and submitted July 31, 2018
Washington County Circuit Court C142638CR Suzanne Upton,
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
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.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
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
Or.App. 3] EGAN, C. J.
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.
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.
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.
2003, defendant married his second wife, H. Wyant. The two
had a good relationship, but divorced amicably in 2011. They
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
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.
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.
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.
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). 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.
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.
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
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."
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.
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
" [DEFENDANT]: If you come and talk tonight, I promise I
won't bug you ...