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STATE of Oregon, Plaintiff-Respondent, v. Michael Lee REINEKE, Defendant-Appellant.

Court of Appeals of Oregon2019-04-17No. A161198
441 P.3d 637297 Or. App. 84

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Opinion

majority opinion

LAGESEN, P. J.

Defendants mother was strangled to death with a telephone cord. Defendant denied responsibility, but a jury found that he was the killer and convicted him of murder. The issue on appeal is whether the trial court erred when it permitted several witnesses to testify that the victim became reserved and unhappy after defendant moved in with her and seemed happier when defendant was not around. Defendant contends that the evidence was not relevant and that, if it was, its potential for unfair prejudice outweighed any probative value. We conclude that the trial court properly admitted at least some of the evidence and that, to the extent that it may have erred, the error was harmless in view of the properly admitted evidence.

I. BACKGROUND

In 2008, defendant moved in with the victim, who was in her seventies. In June 2010, the victim was strangled to death with a telephone cord in the kitchen of her home. Defendant called 9-1-1 requesting that a coroner and a police officer be dispatched to the home. When emergency responders arrived, they found the victim dead on the floor. Defendant was casual and unemotional when conversing with police and other emergency responders. Ultimately, defendant was arrested and charged with the victims murder. Defendant pleaded not guilty. He was tried and convicted, but, on appeal, we reversed his conviction because, in closing argument, the prosecutor had made a PowerPoint presentation to the jury that impermissibly urged it to infer defendants guilt from his invocation of his constitutional right to remain silent. State v. Reineke , 266 Or. App. 299, 301, 309-10, 337 P.3d 941 (2014).

Defendant was retried on remand. At trial, the state built a circumstantial case against defendant. In addition to the evidence that defendant was living with the victim, the state presented evidence that (1) there was no forced entry into the house, and all the windows and sliding doors had dowels in the tracks; (2) the victims cause of death was strangulation; (3) the telephone cord used to strangle the victim contained the DNA of defendant and the victim, none of the telephones in the household were missing cords, and the amount of defendants DNA on the cord was consistent with long or extensive contact with the object; (4) the victims purse was by her feet in the kitchen with valuables inside and her diamond ring was still on her finger; (5) a few weeks before the killing, defendant, speaking in a vicious tone, told the victim that he could not wait for her to die so that he could get his inheritance; (6) defendants wallet contained a list of telephone numbers that identified the victim as a (Pain in the ass!); (7) defendant was casual and not emotional when interviewed following the victims death; (8) some money was missing from a jar that the victim kept in her bedroom-a jar that typically contained the victims emergency stash of cash and usually included some $ 2 bills; and (9) when officers searched defendant upon his arrest, they found a large roll of cash totaling $ 989 that included three $ 2 bills.

The state also introduced the evidence that is the subject of this appeal. Although defendant objected (at least in part), the state introduced testimony from the following witnesses about the victims demeanor in the time since defendant had moved in with her, and in the weeks immediately preceding her murder:

• David Lind, the victims son-in-law, testified that he had taken the victim to lunch a few weeks before her death and that she was not her sparkly self. She was more reserved. More-I dont know-just she didnt seem to be her happy-go-lucky self. Lind said that the reason that he had taken the victim to lunch was to beg her to have [defendant] move out.

• Warren Wies, a friend of the victims, testified that he could tell that something was really wrong with the victim a couple days before she died and that she just wasnt herself. He testified further that he had told her that she should tell defendant to move out.

• Sharon Long, the victims daughter who lived out of state, testified that the victims demeanor during their telephone conversations changed after 2008.

Before 2008, the victim would just chat and we would talk, and things were very relaxed. Then, after 2008, the victim became more reserved, more quiet, [and] made the phone conversations shorter.

• Joe Carrouth, the victims son, testified that the victim was a lot more reserved[ ] [and] a lot quieter when defendant was around and vivacious out of his presence. Carrouth explained that he and his wife had visited the victim in May 2010 and, at the end of his stay, had told her that she needed to get defendant out of the house.

