State v. Hilgardner

808                 February 12, 2025             No. 100

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

               STATE OF OREGON,
                Plaintiff-Respondent,
                          v.
        MARTIN ALEXANDER HILGARDNER,
               Defendant-Appellant.
          Clackamas County Circuit Court
               22CR40170; A180482

  Ulanda L. Watkins, Judge.
  Submitted December 30, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)                               809

          KAMINS, J.
         Defendant appeals following a bench trial in which
he was convicted for tampering with a witness under ORS
162.285. In his first assignment of error, defendant asserts
that the trial court erred by admitting documentation of
phone calls made by adults in custody, contending that the
call log evidence was not properly authenticated and contained inadmissible computer-generated hearsay statements. In his second assignment of error, defendant contends
that the trial court plainly erred in denying him “eligibility
for transitional leave and other sentence-modification programs described in ORS 137.750.”1 Deferring to the trial
court’s factual determinations if any evidence in the record
supports them, and reviewing for legal error, we affirm.
State v. H. D. E., 

, 

, rev den,

 (2020) (foundational evidence is reviewed for
legal sufficiency); State v. Hikes, 

, 

, rev den, 

 (2014) (a trial court’s denial of
sentence-modification programs is reviewed for legal error);
State v. Cain, 

, 

 (2014)
(accepting factual determinations supported by any evidence and reviewing evidentiary admissibility rulings for
legal error).
         With regard to his first assignment of error, defendant’s argument that the call logs constituted computer-generated hearsay statements was not raised at trial.
Although defendant’s objection used the word “hearsay,” his
explanation clarified that he was concerned that the logs
lacked foundation. Because defendant did not argue to the
trial court that the call logs constituted computer-generated
hearsay statements, that argument is unpreserved. State v.
Wilson, 

, 

 (1996), cert den, 

 (1997) (holding that a defendant’s objection to the
   1
     ORS 137.750(1) provides:
        “When a court sentences a defendant to a term of incarceration upon
   conviction of a crime, the court shall order on the record in open court as part
   of the sentence imposed that the defendant may be considered by the executing or releasing authority for any form of [sentence-modification programs]
   authorized by law for which the defendant is otherwise eligible at the time
   of sentencing, unless the court finds on the record in open court substantial
   and compelling reasons to order that the defendant not be considered for such
   leave, release, or program.”
810                                       State v. Hilgardner

admission of a statement under one subsection of the hearsay rule did not preserve the defendant’s appellate argument that the statement was inadmissible under a different
subsection of the hearsay rule).
          Further, the trial court did not commit error by
admitting the evidence over defendant’s authentication
objection. With regard to authentication, “[t]he standard is
not whether the proponent has conclusively proven authenticity,” rather, the standard is that the proponent must
“present[ ] some evidence sufficient to support a finding that
the matter in question is what its proponent claims,” so as to
allow the factfinder to make an ultimate determination on
the “authenticity, veracity, and reliability of evidence.” State
v. Barden, 

, 

, rev den, 

 (2021) (citing OEC 901(1); internal quotation marks
omitted). In the instant case, the state adduced sufficient
evidence to show that the offered evidence was a screenshot
from a computer program that enables and tracks phone
calls made by adults in custody, and that the screenshot
contained accurate information. For example, during trial,
a witness, who was a trained user of the software and a
law enforcement officer, demonstrated how the computer
program functions, how the offered evidence was gathered,
and what general meaning could be derived from the data
displayed by the computer program. Id. at 93 (“[T]he officer’s
testimony regarding [a similar computer program] was sufficient to meet the state’s prima facie authenticity burden
under OEC 901.”).
         Defendant’s second assignment of error—that
the trial court failed to make findings required by ORS
137.750(1) before denying him certain sentence-modification
programs—is unpreserved, and we decline to exercise our
discretion to review the asserted error. As we have previously held, had defendant alerted the trial court to its obligation to make those findings on the record, any defect
“might easily have been remedied.” State v. Soto-Nunez, 

, 548–49, 

 (2007), rev allowed, decision vac’d on other grounds, 

 (2008); see also State
v. Opitz, 

, 

 (2015), rev den,

 (2016). Furthermore, while the trial court may
Nonprecedential Memo Op: 

 (2025)          811

have failed to make the explicit findings required by ORS
137.750(1), the trial court did provide a reason for denying
certain sentence-modification programs. The court noted
that defendant had been eligible for transitional leave and
other sentence-modification programs in his prior case, but
that defendant had not meaningfully taken advantage of
those opportunities—rather, defendant has continued to
engage in wrongful behavior including the conduct giving
rise to this new conviction.
        Affirmed.