State v. Gilmore

706                  December 11, 2024              No. 889

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                TREVOR ALAN GILMORE,
                    Defendant-Appellant.
               Josephine County Circuit Court
                    18CR78162; A174480

   Matthew G. Galli, Judge.
   Argued December 11, 2023.
   Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Pagán, Judge, and Mooney,
Senior Judge.
   PAGÁN, J.
   Affirmed.
Cite as 

 (2024)   707
708                                           State v. Gilmore

        PAGÁN, J.
         Defendant appeals from a conviction for first-degree
manslaughter raising three assignments of error and three
additional supplemental assignments of error. In his first
assignment, defendant argues that the trial court erred by
denying his motion to reconsider the verdict. He argues that
because the court found that he had been justified in using
deadly force against one victim, it was legally impermissible
for the court to also find that defendant had acted recklessly
toward another victim in the same incident.
         In his second and third assignments, defendant
argues that the trial court erred by denying his motion to
compel the prosecutor to obtain and disclose records of a
child witness’s therapy records, counseling records, and
records relating to a forensic interview of the child at a Child
Advocacy Center (CAC) in the state of Missouri. Further, in
three supplemental assignments, defendant argues that the
trial court violated his due process rights by convicting him
of a lesser-included crime without sufficient notice; that he
was entitled to a judgment of acquittal under ORS 161.209
and ORS 161.219; and that the trial court erred by convicting him of first-degree manslaughter. For the reasons
explained below, we affirm.
                          I.   FACTS
         On Thanksgiving, November 22, 2018, defendant
was staying at the apartment of his wife, Brandi, in Grants
Pass, Oregon. The couple had two children, K and T. T was
17 years old at the time and was dating A, the daughter of
S. T typically stayed with S and S’s wife, MeLisa, who lived
nearby. S and MeLisa also had a young son and a daughter, G, who was eight years old. During that evening, A was
babysitting the younger children with T when S and MeLisa
returned from a bar with S’s friend, L. S and MeLisa were
in a heated argument, so T and A brought the children to
Brandi’s apartment. At some point, MeLisa also came to the
apartment.
       Shortly before 3:00 a.m., S and L arrived at Brandi’s
apartment, looking for MeLisa. S banged on the door and
defendant let him in. S began yelling at MeLisa to leave.
Cite as 

 (2024)                                             709

Defendant told S that he could not yell like that and told
them to leave. S told defendant that he should stay out of it
if he did not want to be “fucked up.” At some point, T told
defendant that he might want to go to his room because
S was going to beat him up. Defendant went back to his
bedroom and emerged with his semi-automatic handgun.
Defendant went back down the hall, positioned behind the
couch, and continued telling S and L that they needed to
leave.
         S went around the hallway couch toward defendant,
saying something to the effect of “what are you going to do
about it?” L was positioned behind S and was telling defendant to “be chill” and to “calm down.” Defendant then fired
multiple shots in a rapid sequence, striking both S and L.
The two men staggered out of the apartment. S made it to
the lawn outside where he collapsed and died. L collapsed
and died just outside the front door.
          The state charged defendant by indictment with
two counts of aggravated murder with a firearm, ORS
163.095 (Counts 1 and 3) and three counts of unlawful use of
a weapon with a firearm, ORS 166.220 (Counts 2, 4, and 5).
During the bench trial, defendant raised a self-defense justification, contending that his use of deadly force was reasonable in the face of S and L committing felony crimes of
coercion and burglary.
        The court found defendant guilty on Count 3 of first-degree manslaughter with a firearm, ORS 163.118(1)(a),1 for
recklessly causing L’s death. Finding that defendant’s use
of deadly force against S was justified, the court acquitted defendant of the remaining charges. The court stated
that defendant had recklessly caused L’s death under circumstances manifesting extreme indifference to the value
of human life because defendant fired his gun at S and L
while those men were present in a crowded living room.
Specifically, the court stated:

   1
       ORS 163.118(1)(a) provides:
         “Criminal homicide constitutes manslaughter in the first degree when:
       “(a) It is committed recklessly under circumstances manifesting extreme
   indifference to the value of human life[.]”
710                                               State v. Gilmore

