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Cloud" }, "schema_version": "1.0.0-draft.1", "verification": { "active_defect_ids": [], "as_of": "2026-08-05", "computed_at": "2026-08-06T02:50:22Z", "currentness": "2025-04-02", "grade": "B", "input_sha256": "b649356e1ca7a2271261060df92ceeaf01dc52a7dbcd8d217bf5de69ad732a92", "kind": "verification", "limitations": [ "Text was ingested from CourtListener public full text.", "Not yet matched byte-for-byte to an official court/reporter PDF or HTML edition.", "Treat as researchable public law text with an open official-verification task." ], "official_receipts": [], "policy_version": "grade-policy-v1-bulk-courtlistener", "reason": "CourtListener public full text captured with content hash; not yet matched to an official court or reporter edition.", "reason_code": "courtlistener_public_full_text_unverified_against_official_reporter", "schema_version": "1.0.0-draft.1", "source_classes": [ "independent_structured_corpus" ], "verified_at": null, "version_id": "ver:v1:3893d0ca-4486-74e6-8cb9-8614ce46df9f" }, "version": { "current_through": "2025-04-02", "decision_date": "2025-04-02", "effective_date": null, "finality_status": "public_full_text_unverified", "kind": "authority_version", "normalization_warnings": [ "Bulk CourtListener import; official reporter comparison pending." ], "normalized_text_sha256": "b649356e1ca7a2271261060df92ceeaf01dc52a7dbcd8d217bf5de69ad732a92", "observed_at": "2026-08-06T02:50:22Z", "parser_id": "bulk-courtlistener-v1", "parser_version": "1", "primary_text": "No. 278 April 2, 2025 405\n\n IN THE COURT OF APPEALS OF THE\n STATE OF OREGON\n\n STATE OF OREGON,\n Plaintiff-Respondent,\n v.\n TRACY LAMPRON CLOUD,\n aka Tracy Lynn Cloud,\n Defendant-Appellant.\n Washington County Circuit Court\n 20CR01720; A177588\n\n Eric Butterfield, Judge.\n Argued and submitted February 25, 2025.\n Daniel C. Bennett, Deputy Public Defender, argued the\ncause for appellant. Also on the briefs was Ernest G. Lannet,\nChief Defender, Criminal Appellate Section, Oregon Public\nDefense Commission.\n Joanna L. Jenkins, Assistant Attorney General, argued\nthe cause for respondent. Also on the brief were Ellen F.\nRosenblum, Attorney General, and Benjamin Gutman,\nSolicitor General.\n Before Tookey, Presiding Judge, Kamins, Judge, and\nJacquot, Judge.\n JACQUOT J.\n Supplemental judgment reversed and remanded for entry\nof judgment omitting restitution award of $1,087,466; other-\nwise affirmed.\n 406 State v. Cloud\n Cite as 339 Or App 405 (2025) 407\n\n JACQUOT, J.\n Defendant, who shot and killed her husband,\nappeals from a judgment of conviction, after a jury trial,\nof murder in the second degree, raising three assignments\nof error that she asserts require reversal of the conviction:\nThat the trial court erred in denying her motion to dismiss\nor in failing to impose alternative sanctions for the state's\nasserted violation of the attorney-client privilege; that the\ntrial court erred in denying her motion for a judgment of\nacquittal based on her defense of self-defense; and that the\ntrial, which was conducted pursuant to the Chief Justice's\nprotocols during the COVID 19 pandemic, violated her con-\nstitutional rights to a public trial. Defendant also appeals\nfrom a supplemental judgment awarding $1,157,967 restitu-\ntion to the victim's estate, assigning error to a portion of the\naward—$1,087,466—that the state asserted represented\neconomic loss to the estate.1 Defendant has filed a pro se\nsupplemental brief raising multiple assignments of error.\n We conclude that the trial court did not err in denying\ndefendant's motions to dismiss and for a judgment of acquit-\ntal, and that the Chief Justice's protocols for conduct of the\ntrial did not result in a violation of defendant's constitutional\nright to a public trial. We conclude, however, that the trial\ncourt did err in awarding restitution of $1,087,466, asserted\nto represent economic loss to the estate. We reject the remain-\ning assignments of error. We therefore reverse in part the\nsupplemental judgment's award of restitution of $1,087,466\nfor \"economic loss,\" but affirm defendant's conviction.\n We summarize the relevant facts. Defendant shot\nand killed her husband in their home on September 23,\n2019. Immediately after the shooting, defendant called 9-1-1\nand told the dispatcher that she had shot the victim in self-\ndefense, because he was threatening her with a gun.\n In a statement to an investigating officer immedi-\nately after the shooting, defendant said that, as she walked\ninto the parties' bedroom, the victim pointed a gun at her and\ntold her to fire her attorney. Then, as she turned to run out of\nthe room, she heard \"the sound of the slide being racked,\" at\n 1\n The restitution award also included restitution for attorney fees in the\namount of $70,501, which defendant does not challenge on appeal.\n 408 State v. Cloud\n\nwhich point defendant turned around, drew a handgun from\nher fanny pack, and shot the victim in the chest three times.\n Although defendant maintained that she had acted\nin self-defense, the state suspected that she had a financial\nmotive for the killing. Further investigation led to the filing\nof an indictment against defendant in January 2020 for the\nvictim's murder. Police attempted to locate defendant, but\nshe was in California when law enforcement officers came\nto her house to serve an arrest warrant.\n Defendant had been named as the trustee of a trust\ncreated by the victim's father, in which the victim was the\nsole beneficiary. The trust included funds and real property\nin California. Attorney Kit Jensen had been representing\ndefendant on the trust and probate issues associated with\nthe victim's death. Jensen was aware that defendant had\nshot the victim and that she claimed to have done so in\nself-defense. Jensen is not a criminal defense attorney and\ndid not represent defendant in that capacity. But Jensen's\nrepresentation included defending defendant in the pro-\nbate proceeding from an assertion by the victim's family\nthat defendant should be deprived of her inheritance under\nthe \"slayer\" statute, ORS 112.465.2 To aid in that defense,\nJensen had asked defendant to give him financial records\nthat might bear on that claim and to prepare a summary of\nthe circumstances of the victim's killing.3\n Upon learning that police had attempted find her at\nher home, defendant contacted her friend Amy Castro and\n 2\n ORS 112.465(1) provides:\n \"Property that would have passed by reason of the death of a decedent to\n a person who was a slayer or an abuser of the decedent, whether by intestate\n succession, by will, by transfer on death deed, by trust, or otherwise, passes\n on death and vests as if the slayer or abuser had predeceased the decedent.