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STATE v. MONSEBROTEN

87-1130; CA A61663.

809 P.2d 1366 (1991)

106 Or.App. 761

STATE of Oregon, Respondent, v. Kenneth MONSEBROTEN, Appellant.

Court of Appeals of Oregon.

Decided April 24, 1991.

Reconsideration Denied June 12, 1991.

Attorney(s) appearing for the Case

Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Defendant appeals his conviction for rape in the first degree. ORS 163.375. His first trial ended in a mistrial, but he was convicted in a second trial. He contends that the trial court erred when it denied his motion for a continuance, refused to allow him to use the prior transcribed testimony of a witness who failed to appear at his retrial, failed to order a mistrial because of a comment made by the prosecutor in his

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