State v. Goode

108                 September 18, 2024              No. 661

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                  STEPHEN A GOODE,
                   Defendant-Appellant.
              Deschutes County Circuit Court
                   19CR52839; A179474

  Walter Randolph Miller, Jr., Judge.
  Submitted June 17, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
  JOYCE, J.
   Reversed and remanded for entry of a judgment that
omits terms related to defendant’s conditions of incarceration; otherwise affirmed.
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110                                             State v. Goode

        JOYCE, J.
          Defendant appeals from a judgment of conviction for
first-degree sodomy, first-degree sexual abuse, strangulation, and menacing. He raises six assignments of error. In his
first, he challenges the denial of his motion to suppress evidence found after officers executed a warrant on defendant’s
Facebook account for defendant’s Facebook Messenger messages. In his second and third assignments of error, he challenges the admission of evidence to prove defendant’s sexual
predisposition towards A. In his fourth and fifth assignments
of error, he asserts that the trial court abused its discretion
when it denied two motions for mistrial. In his sixth and final
assignment of error, defendant argues that the trial court
committed plain error by including “sentence instructions” to
the Department of Corrections in the judgment.
         Beginning with the final claim of error, the state concedes that the trial court plainly erred in including a list of
“sentence instructions” in the judgment related to defendant’s
conditions of incarceration. We agree and exercise our discretion to correct the error. See State v. Langmayer, 

, 

 (2010) (trial court lacks authority to
impose no-contact order as condition of incarceration); State v.
Hall, 

, 

 (2016), rev den, 

 (2017) (exercising discretion to correct plainly erroneous
no-contact provision as condition of incarceration). We therefore reverse and remand for entry of a judgment that omits
the challenged list of sentence instructions. Hall, 

.
        We otherwise affirm. As we explain below, the trial
court correctly denied defendant’s motion to suppress. The
evidence that defendant challenges in his second and third
assignments of error, related to his sexual interest in A, was
admissible for a non-propensity purpose. Finally, we conclude that the trial court properly exercised its discretion
in denying defendant’s motions for mistrial and concluding
instead that measures short of a mistrial were adequate.
                I. MOTION TO SUPPRESS
        Defendant’s first assignment of error challenges
evidence found in defendant’s Facebook messaging inbox.
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By way of brief introduction (a lengthier factual recitation
follows), a magistrate issued a warrant directing officers
to search and seize defendant’s Facebook account records.1
The warrant limited the responsive information to that
involving communication of or about sexual contact between
defendant and others and defendant and A. It allowed a
search for those categories of information from May 2012
through the time that the magistrate signed the warrant in
September 2019. When officers executed the warrant, they
found Facebook messages between defendant and A in which
defendant communicated a sexual interest in A. Defendant
moved to suppress the messages, arguing that the warrant
was insufficiently particular and lacked probable cause. The
trial court denied the motion, a ruling to which defendant
now assigns error.
         We begin with what is not at issue. Defendant
argues, and the state does not dispute, that defendant had a
protected interest in the contents of his Facebook messages.
The state argues, and defendant does not dispute, that the
heightened particularity requirement set out in State v.
Mansor, 

, 

 (2018) (Mansor II),
does not apply when a defendant is challenging a warrant
directed at records held by a third party rather than at a
person’s personal electronic devices. See State v. Hargrove,

, 

 (2023) (reviewing a
challenge to a warrant for records held by third parties,
including Facebook, under the standard legal framework for
assessing the lawfulness of a warrant in light of the defendant’s failure to develop an argument to the contrary).
        In light of what is not at issue, then, we are left
with the standard framework for assessing the validity of a
warrant, namely, “whether the warrant[ ] describe[s], with
particularity, the place to be searched and the persons or
things to be seized” and whether the warrant was supported
by probable cause. 

 (internal quotation marks omitted).
Whether a warrant complies with the particularity requirement with respect to the things to be seized “is highly fact

    1
      The only evidence that the state intended to use against defendant involved
the Facebook messages, and the parties confine their arguments to those messages. The opinion is thus limited to that category of information.
112                                            State v. Goode

dependent and eludes a single, concrete articulation.” 

