State v. Cloud

No. 278                April 2, 2025                     405

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              TRACY LAMPRON CLOUD,
                 aka Tracy Lynn Cloud,
                  Defendant-Appellant.
             Washington County Circuit Court
                  20CR01720; A177588

   Eric Butterfield, Judge.
   Argued and submitted February 25, 2025.
   Daniel C. Bennett, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
   JACQUOT J.
    Supplemental judgment reversed and remanded for entry
of judgment omitting restitution award of $1,087,466; otherwise affirmed.
406   State v. Cloud
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 (2025)                                          407

         JACQUOT, J.
         Defendant, who shot and killed her husband,
appeals from a judgment of conviction, after a jury trial,
of murder in the second degree, raising three assignments
of error that she asserts require reversal of the conviction:
That the trial court erred in denying her motion to dismiss
or in failing to impose alternative sanctions for the state’s
asserted violation of the attorney-client privilege; that the
trial court erred in denying her motion for a judgment of
acquittal based on her defense of self-defense; and that the
trial, which was conducted pursuant to the Chief Justice’s
protocols during the COVID 19 pandemic, violated her constitutional rights to a public trial. Defendant also appeals
from a supplemental judgment awarding $1,157,967 restitution to the victim’s estate, assigning error to a portion of the
award—$1,087,466—that the state asserted represented
economic loss to the estate.1 Defendant has filed a pro se
supplemental brief raising multiple assignments of error.
         We conclude that the trial court did not err in denying
defendant’s motions to dismiss and for a judgment of acquittal, and that the Chief Justice’s protocols for conduct of the
trial did not result in a violation of defendant’s constitutional
right to a public trial. We conclude, however, that the trial
court did err in awarding restitution of $1,087,466, asserted
to represent economic loss to the estate. We reject the remaining assignments of error. We therefore reverse in part the
supplemental judgment’s award of restitution of $1,087,466
for “economic loss,” but affirm defendant’s conviction.
         We summarize the relevant facts. Defendant shot
and killed her husband in their home on September 23,
2019. Immediately after the shooting, defendant called 9-1-1
and told the dispatcher that she had shot the victim in self-defense, because he was threatening her with a gun.
         In a statement to an investigating officer immediately after the shooting, defendant said that, as she walked
into the parties’ bedroom, the victim pointed a gun at her and
told her to fire her attorney. Then, as she turned to run out of
the room, she heard “the sound of the slide being racked,” at
   1
     The restitution award also included restitution for attorney fees in the
amount of $70,501, which defendant does not challenge on appeal.
408                                                          State v. Cloud

which point defendant turned around, drew a handgun from
her fanny pack, and shot the victim in the chest three times.
         Although defendant maintained that she had acted
in self-defense, the state suspected that she had a financial
motive for the killing. Further investigation led to the filing
of an indictment against defendant in January 2020 for the
victim’s murder. Police attempted to locate defendant, but
she was in California when law enforcement officers came
to her house to serve an arrest warrant.
         Defendant had been named as the trustee of a trust
created by the victim’s father, in which the victim was the
sole beneficiary. The trust included funds and real property
in California. Attorney Kit Jensen had been representing
defendant on the trust and probate issues associated with
the victim’s death. Jensen was aware that defendant had
shot the victim and that she claimed to have done so in
self-defense. Jensen is not a criminal defense attorney and
did not represent defendant in that capacity. But Jensen’s
representation included defending defendant in the probate proceeding from an assertion by the victim’s family
that defendant should be deprived of her inheritance under
the “slayer” statute, ORS 112.465.2 To aid in that defense,
Jensen had asked defendant to give him financial records
that might bear on that claim and to prepare a summary of
the circumstances of the victim’s killing.3
       Upon learning that police had attempted find her at
her home, defendant contacted her friend Amy Castro and
   2
       ORS 112.465(1) provides:
       “Property that would have passed by reason of the death of a decedent to
   a person who was a slayer or an abuser of the decedent, whether by intestate
   succession, by will, by transfer on death deed, by trust, or otherwise, passes
   on death and vests as if the slayer or abuser had predeceased the decedent.”
   3
     Jensen testified at the hearing on defendant’s motion to suppress:
       “[JENSEN:] I asked her to prepare names of people that would be witnesses that could assist and that could help her defense. I asked for, you
   know, names, addresses, phone numbers. I also asked her to prepare just
   kind of a summary of whatever she might have remembered that would be
   helpful in her defense.
      “[DEFENSE COUNSEL:] Did you ask her to do those things because it
   would make your job, in representing her, easier?
       “[JENSEN:] Yes. And I instructed her that that should—whatever she
   prepared should be addressed to me, as her attorney.”
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asked Castro to remove a laptop computer, cell phones, and
documents from her residence and take them to Jensen’s law
office. On January 13, 2020, Castro gathered those items
and brought them to Jensen’s office.
         Before Castro brought the items to Jensen and on
that same day, defendant called Jensen and told him that she
was aware that law enforcement personnel were attempting to search her house and that she wondered whether she
might be subject to criminal charges. She told Jensen that
Castro would bring in the cell phones and the box of documents for him to keep. She scheduled an appointment to
meet with Jensen to go over the materials the next day.
         Defendant had not mentioned a laptop to Jensen.
Thus, Jensen rejected the laptop that Castro attempted to
give him but took delivery of the cell phones and a box of documents. He put the cell phones in an envelope in a filing cabinet and put the box of documents in a storage area. Jensen
did not look at the materials but thought that the box might
contain the information that he had asked defendant to prepare to assist in her defense of a potential slayer petition.4
        Defendant did not come to her appointment with
Jensen on January 14. On January 15, 2020, Castro told
a deputy who was surveilling defendant’s residence that
defendant had asked her to remove a laptop computer, a cell
phone, and documents from defendant’s residence and that
she had delivered the items to Jensen.
       Jensen learned on January 17, 2020, that defendant
had been indicted for the murder of her husband.
        On January 22, 2020, the lead detective on the
case learned of Castro’s delivery of items to Jensen. Police
believed that the items delivered to Jensen would contain
evidence in the case related to defendant’s motive, financial
transactions, and movements and activities surrounding
the shooting of the victim.

