State v. Hargrove ( 2023 )

No. 413 August 16, 2023 437
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
WILLIAM CHASE HARGROVE,
Defendant-Appellant.
Benton County Circuit Court
17CR25379; A173326
Matthew J. Donohue, Judge.
Argued and submitted December 7, 2022.
Meredith Allen, 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.
Peenesh 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 Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
438 State v. Hargrove
Cite as 327 Or App 437 (2023) 439
SHORR, P. J.
Defendant appeals from a judgment of conviction
for murder (Count 1), ORS 163.115; identity theft (Count 2),
ORS 165.800; and two counts of second-degree theft (Counts
3 and 4), ORS 164.045. On appeal, defendant raises seventeen
assignments of error, relating to the denial of his motion to
suppress in which he challenged the validity of various war-
rants, the admissibility of evidence under a hearsay excep-
tion, and the jury instructions. We conclude that the trial
court erred in admitting evidence obtained from defendant’s
digital devices, as raised in defendant’s fifth through sev-
enth, thirteenth, and fourteenth assignments of error, and
we conclude that the error was not harmless with respect to
the murder charge. We reject defendant’s first through fourth
and eighth through twelfth assignments of error because we
conclude that the warrants to search physical locations and
obtain evidence from third-party companies were sufficiently
particular. We reject defendant’s fifteenth assignment of
error because the trial court did not err in its evidentiary
ruling regarding the limited use of hearsay statements. We
reject without discussion defendant’s sixteenth and seven-
teenth assignments of error regarding the jury instructions.
We therefore reverse and remand on Count 1.
BACKGROUND FACTS
Defendant was in a romantic relationship with the
victim, A, who had moved from Moscow, Russia, to Corvallis,
Oregon in March 2017 to be with defendant and marry him.
Simultaneously, defendant was in a tumultuous romantic
relationship with a married woman, Chavez. From at least
December 2016 through April 2017, defendant was seeing
both women and offering each one differing stories about
the other.
On April 17, 2017, A’s body was discovered in a for-
ested area outside of Alsea, Oregon. The evidence indicated
she had been killed by a gunshot wound to the head, and
had died within a couple of days prior to the discovery of the
body.1 Trash in the area, particularly a receipt from a fast
1
One of the detectives testified that, based on the condition of the body, A
had not died immediately before the body was discovered, but it had not been as
many as three to five days. Other evidence indicated that A was seen alive at
440 State v. Hargrove
food meal, led the investigators to defendant. On April 19,
2017, defendant was interviewed by investigators, both at
his home and at the sheriff’s station, and he was eventually
arrested for the murder. Over the following days, detectives
sought and received search warrants for defendant’s homes
and vehicles, where they discovered a shotgun2 and ammuni-
tion consistent with the murder weapon, defendant’s clothing
with blood on it, and A’s credit cards. Other evidence found at
the crime scene was forensically linked to defendant, includ-
ing a partially full coffee cup with his DNA on it.
Law enforcement also sought and received warrants
for defendant’s electronic devices, bank account, and digi-
tal and social media accounts (including Google, Facebook,
Yahoo, and T-Mobile). Cell location data placed his phone in
the vicinity of the crime scene on the afternoon of April 16,
the presumed date of A’s death. Banking data and surveil-
lance video illustrated defendant’s money troubles, his pres-
ence in the area where the body was found, his withdrawal
of money from A’s account on the evening of April 16, and
his deposit of cash into his own account later that night.
Evidence further demonstrated defendant’s close romantic
relationship with A, including planning a wedding, contrary
to his claims during his initial interview with detectives that
he barely knew her and had only been on two dates with her.
Detectives also interviewed Chavez, who admit-
ted to meeting defendant on April 16 in the area where the
murder occurred, but denied any involvement in the crime.
She voluntarily turned over her cell phone for a search. Her
phone contained voluminous text messages and emails that
she had exchanged with defendant, including his text on
April 15 that he would have his relationship situation “per-
manently solved” by the following evening. A’s phone was
never recovered.
