State v. Garlinghouse

640

Argued and submitted November 6, 2020, affirmed January 11, petition for

review denied May 18, 2023 (371 Or 106)

STATE OF OREGON,

Plaintiff-Respondent,

v.

JASON ALLEN GARLINGHOUSE,

Defendant-Appellant.

Linn County Circuit Court

17CR09894; A168303

524 P3d 103

Defendant appeals from a judgment of conviction for first-degree murder,

raising primarily evidentiary issues. He asserts that the trial court erred in

several respects with regard to evidence presented by a detective concerning a

recording made by the victim that captured the moments before and after the

murder and concerning a text message sent by defendant, erred in allowing

the victim’s coworker to present evidence of the victim’s state of mind, erred in

limiting testimony concerning the victim’s alleged abuse of children, erred in

admitting evidence of an out-of-court statement by a coach of one of defendant’s

children, erred in admitting a summary of a police department call log, and erred

in ruling that defendant’s divorce attorney would need to invoke attorney-client

privilege in the presence of the jury. Held: The trial court did not err in admit-

ting testimony by the detective concerning either the recording or the text mes-

sage under OEC 702. The trial court properly admitted the coworker’s testimony

under OEC 803(3) as evidence of the victim’s state of mind. The trial court did

not err in limiting testimony about the victim’s alleged abuse of children. With

respect to the court’s evidentiary rulings concerning the coach’s statement and

the summary of the call log, the Court of Appeals concluded that the evidence was

cumulative and any error was harmless. The court agreed with defendant that

the trial court erred in indicating that defendant’s divorce attorney would need

to invoke privilege in the presence of the jury, but noted that in fact the privilege

was never invoked and the substantive testimony by the attorney was cumulative

of other evidence. The court therefore concluded that the error was harmless.

Finally, the court rejected an argument that it should correct what defendant

asserted was an erroneous entry into the Oregon eCourt Information system by

the trial court. The court concluded that this was not an error in the judgment

that could be addressed on appeal, and that it was a matter to be taken up with

the trial court.

Affirmed.

David E. Delsman, Judge.

Daniel J. Casey argued the cause and filed the briefs for

appellant.

Cite as 323 Or App 640 (2023) 641

Joanna Hershey, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

ORTEGA, P. J.

Affirmed.

642 State v. Garlinghouse

ORTEGA, P. J.

Defendant killed his estranged wife, S, and now

appeals his conviction for murder, ORS 163.115 (2017), rais-

ing numerous challenges, mostly concerning evidentiary

issues that arose at trial. As we will explain, we reject his

assignments of error, concluding that (1) the trial court

did not abuse its discretion in allowing testimony from a

police witness regarding information contained on S’s phone

and defendant’s phone; (2) cross-examination of defendant

regarding some of that testimony likewise was not in error;

(3) the court did not err in allowing testimony from one of

S’s coworkers as relevant to S’s state of mind; (4) the court

did not err in limiting testimony regarding S’s alleged abuse

of children; (5) any error in allowing testimony regarding

defendant’s contact with one of his children’s coaches was

harmless; (6) any error in admitting a summary of a police

department’s activity and call log was harmless; (7) the

court erred in rejecting defense counsel’s argument that the

court should allow invocation of the attorney-client privilege

applicable to testimony by his divorce attorney to be done

outside the presence of the jury, but that error was never-

theless harmless; and (8) defendant’s challenge to errone-

ous post-judgment entries into the Oregon eCourt Case

Information (OECI) system is not well taken. Accordingly,

we affirm the judgment.

I. FACTUAL BACKGROUND

To provide the necessary context for our discussion

of the wide range of evidentiary issues raised on appeal, we

provide an overview of the parties’ theories of the case as

well as of the evidence adduced at trial that is pertinent

to our analysis. The disputed evidence will be described in

more detail later in the opinion.

On the morning of February 14, 2017, defendant

shot his estranged wife, S, eight times, killing her. He was

charged with murder and claimed that he had acted in

self-defense. The state’s theory was that defendant had pre-

meditated the crime, luring S to his house, shooting her,

and attempting to stage a self-defense scenario. Defendant

claimed that S had entered the house and they had argued,

she had threatened him with a knife from his kitchen and

Cite as 323 Or App 640 (2023) 643

then left the house with the knife, he went into another room

and got a gun and returned to the kitchen, and then she

returned and approached him with the knife again and he

shot her. As described in more detail below, a crucial piece

of evidence was a recording on S’s iPhone of the moments

leading up to and immediately following the shooting.

Defendant and S were in the process of divorcing. S

had moved out of their home several months before defendant

filed for divorce in December of 2016; defendant remained

in the home. When defendant had filed for divorce, he had

sought equal parenting time with their children for both par-

ents, and at first things had proceeded amicably. However,

as shown by evidence from both the state and defendant, the

divorce quickly became a bitter contest involving disputes

both public and private, in particular surrounding the chil-

dren. While defendant and S were living separately, their

two children lived part-time with each parent, switching off

on a weekly basis. Both S and defendant had new partners;

S was living with a man named Brandon Stoering; defen-

dant was seeing a woman, Ainsworth, who stayed at his

home the night before the shooting. Brandon Stoering also

was involved in a divorce at the time. Brandon’s estranged

wife, Kim Stoering,1 and her new partner, Bynum, as well

as defendant, made various allegations that S had been vio-

lent toward the children involved in the custody disputes.

Witnesses for the state, by contrast, provided evidence that

S feared defendant because of the contentiousness of the

divorce, that she made efforts never to be alone with him,

and that she recorded her interactions with him.

Although defendant remained in the family home

after S moved out, S came to the home regularly during

weeks when the children were in defendant’s care but

after defendant had left for work, to bring them their back-

packs, get them ready for school, then take them to school.

Defendant’s father was generally present when S came over

before school. Defendant and his father exchanged text

messages about S entering the house, and whether or when

defendant could exclude her from the house; during one such

1

Because both Stoerings testified, we refer to them by their first names in

this narrative.

644 State v. Garlinghouse

exchange, defendant asked where his pistol was located and

whether he could retrieve it, and his father indicated that it

was in a bedside table drawer. Defendant communicated to

others that he resented S’s entry into the home and believed

she was getting into things belonging to him and Ainsworth.

S made 12 early morning visits to the home between

January 5 and February 13 during which she used her

iPhone to record her visit. Each recording showed that she

started the recorder immediately before entering the home

at approximately 7:00 a.m. and recorded her interactions

with the children and defendant’s father thereafter. On the

morning of the 14th, during a week when the children were

staying with defendant, S drove to the family home and

entered. Defendant’s car was not there; his father’s car was

there. At 7:01 a.m., she began recording on her iPhone. The

evidence of what happened in the moments before and after

the recording began was some of the key evidence at trial.

The recording began with a sound that the parties

appear to agree was a door opening, and several seconds

thereafter, eight gunshots. For about three and one-half

minutes, various faint noises were recorded; the evidence

concerning those noises is the subject of one of the assign-

ments of error discussed below. Three and one-half minutes

after the shooting, S’s iPhone recorded defendant’s 9-1-1 call

reporting that he had shot S in self-defense. During the 9-1-1

call, defendant said that S came into the house and yelled

at him about the children not being there, that she attacked

him, and that he shot her. When police arrived, they dis-

covered S lying on the floor, with two backpacks and a set

of keys clutched in her left hand, a bread knife lying in the

palm of her right hand. They also discovered her cell phone

on a counter. After they arrested defendant, he told a detec-

tive that S had shoved him against the counter by the sink.

Defendant was wearing a gun holster when he was arrested.

Much of the evidence regarding some of what

occurred at the house before S arrived was also undisputed.

On the evening of the 13th, defendant exchanged vehicles

with his father. Early in the morning of the 14th, defendant

called in sick to work. He and Ainsworth made plans to take

the children to McDonalds for breakfast. Defendant typed

Cite as 323 Or App 640 (2023) 645

several messages saying “Happy Valentine’s Day” on his cell

phone and sent them to himself; the first went through and

the others were undelivered. He deleted those messages,

then composed a message addressed to S indicating that he

was taking the day off and would take the children to school

and that she should bring their backpacks to the school.

That message also was undelivered. He then told Ainsworth

and the children that he was not feeling well and that they

should go out to breakfast and that he would remain behind,

which he did. His daughter testified at trial that she thought

this was “pretty odd” because he had appeared to be fine

that morning.