• Cindy Carrouth, Joes wife, testified that, from her observations, the victim was sad and nervous when in defendants presence. She testified further that between 2008 and May 2010, the victim just had changed a lot and-* * * just real depressed-looking and just-she wasnt the same. She just didnt have the light that she had before and happiness. Cindy Carrouth was so upset by the victims condition that she encouraged the victim to come with them to their home in Georgia.

Defendants primary response, through cross-examination and closing argument, was to highlight the circumstantial nature of the states case and to urge the jury to view the case as one in which the investigating officers had made a rush to judgment that defendant was responsible without conducting a thorough investigation. The defense did not present any affirmative evidence of its own. The jury unanimously found defendant guilty as charged.

On appeal, defendant assigns error to the trial courts admission of the evidence about the victims demeanor. In his first assignment of error, defendant contends that the court erred in admitting evidence that the victims demeanor changed after defendant moved in with her. In his second assignment of error, defendant asserts that the court erred in admitting evidence that the victims demeanor changed in defendants presence. Finally, in his third assignment of error, defendant argues that the court erred by admitting evidence that the victims friends and family members, responding to the victims demeanor, advised her to move out or to have defendant move out.

In each instance, defendant argues that the challenged evidence was not relevant, OEC 401, and that, in all events, any probative value was substantially outweighed by the danger of unfair prejudice, OEC 403. Defendant argues further that the evidence likely affected the jurys verdict, asserting that the demeanor evidence was inflammatory and that the states remaining evidence was not so compelling as to render the error harmless. Defendant also argues that the evidence functioned as propensity evidence and that its admission deprived defendant of a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution. In defendants view, the evidence about the victims demeanor invited the jury to infer that defendants conduct caused that demeanor change and, for that reason, effectively constituted evidence that defendant had committed prior bad acts toward the victim. The evidence did so even though, in defendants view, it was speculative to infer that the victims demeanor changed as a result of anything that defendant had done. Defendant argues further that, to the extent that the trial court may have viewed the evidence as probative of a hostile relationship between the victim and defendant, it erred. In defendants view, the fact that the victim may have felt hostility toward defendant does not imply that defendant felt the same way toward the victim.

The states response is multifold. The state first contends that defendant did not preserve his first assignment of error, and also did not preserve any claim that the admission of the evidence violated his federal constitutional rights. With respect to the admission of the evidence identified in defendants second and third assignments of error, the state initially argues that any error in admitting that evidence was harmless, in view of the other evidence admitted at trial. The state then argues that the trial court properly admitted the evidence under OEC 401 and OEC 403. In the states view, evidence of the victims demeanor was relevant to show that defendant and the victim had a hostile relationship, which, in turn, would permit the inference that defendant had a motive to kill her.

II. STANDARD OF REVIEW

At issue in this appeal are the trial courts relevancy rulings under OEC 401, and its rulings under OEC 403 that the probative value of the evidence at issue was not substantially outweighed by the danger of unfair prejudice. We review for legal error a trial courts determination that evidence is relevant under OEC 401. State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999). We review for abuse of discretion a trial courts decision to admit evidence over an OEC 403 objection. Id .

III. ANALYSIS

A. Preservation

We start with the question whether defendants contentions on appeal are wholly preserved. We easily conclude that defendants federal constitutional claims are not preserved. As defendant does not suggest that the trial court plainly erred in any respect, we do not consider those contentions any further.

The remaining issue is whether defendant preserved his contention that the trial court erred by admitting evidence that the victims demeanor changed generally after defendant moved in. The state contends that defendants objections extended only to (1) evidence that friends and family had told the victim to move out of the house and (2) evidence that the victims demeanor changed in defendants presence, and, thus, did not preserve his contention that the trial court erred by admitting evidence regarding the victims general change in demeanor.

We agree with the state that, for the most part, defendant did not preserve his contention that the trial court erred in admitting evidence that the victims demeanor changed generally after defendant moved in. Instead, with one exception, defendants objections focused on the evidence that friends and family advised the victim that she or defendant should move out and on the evidence of how the victims demeanor changed in defendants presence. Indeed, at one point, defendant appeared to acknowledge that evidence about a general demeanor change would be admissible.