 (internal quotation marks omitted).
          Given the fact-bound nature of the issue, we turn
to the facts as described in the warrant’s supporting affidavit. A is defendant’s niece. In 2019, she disclosed that defendant had sexually assaulted her in June 2018, while they
were in Bend. She also disclosed an earlier sexual assault
that occurred in 2012, while the family was visiting the
Philippines. During an interview with an officer, Skelton,
A showed officers text and Facebook messages that defendant had sent her between July 2018 and March 2019 in
which he expressed his attraction to her. In an interview
with Skelton, defendant acknowledged communicating with
A on Facebook—specifically a message that he “would not
have sex with her”—and stated that that message, as well
as other messages, were still on Facebook.
         Skelton then sought a warrant to search defendant’s
Facebook records. His affidavit began by asserting that there
was probable cause to believe that defendant had committed first-degree sexual abuse and first-degree sodomy in
Deschutes County in 2018. Skelton detailed the investigation to date (including A’s and defendant’s statements about
Facebook messaging), and he explained that Facebook users
can use private messaging on Facebook to communicate with
other users. The Facebook account’s inbox then stores copies of the messages. Skelton thus averred that defendant’s
Facebook account would likely contain that material. He also
explained that Facebook uses the term “Neoprint” to describe
an expanded view of the user’s profile that can include a broad
range of information from the profile, including links to videos, photographs, notes, wall postings, groups and networks,
and information about the user’s access and use of Facebook.
Skelton explained that the internet protocol logs for a given
user may also contain “information about the actions taken
by [a] user.” Other Facebook features include a photos application, where a user can upload albums and photos (a user’s
“photo print”), and Facebook Notes, which is a feature that
users can use to write and post notes or personal blogs.
        He also explained that, in his training and experience, people suspected of committing crimes, including
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sodomy and sexual abuse, “communicate with friends, witnesses, co-conspirators and victims prior to and after the
crimes are committed.” He explained that the “content of
private messages sent on Facebook.com are retained in the
inbox of the account holder.”
        Skelton thus requested a warrant to search defendant’s Facebook account and asked that the evidence be “in
the form of, but not limited to” a list of items from “05/01/2012
to present”:
   •    User contact information;
   •    User neoprint;
   •    User photoprint, including the photographs that defendant had uploaded;
   •    Group contact and profile information; and
   •    “Private messaging inbox (deleted or currently in the
        inbox) showing messages sent and received.”

         The affidavit then set forth Skelton’s request that
the “[e]vidence shall be in the form of … [a]ny and all text
messages, picture messages, multimedia messages, chats,
[and] emails” that defendant either possessed or had shared
and that “constitute[ed] communication about or memorialization of sexual contact and sexual relations between”
defendant and A. That evidence was to include “discussion
of past sexual contact, as well as solicitation of sexual contact and sexual intercourse with [A], as well as communication between [defendant] and others involving the sodomy
and sexual abuse” of A.2
         Lastly, Skelton stated that the search and analysis
“will be limited to evidence of the crimes of sodomy in the
first degree and sexual abuse in the first degree,” committed in Deschutes County, and “limited to the dates of
     2
       The inclusion of language related to “text messages” and “emails” is likely
because in the same affidavit, Skelton also sought a warrant to search defendant’s cell phone. However, the warrant itself included only a command to search
and seize the Facebook records and not defendant’s cell phone. Below and on
appeal, defendant did not argue that that particular paragraph would only apply
to limit any command in the warrant related to the cell phone but not to his
Facebook messaging inbox. Thus, we do not discuss the cell phone or portions of
the affidavit relating to it further.
114                                          State v. Goode