Defendant was charged with the murder of A, and
three additional charges of identity theft and theft for the
her gym on April 15 and sent text or Facebook messages during the first part of
the day on April 16. The state’s theory was that she had died on the afternoon or
evening of April 16.
2
The shotgun belonged to defendant’s friend, Thomas. Defendant had bor-
rowed the shotgun weeks earlier and had not returned it to Thomas.
Cite as 327 Or App 437 (2023) 441
use of her bank cards. At the trial, the state argued that
defendant had murdered A in order to resolve his complex
relationship issues, then stole her credit cards and with-
drew money from her account to pay his car insurance and
buy other items. The defense theory was that the police had
not done a sufficient investigation to rule out Chavez as the
murderer and argued that Chavez had killed A to remove
a romantic rival, then threatened defendant to keep him
quiet. The defense pointed to evidence that Chavez was also
in the area of the murder on the same day as defendant, and
to the fact that she had exchanged Facebook messages with
another person the week before and the night of April 16,
talking about “making a snowman,” which they argued was
a euphemism for murdering someone.
The jury convicted defendant of all charges. He
appeals from the judgment of conviction, raising seventeen
assignments of error.
SEARCH WARRANTS FOR DIGITAL DEVICES
The day after defendant was arrested, investigators
obtained warrants to search defendant’s homes and vehi-
cles. Included in the warrants was authorization to seize
and search defendant’s digital devices. Defendant filed a
motion to suppress evidence obtained from his devices. The
trial court held that the following search command was
sufficiently specific to satisfy the particularity requirement
for warrants: “communications between any and all of the
following persons: [A] and [defendant], Michelle Chavez,
Kevin Thomas, and/or Rawley Green.” The court further held
that certain other digital evidence discovered during the
forensic search for communications was admissible under
the plain view exception to the warrant requirement, allow-
ing the admission of defendant’s WhatsApp messages with
an unknown person regarding time travel and text mes-
sages with a coworker regarding firearms.3 The WhatsApp
3
The court ruled that the search command allowing for a search of “Items
which would tend to show dominion and control of the property searched” was
not sufficiently particular to allow for the admission of other evidence outside of
communications between the named individuals, and therefore excluded a num-
ber of other pieces of digital evidence that were discovered, but did not fall under
the plain view exception as the trial court understood it. Neither party has raised
any challenge to that ruling.
442 State v. Hargrove
messages included defendant’s queries as to whether time
travel was actually possible, and that he would sell his soul
to be able to go back to April 16 to stop the day from hap-
pening as it did.
In his fifth through seventh, thirteenth, and four-
teenth assignments of error, defendant challenges those rul-
ings by the trial court. He asserts that the search command
for “communications” was insufficiently particular because
it did not include a temporal constraint, and because the
warrant allowed for a search across all file types. He fur-
ther points out that, after the trial court’s ruling, we held
in State v. Bock, 310 Or App 329, 340, 485 P3d 931 (2021),
that the plain view exception to the warrant requirement
does not apply to searches of digital devices, and therefore
the evidence admitted under that theory should have been
suppressed.4
The state responds that the command to search for
communications between the primary subjects of investiga-
tion at the time was sufficiently limited in subject matter,
and that no temporal limitation was possible. Alternatively,
the state argues that any error was harmless because much
of the evidence of communications was cumulative of evi-
dence obtained through other sources and ultimately was
unlikely to have impacted the verdict given the vast amount
of other evidence presented. The state further concedes that
the plain view exception does not apply to the communica-
tions with other individuals not named in the search com-
mand, but argues that the error was similarly harmless.
A search warrant must “ ‘particularly describ[e] the
place to be searched, and the person or thing to be seized.’ ”
State v. Mansor, 363 Or 185, 212, 421 P3d 323 (2018) (quot-
ing Or Const, Art 1, § 9) (brackets in Mansor). The warrant
must allow the executing officer to identify with reasonable
effort the things to be seized for which a magistrate has
4
In assignment of error fourteen, defendant objects to the trial court’s
admission of a photo of the victim that was attached to an email defendant sent
to himself, as improperly admitted under the plain view exception. Our review
of the trial court’s ruling shows that the trial court admitted the photo as fall-
ing under the “communications” command of the search warrant. Regardless,
we review the admissibility of all evidence obtained from defendant’s devices
together.
