State v. Veitenheimer

142                  February 20, 2025              No. 128

   This is a nonprecedential memorandum opinion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.
           BREHK CURTIS VEITENHEIMER,
                Defendant-Appellant.
             Lincoln County Circuit Court
                 20CR47361; A178545

   Amanda R. Benjamin, Judge.
   Argued and submitted January 22, 2024.
   Neil Francis Byl, 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 brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Powers, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
   POWERS, P. J.
   Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)           143

        POWERS, P. J.
         In this criminal case, defendant appeals from a
judgment of conviction for first-degree criminal mistreatment and third-degree assault. In his first two assignments of error, defendant argues that the trial court erred
in excluding from evidence—as a sanction for defendant’s
discovery violation—a computer tablet and witness testimony regarding the tablet. In his third assignment, defendant argues that the trial court plainly erred in imposing
a sentence that exceeded the statutory-maximum sentence.
The state concedes that the trial court plainly erred in sentencing defendant. As explained below, we reject defendant’s
first two assignments because we conclude that the trial
court did not abuse its discretion by excluding the evidence
and, regardless, there is insufficient information in the
record to determine whether exclusion of the evidence prejudiced defendant. We accept the state’s concession on the
third assignment and exercise our discretion to correct the
plain error. Accordingly, we remand for resentencing and
otherwise affirm.
         Although this is a nonprecedential memorandum
opinion and the parties are familiar with the underlying
factual and procedural history, we nonetheless provide a
brief recitation of the undisputed background details for
context. Defendant was charged based on an incident in
which he allegedly struck his seven-year-old son, E, with
a tablet, causing injuries to E. During opening statements,
defense counsel informed the jury that the defense would
introduce the tablet into evidence. Outside the presence of
the jury, the state argued that the tablet had not been provided to the state during discovery; the state had filed a
motion to compel discovery, and the court held a discovery
hearing two days before trial where the tablet was not disclosed or discussed. Defense counsel told the court that the
tablet was in the custody of defendant’s family law attorney,
Derr, and that the defense could have the tablet to the state
by Monday, which was two business days before trial was
set to resume. The state asserted that defendant committed
a discovery violation, and that the violation prejudiced the
state because “these items can be repaired” and if the state
144                                             State v. Veitenheimer

had the tablet in its possession, the state would have been
able “to have someone look at it to review whether or not it’s
been tampered with” or repaired before given to Derr.
        Ultimately, the trial court excluded the tablet as a
sanction for a discovery violation. The court explained, in
part:
      “We have already begun trial. We have 14 jurors who
   have heard opening statements in this trial and one witness, and the only remedy at this point is to prevent the
   [tablet] from being shown to the jury. There is simply no
   other remedy.
       “This was in the full control of the defense. The [tablet] could be an entirely different item than what was in
   the defendant’s possession on the day that this occurred. It
   could have been altered.
      “It may not have been, but the point is, the state has the
   right to look at the evidence, to have an expert look at the
   evidence, and was not given that right. So I am excluding
   the [tablet] from introduction into the trial.
       “Witnesses can testify to what they saw, what they
   observed, but the physical object and the picture of the physical object that were not disclosed will not be admissible.”
As a further discovery sanction, the court excluded testimony by Derr about the condition of the tablet when he
received it. As noted, defendant was convicted of one count
of criminal mistreatment in the first degree, ORS 163.205,
and one count of assault in the third degree, ORS 163.165.1
This timely appeal follows.
        On appeal, defendant argues in his first two assignments of error that the trial court abused its discretion by
excluding evidence of the tablet and Derr’s related testimony because there was insufficient evidence of actual
prejudice to the state. Defendant contends that the state
would have had two business days to examine the tablet
and that the trial court failed to consider remedies short of
exclusion. Defendant further asserts that the trial court’s
ruling deprived him of his right to present a defense under
    1
      ORS 163.165 has been amended since the underlying conduct in this case.
Or Laws 2021, ch 489, § 11.
Nonprecedential Memo Op: 

 (2025)             145

the Compulsory Process Clauses of Article I, section 11, of
the Oregon Constitution and the Sixth Amendment to the
United States Constitution.
         Although the parties engage in a dispute about preservation, we need not address that issue because we reject
defendant’s arguments on other grounds. As an initial matter, neither party disputes that defense counsel committed
a discovery violation. Therefore, we turn to the trial court’s
choice of sanction for the discovery violation, which we review
for an abuse of discretion. See State v. Moss, 