   4
       Jensen testified:
   “So that’s what I understood would be brought in by Amy Castro is memos
   and materials that would be helpful to her defense, and that we would review
   them the following day. And I did not know about a criminal indictment at
   that time.”
410                                               State v. Cloud

         Police applied for and obtained a warrant to seize the
cell phones and documents delivered to Jensen. The warrant
specified that the items seized “shall be brought to the Court by
Detective Rookhuyzen for an in-camera review by the judge to
determine whether the contents fall within the attorney-client
privilege or contain evidence related to the above investigation.”
         Police served Jensen with the warrant on January
24, 2020. Jensen cooperated with the warrant and produced
a banker’s box containing documents and two cell phones.
Police were informed that Jensen did not have the laptop.
Police did not search the law office.
        Police worked with Jensen to provide a receipt for
the seized items. They opened the box briefly to identify
the items by category but did not look at individual documents. Jensen sealed the box. Rookhuyzen then carried the
sealed box to the judge’s chambers, where it was received
by the judge’s staff or the judge for the judge’s in camera
review. The box included financial records; bills for services
to defendant from defendant’s attorneys; letters between
counsel and defendant; a memorandum from defendant to
her lawyer; and work product created by defendant’s divorce
attorney listing all of the marital finances, with notations.
         Defendant’s criminal defense attorney filed a motion
requesting a denial of the request for the court’s in-camera
review of the documents, a return of the items to Jensen, and
the appointment of a special master to review the electronic
information from the cell phones. The trial court denied
defendant’s request and, on January 29, 2020, issued an
order stating that it had conducted its in-camera review of
the seized records and had concluded that the records were
“not subject to the attorney-client privilege or attorney work
product privilege.” The order released the documents to the
sheriff’s office for further examination. The police took possession of the items and processed them as evidence.
         Meanwhile, defendant rented a vehicle in California
and drove back to Oregon. She stayed for a couple of days at
a friend’s house, then left, saying she was going to the store.
        On January 20, 2020, paramedics and ambulance
crews in Banks, Oregon,found defendant unconscious in the
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driver’s seat of her rented car and provided lifesaving measures to defendant, who had overdosed on Fentanyl.
         When paramedics found her, defendant had a
green notebook on her lap. On the cover were handwritten
the words “memos to my lawyer.” Police looked through the
notebook for information that could identify defendant’s condition and help in her treatment and found information in
the notebook consistent with an attempt to take her own
life. They gave the notebook to a responding officer.
        Police obtained a search warrant for the green notebook, with the same requirement for in-camera inspection
as the materials seized from Jensen’s law office. The court
conducted an in-camera review, determined that the notebook was not subject to the attorney-client privilege, and
returned it to law enforcement.
         Defendant filed a motion to suppress the materials
contained in the box that had been obtained from Jensen’s
office through the search warrant. Defendant relied on ORS
9.695, which provides:
       “(1) Notwithstanding ORS 133.535, the files, papers,
   effects or work premises of a member relating to the provision of legal service by the member shall not be subject to
   search or seizure by any law enforcement officer, either by
   search warrant or otherwise.
      “(2) The provisions of subsection (1) of this section do
   not apply where there is probable cause to believe that the
   member has committed, is committing or is about to commit a crime.
       “(3) As used in this section, ‘member’ means a member
   or associate member of the Oregon State Bar or a person
   licensed to practice law in any court of this state or any
   court of record of the United States or of any state, territory or other jurisdiction of the United States.
       “(4) Evidence or the fruits thereof obtained in violation
   of this section shall be inadmissible in any criminal or civil
   action or proceeding, except for an action or suit brought for
   violation of this section or the rights protected thereby.”
(Emphasis added.) At a hearing before the same judge who
had issued the search warrant and who had conducted the
412                                            State v. Cloud

