that’s the same as -- analogous to this, I
5 view it as, you have one theory where you possess a weapon
6 and you actually attempt to use it unlawfully. The other
7 is, you’re possessing it and the reason you’re possessing
8 it is that you intend to use it unlawfully. And to me it
9 implies, sort of there’s an implicit premeditation, I have
10 this weapon, I’m going to go use it unlawfully. I got
11 stopped, that doesn’t mean I’m not guilty.
12 There is a -- I think that if the legislature
13 intended to make them synonymous, there would just be one
14 language, there wouldn’t be alternate theories.
15 And so I would just ask that it be dismissed, but
16 in the alternative, have the State choose a theory and
17 instruct the jury on just one of those theories to
18 eliminate confusion, because I think it is uncertain and
19 it is vague.
20 THE COURT: I assume that Ms. Molina is arguing
21 this?
23 THE COURT: Well, that’s a good point, I mean, why
24 -- why shouldn’t they know what your -- what your theory
25 is?
ER-218
State’s Argument
1 MS. MOLINA: Well, as I pointed out in the State’s

2 response motion, I don’t think that the language really
3 does express different theories of the case as they apply
4 to the facts that has all been discovered to Defense.
5 I mean, in this case we don’t have a situation
6 where the Defendant is attempting to purchase a gun, and
7 that’s what the conduct is being charged for. I think
8 that that is a very different scenario where what we have
9 here is an actual gun that was pulled on a crowd of
10 people. And so under that scenario --
11 THE COURT: So your theory is that he did
12 unlawfully attempt to use it, right?
13 MS. MOLINA: Well, I think on one hand, because
14 the theory that the State is proceeding on is that he --
15 the unlawful conduct was the menacing, he had no right to
16 menace the individuals in front of him with the gun. The
17 mere display of the weapon is, in fact, using it. The
18 State submitted a special jury instruction on that, that
19 the gun is not required to have been discharged to be used
20 in the commissioning of menacing. But certainly pulling
21 out the gun and displaying it to people, pointing it at
22 them, does constitute a substantial step towards engaging
23 in that unlawful conduct of illegally menacing the people
24 in front of him. And so in that sense it is a substantial
25 step, it’s an attempt towards use, but it’s also a use in
ER-219
State’s Argument
1 that he’s carrying and possessing it with the intent -- or

2 with the intent of menacing these people. And so in that
3 sense it’s all encompassed within the exact same conduct.
4 And I think that Mr. Trotter’s argument that it’s
5 different mental states is ill placed when the language in
6 the indictment and the jury instructions also say that you
7 intentionally attempt to use and then you are carrying
8 with the intent and possessing with the intent to use
9 unlawfully. So it’s all intentional mental states. It’s
10 not as though the State is requiring different mental
11 states for each of those three theories.
12 So the State’s argument is it’s actually not
13 different theories, it’s actually describing different
14 ways that the same conduct is being completed.
15 THE COURT: Is there a difference between carrying
16 and possess?
17 Mr. Trotter, you can be seated.
19 MS. MOLINA: I have struggled to think of a
20 scenario in which that would be likely. Because in order
21 to have, you know, even constructive possession of
22 something you would most likely need to be carrying it.
23 I assume there could be a situation --
24 THE COURT: So why charge it that way?
25 MS. MOLINA: Because in the State’s perspective
ER-220
State’s Argument
1 he’s carrying and possessing it at the same time. That

2 he’s using it and using it to take a substantial step
3 towards menacing and, in fact, menacing the people in
4 front of him.
5 THE COURT: I get that that’s your theory, but I’m
6 not sure that explains why -- why introduce that -- that
7 issue, or that potential issue. It’s not exactly fair
8 argument, but...
9 MS. MOLINA: I think that the evidence supports
10 those different ways that the conduct can be
11 characterized.
12 THE COURT: There’s no evidence. I mean, we’re at
13 a demurrer stage.
14 MS. MOLINA: Right. But the evidence that the
15 State intends to produce, we believe encompasses all of
16 those different kind of descriptors of how the conduct is
17 completed, and it’s the State’s burden to prove its case.
18 And we feel as though we need to have those different
19 descriptors to be able to present --
20 THE COURT: So what if -- what if -- what if five
21 jurors say he unlawfully attempted to use, only five, and
22 five other jurors say, “Well, I don’t know if he
23 unlawfully attempted to use it, but he carried it with the
24 intent to use it, or carried and possessed it with the
25 intent to use it.” Is that a lawful verdict under Boots?
ER-221
State’s Argument
1 Is that, you know, five one, five the other, ten?

2 MS. MOLINA: Mmm-hmm. Based on my reading of the
3 case law, particularly Crawford, where they have held that
4 the specific subsections are A and B, 1A and 1B, of ORS
5 166.220, is that that description of subsection 1
6 encompasses one specific bad act that the legislature
7 intended to criminalize, and in subsection B it’s an
8 entirely different kind of type of activity. And I think
9 some of the other cases that are cited in the State’s
10 response motion, if I can find them briefly, talk about
11 how one was kind of furnishing, State v. Tiedemann, which
12 is 54 Or App 640, which says, “An indictment alleging that
13 defendant had directed, managed, financed, and presented a
14 live show did not constitute separate crimes, and they
15 were merely alternative ways by which the person could
16 violate that statute.” I think we see that, too, with
17 forgery or identity theft that you are, you know,
18 possessing, uttering, using.
19 THE COURT: So in my hypothetical it’s a valid
20 verdict if five jurors say unlawfully attempted to use and
21 five different jurors said did not unlawfully attempt to
22 use, but carried with intent to use?
23 MS. MOLINA: I believe, based on the case law,
24 that that would be a lawful verdict.
25 THE COURT: Are you worried about that at all?
ER-222
State’s Argument
1 Would you be worried about defending that?

2 MS. MOLINA: (No audible response)
3 THE COURT: Let me ask you a different question,
4 kind of on the same line of thought. What if five jurors
5 think, well, it’s this -- it’s this balding male wearing a
6 black shirt and dark pants --
7 MS. MOLINA: Mmm-hmm.
8 THE COURT: -- and five others think it’s this
9 other balding male wearing a black shirt and dark pants?
10 I mean, I don’t know anything too much about the facts and
11 circumstances of this case, but is it fair to say that
12 there were a number of people present?
13 MS. MOLINA: There were a lot of people at the
14 protest, Your Honor, but we believe that the evidence will
15 show that the people who were directly in front of him and
16 who had the weapon pointed at them are very specific
17 individuals. We’ve also prepared exhibits --
18 THE COURT: How many -- how many balding males?
19 MS. MOLINA: One.
20 THE COURT: Just one balding male?
21 MS. MOLINA: I believe so, yes.
22 And, Your Honor, we have prepared exhibits that
23 have still photographs of the video evidence with the
24 victims numbered by their counts so that there is no
25 confusion about which people we are -- have identified in
ER-223
1 the indictment and which people we will be identifying by

2 charge. So for that sort of a Boots issue, we tried to
3 remedy it through the specific pleadings in the
4 indictment as well as the exhibits that we plan to present
5 at trial.
6 THE COURT: All right. Anything else?
7 MS. MOLINA: Nothing from the State, Your Honor.
8 Thank you.
9 THE COURT: Mr. Trotter.
10 MR. TROTTER: Your Honor, one thing I wanted to
11 just add, is if you want to get an idea of just how
12 confusing this issue is for the jury, take a look at the
13 State’s -- over the weekend they added a proposed jury
14 instruction.
15 THE COURT: Yeah. To be honest I haven’t looked
16 at those yet, so...
17 MR. TROTTER: It’s sort of like -- it’s confusing
18 to say the least. It’s very confusing.
19 And so I think the cases cited in the State’s
20 response, one thing is we get back to this issue of --
21 THE COURT: Hold on a second.
22 Kevin, do you have that special instruction that
23 came in recently from the State?
24 COURT CLERK: Yes.
25 THE COURT: Let me look at it.
ER-224
1 (Pause while Court reads document)

2 THE COURT: Well -- okay, go ahead.
3 MR. TROTTER: Thank you. I -- I think that even
4 if it’s with -- even if the Court of Appeals had upheld
5 that some alternate theories are acceptable as to not be
6 subject to demurrer, maybe that didn’t violate abuse of
7 discretion, but obviously Your Honor has the authority
8 over this courtroom to determine, and a responsibility to
9 make sure that the jury’s instructed in a comprehensive
10 and logical manner so they can make a decision. And
11 exactly the questions you were posing to Ms. Molina I
12 think does create an issue, it creates confusion. I think
13 the logical remedy is to simply have the State choose a
14 theory so that there is no question (inaudible) among the
15 jurors, and also to avoid confusion.
16 MR. JACKSON: Judge, if you’d like to see the
17 exhibit we provided in discovery outlining how the charges
18 matched the victims, I can show that to you as well.
19 THE COURT: No, I get the idea. I mean...
20 (Pause)
21 THE COURT: Does the State want to elect in its
22 Unlawful Use of a Weapon counts between Unlawfully Attempt
23 to Use and Carry with Intent to Use, Carry and Possess
24 with Intent to Use? What’s the State’s response to the --
25 just checking.
ER-225
State’s Rebuttal Argument
Court’s Ruling
1 MS. MOLINA: Your Honor, at this point we don’t

2 feel the case law requires us to elect, so we would prefer
3 not to, at least at this point. We feel like the evidence
4 supports, like I said, the different descriptions provided
5 in subsection 1A of ORS 166.220. And the State needs to
6 be able to put on all of the evidence to prove its case.
7 As the case law supports, things only needed -- evidence
8 only needs to show that the statute is violated one way
9 for it to be a guilty verdict and a lawful verdict. The
10 State doesn’t need to prove all of the different ways in
11 which the crime can be committed under a specific
12 subsection of the statute.
13 THE COURT: All right. Let me make a note here.
14 I think it’s a close call on the demurrer. The
15 demurrer is denied. I think 132.560(1)(a) allows charging
16 in the alternative, and I don’t believe that, as that’s
17 been done here, that any constitutional requirement has
18 been violated.
19 I do think if the State thought about it, that the
20 way that they’ve charged this is because this is how they
21 have traditionally charged it, which is weak reasoning.
22 And I do think that, in some cases at least, the emphasis
23 on “at least,” statutes that give alternatives can be
24 charged on one basis. And the State should be -- should
25 be considering doing so. But in a close case, I don’t
ER-226
Defense Motion to Exclude Mention of 145
Quantity of Ammo and/or Magazines
State’s Argument
1 think it’s -- I don’t think they violated the statute or

2 Constitutions here, so...
3 All right. Next do we want to go to this issue of
4 State’s response to defense motion -- which I understand
5 they’re going to make orally in a second here -- to
6 exclude any witness or any mention to the quantity of
7 ammunition and/or magazines. You’re moving to exclude
8 that evidence as they describe in their response?
9 MR. TROTTER: That is correct, Your Honor.
10 THE COURT: Okay. Well, with your permission I’d
11 like to start with the -- I know it’s your motion, it’s
12 your burden, but I’d like to start with them and then let
13 you have the final word.
14 MR. TROTTER: Not a problem.
15 THE COURT: Whose -- I guess, Ms. Molina, did you
16 write this, too? Who wrote this?
17 MR. JACKSON: I’ll argue this one, Judge.
18 THE COURT: Okay. All right.
19 Why is -- why is more indicative of intent, that’s
20 kind of your argument, right?
21 MR. JACKSON: I’m sorry?
22 THE COURT: More -- more ammunition is -- is more
23 indicative or more proof of intent, is that right?
24 MR. JACKSON: Yes, that’s right. And also the way
25 that it’s being carried. That it’s not just loose rounds,
ER-227
Detective Cavalli - X 675
1 THE COURT: I don’t understand the connection

2 between that and this trial.
3 MR. SHORT: Okay. I’ll withdraw the question.
4 THE COURT: Okay.
5 MR. SHORT:
6 Q. Detective, throughout your contact with Mr.
7 Strickland, was -- was he cooperative?
8 A. Yes.
9 Q. And at some point you did read him Miranda rights,
10 correct?
11 A. I did.
12 Q. And you did obtain a statement from Mr. Strickland?
13 A. I did.
14 Q. And did he give an explanation? Without going into
15 what he said, did he give an explanation as to what
16 occurred?
17 MS. MOLINA: And, Your Honor, I’d object to this
18 line of questioning based on hearsay.
19 THE COURT: Well, I don’t think this question
20 calls -- what’s your response to the objection?
21 MR. SHORT: Again, Your Honor, I’m not asking for
22 what Mr. Strickland said, I’m just asking the context of
23 the conversation that he had with Mr. Strickland, but I’m
24 very aware that I don’t want this detective to ask any
25 questions -- or, I mean, to say anything specifically what
ER-228
1 Mr. Strickland said. But I think asking about whether he

2 had a conversation is certainly relevant and certainly...
3 MR. JACKSON: Right. And, but --
4 THE COURT: Well, you asked if he made a statement
5 and he did say he made a statement. And now you’re asking
6 if his statement gave an explanation.
7 MR. SHORT: Correct.
8 THE COURT: And does the State want to say
9 anything?
10 MR. JACKSON: Well, I think that does call for the
11 content of the statement. It characterizes what he said.
12 THE COURT: I think so, too.
13 MR. SHORT: Okay.
14 THE COURT: Sustained.
15 MR. SHORT:
16 Q. What was the duration, Detective, of your interview
17 with Mr. Strickland, how long was it?
18 A. Can I refer to my report?
19 Q. Sure.
20 A. So I can give you a idea of where we went from --
21 Q. Mmm-hmm.
22 A. -- in the time he was discussing that issue. I would
23 say no more than -- our conversation was no more than 10
24 to 15 minutes long.
25 Q. Ten to 15 minutes. Was it recorded?
ER-229
1 A. No, it was not.

2 Q. Were you taking notes?
3 A. I was.
4 Q. And you later wrote a report from those notes?
5 A. I did.
6 Q. And that report was written later that night or the
7 following day?
8 A. It was the following day.
9 Q. ‘Cause we’re getting close to midnight at that point,
10 I think?
11 A. Yeah. Yeah.
12 Q. Detective, with regards to that interview, that was
13 about 10 to 15 minutes long?
14 A. Mmm-hmm.
15 Q. Were you able to make visual contact with Mr.
16 Strickland? Was it -- in what situation was it in?
17 A. He was in the back of our patrol car.
18 Q. Okay.
19 A. So I would turn around, I was in the front passenger
20 seat, periodically I would turn around and talk to him.
21 Q. Was it while you were driving or parked somewhere?
22 A. Partner was driving. I was sitting in the car. And
23 we were moving from Southeast Precinct down to the
24 Hawthorne Bridge.
25 Q. Understood. And was there a point in time --
ER-230
Argument on State’s Objections 678
1 MR. SHORT: And, Your Honor, I’m going to ask for

2 certain statements that I believe are an exception to the
3 hearsay rule with regards to his state of mind, Mr.
4 Strickland’s state of mind.
5 THE COURT: Okay. So let’s do this. So thank you
6 for bringing that to my attention.
7 So, Officer -- or Detective, if you don’t mind, the
8 lawyer is going to ask a question, listen to the question,
9 think about what your answer would be, but don’t answer
10 it --
11 THE WITNESS: Okay.
12 THE COURT: -- just yet.
13 MR. SHORT: Okay.
14 THE COURT: Okay. Go ahead.
15 MR. SHORT:
16 Q. At any -- at one point in the conversation that you
17 were having with Mr. Strickland, did he mention that he
18 had received prior death threats from anarchists?
19 MS. MOLINA: Objection, Your Honor. I don’t think
20 that this is an exception to the hearsay rule.
21 THE COURT: Okay.
22 MR. SHORT: Your Honor, it’s clearly -- the
23 argument in this particular case is it goes towards his
24 state of mind. We don’t necessarily need to offer it for
25 the truth of the matter asserted, but certainly it would
ER-231
1 go towards the exception as to why Mr. Strickland did what

2 he did. And certainly it would be relevant as an
3 exception to the hearsay rule for why he again pulled out
4 his firearm.
5 THE COURT: What’s -- what’s the number of that
6 exception?
7 MS. MOLINA: It’s 803(3), Your Honor.
8 THE COURT: Okay.
9 Yeah, I have it. I think it’s on page 789 of
10 Kirkpatrick.
11 (Pause)
12 MR. TROTTER: It’s actually 801(D). It’s --
13 THE COURT: Not hearsay.
14 MR. TROTTER: Correct. Because it’s not within
15 the listed exceptions, it’s offered for a purpose other
16 than the truth, and that’s under 801.
17 MR. SHORT: The other alternative theory, Your
18 Honor, is 803(3), it’s then existing mental, emotional, or
19 physical condition.
20 THE COURT: Yeah. I thought that’s what you were
21 relying on.
22 MR. SHORT: But it could go with either one.
23 (Pause)
24 THE COURT: Off the record for a minute. Probably
25 should have gone off a minute ago, but...
ER-232

3 THE COURT: Go ahead.
4 MR. SHORT: If I could also turn your attention to
5 801, which I think might be more applicable. Do you have
6 Kirkpatrick?
7 THE COURT: Well, yeah, they cross-reference each
8 other, so...
9 MR. SHORT: Yeah. And subsection 3 is -- we would
10 be asking that these statements be allowed in to also
11 prove circumstantially the state of mind of the declarant.
12 A statement is not hearsay if it is offered as indirect or
13 circumstantial evidence of the Defendant’s -- or, I’m
14 sorry, declarant’s state of mind such as to prove motive,
15 knowledge, or good faith.
16 THE COURT: All right. Back off the record.
19 THE COURT: Ready? Okay. All right.
20 What does the State want to say?
21 MS. MOLINA: Your Honor, the State’s position is I
22 do think, as Your Honor pointed out, 801 and 803(3) need
23 to be read together. And it looks like the notes in
24 Kirkpatrick about offering the statements for then
25 existing mental, emotional, or physical condition require
ER-233
1 immediacy in the moment. That anything that’s being

2 stated after the fact as a statement of memory or belief
3 to prove a fact is not something that can be offered under
4 that exception to the hearsay rule, that it needs to be a
5 statement that is given kind of in the moment for it to be
6 connected to the Defendant’s then state of mind.
7 It looks like Kirkpatrick cites State v. Charro.
8 And the notes say, “If the statement about the declarant’s
9 state of mind is offered to prove the past events that
10 caused that state of mind, the statement is not admissible
11 under this exception. For example, evidence that a murder
12 victim made a statement expressing fear of the defendant
13 is inadmissible if it is being merely offered to prove the
14 occurrence of the prior acts by the defendant causing that
15 fear.”
16 So I think that to offer statements that, one, the
17 detective is being asked to comment on an interview that
18 occurred with the Defendant several hours after the
19 incident in question took place, and then Mr. Short’s
20 specific question was about something else completely
21 unrelated to the case at issue.
22 And so I think that it’s too far removed in time in
23 terms of being offered as an exception for the Defendant’s
24 then present statement of mental or emotional condition.
25 But I think also that it’s improper because it’s not
ER-234
1 commenting directly on what was going on at that moment,

2 statements that Mr. Strickland may or may not have made in
3 the moment that the incident took place.
4 THE COURT: Mr. Short, how do you want to respond
5 to that?
6 MR. SHORT: Your Honor, Mr. Trotter wants to jump
7 up and I’m like, “Hold on, just let me address it first.”
8 With regards to that explanation, 803, I would
9 agree that in this particular situation there’s a strong
10 difference between 801 and 803. And I want to refer the
11 Court’s attention in Kirkpatrick in 801, which is, “Many
12 out of court statements may be --
13 THE COURT: On what page?
14 MR. SHORT: Well, this is 702, but this is the old
15 version. Do you have this version?
16 THE COURT: It’s the sixth edition?
17 MR. SHORT: Yeah, the sixth edition.
18 THE COURT: Is there a new edition?
19 MR. SHORT: Well, there’s -- there’s like a gray -
20 - blue/gray one now, I think.
21 THE COURT: Oh.
22 MR. SHORT: But it’s real expensive, so I haven’t
23 purchased it.
24 MR. JACKSON: Yeah. We’ve got the sixth.
25 THE COURT: Okay.
ER-235
1 MR. SHORT: So sixth.

2 THE COURT: Okay.
3 MR. SHORT: On page 702. In referencing down at
4 the bottom on page 702, “Offered for purposes other than
5 truth, many out of court statements may be received in
6 evidence because they are not being offered to prove the
7 truth of the matter asserted. The primary categories of
8 out of court statements offered for purposes other than
9 proving truth of the matter asserted are the following,”
10 and then it’s subsection 3, “Statements circumstantially
11 showing the state of mind of the declarant.”
12 And then if you go to page 704 in subsection 3, “To
13 prove circumstantially the state of mind of the declarant,
14 a statement is not hearsay if it is offered as indirect or
15 circumstantial evidence of the declarant’s state of mind
16 such as to prove motive, knowledge, or good faith.”
17 And I think we could certainly argue there is all
18 three of those that apply. So what his knowledge was,
19 what his motive for doing what he did, and for his actions
20 and being in good faith.
21 And with regards to the State’s argument that this
22 is not timely, I think it is timely, because in State v.
23 Booth, a 1993 case, in a hearing in a sex abuse
24 prosecution, a three year old victim told her grandmother
25 and aunt, “Mommy said I can’t talk about my daddy.” The
ER-236
1 statement was not hearsay because it was not being offered

2 to prove its truth, but merely as circumstantial evidence
3 of the child’s state of mind at the competency hearing.
4 So, again. And there’s other cases that refer to not
5 referring to what the Defendant’s state of mind was at the
6 time of the event, but this hearsay exception, these
7 statements relate to talking about and describing at a
8 later event, much like the situation we have here where
9 statements were made. And there is no section where it’s
10 like okay nope, it has to be right at the time. I don’t
11 think the case law says that. I think it says that that’s
12 fair game any time in the course of the trial with regards
13 to statements made that go towards motive, knowledge, and
14 good faith.
15 And again, not for being used for the truth of the
16 matter asserted, but clearly to show what his mental state
17 was at the time the event took place. And I think these
18 are relevant statements that will go towards, again, why
19 he did what he did and what his motive was.
20 THE COURT: So if your client made a statement to
21 somebody yesterday about -- and it was something relative
22 to his state of mind last July, you could put that person
23 on the stand, that somebody to say what did Mr. Strickland
24 say, because it’s admissible as to his state of mind,
25 right? It’s not hearsay.
ER-237
1 MR. SHORT: Sure. Yeah. I mean, like for

2 example, in that case I just cited, that girl -- that
3 little girl was at that hearing. So, I mean, we have to
4 separate it. And that was a competency hearing whether --
5 THE COURT: Right.
6 MR. SHORT: -- you know, determining whether she
7 could testify in the trial. But assuming the court did
8 find she was competent and could testify, the argument at
9 the time was that those statements were being determined
10 whether they would be admissible in court. So assuming
11 she’s competent and those statements made presumably at a
12 later time could come in not for the truth of the matter,
13 but to show motive, intent, or knowledge. And of course
14 it goes both ways, depending on the witness and what --
15 what the State or the Defense is trying to seek.
16 THE COURT: All right. I’m going to --
17 MR. JACKSON: And, Judge, could I briefly respond
18 to that?
19 THE COURT: Yeah. Just as an aside, and it is an
20 aside, normally we just allow one lawyer to argue,
21 particularly in front of a jury. But we’ve been lax about
22 that in this case. So no, I’m happy. Go ahead.
23 MR. JACKSON: Okay.
24 THE COURT: And that goes both ways. So go ahead.
25 MR. JACKSON: Just to respond to that specific
ER-238
1 argument that they appear to be offering this to prove

2 motive, knowledge, or good faith. As I understand it, the
3 question of Detective Cavalli was, did -- did Mr.
4 Strickland say that he had received death threats just
5 generally at some point in the past. There is nothing to
6 connect any of that information to the specific people
7 that he’s dealing with in this case. And so I think there
8 is also a valid objection to relevance for that particular
9 information as it relates to any of the actual issues that
10 are being dealt with in this case.
11 Similarly to --
12 THE COURT: Let’s just deal with that part. Are
13 there going to be other questions which you believe will
14 tie up the death threats in some way?
15 MR. SHORT: Yes. In fact, that was a very narrow
16 question. And I can get into more specifics with regards
17 to...
18 THE COURT: No. That’s all right. I just wanted
19 to. Go ahead. I cut you off, Mr. Jackson. Anything else
20 you were going to say? I mean, I just wanted him to
21 respond to exactly that point. But you were going to make
22 another point I thought.
23 MR. JACKSON: Well, no. I think -- actually, I
24 think that was the point.
25 THE COURT: Okay. I’m going to proceed with a --
ER-239
104 Hearing 687
1 I’m going to treat this as a 104 hearing, so -- because I

2 think it will help me get a better understanding of the
3 admissibility of the evidence. So go ahead and ask a
4 question.
5 Do you have a series of questions along this --
6 MR. SHORT: I do.
7 THE COURT: -- along this line about your client’s
8 conduct or statements in the vehicle?
9 MR. SHORT: Yes.
10 THE COURT: Okay. Go ahead and ask him, and we’ll
11 treat this part as a 104 hearing and then we’ll come back
12 and rule on it.
13 MR. SHORT: Okay.
14 THE COURT: So answer the questions, Detective.
15 Go ahead.
16 MR. SHORT:
17 Q. Detective, when speaking to Mr. Strickland, did he
18 indicate to you that he feared for his life when he was --
19 when a crowd with flags and where people holding
20 flagstaffs were using those as weapons?
21 A. Yes.
22 Q. And did you ask him questions specifically if he drew
23 his weapon from his holster?
24 A. I did.
25 Q. And did he say that he did?
ER-240
104 Hearing 688
1 A. He said he did, yes.