\"\n 3\n Jensen testified at the hearing on defendant's motion to suppress:\n \"[JENSEN:] I asked her to prepare names of people that would be wit-\n nesses that could assist and that could help her defense. I asked for, you\n know, names, addresses, phone numbers. I also asked her to prepare just\n kind of a summary of whatever she might have remembered that would be\n helpful in her defense.\n \"[DEFENSE COUNSEL:] Did you ask her to do those things because it\n would make your job, in representing her, easier?\n \"[JENSEN:] Yes. And I instructed her that that should—whatever she\n prepared should be addressed to me, as her attorney.\"\n Cite as 339 Or App 405 (2025) 409\n\nasked Castro to remove a laptop computer, cell phones, and\ndocuments from her residence and take them to Jensen's law\noffice. On January 13, 2020, Castro gathered those items\nand brought them to Jensen's office.\n Before Castro brought the items to Jensen and on\nthat same day, defendant called Jensen and told him that she\nwas aware that law enforcement personnel were attempt-\ning to search her house and that she wondered whether she\nmight be subject to criminal charges. She told Jensen that\nCastro would bring in the cell phones and the box of doc-\numents for him to keep. She scheduled an appointment to\nmeet with Jensen to go over the materials the next day.\n Defendant had not mentioned a laptop to Jensen.\nThus, Jensen rejected the laptop that Castro attempted to\ngive him but took delivery of the cell phones and a box of doc-\numents. He put the cell phones in an envelope in a filing cab-\ninet and put the box of documents in a storage area. Jensen\ndid not look at the materials but thought that the box might\ncontain the information that he had asked defendant to pre-\npare to assist in her defense of a potential slayer petition.4\n Defendant did not come to her appointment with\nJensen on January 14. On January 15, 2020, Castro told\na deputy who was surveilling defendant's residence that\ndefendant had asked her to remove a laptop computer, a cell\nphone, and documents from defendant's residence and that\nshe had delivered the items to Jensen.\n Jensen learned on January 17, 2020, that defendant\nhad been indicted for the murder of her husband.\n On January 22, 2020, the lead detective on the\ncase learned of Castro's delivery of items to Jensen. Police\nbelieved that the items delivered to Jensen would contain\nevidence in the case related to defendant's motive, financial\ntransactions, and movements and activities surrounding\nthe shooting of the victim.\n\n 4\n Jensen testified:\n \"So that's what I understood would be brought in by Amy Castro is memos\n and materials that would be helpful to her defense, and that we would review\n them the following day. And I did not know about a criminal indictment at\n that time.\"\n 410 State v. Cloud\n\n Police applied for and obtained a warrant to seize the\ncell phones and documents delivered to Jensen. The warrant\nspecified that the items seized \"shall be brought to the Court by\nDetective Rookhuyzen for an in-camera review by the judge to\ndetermine whether the contents fall within the attorney-client\nprivilege or contain evidence related to the above investigation.\"\n Police served Jensen with the warrant on January\n24, 2020. Jensen cooperated with the warrant and produced\na banker's box containing documents and two cell phones.\nPolice were informed that Jensen did not have the laptop.\nPolice did not search the law office.\n Police worked with Jensen to provide a receipt for\nthe seized items. They opened the box briefly to identify\nthe items by category but did not look at individual docu-\nments. Jensen sealed the box. Rookhuyzen then carried the\nsealed box to the judge's chambers, where it was received\nby the judge's staff or the judge for the judge's in camera\nreview. The box included financial records; bills for services\nto defendant from defendant's attorneys; letters between\ncounsel and defendant; a memorandum from defendant to\nher lawyer; and work product created by defendant's divorce\nattorney listing all of the marital finances, with notations.\n Defendant's criminal defense attorney filed a motion\nrequesting a denial of the request for the court's in-camera\nreview of the documents, a return of the items to Jensen, and\nthe appointment of a special master to review the electronic\ninformation from the cell phones. The trial court denied\ndefendant's request and, on January 29, 2020, issued an\norder stating that it had conducted its in-camera review of\nthe seized records and had concluded that the records were\n\"not subject to the attorney-client privilege or attorney work\nproduct privilege.\" The order released the documents to the\nsheriff's office for further examination. The police took pos-\nsession of the items and processed them as evidence.\n Meanwhile, defendant rented a vehicle in California\nand drove back to Oregon. She stayed for a couple of days at\na friend's house, then left, saying she was going to the store.\n On January 20, 2020, paramedics and ambulance\ncrews in Banks, Oregon,found defendant unconscious in the\n Cite as 339 Or App 405 (2025) 411\n\ndriver's seat of her rented car and provided lifesaving mea-\nsures to defendant, who had overdosed on Fentanyl.\n When paramedics found her, defendant had a\ngreen notebook on her lap. On the cover were handwritten\nthe words \"memos to my lawyer.\" Police looked through the\nnotebook for information that could identify defendant's con-\ndition and help in her treatment and found information in\nthe notebook consistent with an attempt to take her own\nlife. They gave the notebook to a responding officer.