in camera inspections, defendant argued that, although the
materials subject to the warrant could have been obtained
through subpoena, ORS 9.695 prohibited a search of Jensen’s
office in the absence of probable cause that Jensen had
committed a crime. Because there was no probable cause
that Jensen had committed a crime, defendant argued, the
search of Jensen’s office was unlawful under ORS 9.695, and
the seized items must be suppressed.
         The state responded that the state had not “searched”
the office, per se, because Jensen had acquiesced in the warrant and had turned the items over voluntarily—as if they
had been subpoenaed. The state further contended that ORS
9.695 was inapplicable, because defendant had not sent the
materials to Jensen’s office for the purpose of legal services.
         The parties presented argument to the court about
the meaning of ORS 9.695 and, particularly, the significance
of the phrase “relating to the provision of legal service by
the member.” Although it had issued the warrant, the court
was persuaded by defendant’s argument that the materials
seized from Jensen’s office should be suppressed under ORS
9.695, and it granted defendant’s motion to suppress the
contents of the box.
        The parties then addressed defendant’s motion
to dismiss based on an asserted violation of defendant’s
attorney-client privilege. Defendant contended that, in seizing and then using the materials in the box and the green
notebook, the state committed a deliberate violation of
defendant’s attorney-client privilege, ORS 40.225 (OEC 503)
(permitting the client to prevent the disclosure of “confidential communications made for the purpose of facilitating
the rendition of professional legal services to the client”),
and that, as a result, the investigation and prosecution were
irredeemably tainted, and the only remedy was dismissal.
        The state responded that, as the trial court had
previously determined, the seized materials were not privileged under OEC 503, because they were not confidential
communications made for the purpose of facilitating the
rendition of legal services. For example, the state noted
that defendant held the green notebook when paramedics
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found her during her attempt to take her own life, and that
she could not have intended for it to remain confidential.
The state further asserted that the extreme sanction of dismissal was not appropriate, because the state’s possession of
the items was inadvertent and in compliance with the trial
court’s previous in camera review and release of the materials. Additionally, the state argued that the prosecution had
not relied on or derived information from the materials that
it did not already have in its possession:
   “Nothing derived from either of those two sources, the
   green notebook or the box of contents delivered by Amy
   Castro, drove the State’s investigation. Nothing that was
   developed from those items was detrimental to defense in
   this case. The defendant’s strategy of claiming self-defense
   was articulated by this defendant to Deputy Rambin on the
   day of the murder, so there was nothing new that was gathered from either of these items.”
The lead detective on the case testified that the state had
previously been aware that defendant claimed to have shot
the victim in self-defense and that there was nothing in the
box of documents that provided any investigative leads or
guided the investigation in the case. Finally, in response to
inquiry by the court, the prosecutor explained that the state
was very unlikely to offer any of the materials into evidence.
         Defense counsel responded:
            “So that’s just the problem, Your Honor. This is not
   the—the items seized are exculpatory. They—they laid out
   [defendant’s] defense in some amount of detail. I mean, she
   described exactly what happened in the shooting. She—
   she tells her side of the story in these items. So, I have no
   expectation that the State’s going to offer those in its case
   in chief because they lead to the inevitable conclusion that
   [defendant] was acting in self-defense.”
         The trial court explained that it continued to conclude that the contents of the box was not privileged, because
it was not a communication by defendant to facilitate legal
services. Rather, the court found, defendant sent the box to
Jensen’s office for some other purpose—to “secret or just get
rid of things,” and that the contents of the box did not have
“anything to do with … receiving legal services.” The court
414                                            State v. Cloud