, 

, rev den, 

 (1997). Accordingly, we
will reverse only if the trial court’s determination was not
a “legally permissible one.” Sjomeling v. Lasser, 

, 

, rev den, 

 (2012).
         We have reviewed the record and conclude that the
trial court did not abuse its discretion in excluding the tablet and Derr’s related testimony, and thus did not violate
defendant’s right to present a defense under the state and
federal constitutions. We first conclude that the court’s findings that the state suffered actual prejudice is supported by
evidence in the record. Specifically, the court found that the
state learned that the defense intended to offer the tablet
into evidence after the trial had already started. Moreover,
the court found that the state did not have sufficient time
to examine the tablet to determine if it had been altered.
Although the court could have been more explicit in its ruling regarding other remedies it may have considered, the
record reflects that the court determined that no other remedy short of exclusion was sufficient when it explained that
there “is simply no other remedy.” See ORS 135.865 (setting
forth a trial court’s options for discovery violation sanctions, including exclusion of the evidence); see also State v.
Johanesen, 

, 

 (1991) (explaining that a court can exclude defense evidence as a discovery
violation sanction only if (1) it finds “actual prejudice to the
state” and (2) determines that “no other sanction short of
exclusion would remedy the prejudice to the state”). On this
record, therefore, we cannot conclude that the trial court’s
decision to exclude the evidence was outside the range of
legally permissible options.
146                                      State v. Veitenheimer

          In any event, we also conclude that, even if the trial
court erred in excluding the evidence, there is no reversible
error. See, e.g., State v. Khoshnaw, 

,

, rev den, 

 (2017) (explaining that the
failure to make an offer of proof prevented a determination
that the testimony was improperly excluded); State v. Clark,

, 

, rev den, 

(2017) (concluding that the failure to make an offer of proof
precluded determination of reversible error in excluding testimony). Error is not always sufficient to warrant reversal,
and normally we must determine if any error was harmless. See State v. Davis, 

, 

 (2003)
(explaining that, under Article VII (Amended), section 3, of
the Oregon Constitution, we must affirm a judgment despite
an error if there is “little likelihood that the error affected
the verdict”). When the asserted error is the exclusion of evidence, “the substance of the evidence” must be made “known
to the court by offer” or must be “apparent from the context
within which questions were asked.” OEC 103(1)(b). An offer
of proof is typically required to preserve the error when testimony is excluded, and the “purpose of this rule is to assure
that appellate courts are able to determine whether it was
error to exclude the evidence and whether any error was
likely to have affected the result of the case.” State v. Affeld,

, 

 (1988). An offer of proof, however, is not required if the importance of the evidence is clear
from the context of the case. State v. Clarke, 

, 

 (1991).
         Here, even accepting defense counsel’s various
statements about the excluded evidence, defendant did not
make an offer of proof or explain on the record the condition of the tablet or what the substance of Derr’s testimony
would have been. The only information in the record regarding the importance of the evidence was defendant’s opening
statement, which suggested to the jury that there would be
evidence that there were inconsistencies in E’s and other
witness’s descriptions of the condition of the tablet and
explained that the tablet would be shown to the jury. That
opening statement, however, does not provide us with sufficient information to be an adequate substitute for an offer
of proof. There is nothing in the record about the condition
Nonprecedential Memo Op: 

 (2025)            147

of the tablet and how it would differ from the descriptions
given by the state’s witnesses. In short, there is an insufficient record for us to determine whether exclusion of the
tablet prejudiced defendant. Accordingly, because defendant
did not make an offer of proof sufficient for us to determine
whether any error in excluding the evidence was prejudicial,
we reject defendant’s first two assignments of error for that
additional reason.
          Turning to the third assignment of error, defendant
argues that the trial court plainly erred in sentencing him
to a prison term of 40 months and a post-prison supervision
term of 36 months when the statutory maximum sentence
for first-degree criminal mistreatment is 60 months. The
state concedes that the court committed plain error, and
we accept that concession. See ORS 163.205(3) (providing
that criminal mistreatment in the first degree is a Class C
felony); ORS 161.605(3) (providing that the maximum indeterminate sentence for a Class C felony is five years, or 60
months); OAR 213-005-0002(4) (providing that the “term
of post-prison supervision, when added to the prison term,
shall not exceed the statutory maximum indeterminate
sentence for the crime of conviction”). Given the significant
effect of the error on defendant’s sentence, we exercise our
discretion to correct it. See State v. Jepsen, 

, 

 (2018) (reviewing a similar plain error and
setting out the reasons for exercising discretion to correct
that error).
        Remanded for resentencing; otherwise affirmed.