      “I do believe, based upon the testimony of the individuals in the room, that … the state did meet its burden of
   proof in proving that it was not reasonable for a person to
   use deadly force against [L].
      “…
      “I find that [L] was shot in the course of [defendant]
   defending himself against [S]. I struggled with whether
   this was intentional. Whether I could find some intent in
   these—in this—in the ballistics, in anything. I can’t.
      “But firing a weapon in close quarters at another person
   when you do not have essentially a safe backstop is reckless. It is a risk … [of] such the nature and degree that
   disregarding that risk would constitute a gross deviation
   from the standard of care that someone should exercise.
      “I also find that because this is a firearm and there were
   people close by, and I think we’re all thankful that this
   tragedy wasn’t compounded with the death of a nine-yearold girl. Like a seven-year-old girl maybe at the time.
       “But that shooting under those circumstances did constitute an extreme indifference to the value of human life
   as is defined.
      “And, so, based upon that, I find that beyond a reasonable
   doubt that [defendant] caused recklessly, with an extreme
   indifference to the value of human life, the death of [L], find
   him guilty of the lesser included offense of Manslaughter in
   the First Degree.”
         Defendant filed a motion to reconsider the verdict.
He contended that if self-defense in using deadly force is not
disproved by the state, and defendant committed his acts in
a single incident, then the justified use of force carried over
to the harm caused to L. Defendant reiterated this position
at oral argument, contending that the court’s ruling presupposed that defendant acted reasonably and recklessly at
the same time. He also contended that the court could not
reach the appropriate certainty of guilt given those conflicting findings.
         The court declined reconsideration. Defendant was
sentenced to 120 months in prison with three years of postprison supervision and he was ordered to pay $5,000 as
restitution.
Cite as 

 (2024)                                               711

                             II. ANALYSIS
A. Transferred Intent
         We begin by addressing defendant’s first assignment of error, which contends that the trial court erred by
denying defendant’s motion to reconsider the verdict.2 We
also address defendant’s second and third supplemental
assignments of error, where defendant contends that the
trial court erred by denying his motion for a judgment of
acquittal on all of the charges of aggravated murder, and
also erred by convicting him of first-degree manslaughter
for the killing of L.
         Defendant raises two arguments in support of
these assignments. First, he argues that the doctrine of
“transferred intent” should apply to the use of deadly force
under ORS 161.219. Specifically, defendant asserts that
his justification for shooting S transferred to his shooting
of L because “[a]n innocent intent transfers exactly like a
guilty one.” In other words, defendant argues that because
the trial court found that his use of deadly force against S
was reasonable and justified under ORS 161.219, that intentional act “follow[ed] the bullet” and justified his killing of L.
Thus, defendant contends that the trial court’s legal finding
that he acted recklessly toward one victim, L, was legally
impermissible and therefore the court erred by not acquitting defendant. Second, defendant argues that the state
failed to prove that L had not been engaged in the conduct
described by ORS 161.219(1) to (3), and also failed to prove
that defendant’s belief that L was engaged in that conduct
was unreasonable.
        As a preliminary matter, a judgment of acquittal
is appropriate if the evidence is insufficient to support a

    2
      The state argues that the claim of error is not reviewable because the trial
court did not actually deny the motion for reconsideration and no statute authorizes the filing of such a motion. We recognize that motions for reconsideration
can create procedural problems and that their status is not entirely clear. Kuang
v. Kuang, 

, ___ P3d ___ (2024). Nevertheless, we reject the
state’s arguments about why the claim of error is not reviewable. The trial court
effectively denied the motion and we conclude that we have authority to review
the trial court’s decision. Regarding preservation, under the unusual circumstances of this case, we conclude that the preservation requirement was excused.
State v. Keene, 

, 

 (2022).
712                                                       State v. Gilmore

verdict. State v. Cunningham, 

, 

(1994), cert den, 

 (1995); State v. Newkirk, 

, 

, rev den, 

 (2022). We
review questions of the sufficiency of the evidence following
a conviction by examining the evidence in the light most
favorable to the state to determine whether a rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Palomo, 