further concluded that the contents of the green notebook
were not privileged, because they were not intended to be
confidential. The court found that, despite stating that it
included “memos for my lawyer,” the green notebook contained primarily a justification for the killing and a long
“suicide note” to be found with defendant after her death.
The court denied defendant’s motion to dismiss. But the
court determined that a small portion of the contents of the
green notebook, instructing on the disposition of defendant’s
property, would be suppressed.
         We address defendant’s assignments of error in
reverse order. We address first defendant’s third assignment of error, in which she asserts that the trial court erred
in denying her motion to dismiss or to impose alternative
sanctions, based on the state’s alleged violation of defendant’s attorney-client privilege in using the green notebook
and materials obtained from Jensen’s office. Defendant contends that the green notebook and the materials seized from
Jensen’s office contained attorney-client privileged materials and that the state’s use of those materials constituted a
purposeful and unconstitutional intrusion into defendant’s
attorney-client privilege, which must be presumed to be
prejudicial. Additionally, defendant points out that she had
chosen not to provide the state with her view of the circumstances of the victim’s death but that the state’s seizure and
use of the materials and the green notebook gave the state a
window into defendant’s defense strategy. Thus, even though
most of those materials were not admitted at trial, defendant
contends, their use by investigators and the prosecutor violated defendant’s right to remain silent as well as her right
to counsel, causing prejudice to defendant. Citing State v.
Greenwood, 

, 

 (2024) (a purposeful intrusion into the attorney-client privilege results
in a rebuttable presumption of prejudice); State v. Russum,

, 

, rev den, 

 (2014)
(“[N]o presumption of prejudice arises in the absence of evidence of a purposeful intrusion that conveys the content of
attorney-client communications to the prosecution.”); and a
South Carolina and federal case, State v. Quattlebaum, 338
SC 441, 448, 

 (2000) (“Deliberate prosecutorial
misconduct raises an irrebuttable presumption of prejudice.
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The content of the protected communication is not relevant.”); Shillinger v. Haworth, 

 (10th Cir
1995) (“Because we believe that a prosecutor’s intentional
intrusion into the attorney-client relationship constitutes a
direct interference with the Sixth Amendment rights of a
defendant, … absent a countervailing state interest, such
an intrusion must constitute a per se violation of the Sixth
Amendment.”); defendant contends that the state’s actions
were a deliberate intrusion into the attorney-client relationship that are presumed to be prejudicial and that, therefore,
suppression was not an adequate remedy, and the trial court
erred in denying her motion to dismiss the murder charge.
In light of the deliberate nature of the intrusion, defendant
contends, which so “pervades the investigation and prosecution of the case” such that it cannot be isolated from the
case as a whole, defendant contended that dismissal with
prejudice was required. See State v. Worth, 

, 

 (2015), rev den, 

 (2016) (dismissal
with prejudice after a violation of Article I, section 12, is
warranted when “(1) the misconduct is so prejudicial that
it cannot be cured by means short of mistrial; (2) the prosecutor knew that the conduct was improper and prejudicial;
and (3) the prosecutor either intended or was indifferent to
the resulting mistrial or reversal”) (internal quotation and
citation omitted; emphasis in original). If dismissal with
prejudice is not the required sanction, defendant contends,
then reversal of defendant’s conviction is required as an
alternative sanction.
         The state responds that the trial court did not err,
because the sanction of dismissal is not warranted. The
state asserts that the materials were not privileged and,
further, any interference with defendant’s attorney-client
privilege by the state was not deliberate. We agree with both
arguments. The trial court made a finding that defendant
had the box delivered to Jensen’s office for some reason other
than legal representation, and there is evidence to support
that finding. And the trial court found that defendant could
not have intended the contents of the green notebook to be
confidential. Those findings are supported by evidence in
the record and persuade us that the trial court did not err in
416                                            State v. Cloud

determining that defendant did not have a protected attorney client privilege in the items.
         We further agree that, even assuming that the
items were subject to the attorney-client privilege, any interference by the state was not deliberate. At the time the state
obtained the materials, the trial court had determined, after
its in-camera inspection, that the materials were not privileged. In light of the trial court’s determination, we cannot
conclude that any intrusion into defendant’s attorney-client
privilege by the state was deliberate. We further agree with
the state that this case is distinguishable from Greenwood,

, in which we held that a presumption of
prejudice arose from the detective’s deliberate intrusion into
confidential communications between the defendant and the
attorney.
          In the absence of evidence that the state sought
deliberately to interfere in defendant’s attorney-client privilege, it was defendant’s burden to show prejudice to her constitutional rights, such as the disclosure of trial strategy to
the prosecution or the production of tainted evidence as a
result of the alleged interference. Russum, 