2 Q. And did he tell you that he was surrounded by several
3 people, some of them holding flag -- or flagstaffs?
4 A. He did.
5 Q. Did he tell you that he had at one point his weapon at
6 them because he -- they kept advancing towards him?
7 A. Similar to that, yes.
8 Q. Did he also tell you that prior to the rally he had
9 recently received death threats on social media, and
10 because of those death threats he fears for his own
11 safety?
12 A. Yes.
13 Q. Did he talk about how he believes he might be a
14 targeted individual for what he does?
15 A. Yes.
16 Q. And did he tell you when he first arrived, that
17 certain protests at Pioneer Square, certain protestors
18 recognized him?
19 A. Yes.
20 Q. Did he also tell you that they started to insult him
21 and attempted to rally other people against him?
22 A. Yes.
23 Q. And did he tell you that he had his concealed weapon
24 with him the entire time from Pioneer Square?
25 A. Yes.
ER-241
104 Hearing 689
1 Q. And he indicated that it was concealed, it wasn’t

2 openly carried?
3 A. Correct.
4 Q. Did you ask him why he carried a concealed handgun or
5 why he carried one to the rally?
6 A. To the rally, correct. I did ask that question.
7 Q. And did he tell you that he carries concealed all the
8 time and routinely carries because he’s been receiving
9 death threats?
10 A. Correct.
11 Q. And did he tell you that he wanted to be able to
12 protect himself?
13 A. Yes.
14 Q. And protect himself if the rally got out of control?
15 A. Correct.
16 Q. Did you ask him if he could identify any of the
17 individuals that threatened him?
18 A. Yes.
19 Q. And was he able to tell you that most were wearing
20 scarves over their faces?
21 A. Correct.
22 Q. Did he describe one as being a heavyset individual
23 with the first name of Ben?
24 A. He did.
25 Q. Did he tell you that he did not know Ben’s last name?
ER-242
104 Hearing 690
1 A. Correct.
2 Q. Did he describe how the majority of the aggressors
3 were dressed like anarchists?
4 A. He did.
5 Q. And staffs that were thick wooden dowels?
6 A. Correct.
7 Q. Did he tell you that at the time of the -- the time of
8 the incident he believed that they were going to hit him
9 with the staffs and because of this he drew his weapon?
10 A. Yes.
11 THE COURT: All right. Hold on.
12 MR. SHORT: Okay.
13 THE COURT: I’m -- this is the -- this is a fair
14 representative of what you want to ask him about --
15 MR. SHORT: And then --
16 THE COURT: -- those questions?
17 MR. SHORT: -- just one more, two more here.
18 MR. SHORT:
19 Q. That he told you that he saw an angry crowd of
20 aggressors advancing towards him?
21 A. Yes.
22 Q. And then one more thing. That he could not turn his
23 back because he thought if he turned his back the crowd --
24 or those individuals would attack him?
25 A. Correct.
ER-243
Court’s Ruling on 104 Hearing 691
1 MR. SHORT: Okay. Those are all the questions.

2 THE COURT: This seems like classic inadmissible
3 hearsay to me, to be honest.
4 You know, I -- there are exceptions to prove
5 circumstantial evidence or exceptions or not hearsay for
6 the state of mind. They are defined by the cases set
7 forth in the Kirkpatrick treatise. And I believe it’s all
8 hearsay and inadmissible.
9 So I’ll treat the 104 hearing as an offer of proof.
10 The State has no objection to that, correct?
11 MR. JACKSON: No objection to the offer of proof,
12 no.
14 MR. TROTTER: Your Honor, since you said that we
15 can have both parties argue, I appreciate that.
16 THE COURT: Yeah, yeah, sure.
17 MR. TROTTER: I just want to clarify for the
18 record, is the finding based on the lack of immediacy,
19 that it’s not in the moment? Is that what the basis for
20 the --
21 THE COURT: The finding is, is that it does not
22 meet the definition of the exception or the definition of
23 hearsay. So it does not meet under either 803(3) or 801,
24 the definition of hearsay. It does not qualify. It’s
25 nonhearsay and it does not meet the requirements for the
ER-244
1 exception.
2 MR. TROTTER: Okay. And simply for the record, I
3 want to state that the argument from the Defense is that
4 these statements, these series of questions, particularly
5 the ones where Mr. Strickland was explaining why he
6 reacted in the way that he did, is clearly demonstrative
7 of his state of mind. Not as to whether those things are
8 true, but to why -- an explanation for why he acted as he
9 did. And our position is that under 803, there is an
10 immediacy requirement as clearly stated by the statute and
11 the case law. But under the exception that we have stated
12 under 801, there is no immediacy requirement. And it
13 clearly does -- our position is that it clearly does fall
14 within exception to explain his state of mind.
15 MR. SHORT: And I would add, Your Honor --
16 THE COURT: Well, and -- well, and I would say
17 that the exception -- or the exception -- the definitional
18 exclusion from hearsay to prove circumstantially the state
19 of mind of the declarant is a subset of really arguing
20 that it’s not -- that it’s offered for some purpose other
21 than the truth. And I think the 104 hearing establishes
22 that, in fact, these statements are offered for the truth.
23 MR. SHORT: Well, with regards to the certain
24 questions, maybe those could be limited, because I am just
25 kind of covering the whole bases. So if I limit certain
ER-245
1 questions to say okay, he received death threats in the

2 past and keep it to that. And so we could -- we could --
3 again, I’m not asking for the whole thing.
4 THE COURT: But you’re offered -- you’re offering
5 that not for some purpose other than to say that -- for
6 example, if you were trying to establish that the -- that
7 somebody could converse in English, you could offer it for
8 that purpose, where you’re offering it for a purpose other
9 than the truth of the matter asserted. If your client’s
10 primary language was something other than English. But
11 you are offering it for the truth of the matter asserted.
12 MR. SHORT: No, I’m not.
13 THE COURT: And you haven’t pointed to me or I
14 haven’t found any purpose, any relevant purpose other than
15 the truth of the matter asserted.
16 MR. SHORT: So I’m only offering it for, as
17 indirect or circumstantial evidence. So whatever the
18 Court as --
19 THE COURT: Indirect or circumstantial evidence
20 of?
21 MR. SHORT: Of the -- of the declarant’s state of
22 mind such as to prove motive, knowledge, or good faith.
23 So that’s the only reason, is to show not for the truth of
24 the matter, but to show his state of mind with regards to
25 motive, knowledge, or good faith. That’s the only reason.
ER-246
1 And that’s what it allows for in 801(3).

2 THE COURT: In this case the only evidence that
3 draws motive, knowledge -- from which motive, knowledge,
4 or good faith can be drawn is the truth of the matter
5 asserted.
6 MR. SHORT: Well, there’s lots of other evidence
7 out there where that can be inferred and make a reasonable
8 inference for that. What this particular evidence is
9 allowing for is just to say what his -- what his mental
10 state and to prove what he was again.
11 THE COURT: But it’s the truth of the statements
12 by the Defendant that you want to prove the mental state.
13 That’s the -- that’s the problem that you’re having.
14 MR. SHORT: Yeah, but not for evidence. I’m not
15 -- I’m only asking that it be used -- so it’s
16 circumstantial or indirect evidence, but not for to go
17 towards his state of mind. That’s it. But not to be --
19 MR. SHORT: Again, as it’s outlined in 801, it’s
20 not -- it’s a hearsay exception, but not to be used other
21 than to show what his state of mind was. That’s it. A
22 limiting -- a limiting purpose. It’s just like we would
23 ask for a limited jury instruction, this is the only
24 reason for it.
25 THE COURT: The ruling stands. Thank you.
ER-247
Defense Rests 807
1 MR. TROTTER: If I could go check?

2 THE COURT: Sure.
3 MR. TROTTER: I would say unlikely, but possible.
4 THE COURT: Sure.
5 MR. TROTTER: Your Honor, the Defense has no
6 further witnesses, and we do not have further testimony as
7 such. We rest.
9 Rebuttal case?
10 MR. JACKSON: Judge, in light of some of the
11 testimony that we’ve just received from Mr. Servo that, in
12 all candor, was a little unexpected to the State, I would
13 request an opportunity to speak with a witness that may be
14 able to provide testimony directly in rebuttal to that.
15 And so I don’t have that person available right now.
16 THE COURT: Okay.
17 MR. JACKSON: I will know by tomorrow morning, and
18 so I can report to the Court at 9:00 then.
19 THE COURT: All right. So let me ask -- well, let
20 me see the lawyers in chambers.
21 MR. JACKSON: Sure.
22 THE COURT: Off the record.
23 (A recess was had at 4:31 p.m. The following
24 proceedings occurred in open court at 4:42 p.m.:)
25 THE COURT: Okay, Mr. Trotter.
ER-248
Defense Objection to Court’s Ruling to 808
Allow State Rebuttal Witness

2 For the record, there was a discussion in chambers
3 regarding the State’s announced -- just announced intent
4 to call a witness in rebuttal on account of evidence
5 introduced by the Defense through a witness -- through
6 witness Jason Servo. It’s my understanding that Your
7 Honor has determined that he will allow for the State to
8 put on this evidence. I suppose first I guess we want
9 that on record.
10 THE COURT: Yeah. I’m going to allow the State to
11 put on that evidence.
12 MR. TROTTER: And the Defense objects on the basis
13 of it being a violation of due process right of Mr.
14 Strickland to a fair trial. In the State of Oregon, we
15 don’t have criminal cases, trial by ambush or unfair
16 surprise. And in this case the reason that the Defense
17 feels that that goes into play is that, as is normal
18 practice, we gave notice to the State of Mr. Servo’s
19 anticipated testimony and that -- even gave the general
20 content as to his testimony, that it would be on self-
21 defense, use of force. And we gave a C.V. resume weeks in
22 advance of trial. And there is --
23 THE COURT: Indeed they filed a motion in response
24 to that, yeah.
25 MR. TROTTER: Right. Yeah, there’s no question of
ER-249
1 notice.
2 THE COURT: Right.
3 MR. TROTTER: And so we even had, a week prior to
4 trial starting, we had a 104 hearing wherein we talked
5 about what Mr. Servo could and could not testify about.
6 And it was the Court’s ruling that he could testify about
7 use of force, defense tactics, specifically with firearms,
8 everything that he testified about today. And so --
9 everything he testified about today. And as such the
10 State had ample time to obtain an expert to testify about
11 those things.
12 And, in fact, in their case-in-chief they probably
13 had multiple witnesses with similar or -- similar
14 qualifications to Mr. Servo with their experience. They
15 could have introduced such evidence, they chose not to,
16 they rested. And now for them to be permitted by the
17 Court to call a rebuttal witness when there has been no
18 surprise as far as what should have been anticipated by a
19 person preparing for trial and cross-examination such as
20 this, for them to be allowed to call a rebuttal witness
21 where we haven’t received any resumes, we don’t even know
22 who the person is, what their training is, and to have
23 that ready to go tomorrow is -- is a violation of due
24 process rights to fair trial and we object.
25 THE COURT: Does the State wish to respond?
ER-250
1 MR. JACKSON: Well, Your Honor, we did litigate

2 some aspects of Mr. Servo’s testimony. We did not
3 actually have a 104 hearing, there was no evidence
4 presented. We talked in general terms about whether or
5 not he would premise that Mr. Servo was going to be called
6 or would be relevant to this case. Your Honor made some
7 rulings with regard to that. And my recollection of the
8 end of that hearing was that the Defense had indicated
9 that they would not be calling Mr. Servo to comment
10 directly on Mr. Strickland and his actions on July 7th,
11 that it would be more general use of force and defensive
12 tactics testimony. That we expected today and objected to
13 today, but that is what we expected.
14 When the testimony turned to the specific actions
15 of Mr. Strickland, and specifically the final opinion of
16 that witness of whether or not he thought Mr. Strickland’s
17 actions were reasonable or not, that was a complete
18 surprise to the State, that they were going to go there
19 and ask that question. And so that’s what we would like
20 an opportunity to rebut with our own expert.
21 THE COURT: All right. I believe that’s within
22 the Court’s discretion to allow. And I believe it’s
23 appropriate under all the circumstances in this case to
24 allow the rebuttal that the State proposes. So assuming
25 you can get your witness here tomorrow. And the State
ER-251
1 has agreed that as soon as they identify a witness or if

2 they do not identify a witness, either way they’ll let the
3 Defense know. And if the witness that they identify has a
4 resume or if they are able to get written information from
5 the Bureau of Police Standards and Training or from the
6 police agency that the witness works at about the extent
7 of the witness’s training, then they will provide that to
8 the Defense as soon as practical this evening.
9 MR. JACKSON: Yes, Your Honor.
10 THE COURT: Okay. Do you want to start at -- I
11 have an 8:30 civil motion, do you want to start at nine or
12 do you want 9:30?
13 MR. TROTTER: Nine-thirty.
14 MR. JACKSON: Yeah, 9:30.
15 THE COURT: Okay. All right. 9:30. So you’ve
16 got to clear the table. Thanks.
17 (Evening recess at 4:48 p.m.)
18
19
20
21
22
23
24
25
ER-252
**February 10, 2017** 812
State’s Rebuttal
Officer Rasmussen - D
1 ********************
2 February 10, 2017
3 (Trial - Day 5)
4 ********************
5 (9:59 a.m.)
6 THE COURT: Good morning. Thank you.
7 Please be seated.
8 We’re resuming in State of Oregon v. Strickland.
9 Is the State putting on a rebuttal case?
10 MR. JACKSON: Yes, Your Honor.
11 THE COURT: Okay. Call your witness.
12 MR. JACKSON: The State calls Ryan Rasmussen.
13 RYAN RASMUSSEN,
14 being called as a witness, was first duly sworn according
15 to law, was examined and testified as follows:
16 THE BAILIFF: Please have a seat. State your full
17 name and spell it.
18 THE WITNESS: My name is Ryan Rasmussen. I’m a
19 police officer at City of Gresham, that’s R-y-a-n
20 R-u-s-m-u-s-s-e-n.
21 THE COURT: Mr. Jackson, if you could just wait
22 one minute.
23 I just want to remind everyone in the audience,
24 there’s a large sign on the door that says other than
25 media or public access approved pursuant to Uniform Trial
ER-253
Officer Rasmussen - D 813
1 Court Rule 3.180, which has been given to Channel 6 and

2 the Oregonian, no one may operate any recording device or
3 any phone for any purpose in this courtroom, not being in
4 contempt of court.
5 You may continue.
6 MR. JACKSON: Thank you, Your Honor.
7 DIRECT EXAMINATION
8 BY MR. JACKSON:
9 Q. Officer Rasmussen, where do you work?
10 A. I’m a police officer with the City of Gresham.
11 Q. How long have you been a police officer for Gresham?
12 A. A little over 12 years.
13 Q. What did you do before that?
14 A. I was in the Marine Corps. I did a stint in between
15 the Marine Corps and being a police officer, I drove
16 armored cars.
17 Q. Okay. How long were you in the Marine Corps?
18 A. A little over four years.
19 Q. Did you receive training regarding the use of firearms
20 as part of your time in the service?
21 A. I did.
22 Q. Could you describe what some of that training
23 entailed?
24 A. I went to Marine basic, in San Diego in May of ‘99,
25 and then we -- I was an infantry individual so we went to
ER-254
1 school of infantry. Security forces was my primary job in

2 the Marine Corps, which dealt with firearms on a regular
3 basis. We guarded facilities around the Med. And then
4 after 9/11 I was deployable to the Mediterranean and we
5 guarded ships and ports for the continuation of my tour.
6 Q. Okay. And after you became a police officer -- well,
7 what year was it that you became a police officer for the
8 City of Gresham?
9 A. End of ‘04.
10 Q. 2004. Okay. And what kind of training did you
11 undergo in that capacity regarding firearms?
12 A. We go to pre-academy class where you are taught basic
13 firearms handling. You go to academy, where we do a
14 certain amount of firearms training, post-academy classes
15 again to qualify for our specific police department. And
16 then there’s continuation training when you are simply an
17 officer. You qualify and train twice a year.
18 Q. Okay. And is that training ongoing?
19 A. Correct.
20 Q. So you still engage in that training as a police
21 officer?
22 A. I do.
23 Q. Okay. When did you become involved with the Gresham
24 Police Department’s firearms training program?
25 A. ‘07/08, 2007/2008.
ER-255
1 Q. Okay. And what is -- what does that mean, the Gresham

2 firearms program?
3 A. So within the police department there are different
4 instructor disciplines, meaning there’s people that teach
5 EVOC, there’s people that teach -- which is driving.
6 Q. Okay.
7 A. Defensive tactics, that’s the use of -- use of force,
8 less lethal tools. And then there’s a firearms program,
9 which is responsible for teaching officers both new
10 officers and a continuation training instructing
11 specifically in the use of firearms.
12 Q. Okay. Are you also a field training officer for the
13 City of Gresham Police Department?
14 A. Until recently I was, yes.
15 Q. Okay. And what is that?
16 A. I was responsible for training officers once they came
17 out of the academy on the street. So they would graduate
18 the academy and they would go through several phases of
19 training in order to train them to be a solo officer so
20 that I would be a coach sitting next to them in a police
21 car and I would evaluate them throughout the day on calls,
22 I would assist them, I would instruct them on how
23 essentially to do their job. And then once they’ve
24 completed that task, they would be released solo. I did
25 that for a number of years.
ER-256
1 Q. And are you actually now responsible for the Gresham

2 Police Department’s firearms program?
3 A. I am.
4 Q. How long have you been in that position?
5 A. I took over the primary responsibility in early 2011.
6 I became our department’s lead firearms instructor.
7 Q. Okay. And how did your role change when you took that
8 title on?
9 A. So as the lead firearms instructor you’re responsible
10 for the overall program. You’re responsible for what is
11 taught, how it’s taught, coming up with a curriculum. I
12 teach a lot of our new officers that come in both pre and
13 post academy. I have developed and critiqued that
14 specific curriculum to make sure that they’re -- that my
15 officers are hitting the street and they know exactly how
16 to use their weapon and when to use their weapon and
17 they’re confident in using their weapon. And then I’m
18 responsible for maintaining current national standards.
19 So I am responsible for our program following what the
20 current trends are for the nation.
21 Q. And so along those lines, do you do research or attend
22 other trainings to learn what those national trends are
23 with regard to firearm training and safety?
24 A. I do. I follow a lot of the national trends on -- I
25 get updates on several sights, sort of what’s going on
ER-257
1 with the community of law enforcement, police officer use

2 of force community. I go to seminars, I continue my
3 training in that respect.
4 Q. And do you also attend trainings put on through the
5 NRA?
6 A. I am an NRA certified instructor, yes.
7 Q. Okay. And those NRA programs are open to civilians,
8 law enforcement, anybody really that wants to take them to
9 learn firearms safety?
10 A. Some of them are and some of them are not. There are
11 simply law enforcement specific firearms -- the NRA
12 teaches mostly firearms instructor courses, so that you
13 come there to learn how to teach more appropriately, and a
14 lot of those are specific to police. There are some that
15 are open to police and some type of security and
16 civilians.
17 Q. And you are certified -- a certified instructor for
18 the NRA as well?
19 A. I am.
20 Q. Okay. Now, you’re still currently the -- in charge of
21 the Gresham Police Department’s firearms program, right?
22 A. Yes.
23 Q. And so is it part of the training program for the
24 Gresham Police Department to instruct officers on the 21-
25 foot rule?
ER-258
1 A. We no longer teach that tactic. I’m aware of that

2 tactic and it was prevalent throughout the community for a
3 long time. We no longer teach it.
4 Q. Okay. How about use of force continuums, wheels,
5 pyramids, graphs of that nature?
6 A. I know in that realm that’s a defensive tactics realm,
7 that’s not necessarily a firearms realm. But I know that
8 our defensive tactics instructor, because I received
9 training from our defensive tactics individuals, they no
10 longer -- our department no longer uses any of those
11 matrix grids, wheels, anything.
12 Q. Okay. Do you know why that is?
13 A. It’s confusing. It’s confusing for both the officers,
14 citizens, and juries to follow all of those things. We’ve
15 gone to a reasonableness standard.
16 Q. Okay. And is that because the -- those charts or
17 graphs paint kind of a rigid set of circumstances in what
18 an appropriate response is, which doesn’t apply
19 necessarily to what’s happening on the street when you’re
20 out there?
21 A. Correct.
22 Q. Have you had a chance to observe a series of videos
23 concerning a demonstration that occurred on July 7th of
24 2016?
25 A. Yes.
ER-259
1 Q. In downtown Portland?
2 A. Yes.
3 Q. Okay. What I’m going to do, Officer Rasmussen, is
4 play portions of the video and ask you to discuss, based
5 on your training and experience as a firearms instructor,
6 what you’re observing and what you’re seeing, okay?
7 A. Okay.
8 Q. But before I do that, have you watched these videos in
9 their entirety?
10 A. No. You’ve shown me sections of these videos.
11 Q. Okay. And the videos that you observed or the
12 sections of the videos that you observed start before the
13 confrontation occurs and ends a few minutes after the
14 confrontation occurs, is that the section that you --
15 you’ve observed?
16 A. Yes.
17 Q. Okay.
18 (Video played for a few seconds - inaudible/indiscernible)
19 (Video paused)
20 MR. JACKSON:
21 Q. Okay, Officer Rasmussen, do you recall viewing this
22 video?
23 A. I do.
24 Q. Okay.
25 (Video continued playing - inaudible/indiscernible
ER-260
1 due to crowd of people speaking over each other and

2 yelling)
3 (Video paused)
4 MR. JACKSON:
5 Q. Okay. So did you hear what was just said in the
6 video, “You need to get the F out of here”?
7 A. Right. Yes.
8 Q. And so in this frame, what is it that you’re seeing?
9 A. I’m seeing several individuals, a crowd of people,
10 some of them in black and some of them look like they’ve
11 got flagpoles.
12 Q. Okay. And these individuals, do they appear to, at
13 least from what you can see in this frame, to be, at least
14 down to their midsection, all black, black masks,
15 obscuring their faces?
16 A. Yes.
17 Q. And there are a couple of them with flagpoles here?
18 A. Yes.
19 Q. Okay.
22 yelling)
23 (Video paused)
24 MR. JACKSON:
25 Q. Okay. And now the camera has kind of resettled. Do
ER-261
1 you see any of those same people that we saw in that

2 initial frame still in front of the cameraman?
3 A. I don’t know what this individual here to the left of
4 tan pants is, and that might be a -- I don’t know if
5 that’s a flagpole to the lower right of the screen.
6 Q. Okay.
7 A. But I don’t see anybody in complete black.
8 Q. Okay.
9 (Video continued for two seconds)
10 (Video paused)
11 MR. JACKSON:
12 Q. Let’s see. Now that I’ve played another second or two
13 are you able to better see what that is?
14 A. It looks like a sign. It looks like a sign.
15 Q. One of those foam board signs?
16 A. Yes.
17 Q. Okay. And so does that person holding that foam board
18 sign appear to have been one of those -- these midsections
19 we saw all black, face obscured?
20 A. No.
21 Q. No. Okay. So in terms of assessing threats and
22 risks, is it important to you in how you train people to
23 keep track of who has been a risk and who has not been a
24 risk to you or a threat to you?
25 A. Yes. There is a large amount of people here, but the
ER-262
1 initial threats that we’re concerned about, or that Mr.