, 

 (2013).
         A person may lawfully use reasonable physical
force, including deadly force, in self-defense. ORS 161.209.3
The use of deadly force in self-defense is limited to certain
situations outlined in ORS 161.219:
      “Notwithstanding the provisions of ORS 161.209, a
   person is not justified in using deadly physical force upon
   another person unless the person reasonably believes that
   the other person is:
       “(1) Committing or attempting to commit a felony
   involving the use or threatened imminent use of physical
   force against a person; or
       “(2) Committing or attempting to commit a burglary
   in a dwelling; or
       “(3) Using or about to use unlawful deadly physical
   force against a person.”
          Self-defense “does not negate the intent element of
a crime; instead, it provides a legal justification for what
would otherwise constitute a criminal act.” State v. Bracken,

, 

, rev den, 

 (2001).
It is an intentional action, “different from an accident, which
lacks assaultive intent.” State v. Boyce, 

,

 (1993).
         “[O]nce self-defense has been raised by a defendant,
the state has the burden of disproving it beyond a reasonable
doubt.” State v. Oliphant, 

, 

   3
       ORS 161.209 provides, in full:
       “Except as provided in ORS 161.215 and 161.219, a person is justified in
   using physical force upon another person for self-defense or to defend a third
   person from what the person reasonably believes to be the use or imminent
   use of unlawful physical force, and the person may use a degree of force which
   the person reasonably believes to be necessary for the purpose.”
Cite as 

 (2024)                              713

(2009) (citing ORS 161.055). To determine whether the state
has met that burden, a factfinder must weigh “(1) whether
the defendant reasonably believed that the victim used or
threatened to use unlawful physical force against the defendant; and (2) whether the defendant used a degree of force
in self-defense that the defendant reasonably believed was
necessary.” State v. Poitra, 

, 

 (2014).
          “The legal standard for assessing the reasonableness of a person’s belief about the need for force or the extent
of force necessary turns on an objective evaluation of the circumstances in which physical force has been used or threatened, and not on the personal perceptions of the individual
defendant.” State v. Strickland, 

, 

, rev den, 

 (2020) (emphasis omitted). The
question is therefore “how a reasonable person would have
assessed the circumstances in which defendant found himself at the time ….” 

         Turning to the doctrine of transferred intent, in
State v. Wesley, 

, 

, rev den,

 (2013), we held that that the common-law doctrine remained a part of the Oregon law of murder following the adoption of the new Criminal Code in 1971. Under
that doctrine, “ ‘if one shoots at A and misses him, but kills
B, this is murder; because of the previous felonious intent,
which the law transfers from one to the other.’ ” 

 at 703
(quoting William Blackstone, 4 Commentaries on the Laws
of England 201 (1769)). In other words, “ ‘the intention follows the bullet.’ ” 

 (quoting Gladden v. State, 273 Md 383,
397, 

 (1974)).
          However, Wesley’s conclusion appears to be limited
to circumstances where the doctrine of transferred intent
is being applied to a person who has “kill[ed] someone in
the course of attempting murder,” and recognizes that the
doctrine prevents that person from escaping liability for
their criminal conduct merely because they did not intend
to kill the particular victim. Id. at 708 (explaining that if we
“conclude that killing someone in the course of attempting
murder is not murder, but killing someone in the course of
attempting or committing robbery or various other lesser
714                                           State v. Gilmore