\n Police obtained a search warrant for the green note-\nbook, with the same requirement for in-camera inspection\nas the materials seized from Jensen's law office. The court\nconducted an in-camera review, determined that the note-\nbook was not subject to the attorney-client privilege, and\nreturned it to law enforcement.\n Defendant filed a motion to suppress the materials\ncontained in the box that had been obtained from Jensen's\noffice through the search warrant. Defendant relied on ORS\n9.695, which provides:\n \"(1) Notwithstanding ORS 133.535, the files, papers,\n effects or work premises of a member relating to the provi-\n sion of legal service by the member shall not be subject to\n search or seizure by any law enforcement officer, either by\n search warrant or otherwise.\n \"(2) The provisions of subsection (1) of this section do\n not apply where there is probable cause to believe that the\n member has committed, is committing or is about to com-\n mit a crime.\n \"(3) As used in this section, ‘member' means a member\n or associate member of the Oregon State Bar or a person\n licensed to practice law in any court of this state or any\n court of record of the United States or of any state, terri-\n tory or other jurisdiction of the United States.\n \"(4) Evidence or the fruits thereof obtained in violation\n of this section shall be inadmissible in any criminal or civil\n action or proceeding, except for an action or suit brought for\n violation of this section or the rights protected thereby.\"\n(Emphasis added.) At a hearing before the same judge who\nhad issued the search warrant and who had conducted the\n 412 State v. Cloud\n\nin camera inspections, defendant argued that, although the\nmaterials subject to the warrant could have been obtained\nthrough subpoena, ORS 9.695 prohibited a search of Jensen's\noffice in the absence of probable cause that Jensen had\ncommitted a crime. Because there was no probable cause\nthat Jensen had committed a crime, defendant argued, the\nsearch of Jensen's office was unlawful under ORS 9.695, and\nthe seized items must be suppressed.\n The state responded that the state had not\n\"searched\" the office, per se, because Jensen had acquiesced\nin the warrant and had turned the items over voluntarily—\nas if they had been subpoenaed. The state further contended\nthat ORS 9.695 was inapplicable, because defendant had not\nsent the materials to Jensen's office for the purpose of legal\nservices.\n The parties presented argument to the court about\nthe meaning of ORS 9.695 and, particularly, the significance\nof the phrase \"relating to the provision of legal service by\nthe member.\" Although it had issued the warrant, the court\nwas persuaded by defendant's argument that the materials\nseized from Jensen's office should be suppressed under ORS\n9.695, and it granted defendant's motion to suppress the\ncontents of the box.\n The parties then addressed defendant's motion\nto dismiss based on an asserted violation of defendant's\nattorney-client privilege. Defendant contended that, in seiz-\ning and then using the materials in the box and the green\nnotebook, the state committed a deliberate violation of\ndefendant's attorney-client privilege, ORS 40.225 (OEC 503)\n(permitting the client to prevent the disclosure of \"confiden-\ntial communications made for the purpose of facilitating\nthe rendition of professional legal services to the client\"),\nand that, as a result, the investigation and prosecution were\nirredeemably tainted, and the only remedy was dismissal.\n The state responded that, as the trial court had\npreviously determined, the seized materials were not priv-\nileged under OEC 503, because they were not confidential\ncommunications made for the purpose of facilitating the\nrendition of legal services. For example, the state noted\n Cite as 339 Or App 405 (2025) 413\n\nthat defendant held the green notebook when paramedics\nfound her during her attempt to take her own life, and that\nshe could not have intended for it to remain confidential.\nThe state further asserted that the extreme sanction of dis-\nmissal was not appropriate, because the state's possession of\nthe items was inadvertent and in compliance with the trial\ncourt's previous in camera review and release of the materi-\nals. Additionally, the state argued that the prosecution had\nnot relied on or derived information from the materials that\nit did not already have in its possession:\n \"Nothing derived from either of those two sources, the\n green notebook or the box of contents delivered by Amy\n Castro, drove the State's investigation. Nothing that was\n developed from those items was detrimental to defense in\n this case. The defendant's strategy of claiming self-defense\n was articulated by this defendant to Deputy Rambin on the\n day of the murder, so there was nothing new that was gath-\n ered from either of these items.\"\nThe lead detective on the case testified that the state had\npreviously been aware that defendant claimed to have shot\nthe victim in self-defense and that there was nothing in the\nbox of documents that provided any investigative leads or\nguided the investigation in the case. Finally, in response to\ninquiry by the court, the prosecutor explained that the state\nwas very unlikely to offer any of the materials into evidence.\n Defense counsel responded:\n \"So that's just the problem, Your Honor. This is not\n the—the items seized are exculpatory. They—they laid out\n [defendant's] defense in some amount of detail. I mean, she\n described exactly what happened in the shooting. She—\n she tells her side of the story in these items. So, I have no\n expectation that the State's going to offer those in its case\n in chief because they lead to the inevitable conclusion that\n [defendant] was acting in self-defense.\"\n The trial court explained that it continued to con-\nclude that the contents of the box was not privileged, because\nit was not a communication by defendant to facilitate legal\nservices. Rather, the court found, defendant sent the box to\nJensen's office for some other purpose—to \"secret or just get\nrid of things,\" and that the contents of the box did not have\n 414 State v. Cloud\n\n\"anything to do with * * * receiving legal services.