No. 208 April 3, 2024 693

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERIC NAKIA RANEY,

Defendant-Appellant.

Washington County Circuit Court

19CR79122; A177094

Oscar Garcia, Judge.

Argued and submitted August 10, 2023.

Sara F. Werboff, 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.

Patrick M. Ebbett, 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.

PAGÁN, J.

Conviction for second-degree assault reversed and remanded;

remanded for resentencing; otherwise affirmed.
694 State v. Raney
Cite as 331 Or App 693 (2024) 695

PAGÁN, J.

Defendant appeals from a judgment in which he was 

convicted of one count of second-degree assault constituting 

domestic violence (Count 1) and one count of fourth-degree 

assault constituting domestic violence (Count 5).1 Those 

charges stem from injuries that the state alleged defendant 

caused to D, his then-girlfriend. On appeal, defendant raises 

seven assignments of error that we address in the order they 

were raised. With respect to the third assignment, we exercise our discretion to review for plain error and conclude 

that the trial court plainly erred by not instructing the jury 

that it must find a culpable mental state for the physical 

injury element of second-degree assault on Count 1. We further conclude that, under the circumstances of this case, 

that error was not harmless. We thus reverse and remand 

Count 1, remand for sentencing, and otherwise affirm.2

Defendant asserts in his first assignment of error 

that the trial court erred in denying his motion for judgment 

of acquittal (MJOA). For purposes of reviewing the denial of 

an MJOA, “we view the evidence in the light most favorable 

to the state.” State v. Nickles, 299 Or App 561, 562, 451 P3d 

624 (2019). The following facts are recited with that standard in mind. To the extent that we must consider other 

facts or view them with a different standard in mind to 

address defendant’s other assignments of error, we do so in 

conjunction with the analysis of those other assignments.

I. FACTS

Defendant and D lived together. In November 2019, 

after a night out, D drove defendant home. During the drive, 

defendant was intoxicated and argumentative. When they 

got to their apartment, D began to park, and defendant 

called her a “stupid cunt.” D turned to defendant, swatted 

1 Defendant was acquitted on Count 2, second-degree assault, and Count 4, 

unlawful use of a weapon. The guilty verdict on Count 3, fourth-degree assault, 

was merged with the verdict on Count 1.

2 We reverse and remand defendant’s conviction on Count 1 and remand the 

case for resentencing, which includes entering a new disposition for the count 

that was merged into Count 1. See State v. Cockrell, 170 Or App 29, 31, 10 P3d 960 

(2000) (reversal of conviction and affirmance of another that had been merged 

with it “has the effect of ‘unmerging’ those crimes,” freeing the trial court to 

enter judgment and then sentence the defendant on the merged count).
696 State v. Raney

his arm, and said, “I told you to never call me that again.” 

Defendant then punched D on the left side of her face with 

his right arm.3

Defendant left the car and went into the apartment; a few minutes later, D followed. Defendant continued 

to shout at D as she removed her boots and started to walk 

down the carpeted hallway to her bedroom in the back of the 

apartment. D recalled walking down the hallway. However, 

the next thing she could remember, she was sitting on the 

kitchen floor with blood running down her face. D was crying and in shock; she testified that she told defendant, “I 

need help,” to which he responded, “You’re fine[,] there’s 

nothing wrong with you.”4

D’s 16-year-old daughter, IC, was asleep in her 

bedroom but woke up when she heard arguing. IC recalled 

hearing D say, “Stop, you’re hurting me,” and then a thud 

followed by silence. IC came out of her room and found 

D sitting on the kitchen floor, crying. Blood was running 

down her face and pooling on the floor where she was sitting. Defendant was standing in the hallway and appeared 

“very calm.” D and IC called D’s friend, Saling, and then 

called 9-1-1. Saling headed to the apartment and arrived 

a few moments before emergency personnel. Saling saw a 

lot of blood from an “obvious head injury.” D appeared disoriented. Saling cleaned up much of the blood because she 

did not want D’s young son, C, and his friend, A, who were 

asleep in the apartment, to see it when they awoke.