Here is how the issue evolved before the trial court. Lind was the first witness from whom the state elicited testimony regarding the victims demeanor change after defendant moved in and the associated advice regarding the need for either the victim or defendant to move out. Before Lind testified, defendant objected to the state eliciting a statement from Lind that he had begged the victim to have the defendant move out, on the grounds that the evidence was not relevant and was unfairly prejudicial. Defendant emphasized that Linds concern[ ] [for] his mothers well-being was not probative of whether defendant murdered the victim and asked that it be excluded. The trial court overruled the objection, permitting Lind to testify that he had noted a change in the victims demeanor shortly before her death and that he had taken her to lunch to beg her to have [defendant] move out because of his concern for the victim.

The next day, before calling additional witnesses, the prosecutor told the court that she intended to elicit similar testimony from other friends and family members of the victim. She explained that she intended to ask witnesses whether they had observed a demeanor change in the victim after defendant moved in and whether that demeanor change caused the witnesses to talk to the victim about having defendant move out. The prosecutor indicated that the testimony she intended to elicit from Joe Carrouth would involve a slight variation. Because he had not observed a change in the victims demeanor over time, she intended to elicit testimony from him about his observations of how the victims demeanor changed when the victim was in defendants presence, and how those observations caused him to encourage the victim to have defendant move out. In response, defendant asked for a continuing objection on the same grounds that the defense had objected to the testimony from Lind the previous day, stating that the record that had been made with respect to the Lind testimony was sufficient to support the continuing objection. The court agreed to grant the continuing objection, stating that your objections, and the basis for your objections will be noted previously in regards to Mr. Linds testimony. * * * Itll be noted that thats essentially the basis that youre objecting to. Defendant then sought clarification regarding the scope of permissible questioning about the victims demeanor change, remarking that he thought it would tak[e] it a little bit too far beyond there was a change in her demeanor if witnesses were permitted to testify that the victim seemed afraid of defendant, suggesting that such testimony would be the equivalent of testimony that defendant was abusive to the victim. The court ruled that it was fair game for the witnesses to talk about their observations of the victims behavior in front of defendant, as long as they limited their testimony to descriptions of her demeanor.

Those discussions did not alert the trial court that defendant was objecting to evidence about the victims change in demeanor after defendant moved in with her; if anything, defendants discussion of whether certain evidence would go too far beyond whether there was a change in the victims demeanor would have affirmatively indicated to the court that defendant was not objecting to that type of evidence. For that reason, we conclude that defendants first assignment of error is, in the main, not preserved.

As noted, there is one exception. As the state acknowledges, at one point when the prosecutor asked Cindy Carrouth whether the victims demeanor had changed between 2008 and 2010, the defense stated, we object again. The trial court overruled the objection. Although defendant did not state the specific grounds for the objection, given defendants use of the word again and the earlier discussions regarding demeanor evidence, we conclude that defendants objection adequately communicated to the court that defendant was objecting to the admission of that portion of Cindy Carrouths testimony regarding the victims change in demeanor between 2008 and 2010 under OEC 401 and OEC 403. Thus, we conclude that defendants first assignment of error is preserved as to the admission of Cindy Carrouths testimony about the victims demeanor change over time in response to the objected-to question by the prosecutor.

B. Merits

Given our conclusion regarding the extent to which defendants first assignment of error is preserved, the merits issue before us is whether the trial court properly admitted, over defendants OEC 401 and OEC 403 objections, (1) the Carrouths testimony about how the victims demeanor changed in defendants presence; (2) Cindy Carrouths testimony about the victims demeanor change between 2008 and 2010; and (3) the testimony from Lind, Wies, and the Carrouths about encouraging the victim to have defendant move out or to move out herself. We conclude that, at a minimum, the trial court properly admitted the Carrouths testimony about how the victims demeanor changed in defendants presence and that any error in admitting any of the other challenged evidence was harmless.