Cite as 327 Or App 437 (2023) 443
found probable cause. Id. When a search is warranted, a
presumption of regularity arises, based on the fact that an
independent magistrate has already determined that prob-
able cause exists; therefore, the defendant bears the burden
of proving the unlawfulness of a warranted search. State v.
Walker, 350 Or 540, 553-54, 258 P3d 1228 (2011). We review
a trial court’s denial of a motion to suppress for errors of
law and are bound by the court’s factual findings if there is
constitutionally sufficient evidence to support them. State v.
Maciel-Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017).
Whether a warrant complies with the particularity require-
ment of Article 1, section 9, of the Oregon Constitution is an
issue we review for errors of law. State v. Savath, 298 Or App
495, 499, 447 P3d 1, rev den, 365 Or 722 (2019).
We begin with the warrant and the authorization
to search for any “communications” between the individuals
who were the primary focus of the investigation at the time.
Under Mansor, to satisfy the particularity requirement of
Article I, section 9, a warrant to search a digital device
“must identify, as specifically as reasonably possible in the
circumstances, the information to be searched for, includ-
ing, if available and relevant, the time period during which
the information was created, accessed, or otherwise used.”
Mansor, 363 Or at 187-88.
We conclude that the warrant was insufficiently par-
ticular with respect to the information to be searched for.5
In State v. Turay, the Supreme Court recently elaborated
on the particularity analysis that is to be performed when
evaluating warrants for digital devices and concluded that
a search command for “communications” between the main
subjects of the investigation was insufficient. State v. Turay,
371 Or 128, 152-53, 532 P3d 57 (2023). The court noted that,
5
To the extent defendant challenges the warrant’s authorization to search
through all data stored in the device or remotely accessible through the device, we
conclude that argument is contrary to current caselaw. In Mansor, the Supreme
Court extensively discussed the nature of digital searches and the difference
between those searches and searches of physical spaces. Mansor, 363 Or at 197-
202. The court noted that because “the location or form of specific information
on a computer often cannot be known before the computer is actually examined,
examiners conducting a reasonable computer search ordinarily will be permitted
to look widely on the computer’s hard drive to ensure that all material within the
scope of the warrant is found.” Id. at 199-200.
444 State v. Hargrove
given what the investigators knew at the time, the warrant
could have more specifically described the category and sub-
ject matter of the information sought, such as by limiting
it to communications involving prostitution-related activi-
ties, or communications that related to internet postings or
advertisements. Id. The court rejected the state’s argument
that the command “allowed a reasonable degree of certainty
as to whether a given piece of data falls within its reach,”
emphasizing that more is required in the context of a search
for digital data “to ensure that the governmental intrusion
into a defendant’s privacy interests in digital data is as lim-
ited ‘as reasonably possible under the circumstances[.]’ ” Id.
at 153 (quoting Mansor, 363 Or at 222).
While we acknowledge that, at the time the warrants
were obtained in this matter, there were many unknowns
about the nature of the relationships between defendant, A,
and Chavez, the command to search for all communications
was lacking in specificity. The warrant could have more spe-
cifically described the category of information sought as lim-
ited to communications regarding the nature of their rela-
tionships or conflicts between the parties, communications
regarding Thomas’s shotgun, or communications regarding
the various parties’ whereabouts in the days leading up to
the murder. As in Turay, because the search category did
not restrict the search for communications with as much
specificity as reasonably possible under the circumstances,
it failed to satisfy the particularity requirement. Turay, 371
Or at 153.
Given that resolution, there were no valid search
commands allowing for inspection of defendant’s digital
devices, and any evidence obtained therefrom should have
been suppressed. We also acknowledge and accept the
state’s concession that the trial court erred in admitting
digital evidence under a plain view rationale. As we held in
Bock, the breadth of a digital search “renders the plain view
doctrine inapplicable,” as it would “sanction the sort of gen-
eral warrant that the plain view doctrine was never meant
to authorize.” Bock, 310 Or App at 340. We thus turn to an
assessment of the harmfulness of the error.
