1 Filed: November 1 , 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff

- Appellant,

v.

LORRAINE ELIZABETH SARICH,

Defendant

- Respondent.

(CC 10060997; SC S059928)

En Banc

On appeal from order s of the Linn County Circuit Court under ORS 138.060(2).

Dennis J. Graves, Judge.

Argued and submitted April 30, 2012.

Anna M. Joyce, Solicitor General, Salem, argued the cause for plaintiff

- appellant.

With her on the briefs was John R. Kroger, Attorney General.

Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued

the cause and filed the brief for defendant

- respondent.

DE MUNIZ, J.

The orders of the circuit court are affirmed, and the case is remanded to the circuit

court for further proceedings.1 DE MUNIZ, J. 1

In this case, we review a trial court's orde rs declaring defendant's son, Z

-- a 2

19

- year

- old man who suffers from autism and developmental disabilities

-- not competent 3

to testify at trial and excluding from evidence a video involving out

- of

- court statements 4

made by Z and drawings made by Z . For the reasons that follow, we affirm both orders. 5

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 6

Defendant is charged with the aggravated murder of William Mills (also 7

known as Bill Mills). 1 On the day the victim was last seen, in January 2007, the victim 8

had been scheduled to work in defendant's home as a caregiver for defendant's son, Z. 9

The victim was reported missing th e following day. The police located the victim's car in 10

a parking lot at Chemeketa Community College, where the victim had been enrolled as a 11

part

- time student. However

, the police could not locate the victim. Nine months later, in 12

October 2007, the vic tim's skeletal remains were found in a remote forested location at 13

the end of an unpaved spur road. No clothing was found with the body. It was 14

1 This case is before this court on the state's pretrial appeal pursuant to ORS

138.060(2)(a) . As such, the facts underlying the offense have not yet been proved by the

state and are presented only as necessary to give context to the issues presented in this

appeal. By contrast, the facts pertinent to the issues on review are taken from the tria l

court's findings regarding the evidence presented at hearings on those matters. Although

we review the trial court's orders for legal error, we defer to the trial court's factual

findings to the extent that they are supported by any evidence in the reco rd. In the

absence of explicit findings with regard to any pertinent fact, we presume that the trial

court decided the fact in a manner cons istent with its ultimate legal conclusion. S ee S tate

v. Foster , 303 Or 518, 529, 739 P2d 1032 (1987) (citing Ball v. Gladden , 250 Or 485,

487, 443 P2d 621 (1968)).2

determined that the victim's death had been caused by a gunshot wound to the head. 1

Around the time of the victim's disappearance, t he police began to focus 2

their investigation on defendant after discovering that defendant had been under 3

investigation for a series of fraudulent financial activities involving a shell corporation set 4

up using the victim's name. In an interview with police, defendant denied any knowledge 5

of or involvement in the victim's death. Defendant claimed that , because the victim had 6

not shown up for work on the day of his disappearance, she had had to take Z with her to 7

a doctor's appoint ment that day. Defendant told the police that Z had been with her that 8

entire day and that they had spent the majority of the day at the doctor's office. 9

In January 2010, nearly three years after the victim's disappearance, a 10

police detective intervie w ed Z. At those interviews, Z allegedly made four statements 11

that: "Bill was shot" ; "Bill shot in the tree forest" ; "Bill was shot in the side" ; and "there's 12

no clothes with Bill." In addition, Z produced eight drawings during the course of the 13

intervie ws , which may be summarized as follows : 14

1. A "drawing" with the words "bill blood" in large letters on an otherwise blank 15

sheet of paper, written by Z , according to the state's representations, while 16

"explaining to [the detective] that Bill, the victim, was c overed in blood in [ the ] 17

tree forest[.]" 18

2. A drawing by the detective of a simple figure representing a human body, with a 19

single line extending out from the side of the figure's abdominal area ; the line was 20

drawn by Z, according to the state's representa tions, in response to questioning 21

regarding where the victim had been shot. 223

3. A drawing by Z on the back of an envelope depicting the face of a person, 1

apparently wearing glasses, with the words "Dark Green Car," "Bill Hurt Gun," 2

and "Tree Forest" written above the face. Z's caregiver told police that Z had 3

made the drawing, unprompted, at his h ome following one of the interviews with 4

the detective. 5

4. A drawing by Z of a rudimentary human figure, apparently with short hair, 6

glasses, and a goatee or beard, which the state contends depicts the victim. 7

5. A drawing by Z that appears to depict a barre l and trigger apparatus (without a 8

stock) of a rifle

- style gun. 9

6. A drawing made by the detective of three rough sketches of a car, a pickup truck, 10

and a sport utility vehicle, next to the words "Dark green," "Dark green," and 11