\" The court\nfurther concluded that the contents of the green notebook\nwere not privileged, because they were not intended to be\nconfidential. The court found that, despite stating that it\nincluded \"memos for my lawyer,\" the green notebook con-\ntained primarily a justification for the killing and a long\n\"suicide note\" to be found with defendant after her death.\nThe court denied defendant's motion to dismiss. But the\ncourt determined that a small portion of the contents of the\ngreen notebook, instructing on the disposition of defendant's\nproperty, would be suppressed.\n We address defendant's assignments of error in\nreverse order. We address first defendant's third assign-\nment of error, in which she asserts that the trial court erred\nin denying her motion to dismiss or to impose alternative\nsanctions, based on the state's alleged violation of defen-\ndant's attorney-client privilege in using the green notebook\nand materials obtained from Jensen's office. Defendant con-\ntends that the green notebook and the materials seized from\nJensen's office contained attorney-client privileged materi-\nals and that the state's use of those materials constituted a\npurposeful and unconstitutional intrusion into defendant's\nattorney-client privilege, which must be presumed to be\nprejudicial. Additionally, defendant points out that she had\nchosen not to provide the state with her view of the circum-\nstances of the victim's death but that the state's seizure and\nuse of the materials and the green notebook gave the state a\nwindow into defendant's defense strategy. Thus, even though\nmost of those materials were not admitted at trial, defendant\ncontends, their use by investigators and the prosecutor vio-\nlated defendant's right to remain silent as well as her right\nto counsel, causing prejudice to defendant. Citing State v.\nGreenwood, 332 Or App 166, 177, 548 P3d 831 (2024) (a pur-\nposeful intrusion into the attorney-client privilege results\nin a rebuttable presumption of prejudice); State v. Russum,\n265 Or App 103, 333 P3d 1191, rev den, 356 Or 575 (2014)\n(\"[N]o presumption of prejudice arises in the absence of evi-\ndence of a purposeful intrusion that conveys the content of\nattorney-client communications to the prosecution.\"); and a\nSouth Carolina and federal case, State v. Quattlebaum, 338\nSC 441, 448, 527 SE2d 105 (2000) (\"Deliberate prosecutorial\n Cite as 339 Or App 405 (2025) 415\n\nmisconduct raises an irrebuttable presumption of prejudice.\nThe content of the protected communication is not rele-\nvant.\"); Shillinger v. Haworth, 70 F3d 1132, 1142 (10th Cir\n1995) (\"Because we believe that a prosecutor's intentional\nintrusion into the attorney-client relationship constitutes a\ndirect interference with the Sixth Amendment rights of a\ndefendant, * * * absent a countervailing state interest, such\nan intrusion must constitute a per se violation of the Sixth\nAmendment.\"); defendant contends that the state's actions\nwere a deliberate intrusion into the attorney-client relation-\nship that are presumed to be prejudicial and that, therefore,\nsuppression was not an adequate remedy, and the trial court\nerred in denying her motion to dismiss the murder charge.\nIn light of the deliberate nature of the intrusion, defendant\ncontends, which so \"pervades the investigation and prose-\ncution of the case\" such that it cannot be isolated from the\ncase as a whole, defendant contended that dismissal with\nprejudice was required. See State v. Worth, 274 Or App 1,\n8, 360 P3d 536 (2015), rev den, 359 Or 667 (2016) (dismissal\nwith prejudice after a violation of Article I, section 12, is\nwarranted when \"(1) the misconduct is so prejudicial that\nit cannot be cured by means short of mistrial; (2) the prose-\ncutor knew that the conduct was improper and prejudicial;\nand (3) the prosecutor either intended or was indifferent to\nthe resulting mistrial or reversal\") (internal quotation and\ncitation omitted; emphasis in original). If dismissal with\nprejudice is not the required sanction, defendant contends,\nthen reversal of defendant's conviction is required as an\nalternative sanction.\n The state responds that the trial court did not err,\nbecause the sanction of dismissal is not warranted. The\nstate asserts that the materials were not privileged and,\nfurther, any interference with defendant's attorney-client\nprivilege by the state was not deliberate. We agree with both\narguments. The trial court made a finding that defendant\nhad the box delivered to Jensen's office for some reason other\nthan legal representation, and there is evidence to support\nthat finding. And the trial court found that defendant could\nnot have intended the contents of the green notebook to be\nconfidential. Those findings are supported by evidence in\nthe record and persuade us that the trial court did not err in\n 416 State v. Cloud\n\ndetermining that defendant did not have a protected attor-\nney client privilege in the items.\n We further agree that, even assuming that the\nitems were subject to the attorney-client privilege, any inter-\nference by the state was not deliberate. At the time the state\nobtained the materials, the trial court had determined, after\nits in-camera inspection, that the materials were not privi-\nleged. In light of the trial court's determination, we cannot\nconclude that any intrusion into defendant's attorney-client\nprivilege by the state was deliberate. We further agree with\nthe state that this case is distinguishable from Greenwood,\n332 Or App at 190, in which we held that a presumption of\nprejudice arose from the detective's deliberate intrusion into\nconfidential communications between the defendant and the\nattorney.\n In the absence of evidence that the state sought\ndeliberately to interfere in defendant's attorney-client privi-\nlege, it was defendant's burden to show prejudice to her con-\nstitutional rights, such as the disclosure of trial strategy to\nthe prosecution or the production of tainted evidence as a\nresult of the alleged interference. Russum, 265 Or App at\n111. We conclude that defendant has not met that burden.