Cite as 327 Or App 437 (2023) 445
In assessing whether a verdict should be affirmed
notwithstanding the improper admission of evidence, we
consider a single question:
“Is there little likelihood that the particular error
affected the verdict? The correct focus of the inquiry
regarding affirmance despite error is on the possible influ-
ence of the error on the verdict rendered, not whether this
court, sitting as a factfinder, would regard the evidence of
guilt as substantial and compelling.”
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). “A criminal
defendant who assigns error to the exclusion or admission of
evidence ‘must establish that the error was not harmless.’ ”
State v. Gibson, 338 Or 560, 575-76, 113 P3d 423, cert den,
546 US 1044 (2005) (quoting State v. Lotches, 331 Or 455,
487, 17 P3d 1045 (2000), cert den, 534 US 833 (2001)). In
making the determination of whether there is little likeli-
hood that a particular error affected the verdict, “we exam-
ine the record as a whole and consider the error and the
context in which it occurred.” State v. Durando, 262 Or App
299, 305, 323 P3d 985, adh’d to as modified on recons, 264
Or App 289, 331 P3d 1095, rev den, 356 Or 400 (2014). In
State v. Carrillo, 304 Or App 192, 202-06, 466 P3d 1023,
rev den, 367 Or 220 (2020), we noted a variety of consider-
ations we can take into account in making that assessment,
including “any differences between the quality of the erro-
neously admitted evidence and other evidence admitted on
the same issue,” “how the parties actually used the chal-
lenged evidence at trial,” and whether there is other “over-
whelming evidence of the charged crimes.” However, in con-
ducting such an analysis “ ‘we do not usurp the role of the
factfinder and determine if defendant is guilty or reweigh
the evidence.’ ” State v. Ramirez, 310 Or App 62, 67, 483 P3d
1232 (2021) (quoting State v. Zaldana-Mendoza, 299 Or App
590, 613, 450 P3d 983 (2019)).
We begin with the messages about time travel,
because they are dispositive. In the early hours of April 18,
the day after A’s body was discovered and the day before
defendant was contacted by the police, defendant exchanged
text messages with an unknown individual, labeled only as
446 State v. Hargrove
“786,” via WhatsApp, a messaging app, where he was seek-
ing information about time travel:
“[Defendant]: Hello. I need help and I am truly hoping
you can enlighten me.
“* * * * *
“[Defendant]: I need to learn about time travel. I need to
correct a horrible mistake.
“[Defendant]: Please. I have to fix this.
“* * * * *
“[786]: tell me problem
“[Defendant]: April 16th my best friend made a mistake.
I want to go back and stop the situation from arising.
“[786]: ok
“[786]: you send full problem
“[786]: what do you want
“[Defendant]: I want to go back to April 16, 2017, at
11:30 in the morning to stop the day from happening as
it did. I want to convince myself we need to stay home so
nothing bad happens. I want to go back to keep from losing
the women that should be my wife.”
Over the next 20 hours defendant sent four more messages
to 786, without receiving a response:
“[Defendant]: Can it be done?
“[Defendant]: Please..
“[Defendant]: I’d honestly sell my soul.
“[Defendant]: Please?”
The state argues that these messages, while indi-
cating defendant’s remorse, were cumulative of other evi-
dence that was more direct evidence of his guilty conscience,
including testimony that on the suspected day of the mur-
der he had appeared distraught and was crying in a con-
venience store, stated that his girlfriend had left him, and
had become intoxicated that night and cried to his friends,
calling himself “a piece of shit” and a “terrible person.” The
state asserts that nothing in the messages with 786 was
Cite as 327 Or App 437 (2023) 447
specific about what happened on the day in question and
therefore was not overly probative in disputing defendant’s
explanation of his mood (that he was sad because A had left
him), or in disproving defendant’s trial theory that Chavez
had murdered A.