. We conclude that defendant has not met that burden.
Additionally, even assuming that defendant has shown prejudice, the proper remedy would not be, as defendant contends, a dismissal of the prosecution or reversal of defendant’s conviction. Rather, it would be the remedy that the
trial court imposed, “the exclusion of any prejudicial evidence obtained as a result of that violation.” State v. Prieto-Rubio, 

, 

 (2016). Thus, we reject
defendant’s third assignment of error.
         In her second assignment of error, defendant contends that the trial court erred in denying her motion for
a judgment of acquittal (MJOA), arguing that the state
failed to disprove, beyond a reasonable doubt, her defense
of self-defense. Defendant asserted that the uncontroverted
evidence shows that she was justified in shooting the victim, because she reasonably believed that the victim had a
gun and was going to shoot her. See ORS 161.209 (A person
may use physical force “on another person for self-defense or
to defend a third person from what the person reasonably
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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”).
The trial court denied defendant’s MJOA but submitted
defendant’s defense of self-defense to the jury.
         When self-defense is raised by a defendant, the
state has the burden of disproving it beyond a reasonable
doubt. ORS 161.055(1); State v. Freeman, 

, 

 (1991). 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 state’s burden to disprove self-defense is beyond
a reasonable doubt. In other words, to disprove a defendant’s
theory of self-defense, the state must prove beyond a reasonable doubt that the defendant did not reasonably believe
that the victim used or threatened to use unlawful physical
force against the defendant and that the defendant did not
reasonably believe that the degree of force she used was reasonably necessary. Defendant contends that the trial court
should have granted defendant’s MJOA, because the state
had failed to introduce evidence sufficient to disprove defendant’s theory of self-defense beyond a reasonable doubt. The
state responds that the evidence was sufficient to prove
beyond a reasonable doubt that defendant did not act in self-defense but, rather, planned to murder the victim for financial or other motives and to make it appear that she had
acted in self-defense.
         In reviewing the trial court’s ruling denying defendant’s MJOA, we must determine whether, viewing the evidence in the light most favorable to the state and giving the
state the benefit of all reasonable inferences and credibility
determinations that properly may be drawn, a rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Cunningham, 

, 

 (1994); State v. Cervantes, 

,
418                                              State v. Cloud

 (1994). Under that standard, we conclude that
the evidence was sufficient.
         The state introduced evidence from which the jury
could find that, although the defendant had told people that
the victim was abusive and that she was afraid of him,
the victim was not abusive, and defendant was not afraid
of him; rather, the state produced evidence from which the
jury could find that defendant was controlling of the victim.
The state produced evidence from which the jury could find
that, although defendant denied it to be the case, defendant
was concerned about her financial future in view of the victim having filed for divorce.
         The state presented evidence from which the jury
could find that, although defendant testified that the victim
had threatened her with a gun, the victim never held the
gun that defendant claimed he had pointed at her, because
the victim did not have access to the gun after defendant
had disabled the safe lock by removing its batteries; because
the gun was found a significant distance from the victim;
and because the evidence did not show that the gun had
been dropped by the victim onto the floor after he was shot,
as defendant asserted.
         There was evidence from which the jury could infer
that, although a friend had offered to come to the house on
the morning of September 23 to be with defendant while the
victim was there, defendant had refused because she did not
want anyone to be present. There was evidence from which
the jury could infer that defendant had not activated the
home’s surveillance video system on September 23, when
the victim was coming to the house, contrary to her usual
practice, not because, as defendant testified, she had forgot,
but because she did not want the cameras running.
         There was forensic evidence that defendant shot the
victim three times, once in the abdomen as he walked toward
her, once in the thigh as he fell back onto the floor of the bedroom, and once in the heart as she stood over him from a
distance of six to 30 inches as he was lying on the bedroom
floor. There was evidence from which the jury could find that
when she shot the victim the third time, defendant did not,
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as she testified, reasonably believe that he was pointing a
gun at her.
         In short, there was evidence from which the jury
could reasonably disbelieve defendant’s stated reason for
shooting the victim as well as her description of the shooting. We conclude that the evidence was sufficient to allow
the jury to find beyond a reasonable doubt that defendant
did not act in self-defense but in fact murdered the victim
pursuant to a plan. We therefore reject defendant’s contention in her second assignment of error that the trial court
erred in denying her MJOA.
          In her first assignment of error, defendant contends
that “the trial court erred when it failed to hold a public
trial.” Defendant’s trial was originally scheduled for March
2021. At defendant’s request, the court granted a setover
to October 2021. Defendant’s jury trial was scheduled to
begin on October 26, 2021, with jury selection to take place
beginning on October 12, 2021. On September 7, 2021, citing “the rapid and extensive spread of the highly contagious
Delta variant of the COVID-19 virus,” and “a level of crisis not yet seen during the pandemic in Oregon,” including
record-high statewide hospitalizations, the Chief Justice
issued Order No. 21-035, which imposed a requirement for
six feet of social distancing in public court rooms. Defendant
filed a “Motion for Continuance and Release of Defendant;
Alternative Motion for Trial Procedures,” asserting that the
“prejudicial impacts of COVID-19” warranted a continuance
as well as defendant’s release from custody. Among other
things, defendant contended that the Chief Justice’s social
distancing order violated the right to a public trial under
the Sixth Amendment to the United States Constitution.
Defendant also sought to be released from custody, because
a continuance would cause a violation of her speedy trial
rights. The trial court denied a continuance. And the trial
court had made findings under ORS 135.240(2)(a) and
Article I, section 14, of the Oregon Constitution, that “proof
is evident or the presumption strong” that defendant was
guilty of murder and therefore denied defendant’s release.
        Defendant argued in the alternative that if the trial
court would not postpone trial or release her from custody,
420                                                            State v. Cloud