May 1, 2012 through present.” He ended by asking the court
to issue a search warrant authorizing him to search for evidence of those two crimes “at the said location and any other
means, fruits, instrumentalities and evidence of said crime.”
         A magistrate authorized the warrant to search
defendant’s Facebook records. The magistrate concluded
that “[u]pon information given under oath to me by an affidavit signed and sworn” by Skelton, there was probable
cause to believe that the crimes of first-degree sodomy and
sexual abuse had been committed and ordered the search,
seizure, and analysis of “all” information related to defendant’s Facebook account. The warrant largely mirrored the
affidavit, granting wholesale and verbatim the list of items
that Skelton sought as related to the Facebook records, see
335 Or App at 113, including “all information related to”
defendant’s Facebook account, including the “[p]rivate messaging inbox (deleted or currently in the inbox) showing
messages sent and received.” The warrant granted a search
of “[a]ny and all text messages, picture messages, multimedia messages, chats, [and] emails” that defendant possessed or shared with others “about or memorialization of
sexual contact and sexual relations between” defendant and
A, including discussion of past sexual contact, solicitation
of sexual contact, and “communication between [defendant]
and others involving the sodomy and sexual abuse of [A].”
         The warrant ended, consistent with Skelton’s affidavit and request, by providing that “search and analysis of
these items will be limited to evidence of the crimes of sodomy in the first degree and sexual abuse in the first degree,
committed and triable in Deschutes County” and “limited
to the dates of 05/01/2012 through present,” as well as any
other “means, instrumentalities, fruits and evidence of”
those crimes.
        When officers executed the warrant, they found
messages in defendant’s Facebook account between defendant and A in which, among other things, defendant told A
that she was “the prettiest” and admitted having “a huge
crush” on her, and A asked defendant to stop “telling me
gross stuff.” The messages were sent between March 2018
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and July 2018, shortly before and shortly after the sexual
assault in Bend.
         As noted above, defendant moved to suppress that
evidence. He argued that the warrant was insufficiently
particular because it authorized a “broad search of, essentially” everything without “limitations or parameters.”
Relatedly, he argued that the court could not consider the
affidavit in assessing whether the warrant was sufficiently
particular because there was no indication that the affidavit
was attached to or incorporated into the warrant. He also
argued that the warranted search was overbroad because
it authorized a search beginning in 2012, a date that was
“arbitrary.” And finally, he asserted that the affidavit failed
to state probable cause for the two crimes.
          The state in response argued that, although the
warrant was broad “at first glance,” the warrant contained
a paragraph that “is specifically requesting Facebook messages between … defendant and [A]. So it has been limited
to … defendant’s specific Facebook account to these specific
communications within this specific time frame[.]” The state
also noted that the warrant was “again further limited to
… some type of sexual contact—or conduct.” In reply, defendant again argued that the affidavit was not incorporated
into the warrant and that the time frame was overly broad.
         The trial court denied the motion. It concluded that
defendant had used Facebook “as a conduit for communication relevant to the charges” and that the warrant was supported by probable cause. In terms of specificity, the court
agreed that the request for “any and all” messages “appears
to be very broad,” but it went on to find that “really, the
request is much more targeted. It’s much more refined and
it limits the ask in all these situations really to the communication between … defendant and the alleged victim,”
as well as “communication between [defendant] and others
involving the sodomy and sexual abuse” of A. The court concluded that the timeframe was not overbroad, inasmuch as A
“beg[an] the narrative of sexual abuse” by defendant in 2012.
        On appeal, defendant reprises his arguments that
the warrant was insufficiently particular and overbroad. To
116                                              State v. Goode

resolve his claim of error, “we look at the totality of the circumstances presented in the affidavit, … and we resolve
doubtful or marginal cases in favor of the preference for
warrants[.]” State v. Miser, 

, 

, rev den, 

 (2020) (internal quotation marks
and citations omitted). When a search is warranted, a presumption of regularity arises, based on the fact that an
independent magistrate has already determined that probable cause exists; therefore, the defendant bears the burden
of proving the unlawfulness of a warranted search. State v.
Walker, 

, 

 (2011). We review
a trial court’s denial of a motion to suppress for errors of
law and are bound by the court’s factual findings if there is
constitutionally sufficient evidence to support them. State v.
Maciel-Figueroa, 

, 

 (2017).
Whether a warrant complies with the particularity requirement of Article 1, section 9, of the Oregon Constitution is an
issue we review for errors of law. State v. Savath, 

, 

, rev den, 

 (2019).
A.    The warrant was sufficiently particular.
         We begin with defendant’s argument that the warrant
was insufficiently particular. The purpose of the particularity
requirement is to “guide the officer to the thing intended to be
seized and to minimize the danger of unwarranted invasion
of privacy by unauthorized seizures.” State v. Tidyman, 

, 

, rev den, 

 (1977).
“The objective is that the search be as precise as the circumstances allow and that undue rummaging be avoided.” State v.
Massey, 

, 

, rev den, 

(1979). The particularity requirement consists of two distinct
concepts: specificity and overbreadth. State v. Friddle, 

, 

 (2016). A warrant must be specific enough to allow an officer, with reasonable effort, to identify the place to be searched and the items to be seized. State
v. Blackburn/Barber, 

