State v. Garlinghouse

                                       640

  Argued and submitted November 6, 2020, affirmed January 11, petition for
                 review denied May 18, 2023 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                JASON ALLEN GARLINGHOUSE,
                      Defendant-Appellant.
                   Linn County Circuit Court
                     17CR09894; A168303
                                    

     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 admitting testimony by the detective concerning either the recording or the text message 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 

 (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), raising 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 nevertheless harmless; and (8) defendant’s challenge to erroneous 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 premeditated 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 

 (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 parents, 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 children. 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; defendant 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 violent 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 backpacks, 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 assignments 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 discovered 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 detective 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 

 (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 seconds, 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 defendant 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 “extraneous 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 experimentation with similar iPhones, Trenary opined that the undelivered 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 

 (2023)                              647

the third was created at 6:16 a.m. and also showed as undelivered. 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 subsequently 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 relations 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 supplemental affidavits in the proceeding concerning temporary
custody, each alleging abuse by the other. He further testified 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 “defendant 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 supervisor 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 confrontation 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 throughout 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 

 (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 reference 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 prosecutor’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 recording. The court ruled that Trenary could “testify as to what
he perceived,” but noted that it was not ruling on the admissibility 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 similar 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 circumstance, the analysis needs to focus on the trial court’s ultimate 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 argument is pertinent to whether there was reversible error.
Cite as 

 (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 suggest that the enhanced audio by itself would not be admissible. Rather, his primary objection was that the enhanced
audio—which was in the form of a video that contained overlay slides containing Trenary’s observations about it—was
not admissible because the visual text-overlays contained
Trenary’s opinions about the sounds. Defendant also challenged 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 perceive 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 equipment.3 At that point, defendant characterized his objection
as “lack of foundation, that this witness lacks the education 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 concerning sounds on the recording as expert testimony under
OEC 702, asserting that because this witness had been qualified as a digital forensics expert, a field requiring specialized 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 possible 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 observation 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, experience, 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, 

, 

 (2016).
Defendant asserts that Trenary was in no better position to
determine what the sounds on the audio were than the jury,
Cite as 

 (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 immediately 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 quality 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 repeatedly, 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 “similar to tape coming off a roll,” then another sound like rubber
snapping. Between the second and third minute, he identified breathing sounds, something that sounded like defendant “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 expertise 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 listened 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, 

. As explained below, we conclude that there was
an important discretionary aspect to the trial court’s ruling, 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., 

, 

 (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 certain latitude of decision in excluding or receiving expert
   opinion testimony.”

Jesse, 

 (ellipsis in original). The court then
summarized:
   “In short, this court’s prior decisions discussing a discretionary standard have involved the question whether proffered expert testimony would help the jury comprehend
Cite as 

 (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.”

          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. 

. However, the situation presented here is not so clearcut. The witness opined, and the trial court agreed after
personally examining the proffered evidence, that “this witness 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 example, 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 prejudice.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 concerning 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 testimony 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” different. 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 evaluate 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, 

, 

 (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 suggests 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 opportunity 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 

 (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 subject matter here was outside Trenary’s area of expertise as a
police officer—that is, he does not take issue with the foundation the state laid in that respect. Rather, he argues that
because Trenary was qualified to testify as a digital forensics 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 helpful 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 evidence that “ ‘draws its convincing force from some principle
of science, mathematics and the like.’ ” State v. Henley, 

, 

 (2018) (quoting State v. Brown, 

, 407 

 (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, observations 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 experience, but not necessarily from the mantle of science.” State
v. Rambo, 

, 

 (2012), rev den,

 (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 “scientific” 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 without 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 parties argued below, and continue to argue on appeal, about
our decision in State v. Blaylock, 

, 

 (2014), rev den, 

 (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 statements. 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 concerned 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, 

, 

 (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 

 (2023)                                                 659

         There is a significant body of case law concerning
the admissibility of “state of mind” evidence of murder victims. 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. 

. 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.” 

. 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. 

. 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.” 

. The court then considered evidence of statements the victim had made to a friend
that the defendant had “put his hands around her neck and
strangled her.” 

. 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.

 The court concluded that the first statement about strangulation 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 latter incident, this court concluded that
    “[a]lthough the victim’s statements to Brown were not
    direct commentary on her ‘state of mind, emotion, sensation 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.”