offenses is murder, that conclusion would run afoul of the
Oregon Supreme Court’s jurisprudence concerning Article I,
section 16, of the Oregon Constitution, which requires that
penalties be proportioned to the offense.” (Emphasis in original.)). It is not clear that the doctrine would hold in the context of a person’s use of deadly force under ORS 161.219.
After all, it is the intent to commit a murder that is the
foundation of the “transferred intent” doctrine for homicide
that we described in Wesley, and a person need not intend
to commit a murder in order to be justified in using deadly
force under ORS 161.219.
           Moreover, to be justified in using deadly force
against another person, a person must reasonably believe
that “the other person” is engaged in the conduct set out
in ORS 161.219(1) to (3). Given the specific use of the term
“other person,” it is doubtful that the legislature would have
intended that a person’s reasonable belief that one person
was engaged in the conduct described in ORS 161.219 would
also justify the use of deadly force against a third person—
not engaged in that conduct—who merely happened to be
nearby. Put another way, although the intent to commit
a murder might “follow the bullet” under the doctrine of
transferred intent, the legislature in ORS 161.219 expressly
conditioned a person’s use of deadly force on their reasonable belief that a particular person—i.e., the person killed—
was engaged in the conduct described by ORS 161.219
(1) to (3).
          In this case, defendant argues, as explained above,
that the court’s findings cannot be legally sufficient to support his conviction for manslaughter because once the trial
court had found that he was reasonable in using deadly force
against S, that justified, intentional act transferred from
S to L. Defendant contends that it was not “legally permissible” for the trial court to find that defendant acted recklessly
when he fired at L. Thus, defendant’s argument ultimately
turns on the premise that it is not his intent that transferred, but rather it is the justification for the crime that
transferred. That argument, however, ignores the fact that
justification for the use of deadly force under ORS 161.219 is
Cite as 

 (2024)                             715

specific to the particular “other person” that is engaged in
the conduct described by ORS 161.219(1) to (3).
        Accordingly, because the legislature limited the
scope of justification for using deadly force to force used
against the “other person” who is reasonably believed to be
committing a qualifying felony, burglary, or who is using
or about to use unlawful deadly force, our review turns to
whether the evidence in the record was legally sufficient to
support the trial court’s finding that defendant’s shooting of
L was not justified under ORS 161.219.
         Here, we conclude that the trier of fact could reasonably conclude that defendant’s use of force against S was
justified, but nonetheless also conclude that defendant’s
use of force with respect to L was reckless and committed
under circumstances manifesting extreme indifference to
the value of human life. Specifically, the record included
evidence that defendant’s son, T, who was present at the
apartment, told the investigating officers that he never saw
L or S with a gun, and that defendant, “just shot [L] for no
fucking reason, just because he was there with [S].” Brandi,
defendant’s wife, who also witnessed the killings, stated to
investigating officers that defendant “fired three shots. He
fired three shots, and [S] ran out the door. And then [L], he
was calm. He was like, ‘Man calm down[,]’ ” as the shooting
was happening. According to Brandi, defendant “shot [L] for
no reason. He wasn’t doing anything.” Further, according to
multiple witnesses, when defendant shot L, L had his hands
up, and was trying to get out of the apartment.
         Considering all of the evidence in the light most
favorable to the state, a reasonable trier of fact could conclude that defendant used a degree of force against L that
was objectively unreasonable. And although defendant’s
contrary statements may have sufficed to permit a reasonable trier of fact to find that S had displayed a gun, and that
L may have picked up that gun after defendant began shooting, the possibility of those contrary inferences is a quintessential question of fact for the factfinder. See, e.g., State
v. Hall, 

, 

 (1998) (the defendant
was not entitled to judgment of acquittal where factfinder
“reasonably could infer” different things from the evidence
716                                                      State v. Gilmore

but, because “[a]ny of those inferences is reasonable … it
was appropriate to allow the jury to decide the question”).
Thus, because the trial court’s finding that defendant recklessly caused the death of L is supported by evidence in the
record, the trial court did not err by failing to acquit defendant of any offense arising out L’s death.
B.    Due Process: Notice of Lesser-Included Offense
         Defendant argues in his first supplemental assignment of error that the trial court violated defendant’s due
process rights by convicting him of first-degree manslaughter. Specifically, defendant argues that the trial court failed
to provide him with notice that the court, sitting as the
finder of fact, would be considering a lesser-included offense.
Defendant further argues that he had no practical opportunity to raise his due process notice argument before the trial
court, and, thus, preservation should be waived.4
         In Oregon, it is well established that an indictment
of one offense includes, by necessary implication, charges of
lesser-included offenses. State v. Gibbons, 

, 241-
42, 

 (1961). Because a lesser-included offense
is necessarily included within a greater charged offense,
the state need not provide any specific notice beyond the
indictment regarding a lesser-included offense. State v.
Washington, 