Some of the key testimony at trial came from

Detective Trenary, who conducted forensic examinations of

both defendant’s and S’s iPhones. S’s iPhone had been locked

when it was found at the scene of the homicide. Police obtained

the PIN from Brandon, and Trenary unlocked the phone.

He discovered that the Smart Recorder app was active, that

the recording had paused after recording approximately one

and a half hours (likely because the phone became low on

space) and that the recording had not yet been saved. He

was able to save the recording and was later able to enhance

the audio on it. Much of the evidentiary dispute at issue in

this case concerns Trenary’s testimony regarding what he

heard on the enhanced audio recording, and an exhibit that

he prepared containing the enhanced audio and detailing

his observations. To briefly summarize the testimony and

exhibit, Trenary indicated that between two and 10 seconds

into the recording, one can hear that the door opened and

closed and then footsteps. At the tenth and eleventh sec-

onds, two gunshots could be heard, followed by screams and

the iPhone falling. At the 12th through 14th seconds, six

more gunshots were heard, followed by sounds made by S in

the moments before her death. Thereafter, breathing sounds

could be heard, then at the 24th second, the iPhone was

picked up, and there were “sounds similar to iPhone buttons

being pressed.” At 46 seconds into the recording, the iPhone

was set down. Thereafter, various footsteps and breathing

were heard throughout the next few minutes. Trenary also

opined about several other noises during those minutes,

noises that he likened to “rubber snapping,” and a noise he

646 State v. Garlinghouse

thought “similar” to tape coming off a roll. He also opined

that one of the sounds was of defendant striking something

and grunting, and another sound was like a shell casing

rolling across a hard surface.2 Trenary also testified about

another app on S’s iPhone, one that tracked how many steps

she had taken. He found that on the morning of February 14,

S had taken a number of steps followed by an interval

during which he surmised she was driving to defendant’s

house, then she had taken 33 steps, then there was another

interval, then she had taken her final 10 steps.

Trenary also testified about his examination of

defendant’s iPhone, including messages between defendant

and his father. One such message was sent by defendant to

his father the night before the homicide shortly after defen-

dant had had a telephone call with his father. The message

read: “Thank you for helping me load up my items from

your basement and for letting me use your truck to get it

all home. I didn’t realize there was so much. [emoji] I just

finished unloading it in the garage. I will bring your truck

back tomorrow. Have a good night. Love you guys.” Trenary

testified that this message caught his attention because in

his opinion this one contained an unusual amount of “extra-

neous content.” In particular, Trenary noted that defendant

and his father had just been on the phone with each other,

that it was tonally different from other text messages, and

in his opinion had been written for a third-party audience.

Trenary also testified about his recovery of the

“Happy Valentine’s Day” messages on defendant’s cell phone

that had been deleted, as well as the undelivered but not

deleted message addressed to S. Based on his experimenta-

tion with similar iPhones, Trenary opined that the undeliv-

ered messages most likely had been created after the iPhone

had been placed in airplane mode, and that taking the iPhone

out of airplane mode would not have resulted in the messages

being sent automatically. He testified that the first “Happy

Valentine’s Day” message defendant sent to himself showed

as sent, delivered, and read at 6:12 a.m. on February 14. The

second was created at 6:13 a.m. and showed as undelivered;

2

No physical evidence concerning rubber or tape items was introduced,

although there was evidence as to where various shell casings were found.

Cite as 323 Or App 640 (2023) 647

the third was created at 6:16 a.m. and also showed as unde-

livered. Then, at 6:25 a.m., defendant created the message

to S ostensibly to communicate to her his plan to be at home

that morning; that message also was undelivered.

Trenary also testified as to an additional recording

located on S’s iPhone, recorded at 6:02 p.m. on February 13,

of an argument between S and defendant where they were

fighting regarding the children, and S said, “Stay out of my

vehicle and walk away please,” to which defendant replied,

“No. I’m going to give my daughter a hug before I go.” S sub-

sequently said “Get away from me please,” “Jason, get away

from me,” “Walk away, please,” and “Walk away.”

The state also presented evidence from S’s domestic

relations attorney, Ivers, as well as defendant’s domestic rela-

tions attorney, Ensor. Ivers testified that the divorce began

amicably and that there was an agreed-upon arrangement

regarding parenting time, but that it became acrimonious

and in early February both S and defendant filed supple-

mental affidavits in the proceeding concerning temporary

custody, each alleging abuse by the other. He further testi-

fied that on February 10, he received an order in the divorce

case from the court and communicated its contents to S: She

was given custody of the children, defendant was ordered to

pay child support, S was to make payments on her vehicle,

parenting time was to be 50/50, and defendant got exclusive

use of the home as well as the financial obligations related

to it. Ivers further testified that S was afraid that “defen-

dant might hurt her if they were in the same space.” Ensor

also testified that the divorce had turned contentious, that

defendant and S were fighting about the house, and that S

had not been making payments on her vehicle. He testified

that he informed defendant of the provisions of the court

order by email on February 13, and that defendant made an

appointment to see him the following day. That testimony is

described in more detail below.

The state also presented evidence that defendant

had vented about S to his coworkers and asked a Latino

coworker if he knew any gang members. He had told that

coworker in the week before the homicide that “out of all the

people in this world [S] is the one that deserves to die.”

648 State v. Garlinghouse

Brandon testified that S was scared of defendant

and would not go to see the children at home before school if

defendant was there. He also testified that she was relieved

about the custody decision in the temporary order.

S was a certified medical assistant, and her super-

visor of 10 years, Dey, also testified at trial. Her testimony is

described in more detail below in defendant’s assignment of

error concerning its admissibility. Dey testified that in the

months preceding the homicide, S had “tremendous” fear of

defendant and had asked Dey to accompany her to a court

proceeding. Dey called the police once when S did not arrive

at work on time because she was concerned about her. She

indicated that she had a pact with S that S would not be

alone with defendant, would keep a journal, would make

recordings of all interactions with him if possible, and would

“never enter the home alone when he was there.”

The state also presented evidence through several

witnesses about public confrontations between defendant

and S in which both appeared to be angry. A coach of one

of the children testified that after he observed a confronta-

tion between them, he walked S to her car because she said

she was scared. Evidence also was presented concerning

another coach, Carver, who observed a confrontation and

noted that both parties were angry. Testimony concerning

Carver is discussed in more detail below.

The defense case focused on several things. First,

the defense presented testimony, primarily from defendant’s

family and friends, concerning S’s reputation for and history

of violence and verbal abuse. Second, the defense presented

evidence from Kim and Bynum that they had called the

police and reported to the Department of Human Services

that S had abused the Stoering children. Third, the defense

presented evidence of altercations S had had with numerous

individuals in the past.

Finally, defendant testified. He recounted that he

had met S in high school and that she had been aggressive

and abusive toward him when they were dating and through-

out their marriage and had injured one of their children.

He testified that she moved out after he told her she had

to stop abusing their children, and that he initially agreed

Cite as 323 Or App 640 (2023) 649

to keep the divorce harmonious, but that S’s aggression

had continued. He testified that he was “ecstatic” about the

court’s order about which he was informed on the day before

the homicide, because there would be 50/50 parenting time,

S would need to make payments on her vehicle, and S would

not be able to enter the house anymore; he testified that he

was not concerned about paying child support because he

did not think the amount would be much. He indicated that

on the evening of the 13th, he borrowed his father’s truck

to move boxes, that the “Happy Valentine’s Day” messages

were meant for his mother and did not go through because

the Wi-Fi was bad in the location where he sent them, that

he had not put the phone into airplane mode, and that he

later noticed he had sent them to himself.

Defendant testified that at 6:56 a.m. on the 14th,

while he was in the kitchen, S had entered the house, and he

had asked her what she was doing there. He asserted that

she cursed at him when he told her the children were with

his girlfriend, and then she threw her phone at him. He said

that she grabbed a knife from his kitchen and threatened

him with it if he did not return her phone, he threw the

phone, then she shoved him into the sink and threatened

to kill him. He said that he then heard the door slam, went

to his bedroom and retrieved his gun from his safe and put

on the gun holster, then went back to the kitchen to call

9-1-1. At that point, he said, S opened the door and came in

again with the knife in her hand, and when she raised it to

throw it at him or charge him, he shot her from about 10 feet

away. He testified that, after the shooting, he picked up S’s

iPhone and attempted to unlock it to call 9-1-1, but did not

otherwise recall what happened in the minutes between the

shooting and when he called 9-1-1.