2 Strickland is concerned about are fairly distinct in this
3 crowd.
4 Q. Okay. And these people standing in front of him now
5 are, or at least appear to be different people than the
6 people who initially approached him?
7 A. Yes.
8 Q. Okay.
9 (Video continued for a few seconds - inaudible)
10 (Video paused)
11 MR. JACKSON:
12 Q. Did you hear this person with the tan pants just say,
13 “Go away”?
14 A. Yes.
15 Q. Okay. And is there any -- well, let me phrase it this
16 way. As you’re perceiving what’s going on in front of you
17 and trying to assess the threat, is it important to listen
18 to what people are saying?
19 A. Yes, it is.
20 Q. Okay. And is there a difference between somebody
21 saying something like, “Go away,” and someone saying
22 something like, “I’m going to kill you or hurt you,” in
23 evaluating that?
24 A. Yes. It’s important to pair people’s, what they’re
25 telling you and their body language. Both are important.
ER-263
1 Q. Okay.
2 (Video continued playing for a few seconds -
3 inaudible/indiscernible due to crowd of people speaking
4 over each other and yelling)
5 (Video paused)
6 MR. JACKSON:
7 Q. Okay. Now, did you see this individual step in
8 between the cameraman, the person who is filming this, and
9 these two people that have been walking towards him?
10 A. Yes. You can very clearly see that that is a
11 cameraman.
12 Q. How does that change -- or why is that important to be
13 aware of as you’re assessing what’s happening in front of
14 you?
15 A. It places an innocent in between the individual that I
16 perceive or may perceive as a threat. So that creates a
17 barrier between the two of us.
18 Q. Okay. Is that important consideration to have when
19 you’re assessing how you’re going to react to a situation?
20 A. Yes.
21 Q. Did you also hear this individual coming around and
22 saying, “Stop, stop, stop, stop”?
23 A. (No audible response)
24 Q. I can play it again.
25 A. If you want to play it again, I don’t -- I didn’t hear
ER-264
1 that.
2 (Video replayed as follows:
3 (inaudible/indiscernible due to crowd of people
4 speaking over each other and yelling)
5 UNIDENTIFIED MALE: He’s got a gun. He’s got a
6 gun. He’s got a gun.
7 UNIDENTIFIED MALE: Hey, stop, stop, stop, stop.
8 (Video paused)
9 THE WITNESS: Correct.
10 MR. JACKSON:
11 Q. He said, “Hey, stop, stop, stop, stop”?
12 A. Yes. Behind tan pants, the individual said, “Stop,
13 stop, stop.”
14 Q. He appeared to be coming around (inaudible)?
15 A. Yes.
16 Q. Okay. How does that information -- or is that
17 information important in assessing the threat in front of
18 you?
19 A. Well, and now you’ve got a certain amount of citizen
20 involvement in this case where they are actually stepping
21 in and holding back people that are there. The crowd
22 essentially has identified aggressors in this and they are
23 trying to take some type of action upon themselves.
24 Q. And so did that lessen the threat?
25 A. It’s something to be aware of.
ER-265
1 Q. Something to be aware of. And also, do -- is it or is

2 it not important to pay attention to how the person you
3 are perceiving walking towards you responds to that
4 intervention?
5 A. Whether or not they stop or not, is that what you’re
6 asking?
7 Q. Yeah.
8 A. Yeah. I think he stops and there’s people
9 intervening, then that’s -- that’s also something that you
10 have to consider, yes.
11 Q. As opposed to like shoving those people out of the way
12 and --
13 A. Continuing forward.
14 Q. -- continuing to come on -- on to threat?
15 A. Yes.
16 Q. Okay. Now at this point, you see some people kind of
17 coming around to see what’s happening. I’ll withdraw
18 that.
21 yelling)
22 (Video paused)
23 MR. JACKSON:
24 Q. Okay. So now at this point, would you say it’s
25 important to pay attention to how the person that’s
ER-266
1 progressing towards you responds to the intervention of

2 the other citizens, right?
3 A. Yes.
4 Q. And so when you look at this frame here, what is it
5 that you see occurring?
6 A. I see a cameraman that has stepped in and blocked, and
7 then the same individual that was saying, “Stop, stop,
8 stop, stop,” has now stepped in to prevent tan pants from
9 advancing. And then the same individual that was telling
10 the cameraman to go away is staying there.
11 Q. Okay. And you see this person with the green jacket
12 on?
13 A. Yes.
14 Q. Here? Is his attention apparently directed towards
15 tan pants, as you’re calling him?
16 MR. SHORT: Objection, Your Honor, leading.
18 MR. JACKSON:
19 Q. Who does the person with the green jacket on appear to
20 be focusing on?
21 A. It looks like they’re all focusing on tan pants.
22 Q. Okay. Does anyone in this screen appear to be focused
23 on the cameraman, the person shooting this film?
24 A. I don’t know what the individual to the left is
25 looking at, but no one in this crowd of people, cameraman,
ER-267
1 green shirt and blue backpack are all focused on tan

2 pants.
3 Q. Okay. And you’re talking about this guy with the
4 multicolored -- you don’t know what he’s --
5 A. Correct. I don’t know what he’s focused on.
6 Q. Okay. Is that an important consideration when you’re
7 evaluating a threat that’s coming towards you?
8 A. Yes.
9 (Video continued playing as follows:
12 UNIDENTIFIED MALE: Get the hell back.
13 (Video paused)
14 MR. JACKSON:
15 Q. Now you can see -- well, I know this frozen frame is a
16 little bit blurry, but did you see the person shooting
17 this film handling a gun and the gun kind of come across
18 the screen?
19 A. Yes.
20 Q. Okay.
21 MR. SHORT: And, Your Honor, I’m going to kind of
22 renew the objection that we talked about a little while
23 ago with regards to the leading. And then what our
24 concerns were last time was showing the video and then
25 leading questions and then just asking for, in essence,
ER-268
1 confirmation to what’s already being said. So I would

2 renew my same objection for that last question.
3 THE COURT: Want to respond to the objection?
4 MR. JACKSON: Yes, Your Honor. Unlike last time
5 where that was a witness who was there, who was explaining
6 to the Court what he or she perceived in the moment --
7 THE COURT: Do you want to respond to the leading
8 objection? So are you responding to the objection,
9 leading?
10 MR. JACKSON: Oh, leading? I mean, I was just
11 confirming whether or not he saw that. I can --
12 THE COURT: Okay. Sustained. Ask a new question.
14 MR. JACKSON:
15 Q. What is it that you’re seeing in this frame, Officer
16 Rasmussen?
17 A. I’m seeing in this specific frame, I’m seeing a crowd
18 of people at an odd angle.
19 Q. Okay. And did it appear that this crowd of people had
20 stopped or were they continuing to come forward towards
21 the person shooting this film?
22 MR. SHORT: Objection, Your Honor. Same
23 objection, leading.
24 THE WITNESS: If you want to play it again --
25 THE COURT: Whoa, whoa, whoa. When there’s an
ER-269
1 objection you need to stop --

2 THE WITNESS: Yes, Your Honor.
3 THE COURT: -- until the objection is ruled on.
4 Sustained.
5 MR. JACKSON: Oh, okay.
8 MR. JACKSON:
9 Q. Does it appear that these people are moving?
10 MR. SHORT: Again.
11 THE COURT: Overruled.
12 THE WITNESS: They are moving, yes. The screen is
13 obviously frozen, but they are -- you can see that they
14 are reacting. They are all in various stages of movement.
15 MR. JACKSON:
16 Q. Okay. Which direction does it appear that they are
17 moving?
19 Q. Let me play it again.
20 (Video continued as follows:
23 UNIDENTIFIED MALE: Get the hell back.
24 (Video paused)
25 THE WITNESS: You’ve got some people that are
ER-270
1 stopped and you’ve got other people that are moving left
2 to right, and you’ve got some people that are moving away.
3 Q. Away from the person shooting the film?
4 A. Yes.
8 (Video paused)
9 MR. JACKSON:
10 Q. Okay, Officer Rasmussen, this is -- have you seen this
11 video?
12 A. Yes.
13 Q. Okay.
14 (Video playing - inaudible/indiscernible due to
15 crowd of people speaking over each other and yelling)
16 (Video paused)
17 MR. JACKSON:
18 Q. Okay. Who do you see in this frame standing directly
19 in front of Mr. Strickland?
20 A. I see tan pants and then a couple other individuals,
21 and then the cameraman is to the left. And then --
22 Q. There’s a cameraman over here?
23 A. Correct.
24 Q. Okay. Do you see any of the people with the head to
25 toe all black gear, mask obstructed, flagpoles in hand?
ER-271
1 A. I do not see a flagpole. I don’t know what this

2 individual, lower left center, I can’t tell, he’s wearing
3 something that looks black, but he doesn’t have a
4 flagpole.
5 Q. This person?
6 A. To the left.
7 Q. This person?
8 A. Correct.
9 Q. Okay. What about immediately in front of Mr.
10 Strickland?
11 A. No. I do not see that.
15 (Video paused)
16 MR. JACKSON:
17 Q. Now as you watched those few seconds continuing, how
18 many people does it appear are aggressing on Mr.
19 Strickland?
20 A. It looks like you’ve got two directly in front of him
21 and then cameraman and then a couple other people filming.
22 And then it looks like blue backpack is coming in.
23 Q. Okay, blue backpack?
24 A. Correct.
25 Q. This guy here?
ER-272
1 A. Yes.
2 Q. Okay. So two?
3 A. Yes.
7 (Video paused)
8 MR. JACKSON:
9 Q. And now what’s happened?
10 A. It looks like it’s still the same two people. Blue
11 backpack is coming up and it looks like he’s grabbing tan
12 pants. Mr. West there off to the far left, who films
13 routinely, is standing there. And then the cameraman is
14 in there as well.
15 Q. And how has the cameraman positioned himself with
16 regard to tan pants and Mr. Strickland?
17 A. From this angle, I don’t know. I know he is in there
18 somewhere, but I don’t know specifically where he is.
19 He’s in front of blue backpack. But I can’t tell his
20 distance from tan pants. He’s close to tan pants, but I
21 don’t know if he’s directly in front of him or off to the
22 side.
23 Q. Okay.
24 A. In this specific frame.
25 Q. Okay. When you say “him” are you talking about the
ER-273
1 cameraman or Mr. Strickland?

2 A. I’m talking about he’s -- the cameraman --
3 Q. Okay.
4 A. -- is in very close proximity to tan pants.
5 (Video advances a frame)
6 MR. JACKSON:
7 Q. Okay. Does this frame better show that, where he is?
8 A. It looks like he’s in between tan pants and Mr.
9 Strickland.
10 Q. Okay. And again, how does that play into your
11 evaluation of a threat you’re presented with?
12 A. Well, it’s the same argument as before with the other
13 -- with the other camera angles. It’s an individual that
14 has now stepped in front of, good decision or bad decision
15 based on the cameraman, but it’s something that you would
16 have to deal with. There is now an innocent in between
17 the individual, Mr. Strickland, and someone that he has
18 identified as a threat.
21 yelling)
22 (Video paused)
23 MR. JACKSON:
24 Q. What does it appear to you that this group has kind of
25 converged in here to the center of the screen, it is
ER-274
1 focused on?
2 MR. SHORT: Your Honor, object, calls for
3 speculation.
4 THE WITNESS: I don’t have a good view.
5 THE COURT: Hold on. Hold on.
6 THE WITNESS: You’re right, Your Honor.
7 THE COURT: Repeat the question. Don’t answer it.
8 MR. JACKSON: What does it appear to you, this
9 group converging into the middle of the screen is focused
10 on?
11 THE COURT: What’s your response to the objection?
12 The objection is speculation.
13 MR. JACKSON: That if he can tell or not, that if
14 he can tell from what he’s seeing in this video, where
15 their attention appears to be directed, that’s not calling
16 for speculation. I’m not asking him -- I’m just asking
17 him if he can tell whether these people are focused on a
18 particular individual or a different individual or what --
19 what he’s seeing, to describe what he’s seeing.
20 THE COURT: The objection is sustained.
22 THE COURT: Ask a new question.
24 (Video advanced two seconds - inaudible)
25 (Video paused)
ER-275
1 MR. JACKSON:
2 Q. Can you tell who these people in the center of the
3 street appear to be grouped with?
4 A. I can tell that they are in a group. I don’t -- from
5 that angle I can’t tell specifically who they are grouped
6 around. They are all in a cluster. That’s what I can
7 tell from that specific angle.
8 Q. Okay.
9 (Video playing as follows:
12 UNIDENTIFIED MALE: He’s pulling a gun out.
13 (Crowd yelling)
14 (Video paused)
15 MR. JACKSON:
16 Q. Okay, Officer Rasmussen, have you seen this video?
17 A. I have.
18 Q. Okay.
21 yelling)
22 (Video paused)
23 MR. JACKSON:
24 Q. Okay. And so what, if anything, of import in
25 assessing a perceived threat did you observe in that two
ER-276
1 or three second clip?

2 A. Could you ask that one more time?
3 Q. Sure. I’ll replay it.
4 (Video clip replayed - inaudible/indiscernible due
5 to crowd of people speaking over each other and yelling)
6 (Video paused)
7 MR. JACKSON:
8 Q. Did you see Mr. Strickland here?
9 A. Yes.
10 Q. And what did he appear to be doing?
11 A. At the beginning part of the clip he was, it looks
12 like he was trying to retain his camera, and then he was
13 talking to people in front of him, saying that, “They were
14 pushing and shoving me, they were pushing and shoving me.”
15 And then he indexed his firearm on his side there.
16 Q. Okay. And in your training and experience, how you
17 train people with regard to responding to threats, is it
18 important or not to -- well, let me ask it this way. Do
19 you train people to identify particular threats as like
20 kind of the first step in an engagement, to identify the
21 threat?
22 A. Yes. So we are routinely in the public and we are
23 responsible for identifying who is a threat and who’s not
24 a threat and then trying to track where those people are.
25 Our responsibility as police officers is to protect the
ER-277
1 public, so that’s our primary role. So we identify who’s

2 a threat and who’s not.
3 Q. Okay. And is it important to respond only to a threat
4 that you’re presented with immediately?
5 MR. TROTTER: Objection, leading.
6 THE COURT: Overruled. You can answer.
7 THE WITNESS: It’s important to respond to a
8 threat that I perceive as quickly as possible if I
9 perceive it as a -- as a threat. Based on what I am
10 seeing in front of me, it’s my responsibility to use my
11 training and experience to deal with or to address what’s
12 in front of me.
13 MR. JACKSON:
14 Q. Okay. And would it be appropriate to address a threat
15 that has occurred in the past? Bad question. Let me
16 withdraw that.
17 If you had an altercation with someone in one
18 particular place involving a person and then you move to a
19 different place with different people, would it be
20 appropriate to address your threat concerns from the
21 earlier encounter against the new people that you are
22 confronted with?
23 A. No. We’re constantly evaluating what’s in front of
24 us, what’s changed. Just because there was a certain set
25 of circumstances a minute ago doesn’t mean that those
ER-278
1 circumstances continue to exist. My role and my

2 responsibility when I’m going to display and use force is
3 to be constantly re-evaluating my decisions.
4 THE COURT: Hold on. Let me ask a question.
5 THE WITNESS: Yes, sir.
6 THE COURT: So sometimes those prior risks
7 continue and sometimes they don’t?
8 THE WITNESS: Yes, sir.
11 (Video continued playing as follows:
12 UNIDENTIFIED MALE: He’s got a gun.
15 (Video paused)
16 MR. JACKSON:
17 Q. Now, what is it that you see this individual in the
18 black do with his hand out here?
19 A. He’s standing there.
20 Q. Okay. And in this position, how much distance, if
21 you’re able to tell from this, how much distance does it
22 look like Mr. Strickland has from this individual here in
23 the black?
24 A. Ten feet.
25 Q. I’m sorry?
ER-279
1 A. Ten feet, give or take.

5 (Video paused)
6 MR. JACKSON:
7 Q. For the entire time Mr. Strickland has the gun out, do
8 you see anybody else walk into the frame towards Mr.
9 Strickland?
10 A. No.
13 yelling and screaming)
14 (Video paused)
15 MR. JACKSON:
16 Q. Now, in -- in your training and experience, when a
17 firearm is pulled in a situation, would you expect the
18 person who pulls the firearm, if they were appropriately
19 doing so, to stay in the same spot and loiter around the
20 same people he’s just pulled the gun on?
21 MR. SHORT: Objection, Your Honor, calls for
22 speculation.
23 MR. JACKSON: In his training and experience would
24 he expect somebody -- I’m sorry.
25 THE COURT: Yeah. I think that does call for
ER-280
1 speculation. I think the way that question is phrased

2 that calls for speculation.
4 MR. JACKSON:
5 Q. Officer Rasmussen, do you train people to pull their
6 guns on others when they are not in life threatening
7 circumstances?
8 A. No.
9 Q. You do not train people to do that?
10 A. I do not train people to pull their guns unless there
11 is a reason, meaning they’re -- they think that their life
12 is in danger or somebody else’s life is in danger.
13 Q. Okay. And so if that’s the circumstance where you
14 would train someone to actually pull their gun, would you
15 expect that person after re-holstering to just stand there
16 in front of the people he just pulled on?
17 A. No.
18 MR. SHORT: Objection, Your Honor. Again this
19 calls for speculation.
20 THE COURT: Um...
21 MR. SHORT: May I ask a question in aid of
22 objection?
23 THE COURT: Sure.
24 MR. SHORT: Officer, have you done any training
25 with civilians? Have you trained any civilians or is all
ER-281
1 of your training with the law enforcement officers?

2 THE WITNESS: My training is exclusive to law
3 enforcement.
4 MR. SHORT: Renew my same objection.
6 (Video played for a few seconds -
9 (Video paused)
10 MR. JACKSON:
11 Q. Officer Rasmussen, have you observed this video?
12 A. Yes.
16 (Video paused)
17 MR. JACKSON:
18 Q. Okay. So as the video played just now, what did you
19 see happening?
23 (Video paused)
24 MR. JACKSON:
25 Q. What do you see happening there in that clip?
ER-282
1 A. It looks like Mr. Strickland is backing up and he’s

2 creating distance between himself and the people that were
3 in front of him.
4 Q. And the people that were in front of him stopped
5 moving forward?
6 A. Yes.
7 Q. Okay. Is that an important consideration when
8 evaluating the level of risk and what the appropriate
9 response is?
10 A. Yes. If he’s asking people to get back and then they
11 stop and he’s able to create distance, yes, they’re doing
12 what he asked them to do.
16 (Video paused)
17 MR. JACKSON:
18 Q. Okay. Now, did you see this person between here?
19 A. Yes.
20 Q. Okay. Now, what -- seeing this person entering the
21 frame, has that changed your view of what’s happening
22 here?
23 A. Well, that individual, if he is perceived as a threat,
24 would be off to the left in the peripheral of Mr.
25 Strickland. I think -- I think throughout all of this,
ER-283
1 Mr. Strickland has correctly identified both of the

2 threats. From a police officer, if I was looking at this
3 same crowd through these cameras, he’s correctly
4 identified the individual to the left that’s in the
5 crosswalk there and then tan pants as the two kind of
6 threats within this specific set of circumstances.
7 Q. Okay.
11 (Video paused)
12 MR. JACKSON:
13 Q. As this video plays, how does Mr. Strickland react or
14 respond to those threats that he’s identified or that he
15 appears to have identified according to you in your
16 training?
17 A. So what he does here is he comes and he draws and he
18 addresses the threat, he engages and he points his weapon
19 at something that he has perceived as a threat. And then
20 he transitions, if you will, to another threat that he has
21 perceived in the crowd. And correctly so. He’s got --
22 he’s got the individual in the crosswalk and tan pants as
23 those two people. The -- the issue that I would see with
24 this is that there are a lot of civilians and there are a
25 lot of innocents between those two points. So if he’s
ER-284
1 addressed the individual to the left and then completely

2 flagged across, pointing his weapon at all of these people
3 to then address the tan pants, and then past tan pants and
4 all the way back to crosswalk again, that’s where the
5 unreasonableness of him pointing a gun at a crowd of
6 people comes in.
7 Q. Okay. And so how would you expect somebody -- now,
8 let’s strip away -- let’s strip away the innocents, as you
9 are calling them, or the people that have kind of come in,
10 and just talk about if he had one -- one perceived threat
11 here and one perceived threat here, how would you train
12 someone to address those two threats?
13 A. So in a sterile environment, meaning that there is no
14 other innocents within this area, I’ve got a threat here
15 and a threat here, and I’ve got a consistent backdrop
16 which is what we would have, if we have brick buildings.
17 It would necessarily be appropriate to go to -- and draw
18 -- I wouldn’t train police officers to point their guns at
19 somebody, but other departments do do that, that is --
20 that is within the industry, that’s something that other
21 police departments do. So drawing and addressing and then
22 transitioning to another threat is not unreasonable. With
23 no other innocents within the -- within the area that you
24 are pointing this gun. When you add in what we’re looking
25 at here with a crowd of 100 people plus all of the other
ER-285
1 innocents within that area, it would not be appropriate to

2 then draw -- I don’t even have a problem with Mr.
3 Strickland drawing and immediately addressing the
4 individual to the left.
5 Q. The person in the crosswalk?
6 A. In the crosswalk. He’s identified that as a threat
7 and correctly so, that that person could be a threat. So
8 he’s drawn and he’s addressed him. And then the issue
9 becomes when he is completely flagged across the entire
10 crowd of people, past tan pants, who he’s identified his
11 other threat and then completely flagged back the other
12 way, pointing a weapon at all of those people. That would
13 be inappropriate.
14 Q. And how do you -- you said that you don’t train your
15 people to react that way.
16 A. Correct.
17 Q. But how would you train somebody to handle that
18 situation?
19 A. Well, he’s using an older style -- so there’s --
20 within the firearms community there’s positions of ready,
21 if you will. So there’s -- your gun’s in your holster, or
22 there’s low ready positions. I mean, I’ve drawn my gun.
23 Older style of thought is that at a low ready -- can I
24 stand and use this?
25 MR. JACKSON: Is that all right, Judge?
ER-286
1 THE COURT: You can stand.