"Gray," respectively ; the sta te represents that the words were added by Z during 12

the interview to describe the dark green car driven by the victim, the dark green 13

truck driven by defendant, and the gray sport utility vehicle driven by defendant's 14

then

- boyfriend. 15

7. A drawing by Z depic ting a boxy

- shaped vehicle parked among a number of trees 16

and three stick

- type human figures, two standing next to each other by one of the 17

trees and one apparently lying on the ground. The figure on the ground has a sort 18

of looping line extending downwar ds from its side, and one of the standing figures 19

appears to have long hair. 20

8. A drawing by Z of a figure with short hair, glasses, and what appears to be a 21

goatee or beard, with a short line extending out of its side, which the state 224

represents was intend ed to show where the victim was shot. 1

As a result of the statements and drawings made by Z at the t hree interviews, the 2

detective suspected that Z may have been an eyewitness to the victim's death. 3

I n May 2010, the police ( along with Depar tment of Justice investigators) 4

determined that they would attempt to generate evidence demonstrating Z's knowledge of 5

the location where the victim's remains had been found by asking Z to ride in a vehicle 6

with a Department of Justice agent and another police dete ctive while giving them 7

driving directions to that location. The detective videotaped the entire expedition, which 8

lasted approximately four hours . However, due to Z's difficulty with verbal 9

communication, many of Z's directions we re given in response to leading questions or 10

suggestions by the investigators, and the meaning of his statements and gestures is not 11

always entirely clear. Additionally, on a number of occasions, Z direct ed the 12

investigators to take wrong turns. When those wrong turns result ed in dead ends, or 13

when it bec a me clear to the investigators that they we re no longer heading towards the 14

correct location, the investigators themselves decide d to turn around and return to the last 15

correct intersection, where Z was then given the opportuni ty to indicate another direction. 16

Near the end of the trip, after a number of wrong turns, the detective direct ed the driver to 17

take the correct road without Z's assistance. The video then shows the investigators 18

commenting to Z or amongst themselves wit hin Z's hearing that Z had "finally found the 19

right road," that the turn

- off they were looking for should be "3.9, almost 4 miles" down 20

that road, and, directly before approaching the correct spur road, that they "guess[ed] it's 21

got to be coming up close." Z then appears to recognize the spur road leading to the 225

location where the victim's remains were found, pointing and stating in an excited 1

manner something sounding like, "It this is." 2

Shortly after recording that video, the state indicted defenda nt for 3

aggravated murder. At defendant's bail hearing, the state presented evidence of Z's 4

interviews with the detective and Z's alleged direction of the investigators to the location 5

where the victim's remains had been found. Defendant subsequently requ ested a hearing 6

to examine Z's competency to testify at trial. At th at hearing, a psychologist specializ ing 7

in autism and developmental disorders who had examined Z testified about Z's ability to 8

perceive and communicate: 9

"And so he is able to answer * * * very nicely simple questions, but 10

it needs to be in formats that he is familiar with. Questions that are usually 11

asked in courtrooms are usually what we refer to as W questions , who, 12

what, why, when, where, those types of questions . And the

-- [Z] is a very 13

concrete thinker and is able to answer questions that are very concrete in 14

nature. So he could answer questions like did a particular person do a 15

particular thing. He can answer a question like show him a picture and say 16

is this, and then you name the object or you name the incorrect object, and 17

he can accurately answer yes or no, whether that object is the one you 18

answered or not. He can affirm whether he has seen things before or not. 19

And he can do those things, in my opinion, reliably. 20

"He c an't answer if you

-- he can't answer typical questions that you 21

and I can easily answer like, 'Who was at the scene of the crime, describe 22

the scene of the crime.' There's types of things

-- he doesn't have that type 23

of vocabulary. 24

"My estimate is tha t he has a preschool vocabulary at this point that 25

is very visual. And he can

-- he makes word estimates, which means that 26

he is very strong at pronouncing the front end of a word, less so about the 27

back end. As a result, I find communicating with him th at it's easiest to 28

have him point to something, a picture or a series of pictures, have him 29

select the right answer and point to it so that he's

-- I make sure that I am 30

understanding the word estimate that he is using. * * * But his vocabulary 31

is kind of preschoolish. So any questions asked of him need to be more 326

him affirming or not affirming. Something he saw or identifying something 1

rather than a traditional who, what, why, when, where type of questions." 2

The psychologist also testified that Z has tro uble understanding verbs and pronouns due 3