The jury returned a verdict of guilty, and this appeal

ensued.

II. ANALYSIS

A. First and Second Assignments of Error

In his first assignment of error, defendant argues

that the trial court erred in permitting Trenary to present

evidence concerning his opinion regarding the sounds on S’s

650 State v. Garlinghouse

iPhone recording from the morning of the 14th, as well his

opinion about the tone of the text message defendant sent

to his father on the evening of the 13th. He also argues that

the trial court erred in allowing the prosecutor to make ref-

erence to Trenary’s testimony concerning the recording in

his opening statement.

As an initial matter, we note that defendant’s first

assignment of error involves three trial court rulings. He

first raised an issue concerning Trenary’s testimony after

the prosecutor played the recording of S’s shooting for the

jury during opening statement. After the recording was

played, the prosecutor told the jury that Trenary would

testify about what he had done to amplify and identify the

sounds on the recording. Defendant objected to the prosecu-

tor’s statements and was heard out of the jury’s presence.

He argued that Trenary’s testimony would be inadmissible

because this was something that the jury could perceive

without the testimony of an expert witness. The state noted

that Trenary had enhanced the recording and should be

able to testify about what he heard on the enhanced record-

ing. The court ruled that Trenary could “testify as to what

he perceived,” but noted that it was not ruling on the admis-

sibility of any particular testimony at that point. After the

jury returned, the prosecutor resumed, stating that Trenary

would testify about the sounds on the recording but that he

would not be able to tell the jury what the sounds were, but

would testify about what he thought the sounds were simi-

lar to, “and we’ll play that [enhanced recording] for you and

let you draw your own conclusion.”

As noted, the trial court did not make a ruling

about admissibility of any specific testimony by Trenary at

that point in time, so the argument on appeal reduces to an

assertion that the trial court erred in ruling that Trenary

would be able to testify about what he perceived. That, in

itself, simply is not error. We conclude that, in this circum-

stance, the analysis needs to focus on the trial court’s ulti-

mate rulings on admissibility of Trenary’s evidence and

only then, if defendant were correct that the evidence should

have been excluded, would we need to address whether the

prosecutor’s references to this evidence in opening argu-

ment is pertinent to whether there was reversible error.

Cite as 323 Or App 640 (2023) 651

We turn to the rulings that the trial court made

when Trenary testified. The original unenhanced audio

recording of the homicide was admitted into evidence without

objection. Defendant also did not object to the enhancement

itself—that is, he did not challenge Trenary’s credentials to

enhance the audio to make the sounds on it clearer or sug-

gest that the enhanced audio by itself would not be admis-

sible. Rather, his primary objection was that the enhanced

audio—which was in the form of a video that contained over-

lay slides containing Trenary’s observations about it—was

not admissible because the visual text-overlays contained

Trenary’s opinions about the sounds. Defendant also chal-

lenged Trenary’s testimony containing those opinions,

arguing that “expert testimony is not allowed when it is

something that a lay person, any juror, can hear and per-

ceive for themselves” and that the jury would rely on his

opinion as an expert. Before ruling, the trial court asked to

hear a portion of the enhanced recording, and it was played

at maximum volume in the courtroom, out of the presence of

the jury. Thereafter, the court indicated that it had not been

able to hear some of the sounds described by Trenary. The

court clarified that it would not allow Trenary to summarize

what was on the audio for the jury, but reiterated that he

could testify about his perceptions of it when he had listened

to it in a controlled environment using specialized equip-

ment.3 At that point, defendant characterized his objection

as “lack of foundation, that this witness lacks the educa-

tion and training necessary to accurately identify sounds by

either file identification, wavelength identification, or actual

human audio identification.” 4 On appeal, defendant argues

that the court erred in admitting Trenary’s opinions con-

cerning sounds on the recording as expert testimony under

OEC 702, asserting that because this witness had been qual-

ified as a digital forensics expert, a field requiring special-

ized scientific knowledge, it was error to admit this evidence

because it was not helpful to the jury. The state responds

3

Trenary had testified that he listened to the enhanced audio many times

and that the sounds “are thick and they are layered and there are very subtle

sounds that are occurring underneath more prominent sounds.”

4

The trial court did, in fact, conclude that the state had not laid a sufficient

foundation regarding Trenary’s testimony about an exhibit containing a “visual

representation of the waveform” of the recording.

652 State v. Garlinghouse

first that this was admissible lay opinion testimony under

OEC 701 and argues alternatively that if the court admitted

it under OEC 702, it did not err in doing so, or if it did err in

doing so, the error was harmless.

Under OEC 701, “[i]f the witness is not testifying as

an expert, testimony of the witness in the form of opinions

or inferences is limited to those opinions or inferences which

are: (1) Rationally based on the perception of the witness;

and (2) Helpful to a clear understanding of testimony of the

witness or the determination of a fact in issue.” Although the

state is correct that the trial court’s statement that Trenary

could testify as to his perceptions could be viewed as a pos-

sible reference to OEC 701, that rule applies when a witness

“is not testifying as an expert.” In this case, it is undisputed

that Trenary was presented to the jury as a detective with

expertise in digital forensics, and Trenary had testified that

he had reviewed the enhanced audio numerous times “in

a sound isolated environment with high fidelity earphones

[that] is much better than listening to it in this courtroom

with all these people and over speakers.” Moreover, the trial

court clearly was relying on that fact when it stated that

“this witness used special equipment to make an observa-

tion that was not readily apparent to an observer without

that special equipment, and I guess I would analogize it to

a slide or a sample being examined under a microscope[.]”

Given that background, we conclude that the trial court

made its ruling as to admissibility under OEC 702 in light of

Trenary’s expertise involving the enhancement of the audio.

OEC 702 provides that “[i]f scientific, technical or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experi-

ence, training or education may testify thereto in the form

of an opinion or otherwise.” On appeal, defendant notes that

to be admissible under OEC 702, expert testimony must be

helpful to the trier of fact, that is, it “must assist a trier of

fact to understand the evidence or determine an issue of fact

that it may not be able to understand or determine as well on

its own.” State v. Jesse, 360 Or 584, 594, 385 P3d 1063 (2016).

Defendant asserts that Trenary was in no better position to

determine what the sounds on the audio were than the jury,

Cite as 323 Or App 640 (2023) 653

and thus his opinion would not be helpful to the factfinder. He

asserts that the trial court’s analogy of this situation to an

expert testifying about a microscope slide was inapt, because

a factfinder would be unlikely to know what they were seeing

on a microscope slide whereas none of the sounds Trenary

described required expertise to identify.

With the parties’ arguments in mind, we return to

an examination of Trenary’s opinions about the sounds on

the audio. As noted above, Trenary identified the sounds

on the first 10 seconds of the audio as including the door

opening and closing, footsteps, and S clearing her throat,

followed immediately by the first gunshot. This was imme-

diately followed by the remaining gunshots and the sounds

S made while she was dying. He testified also that he heard

something “like the iPhone striking the ground occurring

during shots two and three.” He opined that the phone had

been in S’s hand before it struck the ground, given the qual-

ity of the audio and the lack of indication from the audio that

the phone’s microphones had been muffled or obstructed by

fabric. Trenary also offered his interpretation of what he

heard several seconds after the shooting, what he thought

sounded “similar to iPhone buttons being pressed repeat-

edly, then screen swipe, then buttons pressed again.” About

one to two minutes into the recording, he observed what he

thought sounded “like rubber snapping,” then a sound “simi-

lar to tape coming off a roll,” then another sound like rubber

snapping. Between the second and third minute, he identi-

fied breathing sounds, something that sounded like defen-

dant “striking an object and grunting,” and something that

sounded like a shell casing rolling across a hard surface.

He also indicated that he heard increased labored breathing

immediately before the 9-1-1 call was made.

Defendant’s arguments on appeal are, in essence,

that all of the sounds described by Trenary are sounds

that a juror would have been able to identify, and therefore

Trenary’s opinion as to what they were was not helpful to

the jury. To the extent that this argument is that no exper-

tise is necessarily required to identify those types of sounds,

we agree that, as a theoretical matter, defendant is correct.