Defendant argues that this evidence was important
to the state’s circumstantial case and asserts that it was not
merely cumulative; rather, defendant argues that the evi-
dence consisted of his direct words, unfiltered through third
party testimony, and was “a more powerful expression of
remorse—the desire to do the impossible—than the depres-
sive statements and self-hatred identified by the state.”
We cannot conclude that the erroneous admission
of this evidence was harmless with respect to the murder
charge. Although other evidence demonstrated defendant’s
low mood and remorse during the evening of April 16, this
was a far more direct and explicit indication of his perceived
level of responsibility related to the events of that particular
day. His entire statement that he would sell his soul to go
back in time to change the events of that day is particularly
powerful evidence of his level of remorse and is qualitatively
different from and not cumulative of other evidence in the
record. Furthermore, the prosecutors mentioned the mes-
sages in their opening and closing statements. In closing,
the prosecutor emphasized that the time defendant wished
to return to, 11:30 a.m., was well before Chavez had met him
in Alsea, implying that the decision point that led to the loss
of A was when defendant chose to leave the house with A
and drive her to the woods. Defense counsel also mentioned
the messages in his closing argument, asserting that they
were evidence of Chavez’s culpability for the murder, imply-
ing that she was the “best friend” who had made a mistake.
That suggests that the defense considered the messages sig-
nificant enough to warrant a response and reframing of the
state’s interpretation.
Despite the fact that the messages were just a part
of a four-week trial, which included presentations of foren-
sic evidence, cell phone location data, suspicious text mes-
sages, and defendant’s damning interview with the police,
our assessment of the harmfulness of evidence is not rooted
448 State v. Hargrove
in what we, as factfinder, would have found persuasive.
Ramirez, 310 Or App at 68. We cannot confidently say that
the messages had little likelihood of affecting the verdict
on the murder charge, particularly given the circumstantial
nature of the state’s case.
We cannot say the same with respect to the theft and
identity theft convictions. Defendant advances no argument
regarding how the admission of the WhatsApp messages
was harmful to his conviction on those charges. The record
contains unchallenged evidence of defendant using A’s bank
card to make withdrawals from her account on the evening
of April 16, including video surveillance of defendant mak-
ing ATM transactions that corresponded with A’s banking
records. The WhatsApp messages did not have any tendency
to affect the convictions on the theft and identity theft counts.
With respect to the remainder of the evidence
obtained from the search of defendant’s phone, we note that
defendant has not identified any specific pieces of evidence
that he contends were wrongly admitted and has made no
effort to explain how any particular exhibit may have affected
the verdict on any count. ORAP 5.45(4)(a)(iii) (“If an assign-
ment of error challenges an evidentiary ruling, the assign-
ment of error must quote or summarize the evidence that
appellant believes was erroneously admitted or excluded.”);
see also Beall Transport Equipment Co. v. Southern Pacific,
186 Or App 696, 700 n 2, 64 P3d 1193, clarified on recons,
187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this court’s
function to speculate as to what a party’s argument might
be. Nor is it our proper function to make or develop a par-
ty’s argument when that party has not endeavored to do so
itself.”). Defendant asserts only that the erroneous ruling
regarding the admissibility of communications between
the primary parties “resulted in the admission of multiple
pieces of communications evidence that was important to
the state’s circumstantial case, including evidence revealing
the length and extent of defendant’s romantic relationship
with [A], his rocky relationship with Chavez, and his knowl-
edge and handling of firearms.” However, because we find
the admission of the WhatsApp messages to be harmful on
its own with respect to the conviction on the murder charge,
Cite as 327 Or App 437 (2023) 449
defendant will have the opportunity on remand to identify
specific pieces of evidence that were obtained pursuant to
the improper search of his digital devices.6
SEARCH WARRANTS FOR PHYSICAL LOCATIONS
We turn to other issues, including the search war-
rants for the various physical locations, because this matter
will be remanded to the trial court for further proceedings.