2 THE WITNESS: I have a blue gun. Is that
3 appropriate?
4 THE COURT: Uh...
5 THE WITNESS: To show positions of ready.
6 THE COURT: Sure. Yeah.
7 THE WITNESS: So this is a plastic gun. I still
8 won’t point it at anybody. So --
9 MR. JACKSON:
10 Q. It’s not actually a firearm though, right?
11 A. No. It’s plastic. It’s just shaped like a gun.
12 THE COURT: Right. Right.
13 THE WITNESS: Okay.
14 So older school of thought for position of low
15 ready is, I have drawn, because I perceive a threat and I
16 need to have my gun out so I can respond faster to the
17 threats that I’ve perceived. It’s also a show of force.
18 So in an older school of thought, which is what Mr.
19 Strickland is using, is he is at a low ready and sometimes
20 even a high ready, meaning that my gun is pointed in the
21 direction of what -- where I’m paying attention to, where
22 I’m addressing. That does a couple things. When you’re
23 in that position of high ready, you can’t really see
24 what’s below your sight, so where people become problems
25 and threats is what they’re doing with their hands. So
ER-287
1 when I’m a police officer and I’m addressing somebody that

2 I don’t know what’s going on, I’m not looking at their
3 face, I’m looking at their hands. So if I put my gun in
4 the position where I can’t see their hands, that’s a poor
5 use of my skills. That’s a poor tactic. Which is why as
6 an industry we’ve gone away from that. We’ve come to more
7 of a low ready, which is here. So my gun -- for a couple
8 of reasons: One, I can sustain this position for a long
9 period of time. I’m not pointing this gun at anybody. I
10 am able to clearly communicate with people. I can get in
11 -- I can talk to other officers, I can get a stick, and I
12 can do that when I’m not pointing it. I can maintain this
13 position and I can see all of the -- I have my entire
14 field of view. So this is the appropriate position that
15 we as police officers now train.
16 And then if I need to address somebody, I will
17 identify them, move directly to that threat, and then come
18 back and move to another threat. I would not address a
19 threat and then completely flag over to my threat. And we
20 train that routinely with multiple threats and threat
21 identification, where we’ll have, on the range, several
22 targets and they’ll all have target identifiers on them,
23 meaning there will be paper targets with numbers, letters,
24 shapes on them, and we’ll call either whatever those
25 identifiers are, and it’s the responsibility of the
ER-288
1 officer to engage that threat that’s called, scan with

2 their eyes where the next threat is, and then
3 appropriately move to the next threat, not flagging
4 the entire line. And we train that fairly
5 consistently.
6 MR. JACKSON:
7 Q. Okay. And what is the training that you do with
8 regard to being in that low ready position versus actually
9 pointing the gun center mass at a person?
10 A. If my officers are -- very rarely are my officers
11 going to point a gun at somebody and not shoot them. I’m
12 not going to say that never happens, and we’re trying to
13 get away from pointing our weapons at somebody that we
14 don’t have the authority to use legal force against, we’re
15 trying to get to the communicating with them at a low
16 ready, and then if we perceive a threat, punching out and
17 engaging that threat. We don’t indiscriminately point our
18 weapons at people.
19 Q. And that’s -- that’s the training?
20 A. Yes.
21 Q. So is it -- is it correct -- am I understanding
22 correctly that the officers are trained not to actually
23 point at a person until they’re pulling the trigger?
24 A. Correct.
25 Q. Okay. And so you said that in this video Mr.
ER-289
1 Strickland did address the man in the crosswalk,

2 right?
3 A. Yes.
4 Q. And then he sweeps at that cross. Now, how does
5 adding back in all of the innocents, as you called them,
6 changed the calculus on the reasonableness of these
7 actions?
8 MR. SHORT: Objection, Your Honor, asked and
9 answered.
14 (Video paused)
15 MR. JACKSON:
16 Q. Now, do you see here toward the end of this video -
17 (clip played - inaudible) -- so in that last couple of
18 seconds clip, could you see what Mr. Strickland did with
19 the gun, with the firearm?
20 A. Yes. He swept right to left and then he -- it looks
21 like he saw the individual to the left, who was initially
22 in the crosswalk, and then pointed the gun at him and then
23 brought it back down. So he came from a high ready
24 position, pointed it directly at that individual just
25 outside the crosswalk, and then dropped down to a lower
ER-290
1 ready.
2 Q. Okay. Now you said that in that first engagement when
3 the individual was in the crosswalk and he was in the
4 peripheral, you thought maybe it would be an appropriate
5 response to turn and engage that person, right?
6 A. It could be --
7 Q. Okay.
8 A. -- an appropriate response to turn and address that
9 specific person, yes.
10 Q. Okay. It could be. Now, though, is Mr. Strickland
11 re-engaging that person?
12 A. He’s readdressing him, yes. He’s pointing the gun
13 directly at him again.
14 Q. And how has the circumstance changed at this point
15 from how it was initially?
16 A. The individual has stopped, and it looks like he is
17 even walking away.
18 Q. Okay.
19 A. So the desired affect of pointing a gun at him
20 initially, that individual stopped and is walking away.
21 Mr. Strickland swept back and then re-addressed him.
22 Q. And pointed again?
23 A. Pointed again at him, yes.
24 Q. Do you believe that that is a reasonable course of
25 action to take in this circumstance?
ER-291
1 A. When the individual stopped, I wouldn’t point my gun

2 at him again.
3 Q. Would you train people to point their guns at that
4 person again in these circumstances?
5 A. No.
6 Q. Okay.
10 (Video paused)
11 MR. JACKSON:
12 Q. Okay. Now, Officer Rasmussen, you have -- sorry.
13 Just one second. Okay. So obviously you’ve watched these
14 videos, is this a still frame taken from one of the videos
15 we just viewed?
16 A. It is.
17 Q. Okay. And so because you’ve seen the video, you have
18 context for this still frame shot, right?
19 A. Yes.
20 Q. Okay. What are the cardinal safety rules for firearm
21 safety?
22 A. The four firearm safety rules are: Treat every weapon
23 is if it were loaded; never point a weapon at anything
24 you’re not willing to kill or destroy; keep your finger
25 off the trigger until you’re on target and ready to shoot;
ER-292
1 and be aware of your target and beyond.

2 Q. Okay.
3 A. There are variations of those, but those are the four
4 firearm safety rules.
5 Q. And so when you’re looking at this still frame, where
6 you see the hands, the butt of a gun pointing at this
7 group of folks, what is it that you are seeing here?
8 MR. SHORT: Objection, Your Honor. And renew the
9 narrative description of the video and then asking him
10 what he has seen.
11 THE COURT: Sustained. Ask a new question.
13 MR. JACKSON:
14 Q. How do the -- how does the cardinal rule of being
15 aware of your target and beyond relate to what you’re
16 seeing in this still frame here?
17 A. As a -- as a police officer, I’m seeing a number of
18 people in my backdrop and there’s a number of people in my
19 -- in the forefront of an individual that I have perceived
20 as a threat. I would not be pointing my gun at this crowd
21 of people, nor would I train my officers in this specific
22 instance to be pointing a gun in that manner.
23 Q. Okay. And when you say the threat, are you talking
24 about the person in the tan pants who is (inaudible) --
25 A. Correct.
ER-293
1 Q. -- this person?
2 A. Correct.
3 Q. How many people are -- appear to be around him and in
4 between the person with the gun and the threat?
5 A. Six. One, two, three, four, five. Five.
6 Q. Okay.
7 A. Five.
8 Q. And why is that an important consideration in this
9 particular circumstance?
10 A. The point of -- the point of drawing a gun and
11 addressing a threat is with the intention of eliminating
12 that threat. I have identified him that he’s -- he or she
13 -- is going to hurt me and by drawing my gun I’m -- with
14 the intent -- I have the intent of engaging that threat
15 and then shooting that individual. I can’t do that when
16 I’ve got five people that I have perceived as innocents.
17 As police officers our decision making is all based off of
18 priorities of life. So I’ve got hostages and innocents at
19 the top of that. Officers, suspects, and evidence. Those
20 are the defining decision-making characteristics that we
21 use as a police officer. So I am below hostages and
22 innocents. So my safety as a police officer is second to
23 the citizens that I’m there to protect. So if this is a
24 police officer, I am willing to accept additional risks by
25 not pointing my gun at innocents that I -- that my
ER-294
1 responsibility is to protect. I’m not going to do

2 that.
3 Q. You’re not going to do that. And, in fact, one of the
4 cardinal rule is to be aware of those type of
5 circumstances for that very reason?
6 A. Yes.
7 Q. And cardinal rules, do they apply only to law
8 enforcement, the cardinal firearm safety rules?
9 A. The cardinal firearm safety rules are something you
10 learn when you’re ten and you go to a hunting and safety
11 course. They apply to anyone who is going to handle a
12 weapon anywhere. That’s not specific to law enforcement.
13 That’s -- those are the rules when you handle a firearm,
14 everywhere.
15 Q. Okay. And so in this circumstance, do these five or
16 six people that you’ve identified here in the foreground,
17 do they appear to pose a threat?
18 MR. SHORT: Objection, Your Honor, calls for
19 speculation.
20 MR. JACKSON: It’s his opinion based on watching
21 exactly what they are doing. In his training and
22 experience as a firearms expert, do they --
23 THE COURT: Overruled. You can answer.
24 THE WITNESS: No. They do not appear to be
25 threatening in that picture.
ER-295
1 MR. JACKSON:
2 Q. And we’ve already established you have watched the
3 videos, you have context for this picture, right?
4 A. Yes.
5 Q. In the context of the video you’ve seen that this
6 still was taken from, does this group of people appear to
7 be a threat to the person wielding the gun?
8 A. No.
9 Q. Okay. Based on what you’ve seen here, would you
10 classify these five or six people as innocents?
11 A. Yes.
12 Q. Okay. So Officer Rasmussen, based on all of the
13 videos that you have observed concerning the events on
14 July 7th, 2016, and Mr. Strickland’s behavior, do you have
15 an opinion as a firearms expert as to whether the degree
16 of force Mr. Strickland displayed or used against all
17 these people was reasonable?
18 A. This was not reasonable use of force.
19 Q. What Mr. Strickland did --
20 A. Correct.
21 Q. -- on July 7th, 2016?
22 A. Correct.
23 MR. JACKSON: No further questions, Your Honor.
24 THE COURT: Cross-exam.
25 MR. SHORT: Just a point of clarification to go
ER-296
Officer Rasmussen - X 856
1 off what was just asked.

2 CROSS EXAMINATION
3 BY MR. SHORT:
4 Q. Officer Rasmussen, you did testify that it was
5 reasonable for him to identify the two assailants or the
6 two people he thought were assailants and that --
7 A. I think -- oh, go ahead.
8 Q. -- and that pulling his firearm was reasonable for
9 those two individuals, correct?
10 A. I think Mr. Strickland has properly identified the two
11 people that I would identify as the most threatening
12 within this crowd of people.
13 Q. Right. And displaying his firearm at those
14 individuals you said was -- you testified earlier, was
15 reasonable?
16 A. I testified that displaying it to the one individual
17 on the left when his line of sight was clear of innocents
18 could be considered reasonable in some circumstances. But
19 at no point during this would it be reasonable for Mr.
20 Strickland to point a gun at that group of people.
21 Q. I thought your testimony earlier was that he was -- it
22 was reasonable for him to identify the individual on the
23 left, the large male in black, and also identify the
24 individual that was wearing, in the tan pants, or the
25 brown pants?
ER-297
1 A. We posed a hypothetical where we changed the facts

2 where if it was strictly the individual on the left and
3 tan pants and no other innocents with a clear backdrop --
4 with a clear backdrop, it would be appropriate and
5 reasonable. But you add in all of the other people, all
6 of the other innocents, and that changes it to what we
7 actually are faced with here.
8 Q. And, Officer, you would agree with me that what -- an
9 individual that may seem to be non-threatening can become
10 threatening, correct?
11 A. In some circumstances, yes.
12 Q. Right. In some circumstance. And you know that
13 firsthand with personal knowledge, is that right?
14 A. Yes.
15 Q. You were involved in arresting an individual that got
16 confrontational and other individuals came and assaulted
17 you later, is that correct?
18 A. That’s happened a couple of times. I’ve been a police
19 officer 12 years, yes.
20 Q. Right. So while in the process of trying to take
21 control through verbal commands and arresting an
22 individual, what appeared to not be a threat by two or
23 three other teenagers did become a threat to you?
24 A. Are you referring to the people I arrested for riot at
25 (inaudible) and Stark?
ER-298
1 Q. Correct.
2 A. Okay.
3 Q. Right?
4 A. When someone transitions from arguing and then kicking
5 me in the face --
6 Q. Correct.
7 A. -- yes, that would be a threat.
8 Q. So he went from not being a threat to a threat almost
9 instantly?
10 A. It was fairly quickly, yes.
11 Q. Yes. And that can happen. Someone who you perceive
12 to not be a threat, within a matter of just a quick moment
13 can become a threat?
14 A. I still have to treat them as what I’m being perceived
15 with. I can’t make -- I can’t make decisions or judgment
16 or use force on what they may or may not.
17 Q. Right. But you’re a police officer.
18 A. That’s true.
19 Q. So let me talk about the difference between a police
20 officer and a -- and a civilian. There’s a difference
21 between the two, correct?
22 A. Yes.
23 Q. There’s a higher standard for a police officer,
24 correct?
25 A. Yes.
ER-299
1 Q. You have specialized training and experience that a

2 civilian doesn’t have?
3 A. Yes.
4 Q. Even a civilian with a concealed handgun license, it’s
5 a safe assumption to make that that individual has less
6 experience than a trained police officer?
7 A. Yes.
8 Q. All right. So a trained police officer has a higher
9 standard and higher expectations than a citizen?
10 A. Yes.
11 Q. Okay. Now, you haven’t trained a civilian in any type
12 of handgun course?
13 A. Not officially, no.
14 Q. And you have not trained with regards to the NRA basic
15 of personal protection outside of the home. Are you
16 familiar with that course?
17 A. No, I’m not. I’m sure it’s a course, but I have not
18 attended.
19 Q. Basics of -- okay. So you’re not familiar with that.
20 Are you familiar with the NRA defensive pistol course?
21 A. I think I’ve read a narrative of what that is, but
22 I’ve never attended it.
23 Q. All right. And these are for civilians, not for law
24 enforcement officers, correct?
25 A. Potentially, yes.
ER-300
1 Q. All right. So are you familiar with what they teach

2 and what the programs and protocols are for, for example,
3 the NRA Defensive Pistol Course?
4 A. I am not.
5 Q. Now, how much preparation did you have before
6 testifying today?
7 A. We had a --
8 MR. JACKSON: Objection, relevance.
9 THE COURT: What’s the relevance?
10 MR. SHORT: Let me withdraw the question.
11 MR. SHORT:
12 Q. What did you do in preparation for your testimony
13 today?
14 A. I reviewed some testimony, or I reviewed some video.
15 I reviewed several of the higher priority case laws that
16 police use for use of force. I reviewed the charges and
17 crimes that Mr. Strickland is being charged with. I had a
18 session with the DA on what he was going to ask.
19 Q. So how many hours have you spent preparing to testify?
20 A. Two hours.
21 Q. Two hours? Okay. And have you read any of the police
22 reports in this case?
23 A. I have not.
24 Q. Have you read any statements made by the individuals
25 that you see in that video?
ER-301
1 A. No.
2 Q. Have you heard any of the testimony that was given in
3 this trial about any of those individuals?
4 A. No.
5 Q. Have you testified before as an expert in firearm use?
6 A. Yes.
7 Q. And did you testify in front of a Grand Jury almost
8 exactly a month before this incident took place?
9 A. I don’t know the date.
10 Q. Okay. Would -- if I showed you something would that
11 help refresh your recollection?
12 A. Sure.
13 Q. Let me know when you’re ready?
14 A. It looks like June 8th.
15 Q. Okay. I was going to ask a question, but June 8th,
16 2016. Does that sound familiar?
17 A. Yes.
18 Q. Okay. Do you recall you testifying -- and you were
19 under oath in front of the grand jury, is that correct?
20 A. Yes.
21 Q. All right. When did you stop using any sort of matrix
22 system or diagram protocols for regards to use of force?
23 A. I don’t know the exact --
24 Q. Within your department?
25 A. I don’t know the exact date when our defensive tactics
ER-302
1 program went away from that. It’s been several -- it’s

2 been three or four years, maybe a little longer.
3 Q. Maybe longer. Okay. And you talked a little bit
4 about the use of force continuum or the use of force
5 triangle, the use of force -- I guess the continuum is
6 kind of like this loop?
7 A. It was a wheel.
8 Q. A wheel. There’s also a loop. Can you explain what
9 the loop is?
10 A. Well, there’s a decision making process called the
11 OODA loop --
12 Q. Okay.
13 A. -- that we use, that’s Observe-Orient-Decide-Act and
14 that’s the decision -- every decision you make you go
15 through those stages. So if I observe a threat, I have to
16 observe it, I have to orient to it, I have to decide what
17 I’m going to do with that information that I’m seeing and
18 I have to act upon it. So that’s -- that’s not a use of
19 force thing, that’s a simple decision-making process.
20 Q. A decision-making process that is used to determine if
21 an action is reasonable, correct?
22 A. Correct.
23 Q. So it’s O-O-D-A loop, correct?
24 A. Correct.
25 Q. And -- and that’s part of your decision-making process
ER-303
1 is what you said?

2 A. That’s part of the police officer’s decision-making
3 process, it’s part of the threat’s decision-making
4 process. That’s how we’ve trained that.
5 Q. Okay. So if you have an individual and that person is
6 determined to hurt you, and you have to make it so that --
7 and they’ve made a decision or you think they (inaudible)
8 to hurt you, then you already go through this OODA loop in
9 your mind, correct?
10 A. It’s a continuous loop, based on what you’re -- what
11 you’re seeing.
12 Q. Okay. So when they decide to try to hurt you, you
13 have to do a few things, correct? You have to perceive
14 their action. You have to look for any presenting of any
15 weapon, advancing or advancing towards you. Are those all
16 things that you would consider?
17 A. Those are things that you would perceive, correct.
18 Q. Perceive. And --
19 A. Observe in this.
20 Q. Observe. And then decide what your action is going to
21 be then at that point, and then (inaudible -- away from
22 microphone).
23 A. Correct.
24 Q. Now, in preparation for your testimony and giving an
25 opinion today, that opinion is watching the videos this
ER-304
1 morning, correct?
2 A. Yes.
3 Q. Did you do anything else in preparation besides
4 watching the videos to reach your conclusion or to reach
5 your opinion?
6 A. I watched the videos and I had a discussion with the
7 DA.
8 Q. Okay. Tell me if this is a correct statement. When
9 there’s a command that’s given and you engage a threat,
10 it’s about a second and a half to two seconds before they
11 are able to produce a weapon, and there’s a lot that can
12 happen in two seconds, and that’s that reactionary gap on
13 a decision that’s already been made. Would you agree with
14 that statement?
15 A. Say that one more time.
16 Q. Sure. That even when they get a command off you or
17 anybody, any law enforcement or any civilian, it’s about a
18 second and a half or two seconds before they’re able to
19 produce their weapon. And there’s a lot that can happen
20 in two seconds and that’s the reactionary gap on a
21 decision that’s already been made?
22 A. What you’re referring to is action versus reaction.
23 Police officers, as a rule, are reactionary individuals,
24 so we have to account for that. What you’re talking about
25 is I -- I as a police officer am behind the curve, because
ER-305
1 I have to perceive what somebody’s doing, react to it.

2 Where the other individual that could potentially be the
3 threat has already -- he’s already halfway through, or
4 she, is already halfway through their loop, so they’re
5 faster than me, which is I it’s a reactionary -- which is
6 why the term “reactionary gap” is there, because I have to
7 take into account that that individual is going to be
8 faster than me. Because I have to perceive them, change
9 from not a threat to a threat, and then make decisions and
10 act.
11 Q. Well, Officer Rasmussen, it’s not an easy decision
12 when there is -- is what you’re getting at, because there
13 might be individuals that already decided -- made up their
14 mind to hurt you, (inaudible - away from microphone) but I
15 still have to go through, if I’m defending myself and I’m
16 armed, I still have to go through the process to decide,
17 do I pull it out, how do I defend myself and in what
18 manner, correct? Those are split second decisions?
19 A. Yes.
20 Q. So if you’re telling somebody to stop and they still
21 advance, that is something that you’re going to factor in,
22 correct?
23 A. Well, I’m a police officer giving somebody a lawful
24 order.
25 Q. Right.
ER-306
1 A. So that is something that would be -- that was

2 something that would play into this, yes. I -- I need to
3 be in a position to give -- that’s why it’s called a
4 lawful order. If I’m just a police officer and I’m
5 telling somebody to stop and I have no reason or authority
6 to do that, then it’s obviously not appropriate. But when
7 I’m telling somebody to stop, that is a lawful order and I
8 have reasons for that.
9 Q. Right. Now, if you’ve been assaulted or if you’ve
10 been pushed or shoved or if you’ve been accosted, however
11 you want to describe it, and that individual is not
12 backing up, you’re going to factor that in as to that
13 person’s seriousness or their intent to hurt me, correct?
14 A. Yes.
15 Q. So if you’re telling an individual to stop, whether
16 it’s a police officer or a civilian, and you perceive a
17 threat and that person is not listening to you, right, and
18 they are still advancing and they go around a barrier,
19 would you agree that that shows that that person is not
20 trying to flee, but they are intent on possibly causing
21 you harm?
22 A. Yes.
23 Q. And you have so testified exactly as to that almost,
24 correct?
25 A. Yes.
ER-307
1 Q. And you would agree that there is no set distance with

2 regards to how a threat can be perceived, correct?
3 A. Correct.
4 Q. And you testified to that as well, that there is no
5 set minimum or maximum distance where a threat can be
6 realistic?
7 A. Correct.
8 Q. So you don’t say six feet and then you can use lethal
9 force. And there’s not any acceptable standard in regards
10 to distance. So it takes everything you are seeing to
11 make that decision. So, again, it’s that totality of
12 circumstances, correct?
13 A. That’s correct.
14 Q. All right. Handguns by their very nature are a
15 defensive weapon, do you agree with that statement?
16 A. It’s a statement I made.
17 Q. And they can act as a deterrent to prevent a
18 threatening situation?
19 A. I typically don’t use my weapon as a deterrent.
20 Strictly as a deterrent, I don’t use my weapon.
21 Q. Your uniform also acts as a deterrent?
22 A. It would be presence, correct.
23 Q. Now that -- and we’ll get into that in just a second.
24 You would also agree with me that fine motor skills are
25 diminished in stressful situations?
ER-308
1 A. Yes.
2 Q. Okay. So, and you don’t know the level of stress that
3 an individual has, that clearly calls for speculation,
4 correct?
5 A. Correct. I can’t testify to somebody else’s mental
6 state or stress.
7 Q. Or the stress?
8 A. Correct.
9 Q. But you do know that if you are in a situation where
10 you have to use lethal force or some type of physical
11 force to defend yourself, you would agree that’s a
12 stressful situation?
13 A. Yes.
14 Q. And that could affect your fine motor skills?
15 A. Yes.
16 Q. Officers are trained to give verbal commands before,
17 during, and even after -- well maybe not after, but during
18 and especially before any sort of force is used. It’s
19 encouraged to make sure there’s always verbal commands?
20 A. We train to attempt a warning if it’s feasible.
21 Q. And in a perfect world you would give commands,
22 warnings, orders, before any use of force, but sometimes
23 that’s not necessary?
24 A. In a perfect world I wouldn’t have to use any force at
25 all.
ER-309
1 Q. So, if I’m telling someone to stop, you’re basically

2 doing it for a reason, correct?
3 A. Yes. That would be I’m giving them a lawful order to
4 stop.
5 Q. Right. And a lawful order doesn’t necessarily mean
6 that you have to be a police officer to give someone an
7 order or a command?
8 A. Me being a police officer, I have the authority to
9 tell somebody to stop.
10 Q. I know you do, but let’s talk about the difference
11 between a police officer and a citizen who has a concealed
12 handgun license. They also have the authority, as a
13 citizen, to say stop, if they (inaudible - away from
14 microphone), correct?
15 A. I wouldn’t be able to speak definitively on where
16 those lines are as to a civilian telling somebody that
17 they need to stop. I don’t know.
18 Q. So you don’t know. But your testimony today is that
19 you give an opinion as to what a civilian is doing and
20 what that civilian can do?
21 A. My testimony today is in the handling of a weapon and
22 pointing that at a crowd of people and whether or not that
23 is reasonable or not, given my training and experience,
24 not whether or not he has the lawful command to tell
25 people to stop.
ER-310
1 Q. All right. Did you watch the first part of Mr.

2 Strickland’s video?
3 A. I did.
4 Q. All right. And were you aware of the situation and
5 did you see the individuals that were near him?
6 A. Yes.
7 Q. And did you also see Mr. Strickland use a tripod to
8 defend himself as he was backing up?
9 A. I couldn’t see the tripod, but I could see what -- I
10 could see that there were people around him that he was
11 telling them to back up and that he was backing out of
12 that situation.
13 Q. Okay. So you did not see a tripod?
14 A. I don’t believe I saw a tripod in that video.
15 Q. All right.
16 (Video played - inaudible/indiscernible due to
17 crowd of people speaking over each other and yelling)
18 (Video paused)
19 MR. SHORT:
20 Q. Did you see something that was in his hand that he had
21 down lower, were you able to catch that?
22 A. Yes.
23 Q. Okay. And were people advancing towards Mr.
24 Strickland when he had lowered that tripod?
25 A. By lowered, you mean pointed it or by raising it?
ER-311
1 Q. By pointing it down towards...