The difficulty with defendant’s argument, though, is that

it does not sufficiently take into account the actual basis

654 State v. Garlinghouse

for the trial court’s conclusion that Trenary’s observations

were admissible. Trenary testified that he had listened to

the enhanced audio numerous times in an environment in

which such sounds could be discerned—“a sound isolated

environment with high fidelity earphones”—and indicated

that the conditions under which he reviewed the audio were

significantly better than the conditions in the courtroom.

Moreover, before ruling on this issue, the court actually lis-

tened to the enhanced audio and indicated it could not hear

some of the sounds that Trenary described.

Whether a trial court has correctly determined that

evidence offered under OEC 702 is helpful to the trier of fact

is in some circumstances reviewed for errors of law and in

other circumstances for abuse of discretion. Jesse, 360 Or

at 597-600. As explained below, we conclude that there was

an important discretionary aspect to the trial court’s rul-

ing, and that the trial court did not abuse its discretion in

admitting Trenary’s evidence about what he heard on the

enhanced audio.

In Jesse, the court acknowledged that some of its

cases indicated that a trial court’s determination of whether

OEC 702 evidence would be helpful to the trier of fact was

reviewed for abuse of discretion, and other cases treated the

question as a matter of law. After recounting some if its case

law, the court quoted from Yundt v. D & D Bowl, Inc., 259 Or

247, 259, 486 P2d 553 (1971):

“There are situations * * * where a jury clearly is not equally

well qualified and needs help to find the truth. There are

also situations where a jury clearly is equally qualified

without help from opinion testimony such as offered here.

It is the area between the clearly qualified and the clearly

unqualified where the trial judge should be granted a cer-

tain latitude of decision in excluding or receiving expert

opinion testimony.”

Jesse, 360 Or at 599 (ellipsis in original). The court then

summarized:

“In short, this court’s prior decisions discussing a discre-

tionary standard have involved the question whether prof-

fered expert testimony would help the jury comprehend

Cite as 323 Or App 640 (2023) 655

the evidence. And, those decisions have confined the role of

judicial discretion to circumstances involving factual issues

neither clearly within, nor beyond, the jury’s assumed level

of understanding.”

Id.

If defendant were correct in his implicit assertion

that the jury’s ability to hear what was on the enhanced

recording during trial was on par with Trenary’s ability

to hear what was on the enhanced recording in a sound-

isolated environment with high fidelity earphones, we would

likely conclude that, as Yundt indicated, the “jury clearly is

equally qualified without help from opinion testimony such

as offered here” to evaluate the proffered evidence. 259 Or

at 259. However, the situation presented here is not so clear-

cut. The witness opined, and the trial court agreed after

personally examining the proffered evidence, that “this wit-

ness used special equipment to make an observation that

was not readily apparent to an observer without that special

equipment.” This is a situation where the trial court was in

the best position to determine the helpfulness of Trenary’s

evidence of what he had heard on the enhanced audio in a

sound-isolated environment with high fidelity earphones, in

light of the court’s ability to determine what could be heard

in the courtroom where the jury would hear the enhanced

audio. Although this situation is factually different from

the situations presented in prior case law, that case law

nonetheless is clear that where the trial court is in the best

position to determine whether OEC 702 evidence would be

helpful to the trier of fact, its decision is reviewed for abuse

of discretion. We see no reason to conclude that an abuse

of discretion occurred here. Defendant does not, for exam-

ple, argue that the court abused its discretion under OEC

403 in admitting the evidence because its probative value

was substantially outweighed by the danger of unfair prej-

udice.5 We therefore reject defendant’s argument that the

5

In that regard, we note that Trenary made clear, as did the prosecutor in

his arguments to the jury about this evidence, that Trenary was not an expert

in identifying sounds. That is, his expertise as a digital forensic analyst provided

him with the ability to hear things on the recording that were not audible in

the courtroom, but he did not claim expertise in determining what those sounds

actually were.

656 State v. Garlinghouse

trial court erred in admitting Trenary’s testimony concern-

ing the enhanced audio of the homicide.6

We turn to defendant’s argument that the trial court

erred in overruling his objection to Trenary’s opinion testi-

mony about the content of defendant’s text message to his

father on the evening before the shooting. As noted above,

the message in question was a lengthy text to his father

that contained numerous details about defendant borrowing

his father’s truck shortly before. Trenary testified that the

message had caught his attention because text messages

usually are lacking in that amount of context and detail.

Defendant objected based on “lack of foundation,” and the

prosecutor attempted to lay a foundation by ascertaining

that Trenary had read other messages between defendant

and his father and concluded that this one was “tonally” dif-

ferent. The prosecutor then argued that a person need not

be an expert to testify that a message was tonally different.

Defendant then argued that if any lay person could evalu-

ate whether a message was tonally different, it “would be

up to the jury to compare text messages.” The trial court

overruled the objection without comment. Trenary then

noted the amount of detail in the text message and pointed

6

Defendant also argues on appeal that the jury could have “duplicated the

environment of the detective’s lab simply by listening to the enhanced recording

in the jury room” using high-fidelity headphones. Under ORCP 59C(1), “the jury

may take with them all exhibits received in evidence, except depositions.” And in

State v. Reyes, 209 Or 595, 636-37, 308 P2d 182 (1957), the court held that where

a recording was properly admitted into evidence, court did not err in allowing

jury a machine on which to play it back in the jury room. But defendant cites no

authority (and we are aware of none) for the proposition that a jury may make

use of enhanced equipment to examine an exhibit where that equipment was not

used in the courtroom when the evidence was received. Defendant further sug-

gests that the state had the burden to show that such an arrangement would not

have sufficed to allow the jury to evaluate the recording and that, having failed

to do so, the state could not offer Trenary’s testimony. Assuming for the sake of

argument that it is permissible to allow the jury to later examine evidence using

enhanced equipment that was not used when the evidence was presented, we

disagree that the state had a burden here that was not met; as noted, it made

a preliminary showing through Trenary that he had heard sounds on the audio

that could not be heard in the courtroom, and the court ruled based on its own

evaluation of whether the sounds could be heard in the courtroom. Had defendant

made the suggestion in the trial court that the circumstances of the presentation

of the audio to the jury could be altered, the court would have had an opportu-

nity to evaluate whether it was possible to recreate the detective’s sound-isolated

environment for the jury. Because the trial court did not have the opportunity to

evaluate that question in the first instance, we decline to address it.

Cite as 323 Or App 640 (2023) 657

out that this was sent only 13 minutes after defendant had

called his father. He concluded that his “personal impression

of it was that it was written for a third-party audience to

read.”

On appeal, defendant does not argue that the sub-

ject matter here was outside Trenary’s area of expertise as a

police officer—that is, he does not take issue with the foun-

dation the state laid in that respect. Rather, he argues that

because Trenary was qualified to testify as a digital foren-

sics examiner, this was therefore “evidence of a scientific

nature that is subject to OEC 702,” and alternatively if it

was not, that it was lay opinion testimony that was not help-

ful to the trier of fact. We reject without extended discussion

defendant’s assertion that this was offered as evidence of a

scientific nature. “Scientific” evidence under OEC 702 is evi-

dence that “ ‘draws its convincing force from some principle

of science, mathematics and the like.’ ” State v. Henley, 363

Or 284, 295, 422 P3d 217 (2018) (quoting State v. Brown, 297

Or 404, 407 687 P2d 751 (1984)). Trenary’s opinion that this

text message differed from numerous other text messages

he had reviewed over the course of his career was within his

area of expertise, but it was not scientific. That is, observa-

tions about how the contents of one text message differs from

others does not draw its convincing force from any principles

of science or the like, nor was the jury likely to have believed

that it did. However, this also was not lay opinion testimony.

Defendant’s argument implies that any opinion testimony

that is not scientific is lay opinion testimony. But not all

expert opinion concerns scientific evidence. “Specialized

expert opinion evidence based on a witness’s training and

experience draws its force from that training and experi-

ence, but not necessarily from the mantle of science.” State

v. Rambo, 250 Or App 186, 195, 279 P3d 361 (2012), rev den,

353 Or 203 (2013). Trenary testified that in the course of

his experience in police work, he had examined numerous

text messages, and based his opinion on this message on his

comparison of its contents to the contents of other messages

he had examined. Other than arguing that it was not “sci-

entific” or “lay opinion,” defendant makes no challenge that

Trenary could not offer this opinion as nonscientific expert

testimony based on his experience in police work under OEC

658 State v. Garlinghouse

702. We reject defendant’s challenge to this evidence with-

out further discussion.