Shortly after, Sherwood Police Officer Chad Brinkman

responded along with medical personal. Brinkman spoke to 

defendant and defendant told him that D fell. He also spoke 

to D, and she said that her socks were slippery and that she 

had slipped. He noted that she was crying and appeared 

to be in pain. As a result of her head injury, D went to the 

hospital.

Later that morning, Brinkman and another officer 

returned to the apartment because D’s ex-husband wanted 

3 That conduct constituted the fourth-degree assault charged as Count 5.

4 That incident constituted Count 1 and Count 3, with the state’s theory being 

that defendant pushed D, causing her to hit her head on an unknown surface.
Cite as 331 Or App 693 (2024) 697

to retrieve C and A who were still asleep at the apartment. 

The police briefly spoke with defendant, and that interaction was recorded by police bodycam. The video evidence 

showed the police knocking at the door of the residence and, 

after defendant answered, explaining that D’s ex-husband 

had requested that C and A be delivered to him. The police 

also asked defendant about D and the severity of her injuries. Shortly after that encounter, defendant fled the apartment and did not return. Police tried to find defendant but 

were unsuccessful. Defendant contacted D by text, Facebook 

messenger, and email. In the emails, defendant expressed 

regret but did not admit to assaulting D. He also acknowledged that the police were looking for him. In February 2020, 

three months after the incident, defendant was arrested.

D sustained a two-inch-long, crescent-shaped cut to 

the top of her head that required 12 staples to close. D testified that the injury took months to heal and that she suffered from mild headaches, confusion, and delayed speech. 

Ongoing pain left D unable to style or wash her hair properly for several months and required frequent use of Tylenol. 

The wound left a scar in D’s scalp where the hair would not 

grow.

The state charged defendant with second- and 

fourth-degree assault, among other crimes. During the trial, 

the court instructed all witnesses to wear masks as a precaution against COVID-19. The jury found defendant guilty 

of second-degree assault (Count 1) and two counts of fourth 

degree assault (Counts 3 and 5). The trial court merged the 

guilty verdict for Count 3 into Count 1.

II. ANALYSIS

We consider each assignment of error in the order 

they were raised.

A. First Assignment of Error—MJOA

Defendant contends that the trial court erred by 

denying defendant’s MJOA on the second-degree assault 

charge, Count 1. Specifically, defendant argues that the 

state failed to present sufficient evidence of a “serious physical injury” under ORS 161.015(8), which requires a “serious 
698 State v. Raney

and protracted disfigurement” or “protracted impairment 

of health.” Defendant admits that D’s scar is a protracted 

disfigurement, but contends that, under our case law, the 

injury was not “serious” because the scar is not prominent.

We have addressed whether a scar qualifies as a 

serious disfigurement in several cases. See State v. Fields, 

304 Or App 763, 766-67, 468 P3d 1029 (2020) (compiling 

cases that discuss serious disfigurement). However, we have 

not established through a single principle whether a scar is 

considered a “serious disfigurement” and instead employ a 

case-by-case approach. In Fields, we concluded that a scar’s 

“‘prominence’ is a factor to consider in determining the seriousness of the disfigurement * * * [but] must be considered 

along with the totality of the circumstances presented in 

each case.” Id. at 765. An injury is considered “prominent” 

if it is visible to other people under ordinary circumstances. 

Id.

We disagree with defendant that D’s injury was 

not a “serious disfigurement” under the totality of the circumstances here. D sustained a two-inch crescent-shaped 

gash to her scalp. That injury required 12 surgical staples 

to close and left behind a visible scar where the hair did not 

grow back. From that evidence, a rational factfinder could 

conclude that D suffered a serious and protracted disfigurement. That conclusion is consistent with our jurisprudence, 

in which we have held that injuries that require multiple 

surgical staples to close and that leave behind prominent 

scars several inches in diameter are sufficient to constitute 

“serious and protracted disfigurement.” See State v. Kinsey, 

293 Or App 208, 213-14, 426 P3d 674 (2018) (concluding that 

two-inch scalp laceration, closed with five staples was legally 

sufficient to support a determination that D suffered a “protracted disfigurement,” ORS 137.712(6)(c)(C), and therefore, 

a “significant physical injury,” ORS 137.712(2)(b)(B)); State v. 