2 A. He was backing up and, yes, there were people walking
3 towards him.
4 Q. And did he make -- he was backing up the entire time
5 until he pulled out his weapon, correct?
6 A. Yes.
7 Q. And when he used -- when he lowered that tripod and
8 you saw his video saying, “Back away, leave me alone, stop
9 hitting me,” that sort of thing, correct?
10 A. Yes.
11 Q. They were still advancing towards him. And you don’t
12 see the individuals in that video that are advancing
13 forward, at least initially, correct?
14 A. In this video right here you do not see the same
15 individuals, correct.
16 Q. Now that didn’t work. The use of the tripod as a
17 defense -- as a weapon to get them to back off didn’t
18 work, it didn’t get them to stop advancing towards him,
19 correct?
20 A. It looked like it got the initial people to stop
21 because the people in black with flagpoles stopped, and a
22 different group of people.
23 Q. And a different group of people, where it’s unknown if
24 they could be a danger, and that could change in a split
25 second, correct?
ER-312
1 A. Yes.
2 Q. But that didn’t work. More individuals coming towards
3 him and he continues to back up, correct?
4 A. Correct.
5 Q. Then at some point in that video, you saw him display
6 his firearm, it was in his holster on the side, correct?
7 A. Yes.
8 Q. And as he’s displaying that holster and the firearm,
9 he’s also telling them to back off, and they don’t back
10 off, correct?
11 A. Correct.
12 Q. Right. So he’s done two things now to try to prevent
13 this group of people from advancing towards him: He’s
14 used a tripod, now he’s displayed a firearm. I’m not
15 asking for you to speculate, but it would be a safe
16 assumption to assume that these individuals have an
17 interest in maybe causing him harm, because they haven’t
18 stopped when he’s displayed the firearm.
19 MR. JACKSON: Objection, that does call for
20 speculation.
21 THE COURT: Want to respond to the objection?
22 MR. SHORT: Based on your training and experience?
23 If I rephrase the question?
24 THE COURT: All right. Well, the objection to the
25 question that was asked is sustained.
ER-313
1 MR. SHORT:
2 Q. Based on your training and experience, Officer -- and
3 again, it’s difficult, but would it be on your personal
4 experience, displaying a firearm, would that usually have
5 a deterrent effect and usually cause people to stop
6 advancing?
7 A. In some instances, yes.
8 Q. And in other instances would it cause you concern if
9 you displayed a firearm and they continued to approach
10 you?
11 A. I think you need to listen to what people are saying.
12 In all of these circumstances you need to take that into
13 account.
14 Q. Thank you. It’s a totality of the circumstances?
15 A. Yes.
16 Q. We would agree on that. Now, you would agree with
17 this statement, you are allowing that person to see a
18 situation, process it, give his or her emotions and his
19 fears, or her fears, because we’re all afraid, but we’ve
20 all made decisions based on what we’re seeing and we make
21 decisions under stress. Would you agree with those
22 statements?
23 A. Yes.
24 Q. Okay. Would you also agree with me that the number
25 one indicator that an individual is either debating or
ER-314
1 deciding on whether to hurt you is when there is a non-

2 compliance with a simple command?
3 A. A lawful order, yes.
4 Q. A lawful order. And that doesn’t necessarily have to
5 come from a uniformed police officer.
6 A. In my context and the context of that --
7 Q. In your context.
8 A. Yeah, in that --
9 Q. When you’re applying your context as a police officer
10 to a civilian, you have a higher standard than a civilian,
11 correct?
12 A. And the testimony that you’re referring to and you’re
13 from is a context of a police officer making a decision,
14 and a police officer giving an order. And as a police
15 officer giving a lawful order in a situation where I tell
16 somebody to do something and they don’t do it, that is an
17 indication, number one indication that they are debating
18 on harming me. And that’s how I train my officers.
19 Q. Perfect. That shouldn’t be any different than a
20 civilian, correct?
22 Q. If a civilian perceives a threat and makes a command
23 and says, “Stop advancing towards me,” why is that any
24 different than a police officer?
25 A. There is a debate on whether or not a citizen in
ER-315
1 certain circumstances has the authority to tell somebody

2 else to stop. In some situations that would be yes. In
3 others you don’t -- civilians wouldn’t have the authority
4 to give somebody else an order.
5 Q. Is it your testimony that if a civilian perceives a
6 threat of harm, that they wouldn’t be allowed to make a
7 command to say, “Stop advancing towards me”?
8 A. In that specific instance --
9 Q. Yeah.
10 A. -- they would be able to give a command.
11 Q. Thank you. Are you familiar with the 2016 Training
12 and Use of Force Report and Recommendations by the
13 Portland Police Bureau?
14 A. No.
15 Q. (inaudible - away from microphone). Have you read
16 this?
17 A. No.
18 Q. Are you familiar with -- well, now you testified that
19 you are familiar with a lot of other agencies, that you
20 get national updates, but I assume it’s even more the case
21 when you’re talking about local agencies. You’re probably
22 more familiar, even more so with them than you are with
23 national, correct?
24 A. I know that the local agencies and I all go to the
25 same courses and we try and stay consistent, with
ER-316
1 consistent training.
2 Q. You try to stay consistent within -- like among the
3 agencies?
4 A. Correct.
5 Q. Do you know a Lorraine Anglenear (phonetic)?
6 A. The name doesn’t sound familiar.
7 Q. With DPSST?
8 A. I don’t know.
9 Q. With regards to use of force training. Have you
10 ever...
11 A. That doesn’t -- no, it does not.
12 Q. And have you received any training with regards to the
13 definition of physical force or deadly physical force, and
14 where have you received that training from?
15 A. Well, physical force and -- well, deadly physical
16 force was kind of a blanket statement of someone who is --
17 or an individual you perceive is either going to harm you
18 or kill you.
19 Q. And you would agree with me that this definition does
20 not require -- or your definition doesn’t require a person
21 to be armed to present a threat of deadly physical force?
22 A. Correct.
23 Q. So you don’t have to be armed to present a threat of
24 deadly physical force?
25 A. That’s correct.
ER-317
1 Q. And that’s consistent with the training that you

2 received and possibly (inaudible - away from microphone)?
3 A. Yes.
4 Q. What does it mean to say that an officer was justified
5 or that it was a justified shooting? And how is that
6 different from self-defense?
7 A. In the police world for a justified -- to deem a
8 shooting within policy, is probably how we would word it,
9 is that we’ve reviewed all of the facts, reviewed all of
10 the video, reviewed everything around that incident, and
11 then taken our policies and reviewed if it was within that
12 policy. If it was not, it would be out of policy. If it
13 was within our policy we would deem that a justifiable
14 shooting, or within policy.
15 Q. And are you familiar with the DPSST -- again, I know
16 you consulted with some -- some reports in preparation for
17 your testimony, but are you familiar with the DPSST
18 training when it comes to use of force?
19 A. I’ve reviewed it. Not in preparation for this
20 testimony.
21 Q. Okay. Does this look familiar?
22 A. Yes.
23 Q. It does?
25 Q. Do you have this in your office?
ER-318
1 A. I’ve probably got it in a bin in my basement.

2 Q. Okay. I’m showing you a police officer field training
3 manual, correct?
4 A. Correct.
5 Q. All right. Use of force options. And this is, of
6 course a higher standard, but presence, right, that’s the
7 first step?
8 A. Yes.
9 Q. Verbal skills, verbal commands, request, correct?
10 A. Yes.
11 Q. Commands and orders, physical contact or non-
12 custodial touching, and the use of chemical agents, baton,
13 after the counter-measures and then use of a firearm for
14 other forms of deadly force.
15 A. Yes.
16 Q. It sounds a lot like a use of force continuum,
17 correct?
18 A. That’s the basis of that, the principle of the use of
19 force continuum, yes.
20 Q. And this is still taught at DPSST.
21 A. Okay.
22 Q. I’m sorry, yes or no?
23 A. Yes.
24 Q. Yes. Still taught with all you uniformed officers
25 that go through DPSST training?
ER-319
1 A. That continuum? Yes.

2 Q. Yes. Okay. So it is still being used and taught here
3 in Oregon?
4 A. Yes.
5 Q. For all officers?
6 A. Yes.
7 Q. Are you also familiar with Portland State University?
8 Do you ever have any interactions with law enforcement at
9 PSU?
10 A. I do not, no.
11 Q. Okay. Have you studied or -- again, it’s kind of a
12 local agency.
13 A. Right.
14 Q. I’m assuming you’re familiar with some of their
15 programs.
16 A. I’m familiar where they have recently transitioned
17 from security to a police agency.
18 Q. Yeah.
19 A. That’s the limit of my --
20 Q. Okay.
21 A. -- knowledge of them.
22 Q. So it’s been a recent change. So that law enforcement
23 agency is probably going to be up to date and up to speed
24 with current events, correct?
25 A. I don’t -- that’s a very political entity
ER-320
1 transitioning from security to police, so I wouldn’t be

2 able to make that determination as to where --
3 Q. Not politics, I want to get away from the politics. I
4 just want to say as someone who runs the Gresham Police
5 Department, would you be familiar with their recent --
6 well, you are familiar with their recent change, that they
7 have a police force?
8 A. I’m familiar with that they have recently become a
9 police department. I’m not familiar with whether or not
10 they have complete up to date and are using the most
11 nationally recognized tactics and training.
12 Q. Is it fair to say that if they just started a police
13 force that they would incorporate some of those most
14 recent --
15 MR. JACKSON: Objection, Your Honor. He’s just
16 testified he’s not familiar with the program at PSU. Lack
17 of personal knowledge here.
18 MR. SHORT: I’ll withdraw the question.
19 THE COURT: Okay.
20 MR. SHORT:
21 Q. Officer Rasmussen, would you take a moment and look at
22 that?
23 A. It’s a use of force matrix.
24 Q. Okay. And what was it from?
25 A. Portland State University.
ER-321
1 Q. And so of the agencies involved, that’s not one you

2 are familiar with?
3 A. No.
4 Q. Okay. Does it appear that they use a use of force
5 continuum?
6 A. They have made the decision to use a use of force
7 matrix.
8 Q. I said I wouldn’t get into politics, but one question.
9 The use of force continuum, it’s not being used anymore
10 partly because it can be used against a police officer and
11 can confuse a jury in civil cases in officer involved
12 shootings, correct?
13 A. It’s not being used anymore because it was difficult
14 to understand under testimony.
15 Q. Under testimony?
16 A. Of a wide variety of things, civil, criminal.
17 Q. And one of those variety of things could be in a civil
18 context when you’re being sued for potential unlawful use,
19 that that is something that could confuse a jury?
20 A. Yes.
21 Q. And that’s one deciding factor why it’s not continued
22 anymore?
23 A. Correct.
24 Q. I’ll show you some of these. And I’m assuming you’re
25 probably going to be familiar with some of these
ER-322
1 surrounding agencies and their use of force, which sounds

2 similar to what you’re involved in doing with the City of
3 Gresham: The City of Sherwood, Tigard Police Department,
4 Oregon City Police Department, Tualatin Police Department,
5 Washington County Sheriff’s Office, Multnomah County,
6 Oregon, plan regarding use of deadly force, use of deadly
7 physical force, Multnomah County, Portland Police Bureau,
8 Gresham Police Department, Troutdale, Fairview, Port of
9 Portland, Oregon State Police, the Portland Police Bureau
10 Use of Force. Are you familiar with some of those?
11 A. I deal with Multnomah County a fair bit.
12 Q. What about any other agencies, have you had any --
13 A. I’ve talked to Portland and I use some of Portland’s
14 policies within our own policies.
15 Q. And what other agencies are you familiar with?
16 A. Those are the two that I’m familiar with that I work
17 with the most.
18 Q. Okay. Now, you testified that you are familiar with
19 other agencies, what other agencies are you familiar with?
20 A. I deal with Multnomah County, I deal with Portland,
21 and I deal with Clark County, and Vancouver a fair amount.
22 Q. Okay. Now, your testimony was consistency among the
23 agencies, correct?
24 A. Correct.
25 Q. And there has been a move from going from the matrix
ER-323
1 to a reasonable person standard, is that -- is that --

2 A. Yes.
3 Q. -- a fair summary of your testimony?
4 A. Yes.
5 Q. And, again, we’re talking about a higher standard put
6 on officers than civilians, but do you agree with this
7 statement: “Officers shall only -- shall use only that
8 amount of force that reasonably appears necessary given
9 the facts and circumstances perceived by the officer at
10 the time of the event to accomplish any sort of
11 enforcement purpose, or a legitimate law enforcement
12 purpose”?
13 A. Yes.
14 Q. “The reasonableness of force will be judged from the
15 perspective of a reasonable officer on the scene at the
16 time of the incident,” correct?
17 A. Yes.
18 Q. “And any evaluation of reasonableness must allow for
19 the fact that the officers are often forced to make split
20 second decisions about the amount of force that reasonably
21 appears necessary in that particular situation”?
22 A. Yes.
23 Q. “With limited information and in the circumstances
24 that are intense, uncertain, and rapidly evolving”?
25 A. Yes.
ER-324
1 Q. Correct. So are you familiar with protests? Have you

2 handled any protests?
3 A. In Gresham we do not deal with protests very often.
4 Q. Have you handled any protests?
5 A. I have not.
6 Q. You have not?
7 A. No.
8 Q. So you’re unfamiliar with handling or supervising or
9 performing any security with protests?
10 A. Correct.
11 Q. Have you ever had experience with mob issues or large
12 groups of individuals?
13 A. I did some training in the Marine Corps for crowd
14 control training would be, yes.
15 Q. Would you agree with the statement that, “Officers may
16 find it more effective or reasonable to improvise their
17 response to rapidly unfolding conditions that they are
18 confronting”?
19 A. Want to read that again?
20 Q. Sure. “Officers may find it more effective or
21 reasonable to improvise their response to rapidly
22 unfolding conditions that they are confronting”?
23 A. Yes.
24 Q. Now, the factors to determine the reasonableness of
25 force, would you agree with this, that there is the
ER-325
1 imminency or severity of the threat to the officer, is

2 that an important factor?
3 A. Yes.
4 Q. The conduct of the individual that’s confronting the
5 officer. The officer’s subjective factors: age, size,
6 strength, skill level compared to the individual?
7 A. Yes. You’re talking about officer versus threat
8 factors, we still teach and train that today.
9 Q. And the officer being by himself or with other
10 officers (inaudible - away from microphone)?
11 A. Yes.
12 Q. Whether -- in this particular case were you aware that
13 there were no uniformed police officers anywhere around
14 this Black Lives Matter protest? Was that --
15 A. I believe that’s Portland’s policy, yes.
16 Q. All right. But were you told that prior to your
17 testimony, that there was no uniformed police officers
18 anywhere near that rally?
19 A. I’m familiar with how Portland has chosen to deal with
20 some of these protests, and I know that there are in some
21 instances they don’t put police officers there.
22 Q. Let me rephrase the question. Were you aware, prior
23 to your testimony today, that there were no uniformed
24 police officers anywhere near that crowd?
25 A. No.
ER-326
1 Q. That wasn’t told to you?

2 A. No.
3 Q. Would uniformed police officers in a crowd be a
4 deterrent factor?
5 A. In this crowd?
6 Q. No. Any crowd.
7 A. In this crowd, no, they would not be a deterrent
8 factor. They would be a target of the protest.
9 Q. Okay. So...
10 A. Which is why there weren’t police officers there.
11 Q. Which would have heightened the risk of something that
12 could happen. You would agree with me that if there’s no
13 uniformed police officers and there is a crowd, that there
14 is nothing that -- that that could help make a decision
15 for an individual to say, “I might want to do something.
16 I might behave in a more criminal manner because there’s
17 no police around me.” Is that a fair statement?
18 A. Yes.
19 Q. And it’s also fair to say that had there been police
20 nearby or next to Mr. Strickland, him pulling out his
21 firearm would not have been as reasonable because there’s
22 an officer, a uniformed officer right next to him,
23 correct?
24 A. Correct.
25 Q. So, again, it’s the totality of the circumstances that
ER-327
1 make your determination?

2 A. Yes.
3 Q. There was only one time in your law enforcement career
4 where you actually discharged a firearm, correct?
5 A. Yes.
6 Q. Yes. That was at a dog that was kind of an aggressive
7 manner. I think how you described it was you locked eyes
8 with this dog?
9 A. It was a very aggressive Golden Retriever named
10 Peaches.
11 Q. Yes. A very aggressive Golden Retriever. Was there
12 more than one Golden Retriever?
13 A. No. Just one.
14 Q. Just one?
15 MR. JACKSON: Objection, relevance.
16 THE COURT: And what’s the number of Golden
17 Retrievers got to do with it?
18 MR. SHORT: Well, the number of assailants versus
19 one or in the context of the justification for the deadly
20 use of force.
21 THE COURT: All right. Overruled.
22 Don’t spend too much time here.
23 MR. SHORT: I’m not --
24 MR. JACKSON: Judge, he’s talking about dogs --
25 THE COURT: I get it.
ER-328
1 MR. JACKSON: -- and relating it to people.

2 THE COURT: I get it.
3 MR. SHORT:
4 Q. You’re going through the same scenario anytime you
5 discharge a firearm, you go through the same training that
6 you go through, right?
7 A. Yes.
8 Q. Decision making, threat level --
9 A. Yes.
10 Q. -- verbal commands?
11 A. Prior knowledge.
12 Q. Prior knowledge. And did this dog attack you? Did he
13 grab your arm or leg or...
14 A. Well, I had been -- this dog had tried to bite me
15 multiple times --
16 Q. He tried biting you.
17 A. -- before, so prior knowledge of this dog. And I
18 actually knew -- at the incident you’re talking about, I
19 actually, at the time, knew the names of the two homeless
20 people that owned the dog.
21 Q. Mmm-hmm.
22 A. And we would -- I would have interactions with them on
23 a regular basis. And I actually stopped 30 yards, 20
24 yards away from them and told them to make sure their dog
25 was secure before approaching them. And their dog was not
ER-329
1 secure.
2 Q. Not secure?
3 A. Correct.
4 Q. Okay. And did the dog --
5 THE COURT: Let’s move on.
6 MR. SHORT: Okay.
7 MR. SHORT:
8 Q. You said you were familiar with the Portland Police
9 Bureau’s use of force?
10 A. I spend more time with their tactics.
11 Q. Sure.
12 A. Or the way they train their officers. I don’t get
13 into their policies very often. I don’t -- I ask for some
14 advice and I will take parts of those policies.
15 Q. Yeah.
16 A. Where I spend the majority of my time is dealing with
17 what type of tactics they are using.
18 Q. Well, let me ask you if you are -- if you agree with
19 the policy that’s in place at the Portland Police Bureau.
20 Do you agree with the statement that physical coercion
21 used to affect, direct, or influence an individual, as
22 well as pointing of a firearm and use of maximum
23 restraint, would you agree with that? That force is
24 physical coercion used to affect, direct, or influence an
25 individual as well as pointing of a firearm and use of
ER-330
1 maximum restraint?
2 THE COURT: Hold on. I don’t -- I don’t
3 understand that question, and as the fact finder I’d like
4 to. Can you --
5 MR. SHORT: Sure.
6 THE COURT: -- break that down a little better and
7 clarify it?
8 MR. SHORT:
9 Q. So let me break that down. So what am I showing you?
10 Please identify that.
11 A. You’re showing me a Police Bureau use of force, it
12 looks like one of their policies.
13 Q. Okay.
14 A. And you’ve got a highlighted section talking about
15 Fourth Amendment.
16 Q. And at the bottom, what is that referring to? So get
17 this in context with regards to the bottom part of that.
18 A. Well, I have to read the prior paragraph to see what
19 context it is, so give me a second. (Pause - reading
20 document) That whole paragraph is confusing.
21 Q. Okay.
22 A. I don’t know, and I’m a police officer, exactly what
23 they are trying to get to in that paragraph.
24 Q. All right. Thank you. This is the Portland Police
25 Bureau 1010.00 Use of Force?
ER-331
1 MR. JACKSON: Objection, lack of personal

2 knowledge. He said he’s not familiar with that.
3 THE COURT: What’s the question?
4 MR. SHORT:
5 Q. So the question is, when it comes to the definition of
6 force, according to the Portland Police Bureau, which you
7 do have familiarity with --
8 A. Yes.
9 Q. -- your agency. That sentence, “Physical coercion
10 used to affect, direct, or influence an individual, as
11 well as the pointing of a firearm and use of maximum
12 strength. Control holds and unresisted handcuffing do not
13 constitute force unless physical or mechanical
14 intervention is applied against the physical resistance.”
15 A. I --
16 THE COURT: What’s your objection? Still lack of
17 personal knowledge?
18 MR. JACKSON: Yeah. Lack of personal knowledge.
19 THE COURT: Are you aware that that’s the
20 definition that they use?
21 THE WITNESS: No, Your Honor.
23 MR. SHORT:
24 Q. Officer Rasmussen, I’m assuming that you would agree
25 that an officer and a civilian have the equal amount of
ER-332
1 rights to defend themselves, correct?

2 A. Yes.
3 Q. As a citizen I have just as much of a right to defend
4 myself as you do?
5 A. Yes.
6 Q. And in your scenario, or I should say your testimony
7 is that Mr. Strickland, by doing -- waving this, by that
8 part you’ve defined as being unreasonable?
9 A. Yes.
10 Q. And had -- had he -- had Mr. Strickland pointed
11 towards the threat, lowered, and then pointed towards the
12 other threat, you’re saying that would be less
13 unreasonable?
14 A. It would be less unreasonable in the context that the
15 second threat also had innocents around him. So I do not
16 agree that it’s appropriate to point your gun at that
17 specific threat given the amount of innocents around him.
18 I believe he’s correctly identified him as a threat.
19 Q. As a threat.
20 A. But how he chooses to address that threat, I find
21 inappropriate.
22 Q. And that’s based on you as a police officer training
23 other police officers?
24 A. Yes.
25 Q. And not training any individuals or citizens with
ER-333
Officer Rasmussen - ReD 893
1 concealed handgun licenses?

2 A. Yes.
3 MR. SHORT: If I may have a moment, Judge.
4 THE COURT: Sure.
5 MR. SHORT: No further questions.
6 THE COURT: Redirect.
8 RE-DIRECT EXAMINATION
9 BY MR. JACKSON:
10 Q. Officer Rasmussen, the cardinal safety rules that you
11 had explained for us on direct examination earlier, do
12 those apply only to law enforcement?
13 A. No. Those apply to everybody.
14 Q. And when you’re evaluating what you are seeing here on
15 these videos, are you evaluating perceived threats?
16 A. Yes.
17 Q. And what an appropriate response is to those threats?
18 A. Yes.
19 Q. And are you taking into consideration the totality of
20 the circumstances that you are seeing in those videos?
21 MR. TROTTER: Objection. These are all asked and
22 answered.
24 It was asked in the last one. You can’t go reach
25 back.
ER-334

2 MR. JACKSON:
3 Q. Well, does a lack of police presence in the area
4 change your opinion about the actions of Mr. Strickland on
5 July 7th, 2016?
6 A. No.
7 Q. Do -- are police officers put in situations where they
8 are not allowed to leave or move away from a threat?
9 A. Yes.
10 Q. In fact, are there situations where were an officer to
11 do that, they would be reprimanded?
14 THE WITNESS: Yes.
15 MR. JACKSON:
16 Q. And even in an extreme case is it possible for them to
17 be charged with a crime?
18 A. Yes.
19 Q. Okay. Does that apply to civilians?
20 A. No.
21 Q. So a civilian can leave a situation?
22 A. Yes.
23 Q. Okay. And how does the ability to leave a situation
24 play into the totality of the circumstances you’re
25 evaluating?
ER-335
1 A. As a police officer, I have to take into consideration

2 my governmental interests in why I’m there. So if I have
3 a governmental interest in staying there, meaning I’m
4 protecting something, I have to rescue somebody or I’m
5 protecting a scene, I have a responsibility to stay where
6 I am. If I have no governmental interest in why I’m
7 there, then it’s incumbent on me to recognize that and
8 leave. If I’m just standing in a parking lot and I’m
9 confronted, I’m under no obligation to stay. There are
10 lots of things that will play into my actions and my
11 decisions, but if I evaluate based on what I’m doing, and
12 I have no governmental interest in what’s occurring, I’m
13 not required to take action.
14 Q. Separate and apart from the decision to stay or leave,
15 even if you decide to stay does your ability to maneuver
16 or move around in a situation play into that totality of
17 circumstances?
18 A. Yes.
19 Q. How?
20 A. If I have the ability to -- I’m not -- it all depends
21 on the circumstances that we’re in. I wouldn’t train my
22 officers, if they are there for a specific official
23 purpose, I wouldn’t tell them that they have to retreat or
24 that they have to stand their ground, that’s up to that
25 individual officer, based on what they are seeing. Maybe
ER-336
1 the prudent thing to do would be to stand your ground.

2 Maybe the prudent thing to do would be to evaluate what
3 you’re seeing, back out of a situation, get more people,
4 or better your position and then take action. Those are
5 all very broad hypotheticals.
6 Q. But things that (inaudible - away from microphone)
7 circumstances?
8 A. Are my ability to move? Yes.
9 Q. Okay. When you watched these videos of Mr.
10 Strickland, did you see anything obstructing his ability
11 to back out of the situation?
12 A. No.
13 Q. Did you see anything obstructing his ability to
14 continue moving around within the area?
15 A. No.
16 Q. How does that play into the totality of circumstances
17 with regard to reasonableness of that, in your opinion?
18 A. Well, he has the ability to not be where he is at. He
19 has the ability to move.
20 Q. Okay.
21 MR. SHORT: Objection, speculation.
23 MR. SHORT: Your Honor, with regards to this line
24 of questioning, I believe it’s outside the scope of cross-
25 examination. If I may be allowed to ask a couple
ER-337
1 questions about this particular issue with the Court’s

2 permission.
3 THE COURT: You mean you want to ask a couple of
4 questions after he is done?
5 MR. SHORT: Right. With regards to -- I think
6 it’s beyond the scope of cross with regards to the ability
7 to leave or to back away, and there’s a couple questions
8 to ask about that.
9 MR. JACKSON: I don’t think it’s beyond rebuttal.
10 THE COURT: I don’t -- I don’t necessarily think
11 it’s beyond the scope, but if you want to ask a couple of
12 questions, I’ll tend to allow a couple.
13 MR. SHORT: And the only reason I’m --
14 THE COURT: At the appropriate time.
15 MR. SHORT: Sure, understood.
16 THE COURT: So finish, I’ll give him a couple, and
17 then you can have a couple more if you need, in response
18 to his. Let’s try to get this, you know, moving along.
19 MR. JACKSON: Right.
20 THE COURT: I think there’s been a lot of asked
21 and answered throughout this testimony recently, in the
22 last part of this testimony, both cross and re-direct. So
23 let’s -- you know. Keep in mind who the finder of fact
24 is.
25 MR. JACKSON: Yes, sir. And actually I just have
ER-338
Officer Rasmussen - ReX 898
1 one final question.