.

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 conversations, 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 inference 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, 

, 

(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. 

. 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.” 

. 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.” 

 The court
acknowledged that the victim’s statements to her coworker were not “direct commentary” on her state of mind, but “even if a statement merely reflects the declarant’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).” 

.
Cite as 

 (2023)                                                 661

concerning S’s alleged abuse of the Stoering children; specifically, 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 information 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 indicated 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 evidence would concern a DHS investigation into child abuse
by S, so we conclude that at least some of defendant’s arguments 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 reporting. 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 defendant made an offer of proof that Ivers was, in fact, directly
involved in the DHS investigation, defendant’s argument
Cite as 

 (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 concerning 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, including 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 investigation. 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 entitled to counter it with otherwise inadmissible evidence. See
State v. Gutierrez, 

, 

 (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 cooperation 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 conversation he had with Carver, a sports coach of one of defendant’s children. A number of witnesses testified about public 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 testified 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 scratching incident, and defendant replied that “I asked him if he
had witnessed what my children were telling me had happened.” When asked what Carver had replied, defense counsel 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 witnessed 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 defendant’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 argument 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 

 (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 pending divorces—that S was abusive toward their children.
Evidence that defendant had sought but not received confirmation 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, 

, 

 (2003) (Evidentiary errors
are harmless if there is “little likelihood that the particular error affected the verdict.”); see also Dept. of Human
Services v. J. L. S., 

, 

 (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 summary was improperly admitted under the business records
exception to the hearsay rule, citing State v. Edmonds, 

, 

 (2019). We reject defendant’s argument
that this constituted reversible error without extended discussion, because we conclude that admission of the summary had little likelihood of affecting the verdict. The evidence 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 harmless 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.,

.
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 confidentiality 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 [defendant] not waiving that privilege or contents or communications 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 conversation 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 

 (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 questions 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 preference 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 however 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 withholding 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 offering 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 [defendant] 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 prophylactic cure.”
         Other testimony was then taken, and then the prosecutor called Ensor as a witness. Defense counsel asked to
approach the witness to “take care of an issue.” The prosecutor asked if defense counsel wanted to do it in the courtroom 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 testified 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) “proceedings 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 decision in State v. Quintero, 

, 

 (1991),
adh’d to on recons, 

, 

, rev den,

 (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 confidentiality as to specific questions in the presence of the jury. As
to the state’s response that the information about the date
Cite as 

 (2023)                                669

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

, 

 (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 present 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 witness. 

. 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 privilege numerous times during her testimony and was ordered
to answer the questions. 

 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 excusing [the witness] after a sidebar conference may effectively 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 innuendo 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, 

 n 9 (omissions in Quintero).
This court concluded that the “situation here was not unanticipated or unavoidable.” 

. 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.” 

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 husband. 

.
         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 prosecutor 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 defendant was waiving the attorney-client privilege. Bluntly, this
Cite as 

 (2023)                                                 671

is not a situation where the jury would have drawn any
negative inferences regarding that attorney-client privilege. 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, 

, 175 n 15,

 (1975), a trial court’s erroneous ruling regarding 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 likelihood 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 otherwise 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 argument 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,

, 

 (2003), the court considered, and rejected, a defendant’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 testimony 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.” 

. (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 constitutional 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 having 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, 

, 

 (2019), rev den, 

 (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 considered in a harmless error analysis, relying on McGinnis,
and State v. Moore/Cohen, 

, 385 n 8, 

 (2010), cert den, 

 (2011) (noting that rule “is
confined solely to issues involving the erroneous admission
of unconstitutionally obtained pretrial statements”). In concluding 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 testimony 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 simply answered the question with that information.
Cite as 

 (2023)                             673

         Ensor’s testimony was, in essence, that the divorce
was acrimonious, that the parties were fighting about custody, finances, and S’s entry into the home, and that defendant received information on the day before the shooting
that S was being awarded custody of their children, all subjects about which there was no serious dispute. That testimony 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 judgment 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 defendant 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, 

, 

, aff’d, 

, 

(2020), cert den, 

, 

, 

(2021); see also State v. Lobue, 

, 22 n 5, 

, rev den, 

 (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.