STATE OF OREGON v. SARAH REBECCA SALO (2026)

Defendant appeals a judgment of conviction for one count of first-degree theft and two counts of identity theft. Defendant raises primarily two issues on appeal. First, she argues that the trial court erred in admitting business records that were created and maintained by two separate businesses when the state laid a foundation for admitting only one business's records. As explained below, we conclude that, even if the records that the court admitted were created and maintained by two businesses, the state laid a sufficient foundation to admit both businesses’ records.

Second, defendant argues that the trial court erred in finding her guilty of two counts of first-degree theft.¹ The state concedes that the prosecutor's pretrial election limited the court to finding defendant guilty of one count of first-degree theft. We accept the concession. We also conclude that defendant did not preserve her claim that the trial court could not find her guilty of the other count of first-degree theft. We accordingly affirm the trial court's judgment in part and reverse it in part.

We state the facts consistently with the trial court's verdict. K banks at Advantis Credit Union. On November 21, 2021, defendant used an interactive teller machine (ITM) at an Advantis branch to speak remotely with a teller. Defendant initially used the ITM to present K's driver's license to the teller. After asking the teller for the balances in K's accounts, defendant deposited two forged checks, drawn on another financial institution, into K's checking account and then withdrew $7,150 from that account. Defendant told the teller that she needed the money to make a down payment on a car.

Later that day, defendant used an ITM at the same Advantis branch and spoke remotely with the same teller. Defendant told her that she needed additional cash because she had decided to buy a more expensive truck. She then withdrew $2,800 from accounts that K maintained at Advantis. That day, K discovered that her driver's license was missing and that most of the money in her Advantis accounts had been withdrawn.

The ITM that defendant used at Advantis scanned the documents that defendant presented and maintained images of them. The ITM also recorded and maintained videos of defendant's two interactions with the remote teller. The trial court admitted the images of those documents and the two videos at trial. Based on that and other evidence, the trial court found defendant guilty of two counts of first-degree theft and three counts of identity theft. As noted, at sentencing, the trial court merged the two first-degree theft verdicts and also two of the three identity-theft verdicts.

Defendant raises five assignments of error on appeal. Her first three assignments of error are directed at two evidentiary rulings the trial court made. We review a trial court's evidentiary rulings for errors of law. Arrowood Indemnity Company v. Fasching, 369 Or 214, 250, 503 P3d 1223 (2022). When a trial court's evidentiary ruling is based on its underlying factual findings, we will not disturb those findings of fact if evidence in the record supports them. Id. (quoting State v. Cunningham, 337 Or 528, 538, 99 P3d 271 (2004), cert den, 544 US 931 (2005)).

Before turning to defendant's first two assignments of error, we discuss the order in which the state presented its evidence and the resulting problems the state faced. When a case depends on a financial institution's business records, as this case does, the state often will begin by calling the custodian of those records or another qualified witness to lay the foundation for admitting the records under OEC 803(6). Cf. Arrowood Indemnity Company, 369 Or at 239-41 (discussing how a party can lay a foundation for admitting business records under OEC 803(6)). In this case, however, an unexpected scheduling problem prevented the state from laying a foundation for admitting Advantis's business records until it called its last witness.

As a result, defendant repeatedly raised successful hearsay objections that limited, at least initially, the probative value of the evidence that the state introduced. For example, the state called K, who identified her driver's license, which was admitted as State's Exhibit 2. She testified that she discovered on November 21 that her license was missing. K also testified that she had neither endorsed nor deposited any checks that day in her Advantis account. The state called a second witness, whose checks were made out to K. That person identified the checks as hers. She testified that two of her checks had been taken on November 21, that she did not know K, and that she had not written the checks to her. The two checks were admitted as State's Exhibits 3 and 4.

Without Advantis's business records, the state's evidence did not prove much. It did not establish that any deposits or withdrawals occurred in K's Advantis accounts on November 21. And it did not connect defendant to any withdrawals from K's accounts that were made that day. On the last day of trial, the state called Davis, who is a fraud investigator at Advantis. The state called Davis for two reasons. The first was to lay a foundation for the admission of Advantis's business records, and the second was to use Davis's testimony to connect defendant and the exhibits that already had been admitted to transactions that occurred in K's Advantis accounts on November 21.

With that preface, we turn to defendant's first and second assignments of error. Defendant's first assignment of error states, “The trial court erred by allowing Davis to testify that the documents contained in State's Exhibits 2, 3, and 4 [K's driver's license and the two checks] were used by defendant in the transactions at issue.” Defendant's second assignment of error states, “The trial court erred by allowing Davis to testify that State's Exhibit 1 [two ITM videos of banking transactions] contained video of the transactions at issue.”