Alvarez, 240 Or App 167, 169-71, 246 P3d 26 (2010), rev den, 

350 Or 408 (2011) (holding that a scalp injury requiring 

four surgical staples and leaving behind a scar visible five 

months after an assault was a “protracted disfigurement” 

and a “serious physical injury”); Lambert v. Palmateer, 187 

Or App 528, 537-38, 69 P3d 725, rev den, 336 Or 125 (2003) 
Cite as 331 Or App 693 (2024) 699

(concluding that “a two-inch-long, half-inch-wide divot [in 

the victim’s forehead]” constituted “serious and protracted 

disfigurement” (internal quotation marks omitted)).

Thus, because D’s injury could be considered a serious and protracted disfigurement, the trial court did not err 

in denying defendant’s MJOA.

B. Second Assignment of Error—Witnesses Wearing Masks 

While Testifying

In his second assignment, defendant argues that 

the trial court erred by requiring witnesses to wear masks 

while testifying. Specifically, defendant contends that the 

trial court’s COVID-19 masking and social distancing precautions violated defendant’s constitutional right to confront 

witnesses.

The Sixth Amendment to the United States 

Constitution and Article I, section 11, of the Oregon 

Constitution both grant criminal defendants the right to 

a “face-to-face meeting with witnesses appearing before 

the trier of fact.” Coy v. Iowa, 487 US 1012, 1016, 108 S Ct 

2798, 101 L Ed 2d 857 (1988) (discussing federal confrontation right under Sixth Amendment to United States 

Constitution); State v. Copeland, 353 Or 816, 827-30, 306 

P3d 610 (2013) (discussing Oregon confrontation right under 

Article I, section 11, of Oregon Constitution). The central 

purpose of confrontation is “to ensure the reliability of the 

evidence against a criminal defendant by subjecting it to 

rigorous testing in the context of an adversary proceeding 

before the trier of fact.” Maryland v. Craig, 497 US 836, 845, 

110 S Ct 3157, 111 L Ed 2d 666 (1990).

However, the right to confront witnesses accommodates “important public policy” as long as the four elements of 

confrontation—physical presence, oath, cross-examination, 

and observation of demeanor by the trier of fact—remain 

present. Craig, 497 US at 845-46; cf. Copeland, 353 Or at 

822 (recognizing that, although state right “to meet the 

witnesses face to face” is “an unqualified statement, to be 

sure[,]” the framers did not intend the confrontation rule 

to be inflexible); id. at 829-30 (noting that, consistent with 

the federal confrontation right, the state confrontation right 
700 State v. Raney

seeks to prevent the use of ex parte evidence and favors 

live witness testimony at trial). Thus, a defendant’s right 

to confront witnesses may be satisfied without traditional 

face-to-face confrontation at trial where (1) “denial of such 

confrontation is necessary to further an important public 

policy,” and (2) “the reliability of the testimony is otherwise 

assured.” Craig, 497 US at 850.

Defendant contends that his confrontation rights 

were violated because masking may have inhibited the 

jury’s ability to assess witness demeanor. Numerous other 

state and federal courts have concluded that, due to the substantial health risks created by the COVID-19 pandemic, 

the Confrontation Clause is not violated by having a witness 

testify in a criminal proceeding with a mask covering the 

nose and mouth. See, e.g., United States v. Maynard, 90 F4th 

706, 712 (4th Cir 2024) (concluding that the witnesses wearing masks did not, by itself, contravene the Confrontation 

Clause because jurors assess credibility not only by facial 

expressions, but also by “‘the words the witnesses said * ** 

how they said them * ** their body language, their pauses, 

their mannerisms[,] and all the other intangible factors 

that are present in a trial’” (quoting Burgess v. Goldstein, 

997 F3d 541, 554 (4th Cir 2021))); United States v. James, 

No CR-19-08019-001-PCT-DLR, 2020 WL 6081501 at *2 

(D Ariz Oct 15, 2020) (concluding that “[b]ecause the covering of the nose and mouth does not significantly hinder 

observation of demeanor, allowing witnesses to testify while 

wearing masks does not materially diminish the reliability 

of the witnesses’ testimony”); People v. Lopez, 75 Cal App 

5th 227, 230, 290 Cal Rptr 3d 383, 384, rev den (2022) (trial 

court did not err in denying defendant’s pretrial motion to 

remain unmasked during trial and to have witnesses testify unmasked because masks were “necessary to further 