2 THE COURT: Okay.
3 MR. JACKSON:
4 Q. Officer Rasmussen, after hearing the questions of
5 opposing counsel, has any of that information you’ve been
6 handed or asked about changed your view of the actions of
7 Mr. Strickland and his display of force or use of force on
8 July 7th, 2016?
9 A. No.
10 Q. Was it reasonable or not?
11 A. It was not reasonable.
12 Q. Thank you.
13 MR. SHORT: One question.
15 RE-CROSS EXAMINATION
16 BY MR. SHORT:
17 Q. Officer Rasmussen, as we spoke earlier before you
18 testified, your decision-making, or where you reached this
19 decision, whether his ability to leave the scene or not
20 didn’t factor in with regards to your decision, correct?
21 A. It is a factor in the decision.
22 Q. So it is a factor?
23 A. If someone has the ability to leave and chooses not
24 to, that’s not a defining fact, but it is obviously part
25 of the decision-making process, if I have the ability to
ER-339
Officer Rasmussen - ReX 899
1 take a safer course of action over using force. As a

2 police officer --
3 Q. Right. As a police officer --
4 A. -- I would --
5 Q. -- but that’s different with a citizen, because you
6 have an obligation to stay there if you’re there lawfully.
7 A. In some circumstances I have an obligation to take
8 action, but in some circumstances if there is a -- if I
9 can do my job in a safer manner and that’s leaving or
10 moving my position, I will do that.
11 Q. But Officer --
12 A. I can do that.
13 Q. -- in this situation, in watching the video, these
14 people were continuing to advance towards Mr. Strickland
15 until he pulled his firearm, correct?
16 A. Yes.
17 Q. Okay. And were you aware of any vehicles that were
18 traveling on Main Street?
19 A. There was a car, yes.
20 Q. Thank you.
21 THE COURT: All right. Go ahead.
22 MR. JACKSON: One question, Judge.
23 THE COURT: Don’t expect to do it in front of a
24 jury, lawyers, in a different case.
25 MR. SHORT: Understood.
ER-340
Officer Rasmussen - Further ReD 900
State Rests

2 FURTHER RE-DIRECT EXAMINATION
3 BY MR. JACKSON:
4 Q. Officer Rasmussen, in the video, as the group
5 converges on tan pants and Mr. Strickland backs out into
6 the intersection, the group had stopped moving forward?
7 A. Yes.
9 THE COURT: And asked and -- asked and answered.
10 MR. JACKSON: Well --
11 THE COURT: I’m going to sustain it on that basis.
12 MR. JACKSON: Okay. Thank you, Your Honor. As
13 long as that’s established, I have no further questions.
14 THE COURT: Okay. Can this witness be excused?
16 MR. SHORT: Yes.
17 THE COURT: You’re excused. Thank you.
18 THE WITNESS: Thank you, Your Honor.
19 THE COURT: Watch your step.
20 And the State, that concludes your rebuttal case,
21 right?
22 MR. JACKSON: It does, Your Honor. Thank you.
23 THE COURT: All right. We’ll reconvene at 1:30.
24 I have a 1:15 wedding, but we’ll do it in chambers, so you
25 can leave your stuff out.
ER-341
**May 3, 2017** 964
1 ********************
2 May 3, 2017
3 Sentencing
4 (BEFORE: THE HONORABLE THOMAS RYAN, CIRCUIT JUDGE)
5 Attorney for the State: Todd Jackson and Kate Molina
Multnomah County DA’s Office
6 Portland, Oregon
7 Attorney for the Defendant: Chris Trotter
Attorney at Law
8 Hillsboro, Oregon
9 and
10 Jason Short
Attorney at Law
11 Portland, OR
12 ********************
13 (9:50 a.m.)
14 THE COURT: Good morning. Thank you. Please be
15 seated. I apologize for the delay in getting started.
16 There were additional matters that came up this morning
17 that needed my consideration so that’s what we have been
18 doing.
19 District attorney call the case.
20 MS. MOLINA: And, good morning, Your Honor.
21 We’re here in the matter of State of Oregon v. Michael
22 Strickland, it’s case number 16CR41718.
23 On behalf of the State, Kate Molina, M-o-l-i-n-a,
24 Bar No. 123989. Also present with DDA Todd Jackson.
25 Your Honor, this is the time and place set for
ER-342
Defense to Court 965
(Re: Filing Motion for New Trial)
1 sentencing. Mr. Strickland is present with his two

2 counsels as well. He’s out of custody.
3 MR. SHORT: And for the record, Your Honor, Jason
4 Short, S-h-o-r-t, Bar No. 003860, on behalf of Mr.
5 Strickland. And we’re ready to proceed with a motion and
6 sentencing.
7 MR. TROTTER: And, Your Honor, for the record
8 it’s Chris Trotter, T-r-o-t-t-e-r, Bar No. 135071.
9 And before we move forward to sentencing, as we
10 discussed in chambers, we do --
11 THE COURT: Just before you get to that. I know
12 that the -- I know that the sheriff’s office told me that
13 they were going to emphasize to people how important it is
14 that there be no recording pursuant to court order. The
15 Oregonian has called and was given permission earlier to
16 do recording and they have permission to do so, but other
17 than that, no phones, computers or electronic devices.
18 All right? If you’re caught using one, you will be
19 excluded.
20 Go ahead, Mr. Trotter.
22 So before we move forward with the sentencing, as
23 discussed in chambers we wanted to put on the record that
24 the -- Mr. Strickland, through counsel, is moving for a
25 new trial and that is something that we wanted to put on
ER-343
(Re: Filing Motion for New Trial)
1 the record that the discussion was -- that the Defense is

2 prepared to argue that motion today and we would like to
3 move forward, but the Court’s decision, based on the
4 State’s request for wanting time to respond and prepare
5 for that, it will be filing, within five days, a written
6 motion and then arguments will be heard on that at a later
7 time. So I wanted to put that on the record.
8 THE COURT: All right. Just to be precise, you
9 have not filed a written motion yet?
10 MR. TROTTER: Correct.
11 THE COURT: And at least one reading of the
12 statute is that the motion for new trial is made after
13 entry of judgment, and there is no entry of judgment yet
14 until we have sentencing. So at the conclusion of this
15 hearing, we will set a schedule for you to file your
16 motion for new trial, we’ll give the State an appropriate
17 chance to reply, and then we’ll set a hearing for ten days
18 or so after that so I have time to consider it.
19 MR. TROTTER: Understood. Thank you.
20 THE COURT: Okay. All right.
21 And, Ms. Molina, are there victims present who
22 wish to make statements?
23 MS. MOLINA: Yes, Your Honor, there is one victim
24 who would like to make a statement to the Court.
25 THE COURT: That person can come up forward and
ER-344
Sentencing 967
Ben Kerensa’s Statement
1 stand by counsel table.

2 Good morning, sir.
3 BENJAMIN KERENSA: Good morning.
4 THE COURT: Thank you for being here. Can you
5 state your whole name?
6 BENJAMIN KERENSA: Yes. My name is Benjamin
7 Kerensa.
8 THE COURT: And spell your last name.
9 BENJAMIN KERENSA: K-e-r-e-n-s-a.
10 THE COURT: All right. What would you like to
11 say, sir?
12 BENJAMIN KERENSA: Your Honor, the impact of the
13 offense in this case has been significant on my life.
14 From just days after the offense was committed up until
15 today, I have been threatened, stalked, and harassed by
16 supporters and friends of the Defendant, that behavior has
17 persisted even to this morning.
18 Aside from that I think what the Defendant did was
19 a mistake. I can’t support a prison term, which I
20 understand may be in the sentencing guidelines in this
21 case, and I would ask that you show the Defendant
22 leniency.
23 THE COURT: Okay. All right. Thank you very
24 much.
25 BENJAMIN KERENSA: Thank you.
ER-345
State’s Recommendation 968
1 THE COURT: All right. I understand the State

2 has no witnesses or exhibits for sentencing, correct?
3 MR. JACKSON: That’s correct.
4 THE COURT: And I’m just going to note for the
5 record that I don’t know what -- that there were -- there
6 was a presentence investigation, one that included a
7 psychological evaluation and one that did not, so
8 obviously we’re -- it’s the one that -- the one that did
9 not include it should be treated as just having a
10 scriveners error in it, and the complete presentence
11 investigation is the one with the psychological
12 evaluation.
13 And, also, I’m going to note with respect to the
14 presentence investigation that since I was -- since I
15 heard the evidence in the case, I’m relying on my own
16 recollection of the events in question in fashioning the
17 sentence in this case, not the presentence investigation
18 summary of the facts in the case.
19 So, what do the district attorneys wish to say?
21 So we filed a sentencing memorandum in this case
22 and our recommendation is consistent with the one
23 contained in that memorandum.
24 While the felony charges in this case, or at least
25 one of them, does carry with it the presumptive gun
ER-346
Defense’s Comments 969
1 minimum sentence under ORS 161.610, given the specific

2 circumstances of this case, namely the fact that Mr.
3 Strickland did not discharge a bullet at the crowd, into
4 the air, into the ground, that he has no criminal history
5 that we’re aware of, we are not recommending that you
6 impose the 60 month prison sentence under that statute.
7 We are recommending that you impose a three-year
8 probationary period on all counts for which he was
9 convicted, and that you adopt the probation conditions
10 recommended in the presentence investigation evaluation.
11 And, additionally, that you impose a jail sentence
12 in this case of ten days for each of the victims, there
13 were ten, and also a 20-day jail sentence on the
14 Disorderly Conduct charge for the widespread panic, alarm,
15 mayhem that his actions caused among the crowd -- the
16 crowd generally. That would be a total of a 120 day jail
17 sentence. Of course we’re recommending credit for time
18 served, all other credits on that. We’d ask that he be
19 ordered to begin serving that sentence today and serve it
20 in full in one big chunk.
21 That’s our recommendation, Judge.
22 THE COURT: All right. Thank you. Mr. Short?
23 MR. SHORT: Thank you, Your Honor.
24 With regards to our recommendation, obviously it’s
25 going to be different. And first off, I just want to, for
ER-347
1 just general statements, not necessarily focusing on any

2 of the facts of the case, but just that Mr. Strickland
3 wanted me to emphasize the fact that he did fear for his
4 safety. And we obviously were disappointed and disagreed
5 with the verdict, but we also have respect for the Court
6 and for its decision.
7 And, Your Honor, since you’ve had a chance to look
8 at the presentence investigation report and also the
9 psychological evaluation, I wanted to emphasize a couple
10 things in there with regards to the recommendation from
11 the PSI writer of prosocial lifestyle, the level of
12 service or the case management inventory, the LSCMI came
13 back as being low or limited supervision, and would he be
14 placed on probation, it would be reduced supervision, or
15 with the reduced supervision team based on their
16 determination of being a low -- having a low recidivism
17 rate among many other things as well.
18 The psychological evaluation, I wanted to
19 emphasize on that, two things to note that I wanted to put
20 on the record was -- well, and going back to the PSI, a
21 prison sentence would be detrimental for Mr. Strickland
22 for two reasons: One, because he was -- or is categorized
23 as a low risk offender, and two, resources -- scarce and
24 valuable resources would be better spent on high risk
25 individuals, and also, importantly, for those individuals
ER-348
1 that are not amenable to probation where Mr. Strickland

2 would be. The psychological evaluation, two points I
3 wanted to highlight from Dr. Paul G., I think we refer to
4 him, or at least I do, as Paul G., because his last name
5 is very difficult to pronounce.
6 THE COURT: Last of (inaudible), but Dr. G
7 suffices.
8 MR. SHORT: Yeah, Dr. G is what actually he
9 insists to be called.
10 THE COURT: Yeah.
11 MR. SHORT: And with Dr. G who’s, the Court’s
12 well aware of and he’s been around quite some time,
13 mentioned two things that I think are important to note
14 about Mr. Strickland, that he has no mental health
15 condition that predisposes him to engage in criminal or
16 any criminality of any kind. And also, that he falls into
17 the lowest risk category for recidivism and does not have
18 any risk factors that would suggest he is prone to
19 violence. And I know that Dr. G would spend, and has
20 spent, quite of bit of time and is very good at what he
21 does and can make a determination and back those findings
22 and those statements up with what he knows about Mr.
23 Strickland.
24 The mitigating factors in this case, Your Honor,
25 are quite -- quite long. Again, touching on the facts of
ER-349
1 the case, the State had mentioned one of those in

2 particular for their rationale and reasoning for why they
3 were recommending a nonprison sentence was the fact that
4 no firearm was discharged. I’m sorry, the firearm wasn’t
5 discharged, no bullet was fired.
6 Also of significance, and you may recall from
7 watching the videos, and I’m thankful that you can rely on
8 the trial evidence and not the PSI’s evidence, is when you
9 looked at those videos, you also noticed based on his
10 training and experience from not just getting the
11 concealed handgun license, obviously that comes with that,
12 but that his finger was never on the trigger, it was on
13 the side of the handgun, which obviously is significant
14 from the standpoint of reducing any sort of risk involved
15 with an accidental discharge or -- and that’s pursuant to
16 his training and experience.
17 THE COURT: Would you agree with me that that’s
18 significant on his end, but not anybody else’s?
19 MR. SHORT: I would agree with that from a
20 menacing standpoint, but from a standpoint of acting in a
21 reasonable manner in his mind about not putting his finger
22 on the trigger, and that’s more pursuant to the training
23 of displaying the firearm as a deterrent and to try to
24 communicate, “Hey, get back.”
25 Defensive tactics, being pushed and shoved by Mr.
ER-350
1 Kerensa from initially -- and, again, just taking those

2 affirmative steps to do what he could to back away and
3 continue to back away.
4 Also of note was Mr. Sky Fitzgerald and the
5 incident that happened about a year and a half ago with
6 Mr. Strickland. He was assaulted and his arm was broken
7 in three places and he was carrying a firearm in that
8 particular incident and did not use it in any way, but
9 that obviously set kind of a tone with regards to where he
10 was in knowing that he was in danger.
11 THE COURT: Would you say that he used his
12 firearm at the University of Portland incident?
13 MR. SHORT: Again, it’s the facts, I guess, that
14 we have dispute as to whether he displayed that
15 intentionally or not intentionally. So that -- I would
16 argue as to --
17 THE COURT: So you would agree it was displayed,
18 but your position would be that it was incidental or
19 accidental?
20 MR. SHORT: Well, and again, this is something
21 that I haven’t been able to talk to my client about on
22 those specific details or facts, but I do not believe it
23 was something that he did intentionally.
24 THE COURT: Okay.
25 MR. SHORT: With regards, Your Honor, to -- and
ER-351
1 again, looking at all of that information and the

2 information contained in his history, along that’s
3 contained in the PSI report that Dr. G’s familiar with and
4 then reaches that same conclusion that Mr. Strickland is
5 an individual who poses no threat to himself or others and
6 is at that very low, as he said, the lowest risk category
7 for recidivism and does not have any risk factors that
8 would suggest he is prone to violence.
9 So, in light of those other incidents, I think
10 it’s significant the fact that he had restraint, he was a
11 victim in one case and has not demonstrated any sort of
12 previous violence, from what I can tell and also from what
13 Dr. Paul G. can tell as well.
14 No prior criminal history. And, Your Honor,
15 you’ve received a lot of character letters that we
16 submitted about a week or so ago, and I think you’ve
17 acknowledged that you’ve read those, and I think that is a
18 testament to, again, the ongoing peacefulness that Dr.
19 Paul G. saw when he met with Mr. Strickland and did his
20 evaluation that there was professionals, a state senator,
21 there were quite a few individuals that have known Mr.
22 Strickland for quite some time that in essence gave
23 testimony through a letter of those same characteristics
24 that Dr. G. had referenced with no disposition to engage
25 in any criminality of any kind.
ER-352
1 THE COURT: Are you intending that those letters

2 be, in terms of the logistics of those letters, that they
3 be received as exhibits?
4 MR. SHORT: I would. I was going to ask for that
5 towards the end, but yes, I would offer that those be
6 exhibits.
7 THE COURT: Any objection?
8 MR. JACKSON: No, Your Honor.
9 THE COURT: And our custom in this county is in
10 criminal cases we preserve exhibits.
11 MR. SHORT: Okay.
12 THE COURT: And they’ll be received as a group as
13 Defense 101 for sentencing.
14 MR. SHORT: For sentencing purposes. Thank you.
15 Also, there was a letter from Nathan Millsap. Mr.
16 Millsap is here in the courtroom today, and I think, Your
17 Honor has also read that as well, and would just ask that
18 you reference or refer to that letter in your decision-
19 making. I think it is quite compelling. He was a
20 witness, a State’s witness.
21 (Counsel confer)
22 MR. SHORT: Your Honor, I don’t think it was
23 provided.
24 THE COURT: I’m looking, I don’t remember that
25 name.
ER-353
Statement of Nathan Millsap 976
(Read by Defense Counsel)
1 MR. SHORT: I’m sorry. No, I think -- I think

2 our intention was, was to actually read it if we could,
3 briefly. And, again, this was one of the State’s
4 witnesses. “Hello, Your Honor, my name is Nathan Millsap,
5 and I am a witness used by the prosecution in the trial of
6 Michael Strickland.
7 “Your Honor, as a witness in this trial, I gladly
8 and freely volunteered my time, my video footage, and my
9 testimony in an effort to provide a vantage point into the
10 moment of time on July 7th, 2016 in front of the Justice
11 Center here in Multnomah County downtown Portland, Oregon.
12 “I provided this to the court -- I provided this
13 to the court in hopes that the court would see that I
14 personally -- what I personally witnessed. I saw Michael
15 Strickland walking backwards for 30 to 40 feet in self-
16 defense while giving multiple verbal warnings for
17 protesters to stay back prior to drawing his weapon. This
18 is what I saw the day -- that day and I saw Michael
19 Strickland acting in self-defense as both the victim and
20 potential victim. No police were there to protect him and
21 even though he had been provoked by protesters to the
22 point of fearing for his life and drawing his firearm,
23 protesters still continued to encroach Mr. Strickland and
24 provoke him, taunt him, and incite fear in him for at
25 least another full city block as he backed away in fear
ER-354
1 for his -- prior to his arrest.

2 “I do not believe that the decision in this trial
3 is a fair and accurate portrayal of the events that
4 surrounded Michael Strickland on July 7th, 2016. To get a
5 second opinion, I reached out to executive editor of
6 Concealed Carry Magazine, Kevin Mikalowski (phonetic). I
7 emailed Kevin and provided him with three different videos
8 that captured the incident and asked him to give his
9 opinion on the event in question, and the verdict of the
10 trial that followed it. He responded to me in the
11 following email: “Nate, I believe the Defendant should
12 appeal the conviction based on the following: Oregon
13 Revised Statute 161.219 clearly states that a person is
14 justified in using deadly force if it appears he
15 reasonably believes that the other person is committing or
16 attempting to commit a felony involving the use or
17 threatened imminent use of physical force against a
18 person. It is clear to me that based on previous actions
19 of anti-Trump protestors and the actions of the protestors
20 at the scene, that the journalist reasonably feared he
21 would be the victim of a violent assault. This violent
22 assault at the hands of multiple attackers could easily
23 have led to great bodily harm or death. A single punch
24 could have rendered the victim unconscious and thus
25 incapable of any sort of self-defense. With the mob
ER-355
1 mentality prevalent at such events, he could easily have

2 been punched, kicked or stomped to death if he had not --
3 stomped to death if he had been knocked to the ground.
4 More than 700 people each year are beaten to death by
5 unarmed attackers.
6 “It is my opinion as a law enforcement officer,
7 certified in the State of Wisconsin, that the Defendant
8 used a measured and acceptable response to a violent
9 threat in order to facilitate a safe retreat. Without
10 drawing and displaying his firearm, the Defendant could
11 have easily been rushed, knocked to the ground or beaten.
12 “One of the officer subject factors that follow or
13 allow police officers to escalate the level of force they
14 use is numerical disadvantage. When faced with a greater
15 number of potential adversaries, officers are allowed to
16 use objectively reasonable force to ensure their safety.
17 “Based on the video footage, I believe the
18 Defendant used objectively reasonable force and showed
19 restraint. He used only the lowest level of force needed
20 to prevent the violent physical assault.”
21 Back to Mr. Millsap, “Your Honor, although I
22 express a difference of opinion to that of the Court’s
23 decision, I respect your judgment and I respect the court
24 system here in Multnomah County. At this time I ask that
25 when you are determining Mr. Strickland’s sentence that
ER-356
Defense’s Recommendation 979
1 you take into consideration that Mr. Strickland has had no

2 previous criminal record and is by no means a danger to
3 society. I believe that his compliance since his arrest
4 clearly demonstrates this. Your Honor, I humbly ask that
5 you express leniency in the form of concurrent probation
6 sentences as you come to an appropriate decision at this
7 time. Sincerely, Nate Millsap.”
8 Your Honor, we’re asking for a probation -- a
9 probationary sentence with no additional jail time beyond
10 what he’s already served, which our calculation comes to
11 11 days that he has already served on this case here at
12 Multnomah County Jail. If the Court is inclined to give
13 more jail, we would ask that he be eligible for electronic
14 home detention or weekends.
15 I was going to go into some more of the downward
16 dispositional departure factors, but I’m not going to go
17 into that issue for time, it doesn’t appear to be
18 relevant.
19 The DA’s office is asking for 120 days jail. The
20 PSI’s original recommendation was 40 days jail, with the
21 revision and the inclusion of the psychological
22 evaluation, it went from 40 to 20 days. And so I think
23 that is a testament to the impact that the psychological
24 evaluation had.
25 Also of note, and one of the mitigating factors, is
ER-357
1 the trait of Autism, and that was new to us, that was
2 information that we were not aware of. And Dr. Paul G.,
3 one of the things that he mentioned was, “I did question
4 as to whether he might have features of Autism Spectrum
5 Disorder or Aspergers.” And in reaching that, he made a
6 statement here that said, “Their heightened focus, those
7 that have Autism, their heightened focus can then cloud
8 their problem solving judgment preventing them from seeing
9 other alternatives when they become stuck or when problems
10 arise.” And then his diagnostic impression was trace of
11 Autism Spectrum, formerly Aspergers.
12 And so I would argue that that was certainly a --
13 also could be a factor as well, and I don’t know for sure
14 if it was one of the deciding factors to change it from 40
15 days to 20 days, but I would think it probably was.
16 With regards to one of the conditions of the
17 special conditions, so outside the general conditions of
18 probation, one of the special conditions of probation that
19 the State outlines in their sentencing memorandum and that
20 they asked for is not to attend any political rallies or
21 -- it makes it tough, because it’s kind of a general
22 prohibition and how do you articulate what is a political
23 rally versus a Mayday? And so there’s a lot of problems
24 with interpreting and putting himself in a situation where
25 he doesn’t know quite sure and it’s...
ER-358
1 I understand the Court has the authority to do

2 certain things and there’s case law that talks about that,
3 and one in particular is State v. Bell, that’s one the
4 State cited in their memorandum, the State’s memorandum,
5 which is 276 Or App 21, it’s a 2016 case, it’s fairly new.
6 And in that particular case, the court focused on the
7 second prong of the special condition which limited the
8 Defendant’s ability to travel outside of Lincoln County.
9 And in that case the Court of Appeals ruled that it was
10 not constitutional and that they reversed that ruling.
11 And the reason why I would argue, Your Honor, that it’s a
12 concern for me and probably a concern as well, especially
13 the second prong of what the State’s asking for, which
14 would limit Mr. Strickland’s ability to have access to
15 postings or to post -- or be prohibited from posting
16 events that are political in nature or have some political
17 undertone. The reason for that is, looking at that three
18 prong or four prong test in State v. Bell, when the Court
19 of Appeals was determining whether it was a situation
20 that, as they referred to, as within reasonably related --
21 let me get the language here -- “The restriction is not
22 reasonably related to the crimes for which she was
23 convicted since none of her crimes,” in this particular
24 case for her it was theft, official misconduct and
25 evidence tampering, “have a mobility or travel element.”
ER-359
1 And in this particular case, Your Honor, I would argue the