, 

 (1973).
The warrant also may not authorize a search broader than its
supporting materials provide probable cause to justify. State
v. Reid, 

, 

 (1994).
       Because defendant bears the burden to prove that
the warrant was not sufficiently particular, we begin with
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defendant’s arguments. He raises three primary points as
to why the warrant is insufficiently particular: (1) the warrant was not sufficiently specific because it allowed officers
to access all of defendant’s messages in his private messaging inbox, which in turn allowed them “to rummage at will
through the private areas of defendant’s Facebook account”;
(2) the warrant was overbroad, as it encompassed a time
period going back to 2012; and (3) we cannot resort to the
affidavit to fix either infirmity because the affidavit was not
incorporated into the warrant.
        1.   Incorporation of the affidavit
         We begin with defendant’s incorporation argument,
since the answer to that issue frames the information that
we can consider in the remaining analysis. The purpose of
particularity can be served if “some other document, such
as a supporting search warrant affidavit, limits the officers’
search to” the specific place that was authorized by the magistrate’s probable cause determination. State v. Breedwell,

, 

 (2022), rev den, 

(2023). The “defendant carries the burden of proof to establish that the affidavit should not be considered in evaluating
the warrant’s particularity.” 

; see State v. Mansor,

, 

 (2016) (Mansor I), aff’d,

, 

 (2018) (Mansor II) (same). For a
defendant to establish that an affidavit cannot be considered
in construing the warrant that it supports, the defendant
must “show that, under the totality of the circumstances,
there was not a sufficient connection between the warrant
and the affidavit for the executing officers to have reasonably believed that the warrant and affidavit were functionally one document.” Breedwell, 

. Evidence
that the affidavit was physically attached to the warrant
or that the warrant expressly incorporated the affidavit are
both relevant. 

.
         Here, defendant argues that we cannot consider the
affidavit in the particularity analysis because “there is no
indication” that it was attached or incorporated into the warrant. We disagree. As in Mansor I, the warrant referenced
the affidavit when it stated that the “affidavit [was] signed
and sworn to by” Skelton. Furthermore, like in Mansor
118                                            State v. Goode

I, defendant adduced no proof at the suppression hearing
that the affidavit was not attached to the warrant. See 

 (noting that the defendant bore the burden of
establishing facts relating to his challenge to the validity of
the warrant and “[w]hether [the] affidavit was attached to,
or otherwise sufficiently accompanied, the warrant when it
was executed was such a fact”). Defendant’s counsel argued
that the affidavit was not incorporated, but he offered no
evidence as to that. See 

 (the defendant adduced “no proof
on that matter at the suppression hearing—and, thus, failed
to meet that burden” (emphasis in original)). We therefore
reject defendant’s threshold argument that the affidavit was
not incorporated into the warrant.
        2. Specificity
          We next consider defendant’s argument that the warrant lacked specificity. We conclude that defendant failed to
carry his burden to show that the warrant was inadequately
specific. At the outset, we note that defendant’s arguments
have shifted on appeal. Below, he argued that the warrant
was insufficiently specific because the warrant contained no
limits or parameters. In rejecting that argument, the court
noted that the warrant did in fact contain such limitations,
pointing to the paragraph that limited the search for information in various types of messages possessed by defendant,
shared by defendant, and that constituted communication
about sexual contact between defendant and A. Neither party,
nor the court, differentiated between the paragraph that permitted searching defendant’s “private messaging inbox” and
the paragraph that followed containing the limiting provision
to search various types of messages, including text messages,
picture messages, and multimedia messages. On appeal,
defendant appears to now contend that the warrant’s reference to “private messaging inbox” is a search authorization
separate and apart from the paragraph that follows it and that
refers to all kinds of messages. Framed slightly differently,
defendant now contends that the limitation in the paragraph
following the reference to defendant’s messaging inbox does
not, in fact, limit the search of the messaging inbox. Given
that no party below made that differentiation and given that
the court expressly ruled that the limitations that referred to
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a broad category of messages encompassed the Facebook messages that defendant argues should be suppressed, we decline
defendant’s invitation to conclude that the limitation does not
apply to defendant’s Facebook messaging inbox.
         So framed, we conclude that the warrant and affidavit were sufficiently specific. To be sure, as defendant notes,
the threshold authorization to search “all information” related
to defendant’s Facebook account is broad. But, as the trial
court noted, other parts of the warrant narrow the breadth of
that command. After granting the request to search specific
items, including defendant’s private messaging inbox, the
warrant provided that “any and all … messages” to which
the warrant referred must be either (1) those “constituting
communication about or memorialization of sexual contact
and sexual relations” between defendant and A, including
“[d]iscussion of past sexual contact, as well as solicitation of
sexual contact, sexual conduct and sexual intercourse” with
A, or (2) “communication between [defendant] and others
involving the sodomy and sexual abuse” of A. It is a fair reading of the warrant, as the trial court concluded, that that
limitation, which applies to any and all messages of various
forms, specified and narrowed the evidence for which police
were authorized to search. State v. Wilson, 