The warrants investigators obtained the day after defendant
was arrested authorized searches of defendant’s apartment
in Corvallis, Chavez’s home in Albany (where defendant also
lived part-time), three vehicles belonging to defendant and
Chavez, an evidence tub at the Benton County Jail bear-
ing defendant’s name, and defendant’s shoes (which were at
that point in an evidence locker at the sheriff’s office). The
warrants authorized the officers to “SEARCH FOR, SEIZE,
AND/OR FORENSICALLY ANALYZE any and all evidence
of the crime of Murder, ORS 163.115,” then listed a number of
categories of evidence sought, including, among other things,
shoes, clothing, firearms, ammunition, and digital devices.
In his first through fourth assignments of error,
defendant assigns error to the trial court’s denial of his
motion to suppress physical evidence recovered pursuant to
those warrants. He asserts that the warrants lacked par-
ticularity because they authorized a search for all firearms,
despite law enforcement knowing that the murder weapon
was a shotgun; and because they allowed for an unlimited
search for evidence of “murder” without qualification by the
identity of the victim or suspects. The state maintains that
the warrants were valid; and that even if the challenged
commands were overbroad, any error was harmless, as the
search commands were severable from the remainder of the
warrant.
The parties agree that this issue was preserved
through defendant’s pre-trial motion to suppress.7 As noted
6
As the state points out, much of the evidence of defendant’s communications
with others that was presented at the trial was derived from sources other than
defendant’s devices. Defendant has raised no challenge to the admissibility of
evidence obtained from other sources.
7
Before the trial court, defendant also argued that the warrants lacked
probable cause. He does not advance that argument on appeal.
450 State v. Hargrove
above, a search warrant must “ ‘particularly describ[e] the
place to be searched, and the person or thing to be seized.’ ”
Mansor, 363 Or at 212 (quoting Or Const, Art 1, § 9) (brack-
ets in Mansor). The warrant must allow the executing officer
to identify with reasonable effort the things to be seized for
which a magistrate has found probable cause. Id. Whether
a warrant complies with the particularity requirement with
respect to the things to be seized “is highly fact dependent
and eludes a single, concrete articulation.” Id.
Defendant’s challenge to the warrants in question
is narrow. He asserts that the search command for “fire-
arms” was overbroad in light of the fact that the investiga-
tors had determined that the murder weapon likely was a
shotgun. However, the affidavit in support of the warrants
did not state conclusively that a shotgun had been used,
only that A had been “shot in the back of the head with a
shotgun round” and that it had “likely” been “fired from a
12-gauge shotgun.”8 Under the circumstances of the current
state of the investigation, a search for any firearms was not
overbroad.
Defendant’s additional argument, that the warrants
were invalid based on the general authorization to search
for evidence related to the crime of murder, without identi-
fying the specific victim, is without merit. The particularity
requirement mandates that the warrant allow the execut-
ing officer to identify with reasonable effort the things to
be seized. The addition of the name of the victim would not
have been of assistance to the investigators in determining
the things to be seized; the list of specific categories of evi-
dence provided adequate direction to the executing officers.9
THIRD-PARTY WARRANTS
In his eighth through twelfth assignments of
error, defendant challenges the trial court’s ruling deny-
ing his motion to suppress evidence seized from Umpqua
Bank, T-Mobile, Google, Yahoo, and Facebook. Investigators
8
The trial court made factual findings consistent with the affidavit that sup-
ported issuance of the warrants.
9
For example, inclusion of the victim’s name would not have changed which
shoes, clothing, biological evidence, or digital devices the officers could seize
during the searches.
Cite as 327 Or App 437 (2023) 451
obtained warrants in April 2017 for each company’s records
related to defendant extending back to the previous April.10
In his motion to suppress, defendant argued that the war-
rants were insufficiently particular under Mansor, specifi-
cally with respect to the temporal limitations on the infor-
mation sought. The trial court ruled that the standard set
forth in Mansor did not apply, and in any event, the warrants
for each set of records obtained were sufficiently particular.
The court noted that there were many “unknowns” about
the nature and duration of defendant’s relationships with A
and Chavez, and acknowledged that banking records were
necessary to establish defendant’s habits and identify any
changes to them. Given the totality of the circumstances
and the investigatory nature of the case at the time the war-
rants were issued, the trial court concluded that a one-year
look-back period was reasonable.
