The Inherent Flaw in the State's Antoine Demurrer Argument

by: Ryan Scott • October 10, 2025 • no comments

On September 10, 2025, the Court of Appeals issued State v. Bravo-Chavez, 343 Or App 326 (2025). The issue in that case was whether the trial court abused its discretion in requiring the state to elect the specific acts upon which it would rely when notice was inadequate.

Although the standard of review was an abuse of discretion, this court appeared to hold that a remedy was required.

Although the state should “not be forced to make a choice when it cannot intelligently do so,” an election must “afford the defendant sufficient time, after the choice has been made, to defend himself properly.” State v. Lee, 202 Or 592, 607, 276 P2d 946 (1954). Courts “should compel an election when it appears :that, if the application is denied, the defendant will be * * * prevented from properly making his defense.” State v. Keelen, 103 Or 172, 179-80, 203 P 306 (1922).

Bravo-Chavez, 343 Or App at 339. [Bold added.]

I have long thought of the issue as one of constitutional magnitude. Specifically,