\nAdditionally, even assuming that defendant has shown prej-\nudice, the proper remedy would not be, as defendant con-\ntends, a dismissal of the prosecution or reversal of defen-\ndant's conviction. Rather, it would be the remedy that the\ntrial court imposed, \"the exclusion of any prejudicial evi-\ndence obtained as a result of that violation.\" State v. Prieto-\nRubio, 359 Or 16, 38, 376 P3d 255 (2016). Thus, we reject\ndefendant's third assignment of error.\n In her second assignment of error, defendant con-\ntends that the trial court erred in denying her motion for\na judgment of acquittal (MJOA), arguing that the state\nfailed to disprove, beyond a reasonable doubt, her defense\nof self-defense. Defendant asserted that the uncontroverted\nevidence shows that she was justified in shooting the vic-\ntim, because she reasonably believed that the victim had a\ngun and was going to shoot her. See ORS 161.209 (A person\nmay use physical force \"on another person for self-defense or\nto defend a third person from what the person reasonably\n Cite as 339 Or App 405 (2025) 417\n\nbelieves to be the use or imminent use of unlawful physical\nforce, and the person may use a degree of force which the\nperson reasonably believes to be necessary for the purpose\").\nThe trial court denied defendant's MJOA but submitted\ndefendant's defense of self-defense to the jury.\n When self-defense is raised by a defendant, the\nstate has the burden of disproving it beyond a reasonable\ndoubt. ORS 161.055(1); State v. Freeman, 109 Or App 472,\n475-76, 820 P2d 37 (1991). To determine whether the state\nhas met that burden, a factfinder must weigh \"(1) whether\nthe defendant reasonably believed that the victim used or\nthreatened to use unlawful physical force against the defen-\ndant; and (2) whether the defendant used a degree of force\nin self-defense that the defendant reasonably believed was\nnecessary.\" State v. Poitra, 261 Or App 818, 820-21, 323 P3d\n563 (2014).\n The state's burden to disprove self-defense is beyond\na reasonable doubt. In other words, to disprove a defendant's\ntheory of self-defense, the state must prove beyond a rea-\nsonable doubt that the defendant did not reasonably believe\nthat the victim used or threatened to use unlawful physical\nforce against the defendant and that the defendant did not\nreasonably believe that the degree of force she used was rea-\nsonably necessary. Defendant contends that the trial court\nshould have granted defendant's MJOA, because the state\nhad failed to introduce evidence sufficient to disprove defen-\ndant's theory of self-defense beyond a reasonable doubt. The\nstate responds that the evidence was sufficient to prove\nbeyond a reasonable doubt that defendant did not act in self-\ndefense but, rather, planned to murder the victim for finan-\ncial or other motives and to make it appear that she had\nacted in self-defense.\n In reviewing the trial court's ruling denying defen-\ndant's MJOA, we must determine whether, viewing the evi-\ndence in the light most favorable to the state and giving the\nstate the benefit of all reasonable inferences and credibility\ndeterminations that properly may be drawn, a rational trier\nof fact could have found the essential elements of the crime\nbeyond a reasonable doubt. State v. Cunningham, 320 Or 47,\n63, 880 P2d 341 (1994); State v. Cervantes, 319 Or 121, 125,\n 418 State v. Cloud\n\n873 P2d 316 (1994). Under that standard, we conclude that\nthe evidence was sufficient.\n The state introduced evidence from which the jury\ncould find that, although the defendant had told people that\nthe victim was abusive and that she was afraid of him,\nthe victim was not abusive, and defendant was not afraid\nof him; rather, the state produced evidence from which the\njury could find that defendant was controlling of the victim.\nThe state produced evidence from which the jury could find\nthat, although defendant denied it to be the case, defendant\nwas concerned about her financial future in view of the vic-\ntim having filed for divorce.\n The state presented evidence from which the jury\ncould find that, although defendant testified that the victim\nhad threatened her with a gun, the victim never held the\ngun that defendant claimed he had pointed at her, because\nthe victim did not have access to the gun after defendant\nhad disabled the safe lock by removing its batteries; because\nthe gun was found a significant distance from the victim;\nand because the evidence did not show that the gun had\nbeen dropped by the victim onto the floor after he was shot,\nas defendant asserted.\n There was evidence from which the jury could infer\nthat, although a friend had offered to come to the house on\nthe morning of September 23 to be with defendant while the\nvictim was there, defendant had refused because she did not\nwant anyone to be present. There was evidence from which\nthe jury could infer that defendant had not activated the\nhome's surveillance video system on September 23, when\nthe victim was coming to the house, contrary to her usual\npractice, not because, as defendant testified, she had forgot,\nbut because she did not want the cameras running.\n There was forensic evidence that defendant shot\nthe victim three times, once in the abdomen as he walked\ntoward her, once in the thigh as he fell back onto the floor\nof the bedroom, and once in the heart as she stood over him\nfrom a distance of 6 to 30 inches as he was lying on the bed-\nroom floor. There was evidence from which the jury could\nfind that when she shot the victim the third time, defendant\n Cite as 339 Or App 405 (2025) 419\n\ndid not, as she testified, reasonably believe that he was\npointing a gun at her.\n In short, there was evidence from which the jury\ncould reasonably disbelieve defendant's stated reason for\nshooting the victim as well as her description of the shoot-\ning. We conclude that the evidence was sufficient to allow\nthe jury to find beyond a reasonable doubt that defendant\ndid not act in self-defense but in fact murdered the victim\npursuant to a plan. We therefore reject defendant's conten-\ntion in her second assignment of error that the trial court\nerred in denying her MJOA.