to the abstract nature of those concepts , and that Z is "pretty distract a ble " and "needs to 4

be cued to stay on task because he is in some ways emotionally younger than his stated 5

age." However, t he psychologist al so testified that many autistic people have "extremely 6

good visual skills and visual memory," and that from preliminary testing, she had 7

concluded that Z's visual memory is "very much intact" and perhaps even better than the 8

average person's. The psycholo gist suggested that a number of acc ommodations could be 9

made to courtroom and hearing procedures to maximize Z's ability to focus, 10

communicate, and generally function as a witness in a courtroom setting. 11

After consulting with defense counsel and the st ate, the trial court ordered 12

that most of the psychologist's suggested accommodations be implemented for the 13

duration of Z's examination. The next day, Z was brought into the courtroom and 14

questioned by the trial court in an effort to determine his compet ency. The trial court 15

began by asking Z very simple yes or no questions regarding the identification of tangible 16

objects held out in front of him: 17

"THE COURT: Okay, I brought some things with me for you to 18

look at. 19

"Z: Yeah. 20

"THE COURT: Do you kn ow what this is? 21

"Z: ( indiscernible ) 22

"THE COURT: Is this a

-- is this a book? 237 "Z: Yeah. 1

"THE COURT: This is a book. Good job. Is this a pen? 2

"Z: Yes. Yeah. 3

"* * * * * 4

"THE COURT: Yes. All right. Is this a banana? 5

"Z: No. It's red. 6

"THE COURT: It's red. 7

"Z: Apple. 8

"THE COURT: Apple, correct. I am holding up an apple for you to 9

look at. All right. That works pretty well." 10

The trial court then a sk ed a series of questions that involved somewhat more abstract 11

concepts beyond a yes or no identification of an object within Z's immediate visual 12