2 same thing, with regards to the crimes that he was
3 convicted of were not motivated by posts or blogs or
4 videos that he has -- that he’s done in the past, rather
5 it was a belief that he was acting in self-defense and
6 displayed a firearm to what he believed were people that
7 were imminently about to assault him.
8 THE COURT: Well, let’s drill down just a little
9 bit on that. Are you contending that your client’s video
10 recording was unrelated to the crimes?
11 MR. SHORT: He was -- so, again, we get into the
12 other issue of whether he’s -- whether he’s allowed to be
13 there, and clearly that’s a First Amendment right. That
14 regardless of his political meanings or what he’s posted
15 in the past, it should have nothing to do with regards to
16 whether --
17 THE COURT: No one’s contending that he didn’t
18 have a right to be there that day.
19 MR. SHORT: Right, right. And he certainly has a
20 right to be there. And what -- what was problematic with
21 the situation --
22 THE COURT: Well, your rights change when you’re
23 convicted of a felony.
24 MR. SHORT: I understand that.
25 THE COURT: Okay.
ER-360
1 MR. SHORT: But there are certain limitations

2 with regards to a person’s ability to still have some
3 (inaudible) rights to have freedom of speech and to limit
4 him to not be able to post certain ideas, and that’s very
5 difficult. It’s very difficult from a constitutional
6 standpoint to say, okay, we’re going to limit you to this
7 or that. For example, if he were to post something that
8 -- almost anything today can be considered to be
9 political. So he might post something that would be about
10 abortion and that could be political, except he has an
11 opinion about something. So almost -- something about the
12 Second Amendment.
13 THE COURT: How about something about sports?
14 How about something about the Trail Blazers, would that be
15 considered political?
16 MR. SHORT: Well, someone could probably try to
17 make it political. I mean, I don’t know. But there are
18 certain things that -- but then it’s a gray area and who
19 determines that and who determines what a certain post
20 would be? And what we get into is that crimes not
21 motivated by posts or blogs, rather a belief that he was
22 acting in self-defense. What happened was certain
23 individuals, they don’t like him for whatever reason, and
24 it might be because of posts, it might be because of
25 something else. And so -- but that initiated, at least
ER-361
1 from our opinion, that somebody used physical assaultive

2 harassing behavior that initiated this and he was in a
3 place where he was free to be. He had every right to be
4 there and recording that.
5 The second prong was they’re asking for a
6 prohibition from posts on political issues is not
7 reasonably related to the goals of probation.
8 And finally, that this restriction is too broad
9 and infringes on his fundamental right to free speech.
10 Similar to in State v. Bell, Ms. Bell’s limitation for
11 travel and her fundamental right to move about the state
12 of Oregon. And for those same reasons, Your Honor, we --
13 we find that there’s a lack of nexus or lack of connection
14 with regards to those specific restrictions that the State
15 is asking for.
16 THE COURT: Let me ask you, while I’m thinking of
17 it, does your client have an ability to earn an income?
18 MR. SHORT: I would say he does.
19 THE COURT: Okay. So there’s a $200 minimum fine
20 on each felony and a $100 minimum fine on each
21 misdemeanor. So he has the ability to earn an income
22 sufficient to pay that?
23 MR. SHORT: So I was reminded by Mr. Trotter that
24 how I’ve ever known Mr. Strickland to earn a living is
25 through -- through posts and through -- so it obviously
ER-362
1 depends on what Your Honor rules, because that’s been his

2 occupation --
3 THE COURT: Recently, right?
4 MR. SHORT: Well, for quite some time. So for
5 the last three years that’s been his primary source of
6 income.
7 THE COURT: And how old is he? How old is your
8 client?
9 MR. SHORT: Thirty-seven years old.
10 THE COURT: Okay.
11 MR. SHORT: And so --
12 THE COURT: And he’s been working, earning a
13 living since age 18, right?
14 MR. SHORT: Of course the collateral consequences
15 now with multiple felony convictions dramatically will
16 reduce his abilities to obtain employment. I know that’s
17 very difficult. And by being self-employed and
18 participating in what he had previously been doing for the
19 last three years is much easier because he doesn’t have
20 to, obviously being self-employed.
21 So that would obviously -- yeah, what happens --
22 what happens on those specific conditions of -- those
23 special conditions of probation will obviously
24 dramatically impact his ability to pay for fines and fees.
25 One more point, and we did mention this earlier,
ER-363
1 is the fact that by being able to blog and post and make
2 money that way, he’s in a safe environment, he’s at home,
3 he’s not putting himself in danger by being somewhere
4 else.
5 THE COURT: Why do we assume that? Why do we
6 assume that he’s at home when he’s posting or blogging?
7 That’s inconsistent with known technology, right?
8 MR. SHORT: Well, I guess, but I mean, certainly
9 -- I don’t think he wants to be putting himself out in a
10 position where he’s in a protest, especially now in light
11 of these convictions. I think safety is going to be of
12 the utmost importance for him and not to put himself in
13 harm’s way, especially in light of this. But this is
14 certainly an issue, Your Honor, that is a means for him to
15 earn a living, and it’s going to be very difficult for him
16 to make that living with multiple felonies to try to get a
17 job when he has this in place. This has been going on for
18 the last three years. And I think Mr. --
19 MR. TROTTER: Your Honor, I would beg the Court’s
20 permission.
21 THE COURT: Sure.
22 MR. TROTTER: Thank you. What it comes down to,
23 based on State v. Bell and the related case law, there’s
24 obviously wide latitude for what a court can impose as far
25 as conditions of probation, special conditions if it’s
ER-364
1 reasonably related to the crime committed and reasonably

2 related to the --
3 THE COURT: The purposes of probation. Right.
4 MR. TROTTER: -- purposes of probation. The
5 purpose, I would assume here, is for any necessary
6 rehabilitation, in the Court’s view, of Mr. Strickland and
7 also the --
8 THE COURT: And the protection of the community.
9 MR. TROTTER: -- the safety of himself and the
10 community. You read my mind, that’s good.
11 And so, Your Honor, to say that -- to not allow --
12 I think you have two separate issues: Physical proximity
13 to an area in which Mr. Strickland may be a target again
14 and have to be in a position where he has to choose how to
15 react to being targeted and attacked is one issue. The
16 other issue is whether he can go online and talk about
17 things that may or may not be political, and whether
18 that’s going to pose a danger to himself or to others.
19 The idea that you can post by phone or current technology
20 in any geographic location is a different issue. The
21 issue is whether -- whether him going online to be able to
22 post things that also happen to allow him to make a
23 living, but just the idea that him restricting his ability
24 to post online about political things is going to somehow
25 make the community safer and make him safer, I don’t think
ER-365
Defendant’s Statement 988
1 is reasonably related to the purposes of probation. I

2 think that for him to be able to post about things that
3 are talking about his fundamental writing, of the First
4 Amendment to be able to speak and to express and to earn a
5 living would be something that the Court, I would urge to
6 exercise caution in restricting that unless he really is
7 going to pose a danger to himself or to the community.
8 And I don’t see a reasonable -- I don’t see that that’s
9 the case.
10 THE COURT: All right. Thank you. Does your
11 client wish to make a statement?
12 MR. SHORT: He does.
13 THE COURT: Go ahead, Mr. Strickland.
14 MR. STRICKLAND: Your Honor, thank you for
15 letting me speak.
16 THE COURT: Would you be more comfortable
17 sitting? You can sit if you want.
18 MR. STRICKLAND: No, it’s a matter of getting my
19 thoughts together, sir. I’m sorry.
20 THE COURT: Okay. Take your time, don’t worry
21 about it.
22 MR. STRICKLAND: Thank you, Your Honor.
23 Your Honor, I did what I had to do that night
24 because I truly was in fear and I believe that my actions
25 were consistent with the experience and training that I
ER-366
Court’s Comments 989
Court Imposes Sentence
1 have gotten from firearms professionals, including some

2 that are certified DPSST instructors.
3 And I beg you, sir, for some -- for some mercy.
4 Thank you, Your Honor.
6 THE COURT: Thank you.
7 I’m going to make some brief comments before I
8 impose the sentence.
9 I am going to authorize the confiscation and
10 destruction of the weapon and ammunition, and the State
11 can submit an order to that effect.
12 Does the Defense have any objection to them
13 submitting that ex parte?
14 MR. SHORT: No.
15 THE COURT: Regarding the acts. I know I’ve
16 already ruled on guilt of innocence, but the Defendant’s
17 acts were not justified. This was not self-defense. This
18 was an unlawful escalation of the situation. Simply put,
19 you cannot respond in the way that the Defendant did in
20 this situation. Brandishing the weapon was not the
21 Defendant’s only option. He was not about to be pummeled.
22 It’s also worth noting that he has no prior
23 record.
24 I’m going to place the Defendant on probation.
25 I’m going to note for the benefit of the probation
ER-367
1 department, and Mr. Ko, I would like this on the judgment,

2 the Defendant should be closely supervised in at least the
3 initial stages of his probation, and should not be
4 supervised by the reduced supervision team.
5 This next part does not need to be on the judgment.
6 Each separate count of Unlawful Use of a Weapon
7 involved a distinct person as Defendant waved his gun
8 about in a spraying fashion from one person to another.
9 As he did that, there was an opportunity, admittedly
10 brief, for the Defendant to stop and re-holster his
11 weapon, to think, and to decide whether to continue to
12 engage in the criminality. He did not stop. Therefore,
13 each Unlawful Use of a Weapon offense does count -- does
14 constitute a distinct offense for which a consecutive
15 sentence would be authorized by Oregon law.
16 The Menacing counts do not merge into the Unlawful
17 Use of a Weapon count. Each has an element that the other
18 does not.
19 With respect to the aggravating and mitigating
20 factors found in the presentence investigation, I find
21 none of the aggravating factors. In terms of threat of or
22 actual violence toward a witness or victim, I believe
23 that’s incorporated into the crimes of conviction and,
24 therefore, it’s not an appropriate aggravating factor.
25 The same with respect to use of a weapon in the commission
ER-368
1 of the offense is incorporated into the crime of

2 conviction and it’s not an aggravating factor to the
3 crimes of conviction.
4 Under the circumstances, considering all the
5 evidence, I don’t believe it’s appropriate to make a
6 finding that the Defendant shows a lack of remorse,
7 although I would agree he does not show remorse.
8 With respect to the mitigating factors found by the
9 presentence investigation, item A that the presentence
10 investigation report found, that the victim was an
11 aggressor or participant in the criminal conduct
12 associated with the crime of conviction, I do not find
13 that.
14 I do not find that the Defendant acted under duress
15 or compulsion. He was under stress, certainly.
16 I do find that the offender’s criminal history
17 indicates that he lived conviction free within the
18 community for a very significant period of time preceding
19 this current crime of conviction, his entire life.
20 I do find that the Defendant is amenable to
21 cognitive restructuring classes which are available within
22 a reasonable period.
23 Somebody has an electronic device going off, who is
24 it?
25 AUDIENCE MEMBER: Sorry. I thought I turned it
ER-369
1 off.
2 THE COURT: Yeah, you’re excused, thank you.
3 Quiet. Thank you.
4 I do find that the Defendant was not under
5 correctional supervision at the time of this offense or
6 any prior time.
7 I do agree with the presentence investigation
8 report that notes, and I’m going to read this here because
9 I think it’s worth noting, “Of the problematic incidents
10 noted throughout the presentence investigation report,
11 there appears to be a running theme of Mr. Strickland’s
12 inability to problem solve a situation and respond in more
13 appropriate manners. He appears to have a tendency
14 towards escalating his encounters with others versus
15 utilizing tactics to promote a more peaceful environment.
16 Whether this is a personality issue or temperament related
17 to simply a lack of -- or simply related to a lack of
18 skills, remains to be seen.” I also think that’s
19 accurate.
20 For the reasons stated, the Court is not imposing
21 the gun minimum sentence under ORS 161.610. So the
22 Defendant is subject to it, but it is suspended pursuant
23 to ORS 161.610(5)(b), that’s on Count 1 only, Mr. Ko.
24 Mr. Short and Mr. Trotter, you’ll explain to your
25 client that -- and I don’t expect that this will be a
ER-370
1 problem, but that if he was convicted of a gun minimum

2 offense in the future, he would be subject to a ten year
3 minimum sentence, which is not -- cannot be suspended.
4 You’ll talk to him about that?
5 MR. SHORT: Yes, Your Honor.
6 MR. TROTTER: Yes.
7 THE COURT: All right. All of the felony counts
8 are 6-I, the lawyers are in agreement on that, right?
9 MR. SHORT: Right.
11 THE COURT: On all of the counts, felonies and
12 misdemeanors, I’m imposing three years of formal probation
13 and all standard conditions of probation apply.
14 Mr. Ko, let me know when you’re caught up.
15 COURT CLERK: I am, Your Honor.
16 THE COURT: Okay.
17 The Defendant is to engage in all classes and
18 counseling as directed by the probation department.
19 May not posses any firearm, weapon, or ammunition.
20 There are a couple of conditions of probation which
21 will be applicable only to Count 2. So let me know when
22 you’re there.
23 Just to be clear, unless otherwise stated, all the
24 conditions of probation apply to all counts, but there’s a
25 couple of special ones for Count 2.
ER-371
1 COURT CLERK: (inaudible)

2 THE COURT: No possession. It’s a standard
3 condition, but it’s worth emphasizing. No possession of
4 any firearm, weapon, or ammunition. You understand that
5 Mr. Strickland?
6 THE DEFENDANT: (No audible response)
7 THE COURT: He’s shaking his head yes.
8 MR. TROTTER: Your Honor, before we move forward
9 on that, I would just like clarification on weapon. I’ve
10 just seen time and again where people are afraid to have a
11 knife to cut the bread. Just, we ask for clarification on
12 that.
13 THE COURT: Isn’t there a statutory definition?
14 The statutory definition that applies under Unlawful Use
15 of a Weapon. So I think that that gets you -- allows you
16 a butter knife and probably a serrated knife to cut your
17 bread, but maybe not a knife that you’d get at the hunting
18 store sheathed with a longer blade.
19 MR. TROTTER: Understood.
20 THE COURT: All right. On Count 2, 240 hours of
21 community service to be completed by June 1st, 2018. On
22 Count 2 only, 40 days in jail, credit for time served, all
23 Senate Bill 936 credits. He may turn himself in. Jail to
24 be scheduled after August 1st, 2017. He needs to go over
25 to corrections records today with a copy of the order on
ER-372
1 the first floor of the Justice Center, check in. They’ll

2 give you some instructions, but the order says that you --
3 they won’t be taking you into jail, it’s just to start the
4 scheduling process.
5 I am imposing the $100 minimum fine on each
6 misdemeanor and the $200 minimum fine on each felony.
7 One minute while I review my notes and while Mr. Ko
8 catches up on the paperwork.
9 (Pause)
10 THE COURT: I don’t know that this has been said,
11 Mr. Jackson, but there’s no restitution in the matter,
12 correct?
13 MS. MOLINA: No, Your Honor.
14 THE COURT: Correct?
15 MR. JACKSON: Correct.
16 THE COURT: Counsel is retained, so there’s no
17 court appointed attorney fees.
18 Let me know when you’re ready to go forward, Mr.
19 Ko.
20 He’s also going to need to go down to Room 232 to
21 check in with probation today down on the second floor.
23 THE COURT: The one issue that remains and maybe
24 counsel can point out an issue, is that there was a
25 request that Defendant be prohibited from attending any
ER-373
1 protest, rally, or political event. This clearly was a

2 protest and arguably a political event, but I don’t find
3 that it was Defendant’s attendance that led to the dispute
4 at hand, rather it’s the issue of recording or filming and
5 the response to it. The response that he took in this
6 case is, in part, addressed by the prohibition against
7 possessing any firearms or ammunition. But I’m going to
8 further address it only in this way that I’ll -- Mr. Ko,
9 I’ll give you the language in a second again. The
10 Defendant is not to video record or film any person before
11 January 1st, 2018, and after that only with the prior
12 permission of his probation officer. So I want there to
13 be a period of no recording, because recording has led to
14 trouble in the past in this case and other incidents as
15 set forth in the presentence investigation. And then
16 after that I want the probation department to have an
17 opportunity to set the appropriate terms and conditions.
18 Is there anything else from the lawyers?
19 MR. JACKSON: We’d ask for no contact orders as
20 part of the condition with the victims.
21 THE COURT: You want to be heard on no contact?
22 MR. TROTTER: I’m assuming, Your Honor -- there’s
23 various ways of defining contact, I guess. And so I
24 imagine that you’re going to want no written
25 correspondence, physical contact, obviously if you see
ER-374
1 them, turn the other way that type of thing, we’re fine
2 with that. One of the -- I think it was Mr. Millsap that
3 wrote the letter, he was not a victim, he was a witness,
4 and I anticipate that that wouldn’t be an issue.
5 THE COURT: You’re talking just about the ten
6 identified victims, correct?
7 MR. JACKSON: Correct.
8 THE COURT: So --
9 MR. TROTTER: And some -- and some weren’t
10 identified.
11 THE COURT: Well, they weren’t -- I didn’t say
12 named.
13 MR. TROTTER: Yeah.
14 THE COURT: Well, Mr. Jackson, gives us the
15 names. Who do you want there to be no contact with?
16 We’re going to need that for the -- but I’m going to order
17 -- I’m inclined to order, I’ll hear what counsel has to
18 say about it, no contact means no contact as we
19 traditionally use it. That means no contact by any means.
20 If a person is going to be named on this list, no
21 electronic communication, no Facebook posting, no contact
22 with that person whatsoever.
23 Mr. Strickland, this means that if you’re in a
24 restaurant and say it’s a small restaurant and the other
25 person comes in, you know, if it’s a small enough
ER-375
1 location, you need to leave, even though you were here

2 first. Because the no contact provision is a condition of
3 your probation. It’s not an order with respect to them,
4 it’s an order with respect to you. Do you understand
5 that?
6 THE DEFENDANT: Yes, sir.
7 THE COURT: Okay. Can you write out a name --
8 well, Mr. Ko, you can keep working on what I’ve already
9 given you. Do you have the names?
10 MR. JACKSON: There are two named individuals
11 that participated in this trial, Benjamin Kerensa who
12 spoke today, and also Malcolm Chaddock. Those are the two
13 people who we have names for.
14 THE COURT: Okay. That’s the only ones you’re
15 asking for?
16 MR. JACKSON: Well, I mean, they were described,
17 they’re in the videos, we don’t know their names. But of
18 course I would support a no contact order with those
19 people as well.
20 THE COURT: We’ve got to have a name. So, do you
21 want to be heard further on no contact with those two
22 named persons?
23 MR. TROTTER: No, Your Honor.
24 THE COURT: Okay. All right. So that will be a
25 condition of probation, no contact.
ER-376
1 Anything else from the lawyers?

3 MR. TROTTER: Yes, Your Honor, a couple things.
4 We discussed this in chambers as well about the security
5 issue that has been -- the security that has been posted,
6 and also the issue with the discontinuation of the
7 protective order. Are those things that the Court’s
8 prepared to be heard on?
9 THE COURT: Yeah. There was a protective order
10 put into place with respect to the Defendant’s video in
11 this case, and the case has ended, and does the State want
12 to be heard on the termination of the protective order?
14 THE COURT: Okay. So you can submit an order,
15 follow the rules about running the language by them,
16 terminating the protective order and I’ll sign -- and e-
17 file it, and let us know you filed it and we’ll look for
18 it, and I’ll sign it.
19 MR. TROTTER: Okay. Thank you. Thank you.
20 The next issue --
21 THE COURT: Is the bail?
22 MR. TROTTER: Yes, about the bail. So that was
23 posted by Mr. Weise. In this case -- well, I guess in any
24 case, the Court has discretion to order -- instruct the
25 financial offices, the powers that be, to not subtract the
ER-377
1 15 percent if the Court choose to do so.

2 THE COURT: The 15 percent is capped, as I
3 recall, at $750, is that right?
4 MR. TROTTER: I’m not -- I’m not certain.
5 THE COURT: Oh, in this case he posted --
6 MR. TROTTER: Twenty-five thousand dollars, and
7 we would ask that that administrative fee not be imposed.
8 THE COURT: Because?
9 MR. TROTTER: Because Mr. Weise, you know, posted
10 this, it’s not going to be -- it’s not something that my
11 client used his own funds or a family member. I would
12 just ask -- I don’t know that there’s a specific standard
13 for what the Court’s discretion is.
14 THE COURT: There’s not, but -- there’s not, but
15 I think I -- in the ordinary course, that 15 percent is
16 authorized by law, so I think I need a reason to justify
17 not imposing it, so...
18 MR. TROTTER: Understandable. And I think the
19 reason would be, you have a goodwill concerned citizen
20 that moved forward to help Mr. Strickland, that although
21 the 15 percent is not intended to be punitive, I think
22 that it sort of operates as such for someone who was, out
23 of their goodwill, coming forward to help somebody to be
24 able to not be incarcerated during the pendency of the
25 case. And I would just ask that because of that -- I
ER-378
1 don’t think (inaudible) specific reason, but I do think

2 that’s a sufficient reason to be able to have this person
3 receive their funds back that they did post.
4 THE COURT: That request is denied.
5 Anything else?
6 MR. TROTTER: Yes, Your Honor. The final thing
7 from the Defense is, during your statements and -- during
8 your statements initially with your findings, one of the
9 things that you mentioned is that in the Court’s view, and
10 I would just like clarification on this for the record,
11 whether -- and I’d like the Court to articulate whether
12 the basis for the verdict was, as the Court stated, that
13 Mr. Strickland, that this was not his only option. I
14 believe you said brandishing the weapon was his --
15 THE COURT: The statement made today --
16 MR. TROTTER: -- was his only option -- was not
17 his only option.
18 THE COURT: The statement made today was with
19 respect to sentencing.
21 THE COURT: The verdict was based upon the State
22 having established beyond a reasonable doubt the elements
23 of the crime and that self-defense did not apply.
24 MR. TROTTER: So, thank you for clarifying that.
25 Is it the Court’s opinion that -- was the ruling based on
ER-379
1002
1 the Court’s opinion that he had to have -- this had to

2 have been his only option in order for it to be a not
3 guilty verdict?
4 THE COURT: I’ve stated what the verdict was
5 based upon.
6 MR. TROTTER: So that’s -- is the Court refusing
7 to articulate that point?
8 THE COURT: Yes.
9 MR. TROTTER: Okay. Thank you.
10 THE COURT: And I know we need to schedule -- the
11 lawyers can get out their calendars, you of course can
12 access your phones for getting out your calendar. And so
13 the State wants -- or the Defense wants how long to file
14 your motion for new trial?
15 MR. TROTTER: It will be filed within five
16 business days.
17 THE COURT: Okay. So that takes us to about
18 approximately May 10th.
19 When would the State like to file your response
20 by? And I understand that one of the State’s lawyers may
21 be unavailable for a period of time, so we can take that
22 into account.
23 MS. MOLINA: Your Honor, the State would be
24 asking for two weeks past that filing, so until -- we ask
25 that we be given the opportunity to file by May 24th.
ER-380
1003
1 THE COURT: Okay. So the Defense Motion for New

2 Trial will be due May 10th at 5:00, the State’s response
3 will be due May 24th at 5:00. And then we’ll look for an
4 argument sometime after June 7th. One hour should
5 suffice?
6 MR. TROTTER: I would think so.
7 THE COURT: Yeah.
8 MR. JACKSON: Sure.
9 MS. MOLINA: Yeah.
10 THE COURT: Yeah, okay. So, Mr. Ko, start
11 looking for the first one hour we have available after
12 June 7th, try to do it -- do the lawyers think a half hour
13 would do?
14 MR. TROTTER: I would say an hour, to be
15 cautious.
16 THE COURT: Okay. All right. So probably on a
17 Friday.
18 COURT CLERK: June 9th at 8:30?
19 MR. JACKSON: That would be fine.
20 THE COURT: Mr. Strickland, you can consult your
21 calendar, too, if you want to.
22 MR. TROTTER: That works for us.
23 THE COURT: June 9th, 8:30, this courtroom.
24 Okay. Is there anything else from the lawyers for
25 today?
ER-381
Defense Clarifies Order 1004
1 MS. MOLINA: Not from the State, Your Honor.