\n In her first assignment of error, defendant contends\nthat \"the trial court erred when it failed to hold a public\ntrial.\" Defendant's trial was originally scheduled for March\n2021. At defendant's request, the court granted a setover\nto October 2021. Defendant's jury trial was scheduled to\nbegin on October 26, 2021, with jury selection to take place\nbeginning on October 12, 2021. On September 7, 2021, cit-\ning \"the rapid and extensive spread of the highly contagious\nDelta variant of the COVID-19 virus,\" and \"a level of cri-\nsis not yet seen during the pandemic in Oregon,\" including\nrecord-high statewide hospitalizations, the Chief Justice\nissued Order No. 21-035, which imposed a requirement for\nsix feet of social distancing in public court rooms. Defendant\nfiled a \"Motion for Continuance and Release of Defendant;\nAlternative Motion for Trial Procedures,\" asserting that the\n\"prejudicial impacts of COVID-19\" warranted a continuance\nas well as defendant's release from custody. Among other\nthings, defendant contended that the Chief Justice's social\ndistancing order violated the right to a public trial under\nthe Sixth Amendment to the United States Constitution.\nDefendant also sought to be released from custody, because\na continuance would cause a violation of her speedy trial\nrights. The trial court denied a continuance. And the trial\ncourt had made findings under ORS 135.240(2)(a) and\nArticle I, section 14, of the Oregon Constitution, that \"proof\nis evident or the presumption strong\" that defendant was\nguilty of murder and therefore denied defendant's release.\n Defendant argued in the alternative that if the trial\ncourt would not postpone trial or release her from custody,\n 420 State v. Cloud\n\nthe court should implement a number of procedures in the\ncourt room, including permitting witnesses and counsel to\nremove masks when speaking, assuring \"that jurors observe\nthe trial together where they can see and hear the same evi-\ndence, and be addressed as a group,\" and that \"public access\nto the gallery in the courtroom be maintained.\"\n The trial court said that it intended to honor the\nChief Justice's order. The trial was conducted in compliance\nwith the Chief Justice's order, requiring social distancing of\nsix feet in the court room.5 But the court consulted with the\nparties on logistics, and worked with them to accommodate\ndefendant's concerns, including, at defendant's request, not\nhaving jurors sit directly behind the parties; using barri-\ners to allow witnesses to testify without masks; and leav-\ning open seats in the gallery for the public. The court also\narranged live-streaming of the trial in a room in the court\nhouse, so that if seating in the gallery was full, additional\nmembers of the public would be able to view the trial in the\ncourthouse, a short distance away.\n The record shows that on two occasions during the\ntrial, people had to be turned away from the court room due\nto a lack of seating capacity in the gallery. The first occa-\nsion affected an extra member of the sheriff's office that was\npresent in the court room during the first day of the eviden-\ntiary portion of the trial. Defendant raised no objection to\nthat ruling. The second incident occurred on the second day\nof the evidentiary portion of the trial, when two people who\nwere identified as defendant's friends or family members\nwere not able to obtain seats in the gallery and had to watch\nthe trial at the overflow location. Defendant objected that, at\nleast on that day, there were only two seats available in the\ngallery for the public, and those seats were taken.\n\n 5\n The Chief Justice's order defined \"social distancing\" as \"the minimum\namount of physical distance between each person. As of the date of this order,\npursuant to CDC recommendations the distance is 6 feet between each person.\"\n The Chief Justice's order required application of social distancing in the pub-\nlic areas of court facilities:\n \"All courts shall require and maintain social distancing in the courtroom and\n throughout all other court-controlled, public areas of a court facility, unless\n the Presiding Judge determines that other sufficiently protective measures\n can be taken and directs that those measures be taken.\"\n Cite as 339 Or App 405 (2025) 421\n\n The record shows that, as a result of the COVID\n19 social distancing requirements, as well as defendant's\nrequest for seating of jurors,6 at times during the proceed-\ning there were only two seats available for spectators in the\ncourt room. Citing our opinion in State v. Jackson, 178 Or\nApp 233, 236-37, 36 P3d 500 (2001), defendant contends on\nappeal that the court room procedures imposed pursuant to\nthe Chief Justice's order violated her right to a public trial\nunder the Oregon Constitution, Article I, section 11,7 and\nthe Sixth Amendment to the United States Constitution.\n In determining whether defendant's trial was a\npublic trial within the meaning of the state and federal con-\nstitutions, the trial court's explicit and implicit findings of\nhistorical fact are binding on appeal to the extent that they\nare supported by evidence in the record. Ball v. Gladden,\n250 Or 485, 443 P2d 621 (1968); State v. Greenwood, 175 Or\nApp 69, 71-72, 27 P3d 151 (2001), rev'd on other grounds, 335\nOr 355, 67 P3d 937 (2003) (applying Ball v. Gladden stan-\ndard in Article I, section 11, analysis). The question whether\nthose findings satisfy the constitutional right to a public\ntrial presents an issue of law for the court. See Jackson, 178\nOr App at 244.\n The state has raised questions about whether defen-\ndant preserved this particular challenge. We assume for the\nsake of discussion that the assignment is preserved. But we\nreject defendant's challenge. Defendant had a public trial.