, 

 (2001) (reviewing courts must read the warrant in a “commonsense, nontechnical and realistic fashion”).
         Additionally, the final paragraph also limits the
scope of the search, stating “search and analysis of these
items will be limited to evidence of the crimes of sodomy in
the first degree and sexual abuse in the first degree, committed and triable in Deschutes County.” That provision
refers to all of the evidence sought in the warrant—“these
items”—necessarily including defendant’s private Facebook
messaging inbox. Cf. Savath, 

 (where
the only information related to the alleged criminal conduct
was “related to controlled substances offenses,” warrant was
insufficiently particular).
         The affidavit echoes those limitations. It seeks to
search the same 10 items of communications and provides that
the evidence “shall be in the form” of messages that relate to
sexual contact between defendant and A or between defendant
120                                                          State v. Goode

and others. And it concludes with the same limitation as the
warrant—i.e., that the search and analysis of “these items”
will be limited to evidence of the crimes specifically named.
         In sum, the warrant contains two provisions that
limit the breadth of the warrant to specific categories of communications and specific criminal acts. The affidavit does as
well. Reading the warrant in a “commonsense, nontechnical
and realistic fashion,” Wilson, 

, the trial
court correctly concluded that the warrant was sufficiently
particular.
           3. Overbreadth
            Defendant also contends that the warrant’s date
range, from 2012 to the present, was overbroad because
“nothing about the commission of a crime in 2012” in another
country (that is, the assault that the victim described as taking place during the trip to the Philippines) “justifies a search
for evidence of a crime committed in 2018.” At best, defendant contends, that request would serve only to seek inadmissible evidence of prior bad acts.3 We disagree. Evidence is
the proper object of a search warrant as long as there is “ ‘a
nexus … between the item to be seized and criminal behavior. … [P]robable cause must be examined in terms of cause
to believe that the evidence sought will aid in a particular
apprehension or conviction.’ ” State v. Maxfield, 

, 

 (1995) (quoting Warden v. Hayden, 

, 

, 

 (1967)). Here, as
the trial court noted, any evidence relating to the 2012 sexual assault could be probative of the charges the police were
investigating in 2018. See State v. McKay, 

,

 (1990) (evidence of prior uncharged sexual misconduct involving the same victim was admissible in sexual
abuse case). The court thus did not err in rejecting defendant’s arguments that the warrant was overbroad.
B.    The warrant was supported by probable cause.
        Lastly, defendant argues that the warrant was
not supported by probable cause. In defendant’s view, the
     3
       Defendant does not raise any argument about the sufficiency of the affidavit to support the conclusion that defendant’s Facebook messaging inbox would
contain messages dating back to 2012 that related to sexual abuse of A.
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evidence of the messages between defendant and A “[does]
not make it probable that defendant committed forcible sodomy and sexual abuse” against A, and thus the affidavit did
not establish probable cause.
         We disagree. Here, the facts in the affidavit include
A’s disclosure that defendant had sexually assaulted her;
that defendant sent “text messages … and Facebook messages” to A around the time of the assault in which defendant
expressed a sexual interest in A; that defendant told A over
Facebook Messenger that “he would not have sex with her”
and that he “still has th[o]se messages on Facebook”; and
that he “did believe that [A] wanted to have sex with him.”
Based on that information, there was probable cause that
seizable evidence—particularly evidence of defendant’s sexual predisposition towards A—would be found in the records
of defendant’s Facebook account. Framed slightly differently, evidence that defendant expressed a sexual interest
in A around the time of the alleged assault is relevant to
the charges and would likely aid the prosecution in convicting defendant. Maxfield, 