2 MR. TROTTER: No.
3 THE COURT: Mr. Ko, is there anything else that
4 you think I’ve missed?
5 COURT CLERK: (inaudible)
6 THE COURT: Oh, yeah, here it is. I’m just
7 repeating this so Mr. Ko can get it written down. The
8 Defendant may not video record or film any person before
9 January 1st, 2018 and after that date only with prior
10 permission of PO.
11 MR. TROTTER: And, Your Honor, on that point, up
12 to this point on pretrial release, my client has been able
13 to film weddings and things of that nature and that’s a
14 source of income for him. Does this -- does this order
15 exclude him from to continue with that practice that he’s
16 done for the last ten months without incident?
17 THE COURT: Yes. Yes.
19 THE COURT: Yes. I recognize that it was
20 reflected in the presentence investigation report that he
21 had earned a living that way, but I wanted there to be a
22 period in which there’s just no question about it in
23 place. I would anticipate that after January 1st that,
24 you know, weddings and so forth, the probation officer
25 would probably give permission for that, assuming he was
ER-382
1 in compliance with probation. But I thought there should

2 be a period initially in which it wasn’t authorized.
4 THE COURT: Anything else?
5 MR. TROTTER: Yes, Your Honor. I would just -- I
6 know you’ve made the ruling, I would strongly urge you to
7 reconsider this in terms of, as Mr. Short said, now that
8 my client has this conviction, seeking employment and
9 gainful employment by traditional means is going to be a
10 substantial hardship for him to be able to continue as he
11 has been doing, like I said, for the last ten months
12 without incident to film weddings and to do some
13 photography work that is not political in nature at all.
14 I don’t see how that’s reasonably related to the purpose
15 of probation in keeping himself and others safe.
16 THE COURT: Well, it’s not all cinematography
17 work, it’s only the recording of persons after all. So
18 nature or buildings or so forth is not prohibited by this
19 order. But I’m happy to -- and I assume the State would
20 agree to this -- I’m happy to address this issue on June
21 9th, with some further evidence about his earning ability
22 and perhaps language you might come up with that could be
23 better written or better -- more well tailored than I’ve
24 written this. State have any objection to that, just to
25 addressing it on June 9th?
ER-383
1 MR. JACKSON: No, no objection.

2 MR. TROTTER: I’ll prepare language for that.
3 THE COURT: Yeah, yeah, prepare something, talk
4 to the State about it, you know. And I’m happy -- I want
5 to support, I think it’s important that he be able to earn
6 a living, but I don’t want there to be any question that
7 it not be in the types of circumstances that has led him
8 into trouble in the past.
9 MR. TROTTER: Understood. And I don’t know that
10 -- we can ask even if the State has any objection to that.
11 THE COURT: Work on language.
13 THE COURT: So, and if they don’t have an
14 objection, we can modify the condition. But for today,
15 it’s no video recording or filming. And I’m not even sure
16 we should use the word “filming,” but we’ll use it.
17 Anything else, Mr. Ko?
18 COURT CLERK: Yes. Could I get the victim names
19 for the no contact order?
20 THE COURT: Oh, yeah.
21 COURT CLERK: I have Mr. Kerensa and the other
22 one was?
23 MS. MOLINA: There’s also Malcolm Chaddock.
24 THE COURT: Please spell the last name.
25 MS. MOLINA: C-h-a-d-d-o-c-k.
ER-384
1 THE COURT: Okay. So that could just go -- just

2 put that in Count 1, right, and then...
3 COURT CLERK: The last name again?
4 THE COURT: C-h-a-d-d-o-c-k, like Paddock with a
5 C added to it.
6 (Pause)
7 THE COURT: Okay. We’ll go off the record.
8 (Off record/on record)
9 THE COURT: Back on the record. I certainly
10 meant to, and if I didn’t, weekends are okay for the jail
11 time.
13 (End of Proceedings at 10:59 a.m.)
14
15
16
17
18
19
20
21
22
23
24
25
ER-385
**June 9, 2017** 1008
1 ********************
2 June 9, 2017
3 Hearing
4 (BEFORE: THE HONORABLE THOMAS RYAN, CIRCUIT JUDGE)
5 Attorney for the State: Todd Jackson and Kate Molina
Multnomah County DA’s Office
6 Portland, Oregon
7 Attorney for the Defendant: Chris Trotter
Attorney at Law
8 Hillsboro, Oregon
9 ********************
10 (8:35 a.m.)
11 THE COURT: Good morning. Thank you. Please be
12 seated. District attorney, call the case.
13 MS. MOLINA: Thank you, Your Honor. Good
14 morning. We’re here in the matter State of Oregon v.
15 Michael Strickland, it’s case number 16CR41718.
16 On behalf of the State, Kate Molina, M-o-l-i-n-a,
17 Bar No. 123989.
18 I’m here with Mr. Jackson also for the State.
19 Mr. Strickland is present, out of custody with
20 counsel, Mr. Trotter.
21 This is the time and place set for -- I guess it’s
22 kind of a sentencing hearing part two just to kind of deal
23 with some lingering matters with the Court.
24 THE COURT: Good morning.
25 MR. TROTTER: Good morning, Your Honor. Chris
ER-386
Colloquy (Re: Sentencing Matters) 1009
1 Trotter, T-r-o-t-t-e-r, Bar No. 135071, here with Mr.

2 Strickland.
3 This, as you may recall, the original intent of
4 this hearing was to have arguments on the motion for a new
5 trial, as that motion has been withdrawn, we decided to
6 keep it on for these sort of loose ends.
7 The things we wanted to address, Your Honor, are,
8 one, I think probably the most simple first, is that Your
9 Honor was accommodating in allowing Mr. Strickland to
10 begin his jail sentence in August, with the idea that we’d
11 be arguing for the new trial motion at our request.
13 MR. TROTTER: In speaking with Mr. Strickland,
14 especially now that we’re not arguing that, he would like
15 to get the jail time done sooner rather than later. So we
16 would request either modification of the judgment or an
17 order allowing him to go back to the Justice Center and
18 schedule it an earlier time so he can start getting that
19 done. That’s the most issue.
20 THE COURT: All right. Let me just -- I assume
21 the State has no objection to that?
22 MS. MOLINA: No, Your Honor.
23 THE COURT: He still wants to do weekends and
24 turn himself in, right?
25 MR. TROTTER: That’s correct.
ER-387
1 THE COURT: He’s going to go over to jail records

2 this morning?
5 (Pause)
6 THE COURT: All right, what this part of the
7 order says, is TSI jail sentence may begin immediately
8 subject to sheriff’s scheduling and space availability.
9 Defendant to report to jail records this morning. So he
10 doesn’t get to pick the weekends because that’s up to the
11 sheriff. So if it’s his desire to do it this week -- for
12 example, if he desired to do it this weekend or next
13 weekend, the sheriff might be full. They only have so
14 many slots for that.
15 MR. TROTTER: Oh, I understand that, not a
16 problem.
17 THE COURT: Okay.
18 MR. TROTTER: And I don’t know if it would be
19 helpful or necessary to put that, you know, all other
20 conditions remain, you know, the 936 credits and
21 everything, all other conditions remain the same as stated
22 in the judgment.
23 THE COURT: I don’t think you really get 936
24 credits on weekend time, but I don’t have any objection to
25 saying it, so...
ER-388
1 MR. TROTTER: I believe that’s what the sentence

2 was.
3 THE COURT: I’ll say, “Defendant remains entitled
4 to all Senate Bill 936 credits.” And did he get credit
5 for time served, too? Mr. Jackson is shaking his head
6 yes, so...
7 MR. JACKSON: Yes. Defendant may receive credit
8 for time served.
9 THE COURT: All right. That’s fine.
11 THE COURT: I’m not sure that he gets it, but
12 that’s what the order says, so...
13 MR. TROTTER: Thank you, very much.
14 THE COURT: What’s the next issue?
15 MR. TROTTER: The next, and I believe the only
16 remaining issue is --
17 THE COURT: Filming?
18 MR. TROTTER: Oh, actually, maybe a more simple
19 one is the items which are not subject to -- some of the
20 personal property of Mr. Strickland that was taken that
21 was not ordered to be -- I don’t recall it being ordered
22 to be destroyed, his SD card and his camera equipment.
23 THE COURT: SD card, is that some type of memory
24 card?
25 MR. TROTTER: Yeah, it’s the memory, it’s a
ER-389
1 miniature hard drive think of, that sort of thing. And so

2 we are asking for those items to be released to Mr.
3 Strickland.
4 THE COURT: Any objection?
6 THE COURT: The normal process in this county is
7 that the district attorneys provide a form to submit to
8 the defense counsel authorizing release of the property.
9 So they will get you the form, then you or your client can
10 take it to the police property room and they’ll give you
11 the property.
13 (Counsel confer)
14 MS. MOLINA: Your Honor, I was just taking a
15 moment to confer. One of the other things that we had
16 done for today was to bring and prepare the confiscate and
17 destroy order for the gun and the magazines and
18 ammunition. This form does allow for other items to be
19 addressed, and so I’m wondering if --
20 THE COURT: Hand it up. Let me see it.
21 (Pause while Court reviews document)
22 THE COURT: Well, it seems to me that -- did you
23 look at this?
24 MR. TROTTER: I haven’t seen it yet, no.
25 THE COURT: Oh, all right. Well, come on up.
ER-390
1 Will counsel approach?

2 (Sidebar)
3 THE COURT: The lawyers jointly work on getting
4 that filled out together.
5 MR. TROTTER: Okay. Thank you, Your Honor.
6 THE COURT: Mr. Strickland, I hope that property
7 is still available, it should be, but sometimes -- you
8 know, sometimes property gets waylaid, I hope that didn’t
9 happen.
10 Okay. Go ahead.
11 MR. TROTTER: Now, I think the only other issue
12 is as to the condition that was imposed of probation
13 allowing Mr. Strickland to film or video record anyone
14 until January 1st of 2018 upon approval from his probation
15 officer.
16 I’ve spoken with Ms. Molina or emailed kind of
17 communicated about this and it appears from our
18 communications that they are not completely closed to some
19 sort of condition that would allow for that. However,
20 we’ve been unable to agree on a specific permutation of
21 that. I did propose some language which I forwarded to
22 the Court. The State does not agree to this language, but
23 I think it’s reasonable. We’re open to any ideas that the
24 Court may have.
25 THE COURT: Yeah, I’m not crazy about this
ER-391
1 language either. I mean, I think that the events in

2 question and the events described at the sentencing were
3 regarded as video recording that the Defendant did within
4 the scope of his employment or volunteer work, right?
5 MR. TROTTER: I would say that, yes, that’s in
6 the scope of his employment. I guess it is kind of
7 tricky, Judge, to try and put it in a way, but what we’re
8 trying to effectuate is -- you could specifically exclude
9 protests or anything like that. He’s required to have
10 full-time employment and with 20 --
11 THE COURT: Full-time employment or school, yeah.
12 MR. TROTTER: Right. And with 20 felony
13 convictions, just as a practical matter, it’s hard to get
14 a traditional job. But he can do gainful employment.
15 THE COURT: Just 10 felonies, right?
16 MR. TROTTER: Well, I guess 10 felonies, 21
17 convictions.
19 MR. TROTTER: Thank you. And so what we’re
20 trying to get to, and maybe I’m just not smart enough to
21 put language that would effectuate that, is to allow him
22 to do things like somebody hires him to film a wedding or
23 a commercial for their business.
24 THE COURT: Right. Yeah, you’re plenty smart and
25 -- and I also agree that -- I’m not troubled by, really by
ER-392
1 somebody who hires him to do a wedding say at a, you know,

2 a reception hall, and he goes to that reception hall and
3 he video records that wedding. Not bothered by that at
4 all. But both before sentencing, during sentencing and
5 now, I’m struggling with coming up with ways to adequately
6 define that. I’m open to suggestions of counsel. That’s
7 why I landed on, I thought that there should be, I think
8 as I described, a cooling off period, and then the idea
9 that he could go forward doing it just with the knowledge
10 of his probation officer, or with a prior consent. You
11 know, I have -- I have this -- I’ve been offered a job to
12 do this -- to film this event or this wedding and the
13 probation officer can say okay. Doesn’t even need to be
14 in writing. The only thing that that would interfere,
15 obviously that would interfere with his ability to take a
16 last minute job, you know, somebody calls him up on
17 Saturday and says, “Can you come this afternoon to video
18 record our wedding,” but I wouldn’t -- that would be the
19 exception to that type of business anyways, I would
20 think.
21 MR. TROTTER: Maybe, Your Honor -- excuse me --
22 what I would suggest is just expediting that, the
23 timeline, instead of having it be January 1st, just
24 expedite it to now so he can do that subject to approval
25 per job with the probation officer. Obviously it’s kind
ER-393
1 of onerous, but I understand that the Court has a concern

2 there. So I think that would be perhaps a reasonable
3 happy medium, so to speak, to allow him to be able to do
4 that.
5 THE COURT: Yeah, just out of curiosity, Mr.
6 Strickland, do you know who your PO is?
7 MR. STRICKLAND: Yes, Your Honor, it is Kenneth
8 Border at Columbia County.
9 THE COURT: Oh, you’re residing in Columbia
10 County?
11 MR. STRICKLAND: Yes.
12 THE COURT: Apparently. Okay. Thank you. You
13 can be seated.
14 What’s the State want to say about this?
15 MS. MOLINA: Your Honor, we did have a chance to
16 review the proposed language that Mr. Trotter had provided
17 to us, and based on the proposed language -- I mean, I
18 think I understand what they’re trying to get at, I think
19 the way it’s written presently and their suggested
20 language leaves too many possible loopholes.
21 The State’s concerns were that, you know, somebody
22 could hire Mr. Strickland to come down and film basically
23 anything based on their proposed language and that this
24 kind of implied consent idea was way too broad.
25 I did have a chance to talk with Mr. Border, who
ER-394
1 is a Columbia County probation officer, and he was fine

2 with me letting the Court know that he agrees that no
3 filming for now and then maybe later not in a political --
4 or filming any kind of political nature would be kind of
5 what his recommendation would be, or what his thinking was
6 on this topic. And he said that he was in agreement with
7 the Court’s order as it was presently.
8 THE COURT: That’s dangerous waters to say, you
9 know, I think to say not political recording, but I
10 understand -- I understand the effort, but that sails
11 into, I think, to problematic waters perhaps.
12 MS. MOLINA: And he and I were having sort of a
13 general conversation about this specific language that the
14 Defense had suggested. But what he -- you know, what I
15 think is important about what he said, was that he was in
16 agreement with the Court’s order and the probation
17 conditions as they were presently ordered.
18 THE COURT: I mean, I don’t have -- I struggled
19 before sentencing to try to come up with the right
20 language. I sat in my office and wrote out language,
21 typed it up and edited it and didn’t -- but I -- I really
22 don’t have any objection, if Mr. Strickland gets called to
23 video record a wedding next week, fundamentally, you know,
24 at the Holiday Inn Ballroom and he goes there and he video
25 records it, I don’t have a problem with that. But I
ER-395
1 didn’t see -- I couldn’t come up with an effective way to

2 limit that. That will probably be, you know, probably
3 brighter minds than mine to come up with that. And I was
4 hoping that the lawyers could come up with something.
5 MR. TROTTER: Well, I came up with something, not
6 satisfactory.
7 THE COURT: You did -- you did come up with
8 something.
9 MR. TROTTER: Maybe if we take a step out of
10 being lawyers for a minute, I think we could do something
11 more general, which would just say if he is hired to --
12 THE COURT: But I want to draw a line though. I
13 want to draw a line between hired to record a wedding and
14 hired to record a protest or an event that has led to --
15 that led -- an event similar to the ones that led to these
16 charges and convictions. And as I recall, there was
17 recording that led to, at least at sentencing, there was a
18 recording at the University of Portland, I believe it was,
19 that led to an accusation that he had displayed a firearm
20 in response to a campus security officer, and that was
21 concerning. I don’t think that was a protest event, but
22 it was recording. I don’t want to -- you know, on private
23 property under some circumstances. So, you know, you can
24 be hired to do all types of jobs, some of which could be
25 problematic.
ER-396
1 I believe the evidence at trial or sentencing was

2 that in the event of this case he was recording as part of
3 an economic enterprise, right, correct?
4 MR. TROTTER: Yes, that’s correct. We could just
5 provide exclusions, say no protests, and then I think the
6 other protection -- I think you could exclude the ones
7 that we know are problematic.
8 THE COURT: So is a peaceful march a protest or
9 not?
10 MR. TROTTER: I was going to say, and then it
11 could be a two-part thing. It could be, number one,
12 exclude things that are obviously the ones that we want to
13 have avoided, and then the other to have it subject to
14 approval by his probation officer, then you have kind of a
15 two-part protection.
16 THE COURT: I would be happy with -- if you came
17 up with a list of things that -- a list of things that he
18 could do, actually.
19 MR. TROTTER: I think -- I think we could do that
20 pretty easily.
21 THE COURT: You know, wedding receptions,
22 birthday parties.
23 MR. TROTTER: Commercials.
24 THE COURT: Perhaps, you know, perhaps. Those
25 other types of relatively closed private events. And, you
ER-397
1 know, bar mitzvahs, anniversaries, anything like that.

2 But I think counsel needs to do some more work on it to
3 come up with that list. I mean, I could -- you know, I
4 could come up with a short list, but I think -- nothing
5 else pops to mind right now.
6 MR. TROTTER: I think I could speak probably
7 fairly expeditiously and have a list of things that he
8 would be able to do and then he would know that during his
9 term of probation those are the things that he could do.
10 THE COURT: He’s been in this business for a
11 while, right?
12 MR. TROTTER: Yes. And I will note that in the
13 ten months or so that the case was pending, he was engaged
14 and doing certain behavior without issue.
15 THE COURT: And he has no prior record.
16 MR. TROTTER: Correct.
17 THE COURT: And he was in this business before
18 that ten-month period, right?
20 THE COURT: What does the State think about
21 trying to come up with a list of events he could do and
22 other events only subject to the permission of his
23 probation officer?
24 MR. JACKSON: Yeah, I think that would be fine.
25 THE COURT: Okay. All right. So why don’t we
ER-398
1 take a few minutes, you take a few minutes. Give this

2 back to Mr. Trotter. And the lawyers go off and try to
3 come up with some language.
7 THE COURT: All right. Back on the record in
8 16CR41718. The record should reflect that we have come up
9 with language on an order regarding the probation
10 conditions, regarding filming. The lawyers have had a
11 chance to review it and have agreed to it. And there will
12 be a handwritten order and then there will be an amended
13 judgment that comes forth later reflecting this, but...
14 Do the lawyers have anything to add?
15 MR. TROTTER: No. I guess I would just put on the
16 record that we -- the Defense does agree to the language.
17 THE COURT: State does, too, right?
19 THE COURT: And Ms. Molina or Mr. Jackson, I’m
20 going to ask that one of you fax this to the PO in
21 Columbia County so that they have it, okay?
22 MS. MOLINA: Sure.
23 THE COURT: Is that fair for you to do that?
24 MR. JACKSON: Mmm-hmm.
25 THE COURT: All right. We’ll have copies of this
ER-399
1 for you. Thank you very much.

2 MS. MOLINA: Your Honor, if I could bring up one
3 last matter. I luckily had brought two property orders,
4 one that had the disposal order specifically included the
5 only order on here. I tried to do language that would
6 allow for Mr. Strickland to get his USB drive back. And I
7 think what our office’s typical practice is, just to call
8 the detective and say the case is done with this last
9 hearing, the case is concluded, can you let the property
10 room know that they can release it to Mr. Strickland and
11 that’s kind of the cleanest way to do it.
12 So if the Court and the Defense are happy with
13 that, then I have this other order that just has the order
14 to destroy the gun, and the magazines and ammunitions and
15 then we can take care of making sure that he can go to the
16 property room and get his...
17 THE COURT: Is that other order signed?
18 MS. MOLINA: It is. I would give it back, or
19 just tear it up at the Court’s discretion.
20 THE COURT: Yeah, okay. Kevin, get back the one
21 that they’re not going to use that I signed. But the one
22 you propose to use -- wait, wait a minute, the one you
23 propose to use is not signed yet, right?
24 MS. MOLINA: Correct.
25 THE COURT: But I would actually ask that you
ER-400
1 hold off on submitting that until the USB drive issue is

2 addressed a little bit more. Because in my experience at
3 times, is what has happened is, the property room would
4 get an order to confiscate and destroy, and then they’ll
5 just throw out the other stuff.
6 MS. MOLINA: Okay.
7 THE COURT: So just hold off just a little bit.
8 That order can be submitted at any time ex parte, right?
9 MR. TROTTER: Absolutely.
10 THE COURT: Yeah. So let’s just try to get the
11 USB drive issue resolved.
12 MS. MOLINA: Okay.
13 THE COURT: And then I’m happy to sign that.
15 THE COURT: Okay. Thank you.
17 (End of Proceedings at 9:37 a.m.)
18
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25
NOTICE OF FILING AND PROOF OF SERVICE
I certify that on December 12, 2017, I filed this Appellant’s Brief with
the Appellate Court Administrator, Appellate Court Records Section, by
using the court’s electronic filing system.
I further certify that on December 12, 2017, I served a copy of this
Appellant’s Brief upon Benjamin Gutman, DOJ Appellate Division,
attorney for respondent, by using the court’s electronic filing system.
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the 10,000 word-count limitation
provided in ORAP 5.05.
I further certify that the size of the size of the type in this brief is not
smaller than 14-point for both the text of the brief and footnotes as required
by ORAP 5.05(4)(f).
s/ Robert E. Barnes
BARNES LAW
CA Bar #236919
Tel: (310) 510-6225
robertbarnes@barneslawllp.com
s/ Mark J. Geiger
Attorney at Law
Salem, OR 97301
Tel: (503) 588-1723
mark@markgeiger.com

(Strickland) Opening Brief FINAL

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(Strickland) Opening Brief FINAL

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IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, ) Multnomah County Circuit Court

APPELLANT‘S BRIEF AND EXCERPT OF RECORD

An Appeal from a Judgment of the Circuit

MARK J. GEIGER, #840473

TODD JACKSON # 114240 Deputy District Attorney

STATEMENT OF THE CASE ...................................................................... 1

indictment because the indictment described two different theories

CONSTITUTIONAL AUTHORITIES AND STATUTES

OEC 103(1) .................................................................................................. 37

STATEMENT OF THE CASE

Nature of the Proceeding

This is a criminal appeal in which Defendant respectfully requests this

counts of menacing, and one count of disorderly conduct in the second

A Multnomah County grand jury indicted Defendant for ten counts of

unlawful use of a weapon, ORS 166.220; ten counts of menacing, ORS

Nature of the Judgment

the County of Multnomah, and was found guilty on all counts.

This Court has jurisdiction under ORS 138.040.

The Multnomah County Circuit Court entered judgment on May 3,

Defendant filed an amended notice of appeal on June 8, 2017.

1. May a trial court deny a change of venue where pre-trial coverage in

damaging, untrue statement about defendant in front of local media

during the arraignment?

2. May a trial court grant a motion to exclude evidence of unrelated prior

fact-finder to understand both defendant’s state of mind at the time he

3. May a trial court exclude certain testimony as hearsay when that

offered as indirect or circumstantial evidence of the declarant’s state of

mind, such as to prove motive, knowledge, or good faith?

4. May a trial court allow the prosecution in a criminal case to put

with less than a day’s notice to the defense?

indictment describes two different theories regarding mens rea, as well as

unlawful use of a weapon?

6. May the trial court violate a defendant’s constitutional rights through

a special condition of probation?

Summary of the Arguments

In a trial by ambush that started with an attack by ambush of a citizen

inaccuarate irrelevant statements, personally vouched for the guilt of the

defendant, used an indictment that left the Defendant guessing as to how to

a jury trial, and systematically excluded evidence necessary and essential to

Amendment rights. This appeal follows. Attack by ambush followed by trial

by ambush followed by verdict by ambush. This is not the Oregon standard

Summary of Assignments of Error

1. Before Defendant’s trial, many news articles were published

containing false information about Defendant, including political views that

2. While Defendant was filming in a public place as part of his

employment as a videographer, Defendant was attacked, and thrown to the

incident, the jury was unable to properly understand Defendant’s state of

necessary to prove self-defense. Further, Defendant was precluded from

presenting crucial context evidence as to why he carried ammunition and

permitted to admit evidence concerning the amount of ammunition carried

State’s motion to exclude evidence of an unrelated prior altercation.

3. During cross-examination of the State’s witness, Detective Cavalli,

the defense began asking questions regarding Defendant’s state of mind.

meet the definition of the exception to the definition of hearsay. The

testimony of Cavalli related directly to Defendant’s state of mind, including

individual. Such testimony was offered as indirect or circumstantial

evidence of the declarant’s state of mind as to prove motive, knowledge or

good faith. Such evidence would have supported Defendant’s self-defense

truth of the matter asserted, but instead was offered as indirect or

circumstantial evidence of the declarant’s state of mind.

testify as to the reasonableness of Defendant’s actions based on his

Servo’s testimony. Despite the advance notice of Servo’s testimony, the

by the State to essentially testify that none of Defendant’s actions could be

viewed as reasonable. Rasmussen rebutted Defense’s expert testimony

regarding handling of a firearm and self-defense protocol. Defense was