, 

 (1975) (“Since
the defendant had notice as to all elements of lesser crimes
necessarily included in the principal offense, no due process
notice problems were involved in allowing a conviction on
the lesser included offense.”).
         Against the above legal framework, the question for
us is rather narrow; namely, whether the trial court had
authority to consider defendant’s guilt with respect to a
lesser-included offense on its own accord without providing
additional notice to the parties. Previously, we have found
the answer to be yes, because the lesser-included offense is
already before the court by virtue of the greater charged
offense. See State v. Cuffee, 

, 

(1987) (affirming the proposition that the trial court had the

    4
      As explained in footnote 2 above, we concluded that defendant was excused
from preserving his argument given the unusual circumstances of the case.
Cite as 

 (2024)                                           717

authority to consider a lesser-included offense of a greater
charged offense when it was sitting as the finder of fact for
the lesser-included offense); State v. Mink, 

, 

, rev den, 

 (1977) (concluding
that an infraction DUII was a lesser-included offense of the
misdemeanor DUII and, as a result, the trial court properly convicted the defendant of the infraction). However, we
articulated a narrow exception to that general principle in
State v. Barrie, 

, 

 (2009) and
State v. Keene, 

, 

 (2022).

         In Barrie, we noted the general rule under ORS
136.4655 that “an indictment for a greater offense necessarily places a defendant on notice of the possibility of his being
convicted of a lesser-included offense.” 

-
83. However, we also acknowledged that the general rule “is
subject to the overarching due process concern … that a
defendant must have notice and an opportunity to prepare
a defense.” 

. We concluded that the defendant in
Barrie, notwithstanding the general rule, “had every reason to believe that” the trial court would not “enter a conviction for criminally negligent homicide,” a lesser-included
offense of the charged offense, second-degree manslaughter.

 That was because the state had informed the defendant,
prior to trial, that “we are not going to let you have a jury
trial on [criminally negligent homicide].” 

 (brackets in original). Moreover, the defendant had relied on that
pretrial representation in preparing his defense. 

(noting that the defendant’s “opening statement and closing argument centered on the recklessness element of manslaughter”). Thus, Barrie articulated an exception, reflected
in ORS 136.465 and ORS 136.460(1), that applies when a
defendant has been affirmatively informed prior to trial
that the state will not seek a conviction on a lesser-included
offense, and the defendant relies on that representation in
preparing their defense.

   5
       ORS 136.465 provides:
       “In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant
   is charged in the accusatory instrument or of an attempt to commit such
   crime.”
718                                                       State v. Gilmore

          We applied that exception when we decided Keene.
Similar to Barrie, the defendant in Keene had been told,
prior to trial, that the state “was not interested in offering a
plea deal,” and the state had, in effect, informed the defendant that the state would not be seeking a conviction on a
lesser-included offense. 

. Accordingly, the
defendant had tried her case as an “all-or nothing proposition.” 

 Under those circumstances, the defendant “lacked
actual notice that the lesser-included offense was under consideration, making her conviction the product of a due process violation.” 

          In this case, defendant—unlike the defendants in
Barrie and Keene—had both the general notice under ORS
136.460(1) that he could be convicted of a lesser degree of
criminal homicide, and actual notice that he could be convicted of those lesser offenses. Defendant had actual notice
that he could be convicted of a lesser degree of criminal homicide, specifically manslaughter, because prior to trial, defendant raised the defense of self-defense under ORS 161.219.
By doing so, defendant represented that he believed the facts
would show that he had intentionally or knowingly killed both
victims, and that his conduct had been justified. See State
v. Boyce, 

, 

 (1993) (“To act
in self-defense, a person must intentionally or at least knowingly engage in an act to prevent another from imminent use
of physical force.”). Thus, defendant would have been on notice
that he also was effectively conceding that he had acted recklessly.6 See ORS 161.115(3) (“When recklessness suffices to
establish a culpable mental state, it is also established if a
person acts intentionally or knowingly.”). Accordingly, defendant is incorrect to suggest that the trial court’s consideration
of the lesser-included offense of manslaughter was a surprise
that defendant had no reason to anticipate.
          Further, unlike the defendants in Barrie and
Keene, defendant cannot show that he relied on any pretrial
     6
       As we explained in State v. Teitsworth, 