On appeal, defendant renews his argument that the
standard for particularity of warrants set forth in Mansor
for searching digital devices should also apply to warranted
searches of records maintained by third-party companies.
He asserts that banking and social media accounts can
reveal information about a wide variety of private subject
matters in the same way that a search of a digital device
does. However, defendant has not sufficiently developed this
argument. Defendant fails to explain with any specificity
how these third-party account records are analogous to
the “unprecedented capacity” of electronic devices to “col-
lect and store a diverse and vast array of personal infor-
mation,” as identified in Mansor, 363 Or at 208. The extent
of defendant’s argument is that courts “should” treat this
kind of information similarly. Without further development
of the argument, we decline to take such a significant step
in expanding the reach of Mansor.
Thus, the validity of the warrants is a matter of
whether the warrants “describe, with particularity, the
place to be searched and the persons or things to be seized.”
State v. Rose, 264 Or App 95, 106, 330 P3d 680, rev den, 356
10
The warrants also included requests for records related to other key par-
ties in the investigation, including A, Chavez, and Thomas. Defendant conceded
at the hearing on his motion to suppress that he was not challenging the searches
of those records, as he had no privacy interest in anyone else’s accounts.
452 State v. Hargrove
Or 400 (2014). “ ‘The objective is that the search be as pre-
cise as the circumstances allow and that undue rummaging
be avoided.’ ” Id. at 107 (quoting State v. Massey, 40 Or App
211, 214, 594 P2d 1274, rev den, 289 Or 409 (1979)). As noted
above, the defendant bears the burden of proving the unlaw-
fulness of a warranted search. Walker, 350 Or at 553-54.
The investigators here limited the information
sought to roughly one year preceding the murder. Defendant
has not made any argument as to why that was an unrea-
sonable time limitation, other than to assert that it could
have been narrower. Considering the totality of the circum-
stances, including that defendant had been in a romantic
relationship with A since some point prior to December 2016
when she first visited Oregon from Moscow, and given the
number of unknown factors about defendant’s relationships
with A and Chavez, we conclude that defendant has not
met his burden of proving that the warranted search was
unlawful. The one-year time frame was reasonable, and the
warrants were sufficiently particular given the state of the
investigation at the time.
HEARSAY TESTIMONY
In his fifteenth assignment of error, defendant
argues that the trial court improperly excluded third-party
testimony that should have been admitted under OEC 803(3)
as a state of mind exception to the hearsay rule. We conclude
the trial court did not err.
Hearsay is an out of court statement “offered in evi-
dence to prove the truth of the matter asserted.” OEC 801(3).
Hearsay is not admissible except as provided in a number of
exceptions or as otherwise provided by law. OEC 802. The
following is one of those exceptions:
“A statement of the declarant’s then existing state of
mind, emotion, sensation or physical condition, such as
intent, plan, motive, design, mental feeling, pain or bodily
health, but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates
to the execution, revocation, identification, or terms of the
declarant’s will.”
OEC 803(3).
Cite as 327 Or App 437 (2023) 453
During the trial, defendant sought to introduce
testimony from a witness, Netty Randall, who had recently
come forward with information about Chavez. Defense coun-
sel indicated that Randall was prepared to testify about a
cab ride she took with Chavez, during which Chavez broke
down crying, stating she was unable to sleep at night, was
extremely stressed out, and that every time she closed her
eyes she could see “that dead bitch’s face” (referring to A).
Defendant argued that the evidence was admissible under
OEC 803(3), as it demonstrated Chavez’s state of mind at the
time that she made the statements. The state argued that
the statements about Chavez being stressed and tired would
qualify under the state of mind exception but asserted that
the reasons behind that state of mind (seeing A’s face when-
ever she closed her eyes) was not included as part of her
state of mind.