perception: 13

"THE COURT: Am I in a swimming pool? 14

"Z: Yeah. 15

"THE COURT: Am I swimming in a pool right now? 16

"Z: Okay. (indiscernible) 17

"THE COURT: Are we in a swimming pool, are we in water right 18

now? 19

"Z: Yeah. (indiscernible) 20

"* * * * * 21

"THE COURT: Did you ride in a car to come here today. 22

"Z: Yeah. 23

"THE COURT: Do you have shoes on your feet. 24

"Z: Yes. 258 "THE COURT: Yes. Do you see a tree in this room

. 1

"Z: Yes. 2

"THE COURT: Do you see a tree? 3

"Z: Yes. (indiscernible) 4

"* * * * * 5

"THE COURT: Look at my wrist. Do I have a watch on? 6

"Z: Yeah. 7

"THE COURT: Yes? Is this a glass of water? 8

"Z: No. A pencil. 9

"THE COURT: It's a pen, it's not a glass of water. All right. 10

Thinking about water again. Can you look at me? Are we in a swimming 11

pool right now? 12

"Z: Yes. 13

"THE COURT: Yes? Are we indoors now or outdoors? Indoors? 14

"Z: Outdoor. 15

"THE COURT: Outdoors? 16

"Z: Yes. 17

"THE COURT: Can you see the sky? 18

"Z: Sky. 19

"THE COURT: Can you see the sky? 20

"Z: Yeah. (indiscernible) 21

"THE COURT: If I was to say I am holding a watermelon, would 22

that be true? 23

"Z: Yeah. 24

"THE COURT: That would be true? 259 "Z: Yes. 1

"THE COURT: If I was to say I am sitting on an elephant, true or 2

not true? 3

"Z: True. 4

"THE COURT: True? 5

"Z: Yeah. 6

"THE COURT: Do you see an elephant? 7

"Z: Yeah. 8

"THE COURT: Do you know how old you are? 9

"Z: Yeah. 10

"THE COURT: How old are you? 11

"Z: (indiscernible) 12

"THE COURT: Can you tell me how old you are? 13

"Z: (indiscernible) 14

"THE COURT: Are you

-- are you 35? 15

"Z: Yeah. 16

"THE COURT: Yes? 17

"Z: Yeah. (indiscernible) 18

"THE COURT: This man standing next to you, is his na me Joe? Is 19

that Joe? 20

"Z: No. 21

"THE COURT: No? What's that man's name? 22

"Z: Cameron. 23

"THE COURT: Cameron. Correct. Can you look at me? 24

"* * * * * 2510 "THE COURT: * * * If I was to say right now I am wearing a 1

football helmet, do I have a helmet on my head? 2

"Z: Yeah. 3

"THE COURT: Yes? Do you see a helmet? 4

"Z: Yes. 5

"THE COURT: Yes. Is this a television that I am holding in my 6

hand? 7

"Z: Tissue. 8

"* * * * * 9

"THE COURT: Tissues. Correct. If I was to say I am riding a 10

bicycl e, do you s ee a bicycle in the room? 11

"Z: Yeah. ( indiscernible) " 12

At that point, the prosecutor requested a hearing outside of Z's presence. The prosecutor 13

objected to the manner in which the court was questioning Z: 14

" * * * I don't think he understands the questions. I think they have to be, 15

from what little I know, they have to be much shorter and much more direct 16

and concrete. And I don't know how we can do this, but I think perhaps the 17

Court may not be getting a really accurate assessment of the wit ness's 18

capabilities given his verbal limitations that [the psychologist] talked about. 19

And I

-- it's not as though I have a suggestion how to remedy that. I wish I 20

did but I don't." 21

The court responded that it had been purposefully testing what the psych ologist had said 22

about the limitations of Z's ability to communicate: 23

"I was testing what [the psychologist] had said purposefully after I 24

got some yes/no answers to determine if [Z] really had vocabulary to 25

identify something. In saying, 'What is this,' just for my own understanding 26

and to perhaps get some insight into his capabilities. And so I did that 27

purposefully after I gave him some softball questions, if you will, yes/no. 28

"I tried to think of some questions that would involve a no answer 29

because it seemed like he was giving a yes answer kind of repeatedly. And 3011

when I tried to test his ability to understand the difference between telling 1

the truth and not telling the truth, I asked some questions, for instance was I 2

in a swimming pool. Perhaps t hat's too complex a term for him. And so I 3

would be happy to try those kinds of questions with simpler concepts other 4

than yes/no if it's possible. 5

"I want to be confident that he has the ability to understand questions 6

and can give honest, truthful an swers. And all of the issues in this case are 7

not going to be with small words. And obviously this is a very very serious 8

case. And so I was deliberately testing somewhat beyond the limits of what 9

were [ sic ] suggested. Because he clearly got the yes/no thing pretty much 10

in the beginning with simple objects. 11

"* * * * * 12

"And I could obviously sort of allow him softballs so that he could 13

answer yes to

-- to get to that issue. But I think it's a more complicated 14

issue, the concept of telling the truth ve rsus not telling the truth than simple 15

yes/no answers. And I felt I needed to probe a bit more in order to have a 16

firm understanding in my own mind whether I thought he understood the 17

difference between the truth and not. " 18

The court then offered the prose cutor an opportunity to question Z. Z was brought back 19

into the courtroom and the prosecutor attempted another line of questioning: 20

"Q. Okay. [Z], my name is Scott. 21

"A. Scott. 22

"Q. Scott. Is Scott's jacket white? 23

"A. (No audible response) 24

"Q. Is Sco tt's jacket white? 25

"A. Blue. 26

"Q. Your shirt is blue. Is Scott's jacket, is that white? 27

"A. No. 28

"Q. Do you know what color it is? 29

"A. White. 3012 "Q. Yeah, your T

- shirt is white. What color is this? 1

"A. Black. 2

"Q. Black? Okay. If I said Scott's jacket is white, would that be 3

true or false? 4

"A. (No audible response) 5

"Q. Would that be true or false? 6

"A. True. 7

"Q. That would be true? 8

"A. Yeah, true. 9

"Q. Okay. [Z], it's hard when your mom's here, huh? 10

"A. (No audible response) 11

"Q. Okay. Can you

-- Your Honor, I believe it is a catch 22, 12

because I don't think he can continue with having direct eye contact with 13

his mother. And his mother obviously has a constitutional right to have 14

direct eye contact. So I don't have any further questions." 15

The court excused Z from the hearing and made the following findings, culminating in 16

the conclusion that Z had been unable to demonstrate the minimum level of competency 17

necessary to satisfy the legal requirements to testify as a witness: 18

"My impressions of [Z] are that he is a very sweet young man. And 19

I think he was doing a great job in trying to follow the questions that I was 20

asking, and [the prosecutor's] questions as well. 21

"It was clear to me that he could identify objects when I gave him a 22

yes/no opportunity. He was able to say some words. * * * And his sense 23

of sight [,] in terms of the ability to perceive, was working just fine. And of 24