, 317 n 5, 

, rev den, 

 (2013), where a defendant asserts that “he acted in
self-defense, [the] defendant concede[s] that he acted knowingly or intentionally.” And “[b]ecause evidence that a defendant acted knowingly or intentionally
is sufficient to establish that the defendant acted recklessly,” the defendant in
Teitsworth had “effectively conceded the culpable mental state [recklessness] for
the charged assault” by raising the defense of self-defense.
Cite as 

 (2024)                             719

representation by the state that it would not seek convictions on lesser-included offenses. Defendant points to nothing in the record reflecting that he had been told, prior to
trial, that the state would not seek a conviction on a lesser-included offense. And defendant points to nothing in the
record indicating that he based his defense of self-defense
on a representation by the state that it would not seek a
conviction on a lesser-included offense. For those reasons,
Barrie and Keene are distinguishable and do not control the
outcome of this case. Defendant was charged with aggravated murder and had notice that he could be found guilty of
any lesser degree of criminal homicide. ORS 136.460(1). The
trial court had authority to convict defendant of the lesser-included offense of manslaughter and the trial court did not
violate defendant’s rights to due process.
C. Child’s Therapy Records
          Finally, we address defendant’s remaining assignments of error. In 2020, G, S’s daughter who witnessed
the incident, was interviewed by a forensic interviewer at
a Children’s Advocacy Center (CAC) in Missouri. In a videotaped interview, she told an advocate that S and L were
trying to leave when defendant came out with a gun and
“made sure that they … got shot.” She also said that L had
his hands up when defendant shot him. The state sought to
introduce the interview as hearsay statements concerning
abuse. Defendant filed a motion to compel the state to provide additional information about the interview, including
records of G’s therapy prior to the interview, or alternatively
to limit the use of the interview. The court denied the motion
and admitted the interview.
         On appeal, defendant argues that the trial court
erred when it denied his motion for additional discovery
or to limit the use of the interview. Defendant argues that
because G had been subject to that interview, “[t]here was
likely to be substantial impeachment evidence surrounding
what prompted the interview and in counseling records if
those were also done at the state’s behest.” Because of this
interview, defendant argues that the prosecutor was obliged
by ORS 135.815 and Brady v. Maryland, 

,

, 

 (1963) to provide records of G’s
720                                                        State v. Gilmore

counseling, therapy, and CAC interview beyond what the
state had already disclosed to defendant.
        “Whether [a] defendant was entitled to discovery is
a question of law, which we review for legal error.” State v.
Wixom, 

, 

 (2015), rev den,

 (2016).
         ORS 135.815 requires a prosecutor to disclose exculpatory or impeachment evidence that is within the prosecutor’s
“possession” or “control.”7 In this case, there is no evidence in
the record—and defendant has not suggested otherwise—that
the prosecutor possessed G’s therapy or counseling records, or
possessed any records related to the forensic interview beyond
what it had already provided to defendant. Thus, the dispositive issue turns on whether the prosecutor had control of the
additional records that defendant sought.
         As we explained in Wixom, the legal standard for
prosecutorial control of records can be established in two
ways. 

. First, “if an entity is required
to disclose records to the district attorney or to police, the
prosecution has control over the records and, accordingly,
must disclose to a defendant any of those records that fall
within ORS 135.815.” State v. Daniels, 

,

, rev den, 

 (2014) (emphasis in original). Second, “information that the prosecutor may obtain
directly is within the prosecutor’s ‘control’ … even if it was

   7
       ORS 135.815 provides, in pertinent part, that:
        “(1) Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney:
       “(a) The names, addresses and telephone numbers of persons whom
   the district attorney intends to call as witnesses at any stage of the trial,
   together with their relevant written or recorded statements or memoranda of
   any oral statements of such persons.
         “…
         “(g) Any material or information that tends to:
         “(A) Exculpate the defendant;
         “(B) Negate or mitigate the defendant’s guilt or punishment; or
       “(C) Impeach a person the district attorney intends to call as a witness at
   the trial.”
(Emphasis added.)
Cite as 