The trial court agreed with the state, that the first
portion was admissible under OEC 803(3), then made the
following remarks about the “explanatory statement” about
seeing A’s face:
[I]f you wanted Ms. Randall to testify to that the next
question would be would—you know, would a limiting
instruction that that part of the statement can only be
offered as a statement by Ms. Chavez as a guess as to why
she’s feeling that way but can’t be offered to prove that she
was actually seeing that woman’s face in sleep but, again,
was just a contextual statement made as part of that pres-
ent emotional state, but I don’t think it can be offered for
the truth of the matter asserted, that she was actually see-
ing her face.
Defense counsel then changed tactics and argued that he
should be allowed to present the evidence for impeachment
purposes against Chavez, an argument the trial court
rejected.11 Randall was never called as a witness.
We conclude that the trial court did not err in rul-
ing that the testimony was admissible subject to a limiting
instruction that it could only be used as evidence of why
Chavez thought she was feeling the way she was. The pur-
pose for which a proponent intends to use an out of court
11
Defendant does not challenge that ruling on appeal.
454 State v. Hargrove
statement matters. In State v. Bement, the Supreme Court
engaged in an extensive discussion about the use of out of
court statements to prove a declarant’s state of mind ver-
sus using the statements to prove the truth of the matter
asserted, reaching the following conclusion about the limita-
tion on use of statements of memory or belief:
“We therefore apply the limit to the state-of-mind excep-
tion by focusing on what the proponent is using the state-
ment to prove and not by focusing on whether the statement
directly asserts a state of mind or directly asserts a histor-
ical fact. See [Mueller & Kirkpatrick, 4 Federal Evidence
§ 8:73 at 659 (4th ed 2013)] (‘Use counts more than form and
substance because fact-laden statements usually shed light
on state of mind, and statements describing mental condi-
tions usually suggest factual inferences.’). The limit applies
if the proponent is offering the statement of belief to prove
the truth of the historical facts that the declarant believed,
but not if the proponent is trying to prove the declarant’s
state of mind.”
State v. Bement, 363 Or 760, 778, 429 P3d 715 (2018). The
court went on to note the importance of limiting instruc-
tions in such situations:
“The state raises concerns about a factfinder’s ability
to distinguish between those uses. But those concerns do
not justify the state’s narrow reading of the state-of-mind
exception. Instead, a court may appropriately address
those concerns by providing limiting instructions, scruti-
nizing the relevance of the statements, and weighing the
probative value of the statements against the risk of preju-
dicial misuse under OEC 403.”
Id. at 778-79.
The trial court’s ruling was precisely in line with
that standard. The court stated that the statement about
Chavez seeing “that dead bitch’s face” was admissible as evi-
dence of her state of mind, but was not admissible to prove
that Chavez was actually seeing A’s face anytime she closed
her eyes, and could be admitted with a limiting instruction
clarifying that appropriate use. In his reply brief, defen-
dant agrees that the evidence was not admissible to show
that Chavez actually saw A’s face when she closed her eyes.
Cite as 327 Or App 437 (2023) 455
Defendant’s assertion that the court excluded the evidence
is not consistent with what occurred.12
CONCLUSION
In summary, we accept the state’s concession that
the state improperly obtained evidence under a “plain view”
exception to the warrant requirement that is not an available
exception in the circumstances of the state’s search of defen-
dant’s digital devices. We conclude that error was not harm-
less with respect to the murder charge. We further conclude
that the trial court erred in admitting evidence obtained
from defendant’s digital devices because the warrant was
not sufficiently particular. We reject defendant’s assign-
ments of error challenging the searches of physical locations
and obtaining evidence from third-party companies because
the warrants were sufficiently particular. We conclude that
the trial court did not err in its evidentiary ruling regarding
the limited use of certain hearsay statements.
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.
12
To the extent the parties raise additional issues regarding preservation
and the proper procedure for raising the possibility of a limiting instruction,
we conclude it is unnecessary to reach those issues. Because this case is being
reversed on other bases, this issue may arise in a different posture on remand.
Defendant will have the opportunity to decide whether to offer this evidence
again, and the parties may raise additional arguments regarding its use and the
proper wording of any limiting instruction.