course he was able to hear my questions. 25

"I didn't get to the point of recall in terms of showing him someth ing 26

again to see if he could recall that I had shown it to him earlier, because I

-- 27

I was trying to deal with the issue of truth and not truth. 28

"But it's true that I used a concept that was probably too advanced 2913

for him in terms of swimming pool. But th e doctor had mentioned the 1

word elephant yesterday, and so I used the word elephant, and he said that I 2

was sitting on an elephant. I didn't put it in terms of, 'Is Judge sitting on an 3

elephant?' 4

"He did say that he saw a tree in the courtroom. And of c ourse he 5

did say that we were outdoors instead of indoors and he could see the sky. 6

Perhaps the question about a helmet was beyond his ability to communicate 7

about. But the record shows what it shows. 8

"I simply cannot find him to be a competent witness for the

-- as far 9

as the legal requirements are concerned in this particular trial based upon 10

what I have seen up to this point." 11

The court later issue d a written order declaring Z not competent to testify, citing OEC 12

601

- 603. 13

After the competency hear ing, the state filed a motion asking the trial court 14

to rule that the video and the statements and drawings made by Z at the interviews with 15

the detective were admissible

. A lthough that evidence consisted of Z's out

- of

- court 16

statements, the state argued that the evidence was not hearsay

, because the state was not 17

offering it to prove the truth of the matters asserted (that the victim was shot, in the side, 18

in the forest, at the location to which Z directed the investigators) . Rather, the sta te 19

maintained , it sought to admit the evidence to prove Z's knowledge of those matters. 20

According to the state, Z's knowledge of the location where the victim was found and 21

how the victim was killed was relevant to prove that Z was present at the scene of the 22

crime. That in turn, the state contended , was relevant to the issue of defendant's guilt 23

because, along with defendant's statements that Z was with her all day on the day the 24

victim disappeared, it tended to prove that defendant was also present at t he scene of the 25

crime. 2614 Defendant responded that admitting Z's out

- of

- court statements woul d 1

violate her rights under the Confrontation Clause of the Sixth Amendment to the United 2

States Constitution because Z would not be available for cross

- examinatio n due to the 3

trial court's competency ruling. The state countered that, under federal law, the 4

Confrontation Clause bars only the use of hearsay evidence

-- and that the evidence that it 5

sought to admit was not hearsay because it was not offered to prove the truth of the 6

matter s asserted

, but rather to prove Z's knowledge of those matters. After hearing 7

argument, the trial court issued an order excluding from evidence the video , statements, 8

and drawings. The trial court held that the evidence was "inadmi ssible under Crawford v. 9

Washington , 541 US 36, 124 S Ct 1354[, 158 L Ed 2d 177] (2004) because [Z] is 10

unavailable for cross [

- ] examination after the C ourt's previous competency ruling" and, 11

alternatively, that the evidence was "inadmissible under OEC 403 in that it would be 12

unfairly prejudicial to the defendant, would confuse th e issues and mislead the jury." 13

The state then filed its interlocutory appeal directly to this court under ORS 14

138.060(2)(a), assigning error to both the order declaring Z not competent to testify at 15

trial and the order excluding from evidence the video, Z's statements

, and Z's drawings. 2 16

II. DISCUSSION 17

A. Z's Competency 18

2 The state's notice of appeal to this court also included a third order of the

trial court that granted defendant's pretrial motion to exclude from evidence a number of

prior bad acts allegedly committed by defendant. However, the state's brief before this

court does not raise or argue that issue, so we do not consider it.15 Whether a person is competent to be a witness is a preliminary question for 1

the trial court to decide under OEC 104, which states generally that "[p]reliminary 2

questions concerning the qualification of a person to be a witness * * * shall be 3

determined by the court." The trial court's or der indicated that it found Z not competent 4

to testify at defendant's trial un der OEC 601, OEC 602, and OEC 603. 5

OEC 601 provides the general standard for witness competency: 6

" Except as provided in [OEC 601

- 606], any person who, having 7

organs of sense can perceive, and perceiving can make known the 8

perception to others, may be a witness." 9

OEC 602 provides in relevant part that "a witness may not testify to a matter unless 10

evidence is introduced sufficient to support a finding that the witness has personal 11

knowledge of the matter." Finally, OEC 603 requires in pertinent part tha t, "[b]efore 12

testifying, every witness shall be required to declare that the witness will testify 13

truthfully, by oath or affirmation administered in a form calculated to awaken the 14

conscience of the witness and impress the mind of the witness with the duty to do so." 15

