dissenting.
I dissent from the majority’s conclusion that the state did not violate ORS 135.815 by failing to produce a videotape that the arresting officer had made of his encounter with defendant. The majority considers ORS 135.815(l)(d) to be the only subsection of the statute that applies to the videotape.1 It is mistaken. Subsections (l)(a) and (l)(b) apply as well and were violated by the failure to produce the videotape. Consequently, we should vacate the judgment and remand the case to the trial court to determine the appropriate remedy for the violation.
We previously have held that police conduct falls within the purview of ORS 135.815(1)2 and that a recording of a DUII defendant’s interaction with an arresting officer contains statements that are subject to discovery under ORS 135.815(l)(a).3 Here, there is no dispute that the state intended to call the arresting officer as a witness, and it is evident that the videotape would have included statements of both the officer and defendant. Therefore, the state violated both subsections (1)(a) and (1)(b) by failing to produce the videotape.4
*8The majority rejects that conclusion on the ground that defendant’s brief focuses on the nonverbal content of the videotape, so the majority interprets his argument to be one that does not rely on subsections (1)(a) and (1)(b), which both concern statements. In other words, the majority interprets defendant’s argument to be one that relies on a subsection of ORS 135.815 that clearly does not apply rather than on subsections that do apply, and it does so even though defendant cited a case in his reply brief, State v. Johnson, 26 Or App 651, 654, 554 P2d 624, rev den 276 Or 555 (1976), that treated a failure to produce an audiotape of an arrest of a DUII defendant as a violation of ORS 135.815(l)(a). I would not interpret defendant’s argument so narrowly.5
The thrust of the argument on which the majority focuses is directed to the remedy that defendant believes should attach to the state’s destruction of the videotape. Defendant argues that the evidence in the record establishes that the videotape contained exculpatory evidence, so its destruction by the state requires that the case be dismissed as a remedy for the destruction. I agree with the majority that the record fails to establish that the videotape necessarily contained exculpatory information. Hence, the destruction of it does not require dismissal. However, it does not follow that defendant’s conviction should be affirmed.
The trial court concluded that the state had not committed a discovery violation, so it denied the motions by defendant that were based on such a violation. Because the state, in fact, violated ORS 135.815(1)(a) and (1)(b), I believe that we are required to vacate the judgment and remand the case to the trial court to determine the appropriate remedy for the violation. If the court determines that the relief that it would grant for the violation would not have affected the trial, it should reinstate the judgment. If it concludes that the relief could have affected the trial, it should order a new trial. I therefore dissent from the majority’s contrary decision.6
ORS 135.815(1) provides, in relevant part:
“Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney:
“(a) 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.
“(b) Any written or recorded statements or memoranda of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one.
“(d) Any books, papers, documents, photographs or tangible objects!.1”
State v. Johnson, 26 Or App 651, 655-56, 554 P2d 624, rev den 276 Or 555 (1976).
State v. Peters, 39 Or App 109, 111-12, 591 P2d 761 (1979).
See footnote 1 above for the text of subsections (1)(a) and (l)(b).
The majority’s approach to the issue embodies a logical fallacy. It reasons as follows: Because defendant focuses on the nonverbal content of the videotape for purposes of his argument about the remedy that should attach to the destruction of it, he necessarily invokes the subsections of ORS 135.815(1) that involve nonverbal materials. The conclusion does not follow from the premise.
I agree with the majority’s disposition of defendant’s other assignments of error.