In his second assignment of error, defendant argues

that the court erred in allowing defendant to be cross-

examined about the sounds on the enhanced audio that

Trenary had testified sounded similar to rubber and tape.

However, the success of that argument is contingent on the

success of his first assignment of error. Because the court

did not err in admitting Trenary’s evidence, it did not err in

permitting defendant to be cross-examined on that topic.

B. Third Assignment of Error

In his third assignment of error, defendant argues

that the court erred in overruling his objection to aspects of

Dey’s testimony, including her safety plan with S.7 Both par-

ties argued below, and continue to argue on appeal, about

our decision in State v. Blaylock, 267 Or App 455, 341 P3d

758 (2014), rev den, 357 Or 299 (2015). After hearing those

arguments, the court ruled that statements that S made

that she was fearful would be admissible and that the safety

planning related to “future fear as opposed to past acts or

past conduct” would be allowed, but that it would exclude

testimony about conduct that occurred prior to the state-

ments. Defendant suggests on appeal that while evidence

of S’s fear of defendant could be relevant to assessing his

claim of self-defense, evidence that she and Dey had a safety

pact was not admissible under OEC 803(3) as evidence of S’s

“state of mind” because it was evidence that Dey was con-

cerned about S’s safety, not that S was concerned about her

own safety.8

7

To the extent that defendant argues that the court should have excluded

as irrelevant evidence that Dey had called the police in October 2016, we reject

that argument without further discussion because, even if it were error to admit

that evidence, there is little likelihood that it affected the verdict in light of our

conclusion explained below that Dey’s evidence concerning the safety pact was

admissible. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (“[I]f the particular

issue to which the error pertains has no relationship to the jury’s determination

of its verdict, then there is little likelihood that the error affected the verdict.”).

8

Defendant argues that the “most reasonable inference” that can be drawn

from Dey’s testimony is that it was Dey who “insisted on” the safety pact.

However, while Dey did testify that she was concerned for S, she also testified

that S had expressed “tremendous fear and anxiety” about defendant, and Dey

did not specify who proposed the plan. When asked if she had entered a pact with

Cite as 323 Or App 640 (2023) 659

There is a significant body of case law concerning

the admissibility of “state of mind” evidence of murder vic-

tims. Blaylock is exemplary and has some similarities to

the present case. There, as here, the defendant admitted to

having killed his wife, but asserted that he did so in self-

defense. 267 Or App at 456. There, as here, evidence was

admitted “about statements that the victim made to friends

and colleagues during the several months leading up to her

death, in which she described defendant’s violence, [and] her

fear of him.” Id. at 460. In Blaylock, we first considered a

statement that the victim had made to a coworker the day

before her death that she hoped the defendant would not be

drunk when she got home. Id. at 461. That was admissible

because “she was describing her then-existing state of mind

related to her apprehension about going home and what she

might encounter there.” Id. at 462. The court then consid-

ered evidence of statements the victim had made to a friend

that the defendant had “put his hands around her neck and

strangled her.” Id. at 464. The same friend also testified

about another time several months later when the victim

had called her and asked her to come over, stating that the

police had been called, the defendant had been asked to

leave, and the victim felt even more frightened than before.

Id. The court concluded that the first statement about stran-

gulation was inadmissible under OEC 803(3) because that

exception “does not apply to statements ‘of memory or belief

to prove the fact remembered or believed,’ ” but as to the lat-

ter incident, this court concluded that

“[a]lthough the victim’s statements to Brown were not

direct commentary on her ‘state of mind, emotion, sensa-

tion or physical condition,’ as described in OEC 803(3), they

do support an inference that the victim feared defendant

and did not wish to be alone with him at their home. That

permissible inference regarding the victim’s state of mind

is sufficient to bring the statements within the scope of the

OEC 803(3) hearsay exception.”

Id. at 468.

S, she responded: “We called it a safety plan. We had specifics that we spoke of

with respect to any opportunities to be in an alone setting with her husband.

Those included always keeping a written journal of any interaction, all conversa-

tions, taking pictures if at all possible, and recording as much as possible, and to

never enter the home alone when he was there.”

660 State v. Garlinghouse

Under Blaylock, it is clear that the basic substance

of Dey’s testimony that the court admitted—that due to

S’s fear of defendant she avoided being alone with him and

recorded her interactions with him to the extent possible—

was admissible to prove S’s state of mind. Defendant argues

that this evidence need not be viewed as evidence that S

feared defendant, because S might have entered into the

safety pact because Dey, her supervisor, insisted she do so.

Even if that were so, the assumption on which defendant’s

argument rests is not sound. The court was not required to

find that S rather than Dey proposed the safety pact in the

first instance to admit this as evidence of S’s state of mind

concerning fear of defendant. Nor was the court required

to assume in the absence of evidence that S was the one

who proposed the safety pact that she merely acquiesced to

it and that it therefore would not be evidence of her fear of

defendant.9

Here, the challenged evidence was that S had entered

into a safety pact which, by its terms, related to her fear

that defendant intended to harm her. Whether she did so at

the urging of Dey or not does not change the conclusion that

her entry into the safety pact reasonably supports an infer-

ence as to her state of mind—that she feared defendant.

C. Fourth Assignment of Error

In his fourth assignment of error, defendant again

does not identify one specific trial court ruling. Rather,

defendant argues that the court erred in limiting evidence

9

One of the cases cited in Blaylock, State v. Clegg, 332 Or 432, 31 P3d 408

(2001), further supports that conclusion. There, the defendant was convicted of

aggravated murder based on the shooting of his wife, and the state developed

evidence that he had hired two men to shoot the victim at her workplace because

he wished to collect the proceeds on an insurance policy. Id. at 434. The case was

built on circumstantial evidence, but the “piece of evidence tending most directly

to connect [the] defendant with the crime was testimony concerning a telephone

conversation between [the] defendant and [the victim] only moments before the

murder.” Id. at 436. After speaking with the defendant, the victim told a coworker

that she was happy that the defendant loved her, and that she had told him she

was about to go to the bank with Gladys but that he “insisted I not let Gladys

take me, that he was going to take me when he took me to lunch.” Id. The court

acknowledged that the victim’s statements to her coworker were not “direct com-

mentary” on her state of mind, but “even if a statement merely reflects the declar-

ant’s state of mind or reasonably supports an inference as to the declarant’s state

of mind, it constitutes an assertion of the declarant’s state of mind for purposes

of OEC 803(3).” Id. at 441.

Cite as 323 Or App 640 (2023) 661

concerning S’s alleged abuse of the Stoering children; spe-

cifically, defendant focuses on the court’s limitation on the

testimony from S’s divorce attorney, Ivers, concerning the

DHS investigation of S.10 Various evidence ultimately was

admitted (1) that shortly after the divorce had been filed,

and shortly before Brandon and Kim’s divorce went to trial,

Kim and Bynum made a report to DHS that S had abused

the Stoering children, (2) that defendant was “aligned”

with Kim and Bynum, and (3) that a DHS investigation

of S ensued. Ivers, S’s divorce attorney, testified that “law

enforcement, DHS, and * * * other information that was

going on kind of behind the scenes,” made S “afraid that

[defendant] might hurt her if they were in the same space.”

Before cross-examination, the prosecutor asked the court

to limit evidence of the specifics of the allegations made to

DHS, arguing that “I think they need the DHS caseworker

or the folks who were actually involved.” Defendant argued

that this would be admissible nonhearsay to show the effect

of the information on S. The state agreed that the existence

of the DHS investigation was relevant and admissible. At

that point, the court asked if either party intended to call

DHS witnesses, and defendant indicated that he did.11 The

court then stated that it would be “better to have that infor-

mation come from the person directly involved” and limited

10

In this assignment of error, defendant also asserts that the trial court

erred in limiting the testimony of Kim concerning alleged abuse by S, although

he does not make a distinct legal argument on this topic. Defense counsel asked

Kim if S had locked one of the Stoering children in the garage and pinched a

child’s penis, but the state asked questions in aid of objection whether Kim had

witnessed these events or had been told of them by third parties, and she indi-

cated that she had been told by others. The state argued that this was hearsay

and defense counsel responded that it was admissible for “effect on the listener.”