The state an d defendant differ over this court ' s standard of review of a trial 16

court's determination of witness competency. Both the state and defendant cite State v. 17

Rogers

, 330 Or 282, 4 P3d 1261 (2000)

, in support of their position s . A ccording to the 18

state, Rogers signals that such evidentiary rulings are reviewed at the outset for errors of 19

law. Defendant, however, cites Rogers , 330 Or at 312

- 13, 313 n 9, for the proposition 20

that the trial court's express and implied findings of fact from an OEC 104 hearing bind 21

the review ing court a s long as the record contains sufficient evidence to support the 22

findings . From that passage in Rogers

, defendant reasons that our standard of review of a 2316

trial court's determination of witness competency must be for abuse of discretion. That 1

reasoning is consistent with the legislative commentary to OEC 601 , which states that 2

witness competency is a "a question for the trial court to decide in the exercise of its 3

sound discretion. " See Legislative Commen tary to OEC 601, reprinted in Laird C. 4

Kirkpatrick, Oregon Evidence § 601.0 2 , Art VI, 430 (5th ed 2007). See also State v. 5

Moh ler et al. , 115 Or 562, 569, 237 P 690 (1925)

, reh'g den , 239 P 193 (competency of a 6

witness is a preliminary question of fact for the trial court to determine and will not be 7

reviewed except for abuse of discretion). 8

Both parties are partially correct. In Rogers this court explained that 9

appellate review of evidentiar y rulings may involve the application of several standards 10

of review: 11

"From the foregoing, we glean several principles. First, in the 12

context of evidentiary rulings, ' discretion, ' as this court has used that term, 13

refers to the authority of a trial cour t to choose among several legally 14

correct outcomes. If there is onl y one legally correct outcome, then 15

'discretion' is an inapplicable concept. It follows that we first must review 16

evidentiary rulings without deference to determine whether proper 17

princip les of law were applied correctly. Next, and also without deference, 18

we must determine whether application of those principles leads to only 19

one correct outcome. If there is only one legally correct outcome, and the 20

trial court arrived at that outcome, t hen it did not err; conversely, if the trial 21

court arrived at a different outcome, then it did err. Only if we determine 22

that application of the correct legal principles leads to more than one 23

correct outcome do we continue to review whether the trial cou rt abused its 24

discretion in choosing an outcome. If the trial court's decision was within 25

the range of legally correct discretionary choices and produced a 26

permissible, legally correct outcome, then the trial court did not abuse its 27

discretion. According ly, appellate review of rulings on the admissibility of 28

evidence may involve the application of several standards of review, 29

depending on the particular ruling and assignment of error at issue." 30

330 Or at 312 (footnote omitted). 3117 W e conclude that our revi ew involves a two

- ste p process. First, we 1

determine whether the trial court applied the correct legal standard for determining 2

competency . Second, if the t r ial court applied t h e correct standard , we review the record 3

to determine whether the trial court abused its discretion in determining competency. 4

T he state argues that the trial court erred by questioning Z in a manner that 5

exceeded the boundaries of the types of simple, concrete questions that the psychologist 6

had advised that Z could understand. A s a result, a ccording to the state, the trial court 7

erred in finding Z not competent to testify, "because

, rather than considering [Z's] 8

competency in light of the limits on the manner in which he communicates, it found him 9

incompetent because of the li mits on the manner in which he communicates." (Emphasis 10

in original .) 11

The state attempts to analogize the trial court's failure to abide by the 12

proposed limitations on the format and content of its questions to Z to a trial court 13

refusing to permit a wi tness who cannot speak English to testify via an interpreter. We 14

do not find the comparison apt. Although OEC 601 states a very liberal standard of 15

competency, that standard requires that the witness's ability to perceive and make 16

perceptions known to ot hers encompass es the sort of perceptions that will be relevant to 17

the issues to be decided at trial. 18

The proper inquiry is not whether the person is able to perceive and 19

communicate in any capacity, but rather "[w]hether [the] person has sufficient ability to 20

perceive, recollect and communicate so it is worthwhile for the person to testify ." 21

Legislative Commentary to OEC 601

, reprinted in Kirkpatrick, Oregon Evidence at 430 2218

(emphasis added) . OEC 601 does not require that a person be able to communicate in 1

any particular form, manner, or language, but it does require witnesses to be able to 2

