State v. Powell, 518 P.3d 949

Defendant was charged with six counts of first-degree sexual abuse of his stepdaughter (A) and pleaded not guilty; bench trial later resulted in convictions on all counts.
Defense retained counsel withdrew in October 2018; new counsel was appointed and multiple motions to postpone trial were filed—one denied, one granted (which reset trial and imposed a scheduling order), and a third denied four days before trial.
On the morning trial was to begin, defense counsel disclosed last-minute need for a PTSD expert and admitted being too busy to prepare; the trial court sua sponte removed appointed counsel and replaced him, continuing trial to allow new counsel time to prepare.
At the September bench trial, defendant waived a jury, and pretrial evidence disputes focused on whether the mother could testify that A had lied previously about school/cousin matters.
Defense sought to admit prior lies to show a motive/plan to fabricate allegations when confronted by mother (relying on OEC 404(3)); the State moved to exclude as impermissible propensity/character evidence under OEC 404(2) and OEC 608.
The trial court excluded testimony about A’s prior lies as requiring propensity reasoning; defendant appealed alleging error in counsel substitution, denial of the last-minute continuance, and exclusion of the evidence.

Issue	State's Argument	Powell's Argument	Held
Whether the trial court erred by sua sponte replacing appointed counsel	No plain error and issue not preserved—defense did not object or develop record; court’s action within discretion	Replacement violated ORS 135.050(6)/OPDS consultation rules and continuity-of-counsel rights; plain error if not preserved	Not preserved; not plain error because record didn’t show consultation requirement applied or an obvious constitutional violation
Whether denying defendant’s late motion to postpone trial was an abuse of discretion	Court properly balanced docket management, victim’s interest, and counsel’s prior opportunity after scheduling order	Denial prejudiced defense because counsel lacked adequate time to prepare for trial	No abuse of discretion: counsel had ten weeks after prior continuance and failed to comply with scheduling order
Whether the court erred in excluding testimony that A had lied to her mother about school/cousins	Such specific-instance testimony is inadmissible character/propensity evidence under OEC 404(2) and OEC 608; only reputation/opinion allowed	Evidence admissible under OEC 404(3) to show motive/plan to fabricate when confronted by mother	Affirmed: exclusion proper because proffered evidence would require impermissible propensity reasoning

Peeples v. Lampert, 345 Or. 209 (2008) (preservation requirement for appellate review)
State v. Barajas, 247 Or. App. 247 (2011) (exceptions to preservation when party denied meaningful opportunity to object)
State v. Vanornum, 354 Or. 614 (2013) (plain error test: error of law that is obvious and apparent on the record)
State v. Prange, 247 Or. App. 254 (2011) (admission of evidence of hostility/bias as nonpropensity evidence of motive)
State v. Skillicorn, 367 Or. 464 (2021) (propensity reasoning cannot be the basis for admitting other-acts evidence)