The court sustained the objection without comment. It does not appear that

defendant is arguing on appeal that evidence of what others told Kim was, in

fact, admissible for its effect on Kim. To the extent that he is suggesting that the

effect-on-listener hearsay exception is not limited to the listener but allows for

admission of out-of-court statements to show the effect on someone who later was

informed of the statements by someone else—a tenuous proposition at best—he

failed to connect up this evidence. That is, the questions to Kim were not about

the DHS investigation but about whether S had committed specific acts of abuse

against children. Defendant made no argument to the trial court that connected

this questioning to the DHS investigation, and offered no explanation to the trial

court of how the effect-on-listener hearsay exception might apply to this specific

evidence, or how any other hearsay exception might apply. We reject defendant’s

arguments concerning this evidentiary ruling without further discussion.

11

Ultimately, no DHS witnesses were called.

662 State v. Garlinghouse

Ivers’s testimony to whether or not the DHS investigation

“was a precipitating factor to [S’s] emotional state.” Defense

counsel then asked the witness whether “the DHS case

against [S] was part of the stress that you were talking

about that she was [experiencing].” The attorney replied

that “yes, absolutely it was.” On redirect, the witness was

asked, “without getting into specifics” whether allegations

had been made to DHS “against [S],” and the witness replied

that they had.

Defendant argues on appeal that the ruling limiting

the cross-examination of this witness was in error, because

details of the allegations of abuse made to DHS were not

hearsay as they were offered to show the effect on S’s mental

state. No offer of proof was made by the defense concerning

this evidence. However, an earlier witness had already been

questioned about her knowledge of a “DHS investigation

into abuse by [S]” of the Stoering children, and the parties’

arguments to the court made it clear that the proposed evi-

dence would concern a DHS investigation into child abuse

by S, so we conclude that at least some of defendant’s argu-

ments that the court erred in limiting testimony about the

abuse of the Stoering children are adequately preserved.

Defendant argues on appeal that the evidence in

question was “not hearsay” because it would show the effect

the DHS investigation had on S’s state of mind. However, it

does not appear that the trial court ruled otherwise: When

viewed in context of other things said by the trial court as

described above, it is clear that the court agreed that the

investigation was relevant to S’s state of mind and indicated

that if the parties intended to offer additional evidence on

the substance of the allegations, that such evidence should

come from a person “directly involved” in the DHS report-

ing. That is, the court acknowledged that evidence on that

topic could, in fact, be admitted as relevant to S’s state of

mind. The court limited Ivers’ testimony on the specifics of

the DHS investigation because the court indicated that such

evidence would be admissible coming from a person who

was directly involved. Thus, the court implicitly concluded

that S’s divorce attorney was not such a person. Had defen-

dant made an offer of proof that Ivers was, in fact, directly

involved in the DHS investigation, defendant’s argument

Cite as 323 Or App 640 (2023) 663

might have more traction. But in the context in which the

court made its ruling, the court did not err in limiting Ivers’s

testimony in the manner that it did.

Defendant makes an alternative argument con-

cerning this evidence for the first time on appeal. He asserts

that it was admissible under the “curative admissibility”

doctrine. He argues that Ivers’s answer that factors, includ-

ing the DHS investigation, caused S to fear that defendant

might hurt her contained inadmissible evidence and “opened

the door” to evidence of the specifics of the DHS investiga-

tion. He argues that permitting that testimony violated the

court’s earlier ruling that “state of mind” evidence would

not be permitted as to specific past conduct, and because

the state offered that inadmissible evidence, he was enti-

tled to counter it with otherwise inadmissible evidence. See

State v. Gutierrez, 304 Or App 431, 438, 466 P3d 75 (2020)

(“Under the curative admissibility doctrine, where one

party offers inadmissible evidence, which is received, the

opponent may then offer similar facts whose only claim to

admission is that they negative or explain or counterbalance

the prior inadmissible evidence, presumably upon the same

fact, subject matter or issue.” (Internal quotation marks and

citation omitted.)). Putting aside issues concerning lack of

preservation, the gist of defendant’s argument is that the

evidence that the court admitted “created the inference,

implication, and/or impression that DHS was investigating

defendant for alleged abuse, and thus [S] believed he had

a reason to silence or punish her in relation to any cooper-

ation she might provide to DHS, or had already provided.”

We disagree. As noted above, after the court ruled, Ivers

was asked whether an allegation “had been made to DHS

against [S],” and he replied that it had. (Emphasis added.)

Moreover, testimony later came in from Bynum that she was

“aligned” with defendant “because we both had DHS cases

on [S] about the children.” Defendant also testified that he

had reported that S had harmed their son and called the

police as well as reporting this to “the DHS caseworker that

was already handling the abuse allegations against [S].”

In sum, the only evidence concerning a DHS investigation

indicated that S had been investigated; the evidence did not

suggest that defendant had been investigated. This is not a

664 State v. Garlinghouse

situation in which the curative admissibility doctrine, had it

been raised in the trial court, would have applied.

D. Fifth Assignment of Error

Defendant next argues that the court erred in

allowing the prosecutor to cross-examine him about a con-

versation he had with Carver, a sports coach of one of defen-

dant’s children. A number of witnesses testified about pub-

lic confrontations between defendant and S at some of their

children’s sporting events. Carver testified that he coached

defendant’s son in wrestling, and on an occasion in late

January 2017, he had witnessed defendant and S arguing

about why their son was upset, and “that’s the extent that I

remember of it, yeah.” He said, “Honestly, I can’t remember

other than [defendant] wanted to know why [S] was so upset

or something. It’s been a long time.” Later, defendant testi-

fied that near the end of January 2017 during a wrestling

meet, his son had told him that S had scratched his face, and

that he had reported what his son said to the police and to

DHS. On cross-examination, counsel inquired if defendant

had asked Carver for an affidavit describing the scratch-

ing incident, and defendant replied that “I asked him if he

had witnessed what my children were telling me had hap-

pened.” When asked what Carver had replied, defense coun-

sel objected on hearsay grounds. The state responded that

it was not offered for the truth but to show defendant’s bias

or motive, and the court overruled the objection. Defendant

responded that Carver had told him that he had not wit-

nessed anything he would deem abusive. Defendant argues

that to the extent this was relevant to his motive, it was

dependent on the truth of the matter asserted—that Carver

had not witnessed any abuse. The state responds that it did

not depend on the truth of the matter but showed defen-

dant’s bias and motive—to show that he was attempting to

establish that S was a violent person.

We do not address the merits of defendant’s argu-

ment as to whether or not that was permissible evidence

of bias or motive, because we conclude that any error was

harmless. There was extensive evidence that defendant and

S had numerous public and private disagreements about

their children in the course of the divorce, and that various

Cite as 323 Or App 640 (2023) 665

allegations had been made that S had abused the Stoering

children. That evidence, even if viewed by the jury for the

truth of the matter asserted—that Carver did not witness

any abuse—had little likelihood of affecting the verdict. The

evidence was undisputed that defendant and his allies made

numerous accusations during that time period—to DHS, to

the police, and in affidavits in conjunction with the pend-

ing divorces—that S was abusive toward their children.

Evidence that defendant had sought but not received confir-

mation of an alleged abuse incident from one individual was

highly unlikely to have had any effect on the jury’s verdict

in light of all of the other evidence on that topic. State v.

Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (Evidentiary errors

are harmless if there is “little likelihood that the partic-

ular error affected the verdict.”); see also Dept. of Human

Services v. J. L. S., 321 Or App 158, 163, 515 P3d 932 (2022)

(Erroneously admitted evidence may be harmless if it is

merely cumulative of, instead of qualitatively different than,

other evidence presented to the factfinder.).12

E. Sixth Assignment of Error

Defendant next argues that the trial court erred in

admitting into evidence a summary of a police department’s

activity and call log (the call log itself had been admitted

into evidence without objection) that chronicled what police

had done on the date of the crime, asserting that the sum-

mary was improperly admitted under the business records

exception to the hearsay rule, citing State v. Edmonds, 364

Or 410, 435 P3d 752 (2019). We reject defendant’s argument

that this constituted reversible error without extended dis-

cussion, because we conclude that admission of the sum-

mary had little likelihood of affecting the verdict. The evi-

dence was generally cumulative of other evidence that was

admitted without objection, did not concern any material

facts that were in dispute at trial, and its admission was

12

Defendant asserts that the admission of that evidence was not harm-

less because it “rebutted defendant’s testimony that he saw [S] grab their son’s

face * * * with enough force to have scratched the child,” and that that evidence

“directly contradicted” defendant’s testimony. Defendant’s testimony, however,

was not that he saw S grab their son’s face, but rather that the children had

described the incident to him afterward, and he saw a scratch on his son’s face.