"make known the[ir] perception[s] to others" in some manner. OEC 601. Although a 3

non

- English speaker is perfectly capable of making his or her perceptions known to 4

others through an interpreter, the accommodations that the state contends Z requires to 5

communicate would effectively prevent the attorneys from eliciting any useful 6

inf ormation from Z with re gard to the ma ny perception s that would be relevant to this 7

case. Those limitations would effectively exclude most questions involving intangible 8

actions, past events, persons and objects not present at trial, distances, times, dates, and 9

locations, all o f which could and likely would require some degree of compre hension of 10

abstract concepts. 11

W e conclude that the OEC 601 legal standard permit ted the trial court some 12

latitude to tailor the competency inquiry to the anticipate d circumstances of the trial

. On 13

the facts of this case, the trial court did not err in the questions it posed to Z, or in basing 14

its competency determination on Z's inability to respond coherently to the kind of 15

questions that would be relevant to the issues in this case. 16

A ltho ugh it was apparent from the trial court's interactions with Z that Z 17

had some ability to perceive, Z's ability to communicate his perceptions to others was 18

severely limited. Z could accurately answer a yes or no question regarding the name of 19

an object p resented to him. However, his responses to the trial court's questioning 20

demonstrated that he would be unable to answer accurately more abstract or complex 21

questions. Z's inability to respond to those sort s of questions supported the trial court's 2219

determ ination that Z would be incapable of testifying in a way that would be useful at 1

trial. 2

Based on the foregoing , we conclude that the trial court did not abuse its 3

discretion in de termining that Z was not competent to testify at trial, and the order of the 4

trial court d etermining that Z was not competent to testify at trial is affirmed. 5

B. Admissibility of the V ideo, Z's Statements

, and Z's Drawings 6

Notwithstanding the trial court's determination regarding Z's competency, 7

the state also seeks to introduce at trial the video of Z allegedly directing investigators to 8

the site where the victim was found, as well as four statements and eight drawings made 9

by Z in the course of his interviews with the detective. As noted above, the trial court 10

held th at that evidence was inadmissible on two grounds: F irst, the evidence would 11

violate defendant's rights under the Confrontation Clause of the Sixth Amendment due to 12

the co urt's prior ruling that Z was not competent and thus unavailable to testify; and 13

seco nd, under OEC 403, the probative value of the evidence was substantially 14

outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the 15

jury. 16

In accordance with this court 's usual method ology of considering issues of 17

state la w before issues of federal law, and issues of statutory interpretation before issues 18

of constitutional interpretation, we first consider the trial court's exclu sion of the evidence 19

under OEC 403

. See, e.g.

, State v. Spada , 286 Or 305, 309, 594 P2d 815 (19 79) ("It is 20

basic that determination of Oregon statutory law is antecedent to any claim under the 21

federal constitution, because the State does not violate any of a defendant's constitutional 2220

rights if, under this court's interpretation of the controlling s tatutes, those rights are in fact 1

protected."). Because we determine that the trial court did not abuse its discretion in 2

excluding the evidence under OEC 403, we have no need to, and do not, consider 3

whether the admission of that evidence would violate t he Confrontation Clause of the 4

federal constitution. 5

OEC 403 provides that a trial court has discretion to exclude evidence 6

under OEC 403 if the trial court finds that the probative value of the evidence is 7

"substantially outweighed by the danger of unfa ir prejudice, confusion of the issues, or 8

misleading the jury, or by consideration of undue delay or needless present ation of 9

cumulative evidence." Although we review for errors of law whether the trial court 10

properly applied the standard contained in tha t statute, we review the trial court's ultimate 11

determination of the balance of factors under that standard for abuse of discretion. See 12

State v. Shaw , 338 Or 586, 614

- 15, 113 P3d 898 (2005). 13

In its motion in limine and at the pretrial hearing on its motion

, the state 14

grouped the video and Z's statements and drawings as a single proffer. It has long been 15

the rule in this state that

, when a party offers evidence as a whole and the evidence is 16

rejected by the trial court, the appellate court will affirm the trial court's ruling if any part 17

of the evidence is inadmissible. See State v. Jones , 339 Or 438, 441, 121 P3d 657 (2005) 18