the court should implement a number of procedures in the
court room, including permitting witnesses and counsel to
remove masks when speaking, assuring “that jurors observe
the trial together where they can see and hear the same evidence, and be addressed as a group,” and that “public access
to the gallery in the courtroom be maintained.”
          The trial court said that it intended to honor the
Chief Justice’s order. The trial was conducted in compliance
with the Chief Justice’s order, requiring social distancing of
six feet in the court room.5 But the court consulted with the
parties on logistics, and worked with them to accommodate
defendant’s concerns, including, at defendant’s request, not
having jurors sit directly behind the parties; using barriers to allow witnesses to testify without masks; and leaving open seats in the gallery for the public. The court also
arranged live-streaming of the trial in a room in the court
house, so that if seating in the gallery was full, additional
members of the public would be able to view the trial in the
courthouse, a short distance away.
         The record shows that on two occasions during the
trial, people had to be turned away from the court room due
to a lack of seating capacity in the gallery. The first occasion affected an extra member of the sheriff’s office that was
present in the court room during the first day of the evidentiary portion of the trial. Defendant raised no objection to
that ruling. The second incident occurred on the second day
of the evidentiary portion of the trial, when two people who
were identified as defendant’s friends or family members
were not able to obtain seats in the gallery and had to watch
the trial at the overflow location. Defendant objected that, at
least on that day, there were only two seats available in the
gallery for the public, and those seats were taken.

   5
     The Chief Justice’s order defined “social distancing” as “the minimum
amount of physical distance between each person. As of the date of this order,
pursuant to CDC recommendations the distance is 6 feet between each person.”
     The Chief Justice’s order required application of social distancing in the public areas of court facilities:
    “All courts shall require and maintain social distancing in the courtroom and
    throughout all other court-controlled, public areas of a court facility, unless
    the Presiding Judge determines that other sufficiently protective measures
    can be taken and directs that those measures be taken.”
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        The record shows that, as a result of the COVID 19
social distancing requirements, as well as defendant’s
request for seating of jurors,6 at times during the proceeding there were only two seats available for spectators in the
court room. Citing our opinion in State v. Jackson, 

, 

 (2001), defendant contends on
appeal that the court room procedures imposed pursuant to
the Chief Justice’s order violated her right to a public trial
under the Oregon Constitution, Article I, section 11,7 and
the Sixth Amendment to the United States Constitution.
         In determining whether defendant’s trial was a
public trial within the meaning of the state and federal constitutions, the trial court’s explicit and implicit findings of
historical fact are binding on appeal to the extent that they
are supported by evidence in the record. Ball v. Gladden,

, 

 (1968); State v. Greenwood, 

, 

 (2001), rev’d on other grounds, 

, 

 (2003) (applying Ball v. Gladden standard in Article I, section 11, analysis). The question whether
those findings satisfy the constitutional right to a public
trial presents an issue of law for the court. See Jackson, 

.
         The state has raised questions about whether defendant preserved this particular challenge. We assume for the
sake of discussion that the assignment is preserved. But we
reject defendant’s challenge. Defendant had a public trial.
Although seating space for spectators in the court room
gallery was limited (in part because of social distancing
restrictions and in part because of defendant’s requested
seating arrangement for the jury), the public was permitted
in the court room gallery when seating was available, and
the court’s remote location allowed the public to view the
trial. Additionally, those who were attending remotely could
communicate with the court if necessary. Over the course of
the three-day trial, spectators could freely attend, either in