666 State v. Garlinghouse

unlikely to have had any impact at all on the jury. J. L. S.,

321 Or App at 163.

F. Seventh Assignment of Error

In this assignment of error, defendant argues

that the trial court wrongly ruled that a state’s witness—

defendant’s divorce attorney, Ensor—would be required to

invoke the attorney-client privilege in the presence of the

jury. We observe at the outset that, ultimately, defendant

waived the privilege.

As background, we note that the issue of client con-

fidentiality first arose during Ivers’s testimony. At the start

of his testimony, the prosecutor asked Ivers if he was bound

by client confidentiality, and if he would require the court to

order him to answer questions given that the confidentiality

continued to exist despite S’s death. Ivers responded that

that was correct, and thereafter the court instructed him

to answer questions about his representation of S during

the divorce, and he did so. Thereafter, before the prosecutor

called defendant’s attorney Ensor as a witness, the following

exchange occurred:

“[PROSECUTOR]: I don’t want to comment on [defen-

dant] not waiving that privilege or contents or communi-

cations between his—him and his attorney, Mr. Ensor. So

I’ve chatted with counsel about it. I think rather than just

say—have him say ‘I didn’t get a waiver from my client’ or

anything like that just to have him say that ‘I’m—as the

attorney for [defendant] still living I’m constrained by, you

know, the rules or more rules and I can’t—there’s certain

questions I cannot answer,’ if they’re comfortable with that.

“[DEFENSE COUNSEL]: I think that that conversa-

tion should be done outside the presence of the jury because

if—if we’re in a situation where he can’t comment why are

we putting him on the stand, and it looks overly prejudicial,

as if my client is the one who’s preventing him from, you

know, truthfully testifying.

“THE COURT: And I guess, [prosecutor], is it your

intention to put him on the stand and only ask him about

privileged material?

“[PROSECUTOR]: No. But Mr. Ensor said it was his

preference that I ask him questions in a certain way and

Cite as 323 Or App 640 (2023) 667

let him explain to the jury that he can’t because he has to

be—not ‘coy’ is the word but he has to be careful, and I just

remember how he—at a prior hearing he answered ques-

tions and it was—it was like ‘Well, I can’t comment what I

did in this case or what I had a conversation with my client

but I can tell you that my normal practice is to send a letter

to this address and that’s my normal practice and I have

no reason to believe that there was—I deviated from that

in this situation.’ I mean, he says that’s how specific I can

get but not more specific, but see how that will look to a

jury, like he’s hiding information, so he said it was his pref-

erence that he be allowed to comment on why he can’t be

specific. I need to satisfy Mr. Ensor’s need to be ethical but

I also don’t want to comment on [defendant’s] non-waiver of

confidentiality so if there’s a happy middle ground there I

want to find it.

“THE COURT: I would assume that he could testify

that is protected by privilege.

“[PROSECUTOR]: That’s right.

“THE COURT: And leave it at that.

“[PROSECUTOR]: Are you okay with that?

“[DEFENSE COUNSEL]: No. I prefer that it be done

outside because it leaves the impression to the jury how-

ever you cut it—if he’s continually saying, you know, ‘I can’t

testify to that’ and the state knows that he can’t testify to

that they’re just trying to get the inference that he’s with-

holding information.

“THE COURT: Well, I’m not sure how we could take

his testimony outside the presence of the jury.

“[PROSECUTOR]: I think [defense counsel] was talking

about just the waiver, so the initial interaction with the

witness—

“THE COURT: And that’s why I suggested he could

say that ‘I can’t answer based on privilege’ without offer-

ing additional explanation that [defendant] may or may not

have waived his right to that privilege.

“[PROSECUTOR]: I just want to say that he’s—I’m

constrained by the rules. I can’t—without putting the

onus—putting the onus on the rules as opposed to [defen-

dant] that’s all I—we intend to do.

668 State v. Garlinghouse

“THE COURT: And I’m—at this point other than

what I’ve suggested I don’t know how we can offer a pro-

phylactic cure.”

Other testimony was then taken, and then the pros-

ecutor called Ensor as a witness. Defense counsel asked to

approach the witness to “take care of an issue.” The prose-

cutor asked if defense counsel wanted to do it in the court-

room with the jury present and defense counsel said that

was fine. Defense counsel then told Ensor: “As with the last

civil attorney in here our client has waived privilege so we

don’t need a directive. [Defendant] has waived privilege to

the extent those facts are necessary within this litigation

here.”

Thereafter, Ensor testified that the divorce was

contentious, with the parties fighting over custody, finances

(including S’s failure to make payments on a vehicle she was

to be awarded in the divorce), and S coming into the house

that defendant was to be awarded in the divorce. He testi-

fied that he had received the court’s February 8 order on

February 10 and had notified defendant of its contents by

email on February 13, after which defendant had made an

appointment to see him on the following day.

On appeal, defendant argues that the court erred in

ruling that Ensor would need to assert client confidentiality

with the jury present, noting that under OEC 513(2) “pro-

ceedings shall be conducted, to the extent practicable, so as

to facilitate the making of claims of privilege without the

knowledge of the jury.” He relies heavily on this court’s deci-

sion in State v. Quintero, 110 Or App 247, 823 P2d 981 (1991),

adh’d to on recons, 114 Or App 142, 834 P2d 496, rev den,

314 Or 392 (1992). The state makes three responses—that

defendant failed to preserve the issue adequately, that the

questions about the date on which Ensor emailed defendant

about the order did not elicit privileged information, and

that any error was harmless.

Regarding preservation, we agree with defendant

that the above-quoted exchange adequately preserved the

issue whether Ensor would need to assert client confidenti-

ality as to specific questions in the presence of the jury. As

to the state’s response that the information about the date

Cite as 323 Or App 640 (2023) 669

of the email was not privileged, see generally State v. Ogle,

297 Or 84, 87, 682 P2d 267 (1984), that seems likely to be

correct but that is not actually the question presented by

this assignment of error. The question is whether the court

properly rejected defense counsel’s argument that invocation

of the privilege should be done outside the presence of the

jury. As explained below, on that issue, defendant is right.

However, as further explained, we agree with the state that

the error was harmless.

Defendant’s arguments rest in pertinent part on

Quintero, which in some ways has similarities to the pres-

ent case, and in other ways is significantly distinguishable.

Quintero involved charges of attempted murder, during

which the wife of one of the defendants was called as a wit-

ness. 110 Or App at 253. The court was informed that she

intended to invoke spousal privilege under OEC 505, but

the other defendants argued that precluding her testimony

would violate their right to confront witnesses. The court

ordered the witness to testify but instructed the jury that

the testimony was not to be considered against her husband

and limited the state’s questioning regarding the husband’s

involvement in the crimes. She invoked the spousal privi-

lege numerous times during her testimony and was ordered

to answer the questions. Id. This court concluded that the

trial court had erred in ordering the wife to testify, and that

the defendant husband was prejudiced by the error. In doing

so, we relied in part on the legislative commentary to OEC

513(2), which concerns comments upon or inferences from

claims of privilege:

“The legislative commentary to OEC 513(2) reads, in

part:

“ ‘The value of privilege may be greatly depreciated

by means other than expressly commenting to a jury

that it was exercised. Thus, the calling of a witness

in the presence of the jury and subsequently excus-

ing [the witness] after a sidebar conference may effec-

tively convey to the jury the fact that a privilege has

been claimed, even though the actual claim has not

been made in their hearing. Whether a privilege will

be claimed is usually ascertainable in advance and the

handling of the entire matter outside the presence of

670 State v. Garlinghouse

the jury is feasible. Destruction of the privilege by innu-

endo can and should be avoided. [Citations omitted.]

