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State v. Wyant

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL CHRISTOPHER T. WYANT, Defendant-Appellant.

          Argued and submitted July 31, 2018

          Washington County Circuit Court C142638CR Suzanne Upton, Judge.

          Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [300 Or.App. 2] Case Summary: Defendant appeals, challenging a conviction for murder. On appeal, defendant assigns error to the trial court's admission of the victim's out-of-court statements in text messages and an email sent to defendant on the basis that (1) the evidence was inadmissible hearsay, (2) admission of the evidence violated the confrontation clause of Article I, section 11, of the Oregon Constitution, and (3) the probative value of the evidence was substantially outweighed by the danger of unfair prejudice under OEC 403. Defendant also challenges the court's admission of testimony from his ex-wife on the basis that all of the ex-wife's testimony was (1) irrelevant under OEC 401 and (2) inadmissible under OEC 403. Finally, defendant assigns error to the court's failure to cure "prejudice" caused by the prosecutor's closing arguments. Held: The trial court did not abuse its discretion or otherwise err in admitting the victim's emails or text messages. The Court of Appeals does not address any error regarding the testimony of defendant's ex-wife because defendant did not preserve his objection to all of her testimony and did not comply with ORAP 5.45 with regards to the objections that he did preserve. The Court of Appeals also rejects defendant's assignments of error regarding the prosecutor's closing arguments without discussion.

          [300 Or.App. 3] EGAN, C. J.

         Defendant appeals from a conviction for the murder of his former romantic partner. At trial, defendant did not dispute that he shot and killed the victim; instead, he argued that he should be found guilty except for insanity under ORS 161.295 (1983), amended by Or Laws 2017, ch 634, § 3. The jury did not accept that contention. In seven assignments of error, defendant challenges the trial court's admission of the victim's out-of-court statements in text messages and emails sent to defendant, its admission of testimony from one of defendant's ex-wives, and its failure to cure "prejudice" caused by the prosecutor's closing arguments. As to defendant's assignments of error regarding the prosecutor's closing arguments, we reject them without discussion; as explained below, we also reject defendant's remaining assignments of error.

         I. FACTUAL BACKGROUND

         Before meeting the victim, M, defendant had been married twice and had suffered a major brain injury. In 1994, defendant was married to L. Getskow. Defendant was in the U.S. Army at the time, and he was stationed in Germany in 1996. While he was abroad, Getskow informed defendant that she wanted a divorce. Defendant did not want a divorce, and he responded by calling Getskow repeatedly, writing her beseeching letters, lying to her that he had leukemia, and sending her a drawing of her and their two children standing sadly at his grave. Ultimately, the two were divorced in 1999, and defendant later terminated his parental rights to their two children.

         In 1997, defendant had suffered a traumatic brain injury (TBI). As a result, defendant developed an ongoing seizure disorder, suffered from migraine headaches, and had memory problems.

         In 2003, defendant married his second wife, H. Wyant. The two had a good relationship, but divorced amicably in 2011. They remained friends.

         Defendant met M online in early 2014, when defendant lived in Illinois and M lived in California. About six [300 Or.App. 4] months later, the couple moved together to Oregon. Their relationship was difficult, and they fought and reconciled repeatedly.

         In August of 2014, defendant's migraines worsened, and he went to the Veteran's Administration (VA) for treatment. The doctor performed tests that showed that defendant had been having seizures, and he prescribed Topiramate for defendant's headaches. Topiramate is an anti-seizure medication that alters brain chemistry and has been associated with side effects such as suicide, anxiety, depression, mood disorders, irritability, hostility, aggression, and psychosis.

         The next month, M moved out of the apartment she shared with defendant. M sent defendant an email saying that she did not feel safe and that she "had to end" their relationship. She asked defendant not to contact her. M continued to communicate with defendant over text messages, however, and defendant expressed that he wanted M to move back in with him. When defendant learned that M was seeing another man, he texted and called her repeatedly, ranging from pleas for reconciliation to anger and contention. He also posted sexually explicit images of M on the internet and falsely reported to the police that M had stolen prescription medicine from him. Defendant also forwarded M's breakup email to his mother and H. Wyant, his second ex-wife.