 (2024)                                 721

not in the prosecutor’s physical possession.” State v. Warren,

, 

 (1987).
         Applying those legal principles here, we conclude
that the trial court did not err in denying defendant’s motion
to compel, because the records were not “within the possession or control of the district attorney.” ORS 135.815(1).
First, there is no evidence that the Missouri CAC center,
G’s therapist, or G’s counselor were “required” to disclose
to the state the records defendant sought. Cf. State v. Bray,

, 

 (2016), aff’d, 

,

 (2018) (Google was not “required” to disclose
information to the prosecutor because the pertinent federal
statute was phrased permissively).
          Second, there is no evidence that the prosecutor could
have “obtained directly” the records from the CAC center, G’s
therapist, or G’s counselor. In Bray, we concluded that because
the information the defendant sought was not “obtainable by
[the prosecution] without the cooperation of an intermediate
entity, [the] defendant [was] not entitled to it under discovery statutes.” Id. at 598. Similarly, here, defendant has not
shown that the prosecutor could have obtained directly—that
is, without the cooperation of an intermediate entity—G’s
therapy records, counseling records, or the records of the
forensic center in Missouri where G was interviewed. There
is no indication that the forensic center would have provided
those additional records to the prosecutor “on request” and it
is likely that the prosecutor would have had to issue process
to do so. See State v. Bray, 

, 

 (2018)
(explaining that “when the state cannot obtain documents
without judicial assistance, it cannot be said to have power
over them”). As such, it cannot be said that the prosecutor had
“control” over the records defendant sought. 

         Defendant also argues that he had a due process right
to compel the prosecutor to provide him with “any record” of
the forensic interview and G’s therapy records because those
records would be material and exculpatory. See Brady, 

 (holding that the prosecution’s failure to disclose “evidence favorable to an accused … violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”); Bray,
722                                                           State v. Gilmore

 (evidence is favorable if it is “directly exculpatory or could be used to impeach a government witness”).
          However, defendant has not shown that the records
he sought were in the prosecutor’s actual or constructive possession. See Bray, 

 (explaining that “actual
possession refers to material in possession of the prosecution itself, while constructive possession extends to material
that is in the possession of others acting on the government’s
behalf, … including the police”). As noted above, defendant
does not contend that the records were in the prosecution’s
actual possession, and defendant has not shown that G’s therapist, her counselor, or the Missouri CAC center were part of
the Josephine County prosecutorial “team” for constructive
possession. Defendant never made a showing that G’s counselor or therapist were acting on the prosecutor’s behalf, or
under the prosecutor’s direction, in providing services to G—
and defendant’s speculation that there was a “likelihood”
that the Missouri forensic center was working at the state’s
behest is insufficient. Bray, 

 (“We have
found no authority for the proposition that Brady requires
the prosecution to seek out or disclose evidence in the possession of private persons or institutions, … that cannot
be considered part of the prosecutorial ‘team’. ”). Accordingly,
because the information defendant sought was neither in the
actual nor constructive possession of the prosecution, the
trial court did not violate defendant’s due process rights by
declining to order the prosecutor to obtain and disclose those
records to defendant.8
            Affirmed.

     8
       In the alternative, defendant also argues that the trial court was obliged
to conduct an in camera review of the forensic “records concerning G” to review
for exculpatory evidence and that the trial court should have excluded G’s interview from evidence. However, even if the trial court erred by declining to exclude
G’s recorded statement or review for additional exculpatory evidence contrary
to G’s statements, any error was harmless because defendant (1) failed to identify any actual prejudice arising from the state’s purported discovery violation,
(2) the trial court’s oral findings reflect that the trial court discounted G’s version
of events in her recorded statement, and (3) G’s recorded statement was merely
cumulative of other evidence. Thus, there is little likelihood that the admission of
that statement affected the verdict. See State v. Davis, 

, 

 (2003) (explaining harmless error analysis); see also, e.g., State v. Dupree,

, 

 (1999), rev den, 

 (2000) (describing
harmless error inquiry for alleged discovery violation).