6 Wigmore section 1808 at 275-276. This position is in

accord with the general agreement of the authorities

that an accused cannot be forced to make [the] election

not to testify in the presence of the jury. 8 Wigmore

section 22678 at 407.’ Quoted in Kirkpatrick, Evidence

(1982) 200.”

Quintero, 110 Or App at 255 n 9 (omissions in Quintero).

This court concluded that the “situation here was not unan-

ticipated or unavoidable.” Id. at 256. It noted that not only

was the witness’s privilege discussed in the jury’s presence,

but the witness “invoked the privilege at least 14 times, in

front of the jury,” from which “the jury could have inferred

that she was trying to keep damaging testimony about [the

defendant] from them and, that impression was very likely

to have intensified each time that she refused to answer.” Id.

The court went on to conclude that the error was prejudicial,

noting that although the witness’s testimony about factual

matters “may have added only little information about the

events that were described to the jury by other witnesses,

but * * * her repeated assertion of the privilege in front of

the jury may well have affected the verdict” against her hus-

band. Id. at 257.

In light of the reasoning in Quintero, we agree with

defendant that his attorney’s assertion of attorney-client

privilege on defendant’s behalf in front of the jury similarly

was anticipated, and steps could have been taken to ensure

that that did not occur. As defendant points out, Ensor could

have been subjected to preliminary questioning by the pros-

ecutor outside of the jury’s presence to determine which, if

any, of the prosecutor’s questions were ones for which the

privilege would be invoked, and the prosecutor could have

been instructed not to ask those questions.

Where defendant’s argument founders, however, is

with respect to prejudice. This case differs significantly from

Quintero, and in fact from all of the other cases on which

defendant relies, because Ensor did not decline to answer

any questions due to attorney-client confidentiality, and, in

fact, defense counsel announced before the jury that defen-

dant was waiving the attorney-client privilege. Bluntly, this

Cite as 323 Or App 640 (2023) 671

is not a situation where the jury would have drawn any

negative inferences regarding that attorney-client privi-

lege. Defendant does not, in fact, argue otherwise. Rather,

his prejudice argument is that the harmless error inquiry

also involves evaluation of a party’s subsequent choices at

trial, noting that in State v. Green, 271 Or 153, 175 n 15,

531 P2d 245 (1975), a trial court’s erroneous ruling regard-

ing admissibility of polygraph evidence was not harmless,

although the defendant there ultimately stipulated to its

admission. Defendant is correct to the extent that he is

arguing that his subsequent waiver of the privilege is not,

in and of itself, an answer to the harmless error question.

That is, we assume that his subsequent choice to waive the

privilege could have been strategic, to avoid an invocation of

the privilege in the jury’s presence. That ultimately is not

dispositive here, though, because we conclude that Ensor’s

testimony—regardless of whether or not any of it would have

fallen within the attorney-client privilege—had little likeli-

hood of affecting the jury’s verdict because it was entirely

cumulative of other evidence.13

With respect to prejudice, defendant argues that

the state is incorrect that the date Ensor sent defendant

an email concerning the custody order was not privileged,

and that although defendant also testified as to the date

he received the email, “there is little likelihood defendant

would have waived privilege and testified about his other-

wise protected attorney-client communication, if the trial

court had not wrongly denied defendant’s request to have

Ensor invoke privilege outside jury’s presence.” This argu-

ment is unpersuasive, even assuming defendant is correct

13

We note that, to the extent that defendant, relying on Green, is arguing

that what he did testify to on this topic cannot be considered in the harmless error

analysis, that assumption is doubtful. As the state notes, in State v. McGinnis,

335 Or 243, 247, 64 P3d 1123 (2003), the court considered, and rejected, a defen-

dant’s argument that the court “adopt a rule that precludes consideration of a

defendant’s trial testimony in a harmless error review when the defendant’s tes-

timony was compelled to rebut illegally admitted evidence.” The court concluded

that any such rule could not be invoked “unless the evidence the defendant sought

to rebut by taking the stand was an inadmissible confession, not evidence of some

other kind, even if that evidence was obtained illegally.” Id. at 253. (Emphasis in

original.) This case does not involve testimony by defendant to explain or rebut

evidence of his own prior statements, nor does it involve any asserted constitu-

tional violation.

672 State v. Garlinghouse

about the extent to which the attorney-client privilege might

have applied to Ensor’s testimony about the date he emailed

defendant. We understand this argument essentially to

be that had Ensor not testified, defendant would have

invoked the attorney-client privilege or otherwise tried to

avoid answering that he had received this news from Ensor

on the day before the homicide.14 He emphasizes that the

prosecutor in closing argument noted that defendant hav-

ing received news of the domestic relations ruling the day

before the homicide provided motive. We are unpersuaded

that, even if defendant had avoided giving testimony that

he had received news of the ruling from Ensor, that would

have affected the prosecutor’s closing argument, or would

have had any likelihood of affecting the verdict given that

two witnesses sympathetic to the defense (defendant’s own

father as a defense witness and Bynum as a hostile witness

for the state) had also provided evidence that defendant

knew of the domestic relations ruling on February 13.

The present case is, in fact, quite similar to State v.

Lachat, 298 Or App 579, 448 P3d 670 (2019), rev den, 366 Or

257 (2020). There, the defendant in a case involving assault

and various sexual offenses argued that the trial court erred

in admitting testimony from his counselor, over his objection

that the evidence was privileged under OEC 507, that the

defendant had forced himself on the victim and injured her.

Id. at 585. We rejected the defendant’s argument that his

own testimony about what had occurred could not be con-

sidered in a harmless error analysis, relying on McGinnis,

and State v. Moore/Cohen, 349 Or 371, 385 n 8, 245 P3d

101 (2010), cert den, 563 US 996 (2011) (noting that rule “is

confined solely to issues involving the erroneous admission

of unconstitutionally obtained pretrial statements”). In con-

cluding that any error was harmless, we observed that the

challenged evidence was “cumulative of other evidence in

the record,” including but not limited to the defendant’s tes-

timony on the subject. Lachat, 298 Or App at 590.

14

On cross-examination, the prosecutor asked: “Do you remember exactly

what day you got [the letter from the judge]? Was it the 13th?” Defendant replied:

“I received information from my lawyer on the 13th.” Thus, defendant was not

asked about whether he had received a communication from his lawyer—he sim-

ply answered the question with that information.

Cite as 323 Or App 640 (2023) 673

Ensor’s testimony was, in essence, that the divorce

was acrimonious, that the parties were fighting about cus-

tody, finances, and S’s entry into the home, and that defen-

dant received information on the day before the shooting

that S was being awarded custody of their children, all sub-

jects about which there was no serious dispute. That tes-

timony was cumulative of testimony offered and received

without objection from numerous other witnesses, including

but not limited to testimony by defendant himself. For that

reason, we conclude that the evidentiary error at issue here

had little likelihood of affecting the verdict.

G. Eighth Assignment of Error

Finally, we briefly address, and reject, defendant’s

eighth assignment of error. He notes that the amended judg-

ment in this case indicates that a $200 fine was waived, but

an entry into the OECI system failed to reflect that the fine

was waived. He requests that we direct the trial court to

correct the error. The state responds that the error is moot,

asserting that the OECI entry has been corrected, and may

be implicitly requesting that we take judicial notice of that

as a matter of fact. Under ORS 138.257(1), we may “may

affirm, reverse, vacate or modify the judgment or order, or

any part thereof, from which the appeal was taken.” And

under ORS 138.105(3), with some exceptions, we have the

ability to review “any intermediate decision of the trial

court.” In this assignment of error, defendant does not seek

to have this court modify any aspect of the judgment, nor

does he seek review of an intermediate decision of the trial

court. As we have explained in prior cases, when a defen-

dant wants to challenge post-judgment erroneous entries

into OECI, “an appropriate course may be for [the] defendant

to challenge the clerk’s actions in the trial court, through a

writ of mandamus, or otherwise.” State v. Ciraulo, 301 Or

App 849, 951, 459 P3d 960, aff’d, 367 Or 350, 478 P3d 502

(2020), cert den, 594 US ___, 141 S Ct 2836, 210 L Ed 2d 950

(2021); see also State v. Lobue, 304 Or App 13, 22 n 5, 466

P3d 83, rev den, 367 Or 257 (2020) (If the court clerk takes

action inconsistent with fee provisions in judgment, “that is

a matter to be taken up in the circuit court.”).

Affirmed.