 (“[P]robable
cause must be examined in terms of cause to believe that the
evidence sought will aid in a particular apprehension or conviction.” (Internal quotation marks and citation omitted.)).
  II. ADMISSION OF DEFENDANT’S STATEMENTS
             AND TEXT MESSAGES
          In his second and third assignments of error, defendant challenges the admission into evidence of statements
he made to officers, in which he admitted to masturbating
while thinking about A, and text messages between him
and A, in which defendant asked A if she had had sex with
a boy and stated that he was “so jealous” and that he was
“still very much attracted to you” but that was “part of me
I want to hide. I HAVE TO HIDE.” The trial court admitted that evidence, after concluding that it was relevant to
defendant’s sexual predisposition towards the A. On appeal,
defendant acknowledges that, under Oregon law, evidence
of a defendant’s sexual predisposition towards a victim is
non-propensity evidence but argues that the law is wrongly
decided. See, e.g., McKay, 

 (“Simply stated, the
proffered evidence here was admissible to demonstrate the
122                                            State v. Goode

sexual predisposition this defendant had for this particular
victim, that is, to show the sexual inclination of defendant
towards the victim, not that he had a character trait or propensity to engage in sexual misconduct generally.”); State
v. De Leon Say, 

, 

, rev den, 

 (2022) (“Although the Supreme Court clarified what
propensity evidence is in State v. Skillicorn, 

,

 (2021), the court did not expressly overrule its
holding in McKay that sexual-predisposition evidence is not
propensity evidence, and the reasoning in Skillicorn does not
compel that conclusion.”). We reject defendant’s argument as
controlled by the Supreme Court’s opinion in McKay.
      III.   DENIAL OF MOTIONS FOR MISTRIAL
         In his fourth and fifth assignments of error, defendant argues that the trial court abused its discretion when
it denied two motions for a mistrial. The first motion for a
mistrial came after the prosecutor inserted a disk with a file
of an audio interview of defendant to play for the jury. The
file name appeared briefly, in a four-square-inch box on the
75-inch video screen, and the word “polygraph,” along with
letters and numbers, appeared in the file name. The prosecutor immediately minimized the window and, outside of the
jury’s presence, advised the court of what had been momentarily displayed on the screen. Neither the court nor defense
counsel had noticed the file name, and defense counsel said
that he did not think that any of the jurors had seen it but
believed that if the jury had been “looking for it, they could
see it.” The court observed that it doubted any juror had
actually seen the display, noting that the font was “tiny,” the
court itself could not read it, and it “happened awful fast.”
The court nevertheless assumed that the jury had seen it.
Defendant moved for a mistrial, which the court denied. At
defendant’s request, the prosecutor renamed the file and—
in the jury’s presence—withdrew the original exhibit and
offered it under a different number that did not contain the
“polygraph” reference.
        Following that, a witness testified that he—the witness—was doing well on probation and had passed five polygraphs relating to his probation. Defendant objected that the
witness’s answer was nonresponsive and that the witness
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was vouching for his own credibility. The court overruled
the objection. Defendant later “renewed” his motion for a
mistrial, arguing that the witness’s testimony compounded
the exposure of the “polygraph” file name. The trial court
denied that motion, concluding that the witness’s reference
to his own polygraphs was not likely to invite the jury to
think about the “potential sighting” of the polygraph file
name, which occurred during a different witness’s testimony
about defendant’s interview. However, the court struck the
witness’s testimony about his own polygraph performance.
         We review the denial of a mistrial for abuse of discretion, State v. Sprow, 

, 

(2019), and affirm. The trial court concluded that the brief
projection onto a large screen of a small box that contained
the word “polygraph” was unlikely to cause any jurors who
saw it to assume anything about a polygraph, especially in
light of the lack of any testimony on that point. And the
trial court correctly reasoned that the witness’s testimony
about his own polygraphs—which he expressly described as
“polygraphs that go along with my probation”—was unlikely
to cause the jurors to wonder whether defendant had submitted to a polygraph. Moreover, the trial court instructed
the jury not to consider the witness’s testimony about polygraphs and was entitled to presume that the jurors would be
capable of following that instruction. State v. Terry, 

, 

 (2001) (“Jurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so.” (Internal quotation
marks omitted.)). The court thus did not abuse its discretion
in denying the mistrial motions.
        Reversed and remanded for entry of a judgment
that omits terms related to defendant’s conditions of incarceration; otherwise affirmed.