\nAlthough seating space for spectators in the court room\ngallery was limited (in part because of social distancing\nrestrictions and in part because of defendant's requested\nseating arrangement for the jury), the public was permitted\nin the court room gallery when seating was available, and\nthe court's remote location allowed the public to view the\ntrial. Additionally, those who were attending remotely could\ncommunicate with the court if necessary. Over the course of\nthe three-day trial, spectators could freely attend, either in\n\n 6\n Defendant objected to having jurors sit behind counsel table, which meant\nthat a row of seating in the courtroom, which otherwise could have accommo-\ndated additional public spectators, had to be left empty.\n 7\n Article I, section 11, provides in part that \"[i]n all criminal prosecutions,\nthe accused shall have the right to public trial[.]\"\n 422 State v. Cloud\n\nthe court room or in the remote location. In short, the public\nwas not excluded from the trial.\n The circumstances here are significantly different\nfrom those in Jackson, 178 Or App at 236-37, on which defen-\ndant relies, in which we held that the defendant had been\ndenied a public trial. There, the defendant's trial was held\nin a prison, in a room that was not open to the public. Id. at\n244. Here, defendant's trial was held in the courthouse in\na public court room. The trial court Jackson arranged for a\ntelevision transmission to a room in the county courthouse,\nwhere seating was available for spectators, but a distance\naway from the prison, and there was no access to the court\nroom where the trial was held. Id. at 235. Here, the remote\nlocation for spectators who could not sit in the court room\nwas in the courthouse, and spectators could easily walk to\nthe court room to raise concerns with the trial court. We\nsaid in Jackson that the live television transmission would\nnot accommodate concerns that spectators might have about\nirregularities in the proceedings—such as jury misconduct\nor perjury overheard during a recess—because the camera\nin the courtroom would not capture that type of irregularity.\nId. at 243. And we said that the location of the trial in the\nprison impaired the public aspect of a public trial by making\nit unlikely that a spectator would come forward with sur-\nprise evidence. We explained that the prison location might\nhave an adverse effect on witnesses and that the absence\nof spectators could prevent the defendant and the prosecu-\ntion from benefiting from the presence of friends and fam-\nily. Id. Finally, we noted that the prosecution had made no\n\"substantial showing of a need\" to conduct the trial in the\nprison. Id. at 244.\n We are not persuaded that the circumstances of\ndefendant's trial rose to the level of restriction that caused\nus to determine in Jackson that the defendant had less than\na \"public\" trial. But if, and to the extent that it might be\nconcluded that defendant's trial fell short of being \"public\"\nbecause of reduced seating in the gallery as a result of the\nChief Justice's order, the record provides a constitution-\nally sufficient justification for the restrictions that the trial\ncourt imposed. See State v. Bowers, 58 Or App 1, 4, 646 P2d\n Cite as 339 Or App 405 (2025) 423\n\n1354 (1982) (holding that a defendant has an overriding\nright to have the state's case against him presented publicly,\nunless the state makes a substantial showing of a need to\nlimit that right); see also Jackson, 178 Or App at 237 (The\nright to a public trial may be circumscribed if \" ‘the state\nmakes a substantial showing of a need to limit that right.' \"\n(quoting Bowers, 58 Or App at 4)). It is undisputed that the\nsocial distancing restrictions imposed by the Chief Justice's\norder were responsive to a public health crisis. Those cir-\ncumstances provided a substantial showing of need for the\ntrial court's seating restrictions and remote accommodation\nof overflow spectators. We therefore reject defendant's first\nassignment of error.\n In a counseled supplemental assignment of error,\ndefendant contends that the trial court erred in imposing\nrestitution to the victim's estate of $1,087,466, which the\ncourt based on the amount that the assets in the victim's\nestate would have increased in value over the actuarial\n20 years of the victim's life expectancy, had defendant not\nkilled him. Defendant contends that the estimated loss to\nthe value of the estate is a \"nonexistent loss,\" because the\nassets are currently in the estate, and the victim, who was\nretired, was not increasing his income but drawing down\nhis assets. Defendant contends that awarding restitution in\nthe amount of the estimated increase in the value of assets\nthat the estate already has in its possession would result in\na double benefit and a windfall to the estate's beneficiaries.\nBecause the beneficiaries of the estate will have the benefit\nof the assets as well as their appreciation, defendant con-\ntends that the estate should not also be awarded restitution\nfor the estimated increase in the value of those assets had\ndefendant not killed the victim.\n We summarize the applicable law relating to resti-\ntution. ORS 137.106 provides in relevant part:\n \"When a person is convicted of a crime * * * that has\n resulted in economic damages, the district attorney shall\n investigate and present to the court, at the time of sentenc-\n ing or within 90 days after entry of the judgment, evidence\n of the nature and amount of the damages. * * * If the court\n finds from the evidence presented that a victim suffered\n economic damages, in addition to any other sanction it may\n 424 State v. Cloud\n\n impose, the court shall enter a judgment or supplemental\n judgment requiring that the defendant pay the victim res-\n titution in a specific amount that equals the full amount of\n the victim's economic damages as determined by the court.\"\nORS 137.103(2) states that the term \"economic damages\" as\nused in ORS 137.106 \"[h]as the meaning given that term in\nORS 31.705, except that ‘economic damages' does not include\nfuture impairment of earning capacity.\" ORS 31.705(2)(a), in\nturn, defines \"economic damages\" as:\n \"objectively verifiable monetary losses including but not\n limited to reasonable charges necessarily incurred for\n medical, hospital, nursing and rehabilitative services and\n other health care services, burial and memorial expenses,\n loss of income and past and future impairment of earning\n capacity, reasonable and necessary expenses incurred for\n substitute domestic services, recurring loss to an estate,\n damage to reputation that is economically verifiable, rea-\n sonable and necessarily incurred costs due to loss of use\n of property and reasonable costs incurred for repair or for\n replacement of damaged property, whichever is less.