State v. Gilman

822                 February 12, 2025             No. 103

   This is a nonprecedential memorandum opinion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.
               KYLE ARTHUR GILMAN,
                  Defendant-Appellant.
              Clatsop County Circuit Court
                  22CR28731; A181294

  Beau V. Peterson, Judge.
  Submitted October 23, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
  PAGÁN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)              823

         PAGÁN, J.
         Defendant appeals a judgment of conviction for
felon in possession of a firearm (Count 3), failure to report as
a sex offender (Count 4), and menacing constituting domestic violence (Count 5). On appeal, defendant challenges his
conviction on Count 3, arguing that the trial court abused
its discretion when it admitted Exhibit 10, a photograph of
defendant holding a large assault rifle. We affirm.
        We review a trial court’s decision to admit evidence
under OEC 403 for abuse of discretion. State v. Slay, 

, 

, rev den, 

 (2024).
Under OEC 403, relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice. The trial court must compare and balance
the proponent’s need for the evidence against the danger of
unfair prejudice and decide whether to admit all, none, or
some of the evidence. State v. Mayfield, 

, 

 (1987).
         Here, the charge in Count 3 was based on a pistol
that police found on June 15, 2022, in an RV that defendant
shared with his partner. Exhibit 10 was relevant and had
some probative value because the photograph might have
depicted defendant holding the pistol in a holster. The photograph also depicted defendant, at a different time and place,
holding a large, military-style rifle. However, the trial court
mitigated the risk of unfair prejudice by providing a limiting instruction regarding Exhibit 10. It explained that the
jury should “disregard the rifle or shotgun” that defendant
appeared to be firing, and that the jury could only consider
Exhibit 10 in determining whether defendant had possession of, or custody or control over, the pistol referenced in
Count 3. As a result, the trial court weighed the appropriate factors and its decision to admit Exhibit 10, subject to
a limiting instruction, was legally permissible and not an
abuse of discretion. See State v. Hayter, 

,

 (2020), rev dismissed, 

 (2022) (stating
that a trial court abuses its discretion “if its decision is outside the range of legally permissible choices or exceeds the
bounds of reason”).
824                                          State v. Gilman

         Defendant points out that the jurors asked a question during deliberations about whether they could consider
defendant’s possession of other guns. Defendant argues that
the question shows that, despite the limiting instruction,
the jurors were not clear about the scope of which firearms
they could consider when deciding the felon-in-possession
charge. However, in response to the question, the trial court
provided a second limiting instruction. It explained that, for
Count 3, the jury “should focus on the evidence that was presented as to the alleged possession of the charged weapon on
or about June … 15, 2022.” Jurors are presumed to follow
their instructions “absent an overwhelming probability that
they would have been unable to do so.” State v. Kehoe, 

, 

 (2024). Therefore, even if the first
limiting instruction was insufficient, we presume that the
second one cleared up any lingering confusion about which
firearms the jurors could consider under Count 3. The trial
court did not err in admitting Exhibit 10, and the error, if
any, was harmless.
        Affirmed.