    6
      Defendant objected to having jurors sit behind counsel table, which meant
that a row of seating in the courtroom, which otherwise could have accommodated additional public spectators, had to be left empty.
    7
      Article I, section 11, provides, in part that “[i]n all criminal prosecutions,
the accused shall have the right to public trial[.]”
422                                              State v. Cloud

the court room or in the remote location. In short, the public
was not excluded from the trial.
          The circumstances here are significantly different
from those in Jackson, 

, on which defendant relies, in which we held that the defendant had been
denied a public trial. There, the defendant’s trial was held
in a prison, in a room that was not open to the public. 

. Here, defendant’s trial was held in the courthouse in
a public court room. The trial court Jackson arranged for a
television transmission to a room in the county courthouse,
where seating was available for spectators, but a distance
away from the prison, and there was no access to the court
room where the trial was held. 

. Here, the remote
location for spectators who could not sit in the court room
was in the courthouse, and spectators could easily walk to
the court room to raise concerns with the trial court. We
said in Jackson that the live television transmission would
not accommodate concerns that spectators might have about
irregularities in the proceedings—such as jury misconduct
or perjury overheard during a recess—because the camera
in the courtroom would not capture that type of irregularity.

. And we said that the location of the trial in the
prison impaired the public aspect of a public trial by making
it unlikely that a spectator would come forward with surprise evidence. We explained that the prison location might
have an adverse effect on witnesses and that the absence
of spectators could prevent the defendant and the prosecution from benefiting from the presence of friends and family. 

 Finally, we noted that the prosecution had made no
“substantial showing of a need” to conduct the trial in the
prison. 

.
         We are not persuaded that the circumstances of
defendant’s trial rose to the level of restriction that caused
us to determine in Jackson that the defendant had less than
a “public” trial. But if, and to the extent that it might be
concluded that defendant’s trial fell short of being “public”
because of reduced seating in the gallery as a result of the
Chief Justice’s order, the record provides a constitutionally sufficient justification for the restrictions that the trial
court imposed. See State v. Bowers, 

, 646 P2d
Cite as 

 (2025)                                 423

1354 (1982) (holding that a defendant has an overriding
right to have the state’s case against him presented publicly,
unless the state makes a substantial showing of a need to
limit that right); see also Jackson, 

 (The
right to a public trial may be circumscribed if “ ‘the state
makes a substantial showing of a need to limit that right.’ ”
(quoting Bowers, 

)). It is undisputed that the
social distancing restrictions imposed by the Chief Justice’s
order were responsive to a public health crisis. Those circumstances provided a substantial showing of need for the
trial court’s seating restrictions and remote accommodation
of overflow spectators. We therefore reject defendant’s first
assignment of error.
         In a counseled supplemental assignment of error,
defendant contends that the trial court erred in imposing
restitution to the victim’s estate of $1,087,466, which the
court based on the amount that the assets in the victim’s
estate would have increased in value over the actuarial
20 years of the victim’s life expectancy, had defendant not
killed him. Defendant contends that the estimated loss to
the value of the estate is a “nonexistent loss,” because the
assets are currently in the estate, and the victim, who was
retired, was not increasing his income but drawing down
his assets. Defendant contends that awarding restitution in
the amount of the estimated increase in the value of assets
that the estate already has in its possession would result in
a double benefit and a windfall to the estate’s beneficiaries.
Because the beneficiaries of the estate will have the benefit
of the assets as well as their appreciation, defendant contends that the estate should not also be awarded restitution
for the estimated increase in the value of those assets had
defendant not killed the victim.
         We summarize the applicable law relating to restitution. ORS 137.106 provides, in relevant part:
       “When a person is convicted of a crime … that has
   resulted in economic damages, the district attorney shall
   investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence
   of the nature and amount of the damages. … If the court
   finds from the evidence presented that a victim suffered
   economic damages, in addition to any other sanction it may
424                                               State v. Cloud

   impose, the court shall enter a judgment or supplemental
   judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of
   the victim’s economic damages as determined by the court.”
ORS 137.103(2) states that the term “economic damages” as
used in ORS 137.106 “[h]as the meaning given that term in
ORS 31.705, except that ‘economic damages’ does not include
future impairment of earning capacity.” ORS 31.705(2)(a), in
turn, defines “economic damages” as:
   “objectively verifiable monetary losses including but not
   limited to reasonable charges necessarily incurred for
   medical, hospital, nursing and rehabilitative services and
   other health care services, burial and memorial expenses,
   loss of income and past and future impairment of earning
   capacity, reasonable and necessary expenses incurred for
   substitute domestic services, recurring loss to an estate,
   damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use
   of property and reasonable costs incurred for repair or for
   replacement of damaged property, whichever is less.”
         “Restitution under ORS 137.106 is informed by
principles enunciated in civil cases concerning recoverable
economic damages.” State v. Islam, 