("As a preliminary matter, we note that the state did not argue to the trial court that 19

differing circumstances surrounding each interview provided separate grounds for 20

admitting the evidence pertaining to each interview. The state bore the burden to 21

preserve for appeal any alternative argument supporting the admissibility of any part of 2221

the evidence. " (citation omitted) ). Because the state did not separate its evidentiary 1

offer, or otherwise raise specific arguments regarding the admissibility of each of the 2

different forms of evidence, and does not do so now in this court, if any part of the state's 3

evidence is inadmi ssibl e, we will affirm the trial court's decision to exclude all of the 4

evidence. 5

In this case

, we need only consider the video that allegedly depicts Z 6

leading investigators to the scene of the murder

. Although the video is probative only to 7

the extent th at it exhibits Z's independent knowledge, the video is riddled with suggestive 8

remarks and leading questions by the investigators that could have indicated to Z which 9

way to point and when. In addition, the fact of Z's knowledge is probative of defendant' s 10

guilt only if the factfinder makes a series of assumptions and inferences, and even then 11

results in only circumstantial evidence of guilt. To rely on that evidence, the factfinder 12

first would have to determine that, notwithstanding the suggestiveness ap parent on the 13

video , Z already had independent personal knowledge of the location to which he 14

purportedly directed the investigators on the tape. Second, the factfinder would have to 15

assume that Z gained that knowledge by accompanying the murderer to that location 16

nearly three years earlier, and not from some other source . Third, the factfinder would 17

have to assume that it was defendant, and not some other person, who took Z to that 18

location. 3 Finally, even assuming that the factfinder did make all of th ose inferences and 19

3 The state contends that a factfinder could base that inference on statements

by defendant that Z was with her all day on the day th e victim disappeared. However, the22

assumptions, the proposed evidence still provides only circumstantial evidence of 1

defendant's guilt, because it establishes only that defendant was present at the location 2

where the victim's body was found. To determine the ultimate iss ue of guilt from that 3

evidence, the factfinder would have to make the additional assumption or inference that

, 4

even if defendant was present at that location, that it was defendant, and not another 5

person also present, who caused the victim's death. 6

Th e trial court reasonably could have concluded that the video presented a 7

danger of unfair prejudice to defendant. Although the state does not offer the video for 8

its truth, admission of th e video would nevertheless create a substantial risk that the jury 9

would improperly consider that evidence for its truth, resulting in significant unfair 10

prejudice to defendant. The state argues that that risk of unfair prejudice to defendant is 11

not significant

, because the state intends to establish the truth of those m atters with other 12

evidence. However, our review of the record does not demonstrate that the state will be 13

able to present evidence independently establishing the truth of all of those matters. 14

Specifically, the record does not appear to contain any direc t evidence at this point that 15

the victim was shot at the place where the victim's remains were found . Indeed, the state 16

itself appears to assume the truth of those matters in arguing that Z's "knowledge" of 17

those facts indicates that he must have witnesse d the murder. 18

F urthermore , the trial court also reasonably could have concluded that the 19

record contains no direct evidence, so far as we have been able to ascertain, that the

murder took place on that day or that the victim was taken to that location on that day.23

video posed a high danger of misleading the jury and confusing the issues at trial. 1

Although the evidence is only conditionally relevant to establish a fact fro m which a 2

factfinder could circumstantially infer defendant's guilt, its presentation at trial would 3

likely consume a significant amount of time and likely also would provoke lengthy and 4

complex presentations by defendant to impeach that evidence , followed by additional 5

responsive presentations by the state to attempt to rehabilitate it. The disproportionate 6

amount of attention that would be required to determine what Z knew co uld easily 7

confuse or mislead the jury into giving disproportionate weight to th at issue, a nd thus 8

distract the jury 's attention from the ultimate issue of defendant's guilt. 9

Because the re is evidence that supports the trial court's conclusion t hat the 10

probative value of the video was substantially outweighed by the danger that the video 11

would be unfair ly prejudic ial

, would confus e the trial issues, and would mislead the jury, 12

we conclude that the trial court did not abuse its discr etion in excluding the video under 13

OEC 403. 14

As described above, the state offered the video, Z's statements

, and Z's 15

drawing as a whole, and did not ma k e specific arguments regarding each piece of 16

evidence. Because we conclude that the trial court did not abuse its discretion in 17

excluding the video tape under OEC 403, and because the state did not offer Z's 18

statements or drawings separately or raise specific arguments regarding the admissibility 19

of those items of evidence, we affirm the trial court's order excluding Z's statements and 20

Z's drawings as well. 21

The orders of the circuit court are affirmed, and the case is remanded to the 2224

circuit court for further proceedings

. 1