The trial court properly admitted the evidence of the Carrouths direct observations of the victims demeanor in defendants presence because that evidence was probative of the nature of the relationship between the defendant and the victim and it was not an abuse of discretion for the court to conclude that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. The evidence, as introduced, was not particularly inflammatory and would permit the inference that there was hostility between the victim and defendant, something that would give rise to a motive for defendant to kill her.

The Supreme Court long has recognized that this type of evidence is admissible in a prosecution for murder. It has explained that [e]vidence of motive * * * is always admissible in prosecutions for murder and all evidence of whatsoever nature tending to throw light upon the relations existing between the accused and the deceased and the feeling between them is competent.

State v. Finch , 54 Or. 482, 488-89, 103 P. 505 (1909) ; see also State v. Flett , 234 Or. 124, 126-28, 380 P.2d 634 (1963) (explaining the relationship between relevance and admissibility in homicide cases and noting the slight probative value of evidence with some small tendency to illuminate the relationship between the defendant and the victim). In particular, [e]vidence that shows a hostile relationship existed between a defendant and his victim tends to shed light on a defendants mens rea and is pertinent in a murder case, given that [t]he state ha[s] the burden to prove beyond a reasonable doubt that defendants acts were intentional. State v. Moen , 309 Or. 45, 68, 786 P.2d 111 (1990). Here, the trial court did not err or abuse its discretion in admitting the Carrouths direct observations of how defendants presence affected the victims demeanor.

Whether the remaining evidence at issue in defendants preserved assignments of error was properly admitted is not as clear because that evidence does not speak directly to the nature of the relationship between the victim and defendant in a nonspeculative, objective way but is more indicative of the witnesses subjective beliefs about the relationship. However, we do not address that question because the admission of that evidence, even if erroneous, was harmless, in view of the evidence that was properly admitted or was admitted without challenge. Erroneously admitted evidence is harmless if it had little likelihood of affecting the jurys verdict. State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). In evaluating whether the erroneous admission of evidence is harmless, we consider any differences between the quality of the erroneously admitted evidence and other evidence admitted on the same issue to assess whether the jury would have found the evidence to be duplicative, cumulative, or unhelpful in its deliberations. State v. Chandler , 278 Or. App. 537, 541, 377 P.3d 605, rev. den. , 360 Or. 568, 385 P.3d 82 (2016) (internal quotation marks omitted).

Here, even if the trial court erred by admitting evidence that witnesses advised the victim to move out or have defendant move out because of their perceptions of the victims demeanor change, or by admitting the objected-to testimony of Cindy Carrouth, that evidence did not add much that was new, or particularly probative, to the evidence that was properly before the jury on the issue of defendants relationship with the victim. We have concluded that the court correctly admitted the evidence about the Carrouths observations about how the victims demeanor changed in defendants presence. Apart from the objected-to testimony of Cindy Carrouth, the testimony from Lind, Wies, and Long, and the unobjected-to portion of Cindy Carrouths testimony about the victims general change in demeanor between 2008 and 2010, also was properly before the jury because defendant did not raise any objection to it. In addition, the jury was presented with more direct (and inculpatory) evidence of the hostile relationship between the victim and defendant, including that defendant told the victim a few weeks before her death that he could not wait for her to die so that he could get his inheritance and that he referred to her as a Pain in the ass on the list of phone numbers in his wallet. In view of all of that evidence, it is likely that the jury perceived the challenged evidence as either cumulative of the other admitted evidence addressing the nature and degree of hostility in the relationship between the victim and defendant or, in the case of the evidence that friends and family advised the victim that either she or defendant should move out, as not particularly helpful, in view of the other, directly probative evidence on the point.

Affirmed.

The state points out that, shortly before the objected-to testimony, Cindy Carrouth had testified, without objection, that the victim had seemed happy and jolly over the telephone before defendant moved in and that she observed a change in demeanor that coincided with defendant moving in with the victim, in that the victim started to sound kind of sad.

Although the evidence at issue in Moen was of other acts by the defendant, we do not understand the courts explanation of why evidence of a hostile relationship between the victim and the defendant is relevant in a homicide case to turn on whether the evidence at issue involved other acts.