, 

 (2016). “Economic damages are the ‘objectively verifiable monetary losses’ that would be recoverable ‘against the
defendant in a civil action arising out of the Defendant’s
criminal activities.’ ” State v. Page, 

, 

 (2024) (quoting State v. Herfurth, 

, 

 (2016), rev den, 

 (2017)).
         For purposes of entitlement to restitution, in the
case of murder, a “victim” includes the estate of the murder victim. ORS 137.103(4)(e) (“Victim” includes the victim’s
estate upon the death of the person against whom the defendant committed the criminal offense.). Monetary loss to the
victim’s estate, referred to as “pecuniary loss to the decedent’s estate” under the wrongful death statute, ORS 30.020,
is determined according to the principles established in civil
cases. See, e.g., Goheen v. General Motors Corp., 

, 

 (1972) (discussing evolution of the law in
determining pecuniary loss to the estate of a decedent in a
wrongful death case). Uniform Civil Jury Instruction 71.02,
Cite as 

 (2025)                                425

on which the state relied in determining pecuniary loss to
the estate, provides, in relevant part:
      “Pecuniary loss to the decedent’s estate is the present
   value of the increase that would have accumulated in the
   estate during the remainder of the decedent’s life had the
   decedent’s life not ended[.]”
         At the time of his death, the victim had considerable assets, including real estate, a retirement account, and
investments. The estate retained a forensic economist, who
provided an estimate of the additional value to the estate
had the victim lived out his life expectancy. The expert
calculated the victim’s anticipated income from the trust
of which he was the sole beneficiary, cash accounts, investments, retirement benefits, and Social Security, as well as
the victim’s likely consumption of income and assets during
his full actuarily determined life expectancy, reduced to
present value. Because the victim had filed for divorce from
defendant, the expert also estimated a post-divorce division
of those assets. Based on that data, the expert estimated the
total economic “loss” to the estate, on which the court based
its determination that the estate was entitled to recover restitution for economic loss in the amount of $1,087,466.
         The underlying value of the assets on which the
expert based his calculation is not in dispute, nor is the
fact that the assets themselves are in the possession of
the estate. What is contested by defendant is whether the
basis for determining restitution to an estate in a wrongful
death action has any bearing in this case, in which the court
determined that restitution could be awarded based on the
potential increase in value of the victim’s assets in 20 years,
had the victim lived, reduced to present value, as well as
what the victim would have earned in Social Security.
         We agree with defendant that the calculation in
determining damages in a wrongful death action cannot be
the basis for an award of restitution here. That is because the
estate holds the assets and already possesses their potential
increase in value. The passive income that the victim could
have earned on the assets had defendant not murdered him
will inure to the estate, so it is not a loss. The award of restitution would duplicate that value. Because the estate holds
426                                          State v. Cloud

the assets, we conclude that it has not experienced a pecuniary loss for which restitution can be awarded, as required
by ORS 137.106.
         The record also does not reflect a pecuniary loss
with respect to the victim’s loss of Social Security benefits. The expert estimated the victim’s anticipated Social
Security benefits at $34,172 per year. The expert estimated
that the victim’s personal consumption (his expenses) would
have ranged from 34 to 54 percent of his total income of
$86,012 (which included pension, investments, and Social
Security), or between $29,244 and $46,446 per year, which
averages to $37,845.24. That amount exceeds the amount
the victim would have received in Social Security benefits
and again reflects no net economic loss to the estate. We
therefore reverse the supplemental judgment awarding restitution for economic loss in the amount of $1,087,466.
         In a pro se supplemental brief, defendant raises
six assignments of error. We have considered each assignment. As discussed above, we agree with defendant’s sixth
supplemental assignment of error, in which she challenges
the award of restitution. We conclude that the remaining
assignments do not raise reversible error.
         For those reasons, we affirm the judgment of conviction, and we reverse and remand the supplemental judgment for the trial court to enter a judgment that eliminates
the erroneous portion of the restitution award.
         Supplemental judgment reversed and remanded for
entry of judgment omitting restitution award of $1,087,466;
otherwise affirmed.