the public policy of ensuring the safety of everyone in the 

courtroom during a global pandemic of a highly infectious, 

potentially deadly virus”); State v. Cuenca, 171 Idaho 603, 

609, 524 P3d 882, 888 (2023) (given necessity of masks to 

serve important public interest of protecting health and 

safety of those in the courtroom, trial court’s order was sufficiently case-specific, and other aspects of testimony assured 
Cite as 331 Or App 693 (2024) 701

reliability of testimony despite inability to see the mouths of 

witnesses).

In this case, we conclude that the trial court did not 

err by requiring testifying witnesses to wear masks under 

these circumstances. The trial court’s masking and social 

distancing precautions served an important public policy 

of preventing the spread of COVID-19 and protecting the 

health and safety of those in the courtroom. As explained 

above, the primary focus of the confrontation clause is to 

protect the reliability of evidence offered by witnesses and 

ensure that a defendant and jury have adequate access to 

witnesses. State v. Rockafellor, 326 Or App 753, 759-60, 533 

P3d 808 (2023). Here, despite the trial court’s precautions, 

defendant was still able to confront witnesses and subject 

them to cross-examination. The jury was present and able 

to assess all aspects of witness demeanor except for the 

movements of the nose and mouth. In short, the trial court’s 

COVID-19 masking and social distancing precautions 

served an important public policy and, to the extent they 

affected defendant’s right to confront witnesses, they did not 

do so to any unconstitutional degree.

C. Third and Fourth Assignments of Error—Culpable 

Mental State

In his third and fourth assignments of error, defendant contends that the trial court plainly erred under State 

v. Owen, 369 Or 288, 505 P3d 953 (2022), because the court 

did not instruct the jury that they were required to find 

that defendant acted with a culpable mental state as to the

physical-injury element of second- and fourth-degree assault 

in order to convict him.

In Owen, the Oregon Supreme Court held that, in 

assault cases charging a “knowing” mental state, the state 

must prove that the defendant knew the assaultive nature 

of the defendant’s conduct and that the defendant was at 

least criminally negligent as to the risk of the resulting 

injury. See 369 Or at 322 (overruling the conclusion in State 

v. Barnes, 329 Or 327, 986 P2d 1160 (1999) that no culpable mental state applied to the result element). The court 

further concluded that, although the state must prove that 
702 State v. Raney

the defendant was aware of the assaultive nature of their 

conduct, the state does not need to prove that the defendant 

knew that a physical injury would result. Id. at 320 (adhering to that part of Barnes). In State v. Mckinney/Shiffer, 369 

Or 325, 333-34, 505 P3d 946 (2022), the court held that the 

trial court’s failure to instruct the jury on a culpable mental 

state for the injury element in assault is plain error.

We may consider an unpreserved error if the error 

is plain. Mckinney/Shiffer, 369 Or at 333. “To constitute 

plain error, an error must (1) be one of law; (2) be obvious 

and not reasonably in dispute; and (3) appear on the face of 

the record.” Id. Even if the error is plain, an appellate court 

must decide whether to exercise its discretion to consider 

the error, and that decision “should be made with utmost 

caution.” Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 

823 P2d 956 (1991).

With the above principles in mind, we conclude that 

the trial court did not plainly err in failing to instruct the 

jury on the negligent risk of injury for fourth-degree assault 

(Counts 3 and 5).5 The state alleged that defendant recklessly caused physical injury to D, and unlike “knowingly,” 

the state legislature has defined the culpable mental state 

5 The court instructed the jury on those charges as follows:

“Count 3, Assault in the Fourth Degree—and this is the count that 

involves witness by a minor child, injury to the top of the head, as alleged. 

Oregon law provides that a person commits the crime of Assault in the Fourth 

Degree in the immediate presence or witnessed by a minor child if the person 

recklessly causes physical injury to another and the assault is committed in 

the immediate presence or witnessed by a minor child.