         M arranged to retrieve the rest of her belongings from defendant's apartment on November 2, at a time when defendant said he would not be there. M brought members of her family and friends to help her. When they arrived, defendant was there. While M was packing a box, defendant crouched next to her and they began to argue. A short time later, one of M's friends heard M yell, "What are you doing?" and saw her backing into the kitchen with her hands up. Defendant shot M three times, and said, "This is what happens when you fuck with me." He then shot himself in the head. Defendant tried to get up off the floor and asked one of M's friends to "Shoot me. Shoot me. Just please shoot me." M died from her wounds, any one of which could have been fatal. Defendant survived.

         [300 Or.App. 5] Defendant was charged with one count of murder. Before trial, defendant filed notice to rely upon the defense of mental disease or defect, or guilty except for insanity (GEI) pursuant to ORS 161.295 (1983). At the time defendant committed his crime, that statute provided:

"(1) A person is guilty except for insanity if, as a result of a mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.
"(2) As used in chapter 743, Oregon Laws 1971, the term 'mental disease or defect' does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder."

ORS 161.295 (1983).[1] Thus, at trial, defendant sought to introduce evidence showing that he suffered from a mental disease or defect. The state introduced evidence to rebut that defense, including the email from M to defendant, text messages exchanged between defendant and M, and testimony from defendant's first ex-wife about his conduct during their marriage that had ended 20 years prior to the events at issue in this case. The state hoped to "refute that he couldn't appreciate the criminality of his conduct" and to show that he was capable of intentionally committing the alleged crime. Ultimately, the jury rejected defendant's GEI defense and convicted him of murder.

         On appeal, defendant contends that the trial court erred in seven assignments of error, five of which we address, in turn. Defendant argues that the trial court erred when it denied his motions (1) to exclude M's out-of-court statements contained in text messages; (2) for a mistrial after a forensic examiner testified that the text messages were a "fair representation" of defendant and M's relationship; (3) to exclude the email written by M and forwarded by defendant; (4) for a mistrial due to the prejudice caused by the state's use of M's [300 Or.App. 6] email; and (5) to exclude testimony from Getskow, his first ex-wife. As we explain below, we disagree with defendant's arguments and affirm.

         II. THE TEXT MESSAGES

         Before reaching defendant's arguments on appeal, we lay out the evidence at issue in his first four assignments of error in more detail, beginning with the text message conversations between M and defendant. Before trial, the state notified defendant that it would be offering a collection of text messages between defendant and M in an exhibit and through the testimony of a detective. The state's primary purpose in offering that evidence was to show that defendant's criminal conduct was not a result of a mental disease or defect. At the outset, defendant brought to the court's attention that he "[had] objections to the almost 400 messages" that the state intended to introduce, including some based on hearsay and some based on the confrontation clause. Defendant told the court that he had discussed the admissibility of the evidence with the state, and agreed that "the vast majority" of the messages would come in. Nonetheless, "as a precursor," defendant explained that he had "been able to identify a series of [the statements] that [he thought were] objectionable." Defendant's main concern was that the trial was going to "become a firsthand account of the relationship between [defendant and M]," and that the state was "garnering a lot of testimony from a witness who [was] not going to be present in the courtroom ***." Therefore, defendant brought "firm objections" to several sections of the text message conversations.

         First, defendant objected to the following text message exchange:

"[M]: My phone is fucked.
"[DEFENDANT]: It doesn't work?
"[M]: It works, but it is super buggy and the screen still has water in it.
"[DEFENDANT]: I don't get it. I realize how it looks considering last night when it happened, but I promise I didn't do anything to your phone."

         [300 Or.App. 7] Defendant objected, arguing that (1) the evidence was inadmissible hearsay, (2) admission of the evidence violated the confrontation clause of Article I, section 11, of the Oregon Constitution, and (3) the probative value of the evidence was substantially outweighed by the danger of unfair prejudice under OEC 403. Before hearing from the state, the court noted that it was "going to be a tricky area for the court to rule on" and told both sides that it "would be willing to consider" a jury instruction regarding M's messages. The state then explained that it was not relying on M's messages for their truth; rather, it was relying on her messages for the effect they had on defendant and to put defendant's responding messages in context. The court denied defendant's motion to exclude that text message exchange.

         Next, defendant objected to another text message conversation between M and defendant, making similar arguments. That conversation occurred after the couple had ceased living together and were having significant relationship difficulties:

" [DEFENDANT]: If you come and talk tonight, I promise I won't bug you ...

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