\"\n \"Restitution under ORS 137.106 is informed by\nprinciples enunciated in civil cases concerning recoverable\neconomic damages.\" State v. Islam, 359 Or 796, 800, 377 P3d\n533 (2016). \"Economic damages are the ‘objectively verifi-\nable monetary losses' that would be recoverable ‘against the\ndefendant in a civil action arising out of the Defendant's\ncriminal activities.' \" State v. Page, 330 Or App 672, 676, 544\nP3d 421 (2024) (quoting State v. Herfurth, 283 Or App 149,\n153-54, 388 P3d 1104 (2016), rev den, 361 Or 350 (2017)).\n For purposes of entitlement to restitution, in the\ncase of murder, a \"victim\" includes the estate of the mur-\nder victim. ORS 137.103(4)(e) (\"Victim\" includes the victim's\nestate upon the death of the person against whom the defen-\ndant committed the criminal offense.). Monetary loss to the\nvictim's estate, referred to as \"pecuniary loss to the dece-\ndent's estate\" under the wrongful death statute, ORS 30.020,\nis determined according to the principles established in civil\ncases. See, e.g., Goheen v. General Motors Corp., 263 Or 145,\n181, 502 P2d 223 (1972) (discussing evolution of the law in\ndetermining pecuniary loss to the estate of a decedent in a\nwrongful death case). Uniform Civil Jury Instruction 71.02,\n Cite as 339 Or App 405 (2025) 425\n\non which the state relied in determining pecuniary loss to\nthe estate, provides in relevant part:\n \"Pecuniary loss to the decedent's estate is the present\n value of the increase that would have accumulated in the\n estate during the remainder of the decedent's life had the\n decedent's life not ended[.]\"\n At the time of his death, the victim had consider-\nable assets, including real estate, a retirement account, and\ninvestments. The estate retained a forensic economist, who\nprovided an estimate of the additional value to the estate\nhad the victim lived out his life expectancy. The expert\ncalculated the victim's anticipated income from the trust\nof which he was the sole beneficiary, cash accounts, invest-\nments, retirement benefits, and Social Security, as well as\nthe victim's likely consumption of income and assets during\nhis full actuarily determined life expectancy, reduced to\npresent value. Because the victim had filed for divorce from\ndefendant, the expert also estimated a post-divorce division\nof those assets. Based on that data, the expert estimated the\ntotal economic \"loss\" to the estate, on which the court based\nits determination that the estate was entitled to recover res-\ntitution for economic loss in the amount of $1,087,466.\n The underlying value of the assets on which the\nexpert based his calculation is not in dispute, nor is the\nfact that the assets themselves are in the possession of\nthe estate. What is contested by defendant is whether the\nbasis for determining restitution to an estate in a wrongful\ndeath action has any bearing in this case, in which the court\ndetermined that restitution could be awarded based on the\npotential increase in value of the victim's assets in 20 years,\nhad the victim lived, reduced to present value, as well as\nwhat the victim would have earned in Social Security.\n We agree with defendant that the calculation in\ndetermining damages in a wrongful death action cannot be\nthe basis for an award of restitution here. That is because the\nestate holds the assets and already possesses their potential\nincrease in value. The passive income that the victim could\nhave earned on the assets had defendant not murdered him\nwill inure to the estate, so it is not a loss. The award of resti-\ntution would duplicate that value. Because the estate holds\n 426 State v. Cloud\n\nthe assets, we conclude that it has not experienced a pecu-\nniary loss for which restitution can be awarded, as required\nby ORS 137.106.\n The record also does not reflect a pecuniary loss\nwith respect to the victim's loss of Social Security bene-\nfits. The expert estimated the victim's anticipated Social\nSecurity benefits at $34,172 per year. The expert estimated\nthat the victim's personal consumption (his expenses) would\nhave ranged from 34 to 54 percent of his total income of\n$86,012 (which included pension, investments, and Social\nSecurity), or between $29,244 and $46,446 per year, which\naverages to $37,845.24. That amount exceeds the amount\nthe victim would have received in Social Security benefits\nand again reflects no net economic loss to the estate. We\ntherefore reverse the supplemental judgment awarding res-\ntitution for economic loss in the amount of $1,087,466.\n In a pro se supplemental brief, defendant raises\nsix assignments of error. We have considered each assign-\nment. As discussed above, we agree with defendant's sixth\nsupplemental assignment of error, in which she challenges\nthe award of restitution. We conclude that the remaining\nassignments do not raise reversible error.\n For those reasons, we affirm the judgment of con-\nviction, and we reverse and remand the supplemental judg-\nment for the trial court to enter a judgment that eliminates\nthe erroneous portion of the restitution award.\n Supplemental judgment reversed and remanded for\nentry of judgment omitting restitution award of $1,087,466;\notherwise affirmed.", "publication_date": "2025-04-02", "publication_status": "public", "record_id": "rec:v1:e4f0eef4-f43a-70dc-87ec-1aaebe1bad16", "schema_version": "1.0.0-draft.1", "source_locators": [ { "artifact_id": "art:v1:d694fb1d-83a3-7a3d-86e9-36523eade475", "locator": "full-text", "quote_sha256": "b649356e1ca7a2271261060df92ceeaf01dc52a7dbcd8d217bf5de69ad732a92" } ], "status": "current", "structure_sha256": "b649356e1ca7a2271261060df92ceeaf01dc52a7dbcd8d217bf5de69ad732a92", "text_scope": { "excludes": [ "footer", "navigation", "annotations", "headnotes", "summaries", "editorial_content" ], "includes": [ "opinion_body" ] }, "version_id": "ver:v1:3893d0ca-4486-74e6-8cb9-8614ce46df9f" } }