“In this case to establish the crime of Assault in the Fourth Degree in 

the immediate presence, witnessed by a minor child, the State must prove 

beyond a reasonable doubt the following elements, that the act occurred on 

or about November 16th, 2019, that [defendant] recklessly caused physical 

injury to [D] and that the assault was committed in the immediate presence 

or was witnessed by [D’s] minor child.

“*****

“Count 5, Assault in the Fourth Degree, injury to left side of face, as 

alleged, so Count 5, Oregon law provides that a person commits the crime of 

Assault in the Fourth Degree if the person recklessly causes physical injury 

to another.

“In this case to establish the crime of Assault in the Fourth Degree, the 

State must prove beyond a reasonable doubt the following elements, that the 

act occurred on or about November 16th, 2019, that [defendant] recklessly 

caused physical injury to [D].”
Cite as 331 Or App 693 (2024) 703

“recklessly” to apply to both result and circumstance elements. ORS 161.085(9); Owen, 369 Or at 297. Here, the trial 

court provided the uniform instructions for “recklessly” and 

instructed the jury that, to find that defendant had acted 

recklessly, it had to find that defendant “disregard[ed] a 

substantial and unjustifiable risk that a particular result 

will occur” and that the “risk must be of such a nature and 

degree that disregarding it constitutes a gross deviation 

from the standard of care that a reasonable person would 

observe in the situation.” Based on those instructions, the 

jury would have to find that defendant, by engaging in the 

assaultive conduct, disregarded a substantial and unjustifiable risk that D would suffer a physical injury. Therefore, 

the trial court did not plainly err in failing to give at least 

the criminal negligence instruction as to the physical injury 

element of fourth-degree assault, because it is not obvious 

and beyond dispute that the recklessness instruction that 

the court gave was legally incorrect.

However, regarding the second-degree assault conviction (Count 1), we agree with defendant that the trial court 

plainly erred by not instructing the jury as to the culpable 

mental state of at least criminal negligence for the serious 

physical injury element. Specifically, the court plainly erred 

by giving an unclear instruction that the jury was to find, as 

a single element, that defendant “knowingly caused serious 

physical injury.”6 That instruction misstated the burden in 

two capacities. First, it did not state that a defendant must 

knowingly engage in assaultive conduct. Second, it did not 

state that a defendant must be at least criminally negligent 

with respect to causing injury.

Having concluded that the trial court plainly erred, 

we must next determine whether the error was harmless. 

6 The trial court gave the uniform instruction for second-degree assault as 

follows:

“So in Count 1, Assault in the Second Degree, involves injury to the top 

of the head, as alleged, okay?

“Oregon law provides that a person commits the crime of Assault in the 

Second Degree if the person knowingly causes serious physical injury to 

another. In this case to establish Assault in the Second Degree, the State 

must prove beyond a reasonable doubt the following elements, that the act 

occurred on or about November 16th, 2019, and that [defendant] knowingly 

caused serious physical injury to [D].”
704 State v. Raney

Owen, 369 Or at 334-35. We may affirm despite instructional error if an error had little likelihood of affecting the 

verdict. State v. Ashkins, 357 Or 642, 660-61, 357 P3d 490 

(2015).

In considering whether instructional error was 

harmless, “we consider the instructions ‘as a whole and in 

the context of the evidence and record at trial, including 

the parties’ theories of the case with respect to the various 

charges and defenses at issue.’” Owen, 369 Or at 323 (quoting State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020)).

Criminal negligence requires a finding that the 

defendant “fail[ed] to be aware of a substantial and unjustifiable risk that the result will occur” and “[t]he risk must be 

of such nature and degree that the failure to be aware of it 

constitutes a gross deviation from the standard of care that 

a reasonable person would observe in the situation.” ORS 

161.085(10). Here, the state theorized that defendant pushed 

D, causing her to sustain a head laceration. However, D had 

no memory of the push, and other than hearing D say that 

defendant pushed her, no witness testified about the push. 

Because there was no evidence of the manner of the push or 

its force or aggression, it is plausible that a jury might find 

that defendant was not aware of a risk that if he pushed D, 

she would sustain a head wound.

Further, even if there was evidence concerning 

the nature of the push, it is not a foregone conclusion that 

a jury would find that there was a substantial risk that a 

solitary push could cause physical injury and that defendant failed to be aware of it, or that this failure was a gross 

deviation from the standard of care of a reasonable person. 

See McKinney/Shiffer, 369 Or at 335-36 (concluding that 

the trial court’s failure to instruct on the culpable mental 

state for second-degree assault was not harmless because 

it was not clear that a jury would find “that [the] defendant 

failed to be aware of a substantial risk that a solitary punch 

would cause a serious physical injury, or that that risk was 

of such a nature and degree that [the] defendant’s failure 

to be aware of it was a gross deviation from the standard of 

care that a reasonable person would observe in the situation” (emphasis in original)).
Cite as 331 Or App 693 (2024) 705

Thus, for the above reasons, the error was not harmless. Additionally, after considering the factors set forth in 

Ailes,

7

 we conclude that it is appropriate to exercise our discretion to review the plain error and correct it, based on 

the gravity of the error and the ends of justice. We additionally note that we have exercised our discretion to correct a 

similar error in the past. See State v. Hatchell, 322 Or App 

309, 315-16, 519 P3d 563 (2022). We therefore reverse and 

remand the second-degree assault conviction on Count 1.

D. Fifth and Sixth Assignments of Error—Police Bodycam 

Footage

At trial, the prosecutor moved to admit into evidence bodycam footage from a police officer who spoke to 

defendant at his residence a few hours after the incident. 

The state argued that, among other things, it showed defendant’s “distracted” demeanor and “explain[ed] why [defendant] fled at that time.” The court allowed the evidence to be 

admitted, ruling that it was relevant to the state’s case and 

was not unduly prejudicial. In his fifth and sixth assignments of error, defendant argues that the trial court erred 

in admitting that footage because the evidence was not relevant to any issue in the case and was unduly prejudicial, 

and that the state’s relevancy argument depended on an 

impermissible character inference.

Whether evidence is relevant is reviewed as a matter of law. State v. Titus, 328 Or 475, 481, 982 P2d 1133 

(1999). A trial court’s decision to admit evidence over an 

objection that its probative value is outweighed by its prejudicial effect is reviewed for an abuse of discretion. State v. 

Knight, 343 Or 469, 484, 173 P3d 1210 (2007).

In this case, the trial court did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the risk of unfair 

7 In deciding whether to exercise discretion to review a plain error, Ailes 

directed courts to consider factors such as:

“the competing interests of the parties; the nature of the case; the gravity of 

the error; the ends of justice in the particular case; how the error came to the 

court’s attention; and whether the policies behind the general rule requiring 

preservation of error have been served in the case in another way[.]”

312 Or at 382 n 6.
706 State v. Raney

prejudice under OEC 403.8 It is well-settled that evidence of 

a person’s flight is admissible as relevant to show consciousness of guilt. See State v. Barr, 62 Or App 46, 51, 660 P2d 

169 (1983) (evidence that defendant fled the state after being 

released on bail was admissible as evidence of guilt). Here, 

the video—in which defendant can be seen nervously engaging with the police—permits the inference that defendant 

realized that he was in trouble. It thus provided relevant 

context for his decision to flee shortly thereafter. Further, 

to the extent that defendant’s slightly strained interaction 

with police was prejudicial because it presented him, as he 

argues on appeal, as a “hostile” and “uncooperative” person, defendant could have requested a limiting instruction. 

See State v. Terry, 309 Or App 459, 465, 482 P3d 105 (2021) 

(“The evidence, although potentially inflammatory, could be 

addressed through a limiting instruction.”). However, he did 

not do so. We thus conclude that the trial court did not abuse 

its discretion by admitting into evidence bodycam footage of 

defendant talking with police.

Because we reverse and remand on defendant’s third 

assignment of error, we do not need to resolve defendant’s 

seventh assignment of error, which contends that the trial 

court erred by imposing a 70-month sentence on Count 1.

See, e.g., State v. Colgrove, 308 Or App 441, 446, 480 P3d 

1026 (2021) (not reaching additional claims because the case 

already was being remanded for resentencing).

Conviction for second-degree assault reversed and 

remanded; remanded for resentencing; otherwise affirmed.

8 OEC 403 provides: 

“Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay or needless 

presentation of cumulative evidence.”