Although defendant's first two assignments of error are nominally directed at rulings permitting Davis's testimony, the gravamen of those two assignments of error is that the court erred in ruling that the state had laid a sufficient foundation to admit all the business records the state offered. Specifically, defendant argues in support of those assignments of error that the business records the trial court admitted were created and maintained by two separate businesses (Advantis and the ITM manufacturer) but that the state only laid a foundation for the admission of the business records that Advantis created and maintained. It follows, defendant contends, that the trial court erred in permitting Davis's testimony to the extent that her testimony was based on all the business records the trial court admitted.²

The legal principle that underlies defendant's argument comes from the Supreme Court's decision in Arrowood Indemnity Company. In that case, the court held that, if two separate businesses create and maintain business records, the fact that one business relies on and uses the other business's records is not sufficient to admit both businesses’ records under OEC 803(6). See id. at 231-37. Rather, if a party wants to rely on business records from two separate businesses, it needs to call a witness or witnesses who can lay a foundation under OEC 803(6) for both businesses’ records. See id. at 251-52.

In Arrowood Indemnity Company, there was no dispute that, as a factual matter, two separate businesses created and maintained the records that the trial court admitted.³ In this case, as we explain below, not only are the facts on that issue murky, but the record on that issue is thin. The latter point matters because the state, as the proponent of the business records, had the burden of production and persuasion. See id. at 225-26.

The record is thin in two respects. First, the facts developed at an OEC 104 hearing reveal that Advantis uses multiple systems to track banking transactions that occur on its various platforms—i.e., banking transactions that occur in person, at an ITM, online, or by means of a debit card. Although Advantis maintains a central or “host” system that records all those transactions, the ITMs that Advantis uses appear to create and maintain a more detailed set of records (primarily check images and videos) than the records maintained on Advantis's host system.⁴

Second, defendant developed evidence while cross-examining Davis at the OEC 104 hearing that the ITM records are created and maintained by a business (the ITM manufacturer) that is separate from Advantis. A passing reference that Davis made on cross-examination cuts the other way, and the trial court arguably could have inferred from that reference that the business relationship between Advantis and the ITM manufacturer meant that only a single business (Advantis) created and maintained all the business records the trial court admitted. However, as noted above, the record on that issue is thin, and it is questionable whether the state carried its burden to introduce enough evidence to permit the trial court to make that finding.⁵

We need not decide whether the state introduced sufficient evidence to permit the trial court to find that only a single business (Advantis) created and maintained the business records that the court admitted. Even if we assume (1) that the ITM created and maintained business records that were more extensive than those found on Advantis's host system and (2) that a separate business (the ITM manufacturer) created and maintained the ITM records, the trial court reasonably could and did find that the state laid a sufficient foundation to admit all the business records that the state offered. We turn to that issue.

At an OEC 104 hearing, Davis explained that, when an Advantis customer uses an ITM, the ITM contemporaneously creates and maintains images of the documents used in the transaction, such as the customer's identification, any checks deposited, and the like. The ITM also contemporaneously creates and maintains a video of the interaction between the customer and the remote teller. Davis did not know precisely how the ITMs’ hardware and software worked. For example, she could not describe the type of camera the ITM used, nor could she explain how the software caused the ITM to scan the documents and take the videos. However, she was familiar with the way that the ITM operated, and she testified that, in investigating fraud claims, she regularly used the records that the ITMs created and maintained, along with records from other systems at Advantis. It follows that the trial court reasonably could find from Davis's testimony that, to the extent a separate business (the ITM manufacturer) created and maintained the records generated by ITMs at Advantis, that business regularly did so and maintained the records in the regular course of its business.

Given Davis's testimony, the trial court found that the state had laid a sufficient foundation under OEC 803(6) to admit all the business records that the state offered. Specifically, in considering defendant's objection that the state failed to lay a foundation to admit two separate businesses’ records, the trial court asked defense counsel:

“THE COURT: So what do I make of the fact that that is part of their normal business practice to capture the information, whether it's housed on their own personal server or as part of a vendor? It's how they maintain their records. And [Davis] did testify that when she does an investigation she saves these things to a separate drive as part of her investigation. So given that, I tend to believe that she is a custodian or person otherwise capable of testifying about these records

“[DEFENSE COUNSEL]: So—

“THE COURT: And she went through great pains to talk about how these [records] are gathered.”

Defense counsel responded, “I'm not saying that it's, oh, it's stored on a separate server that they rent from Amazon or whatever. That's not the argument. It's the operation of the entire database is outside [Advantis].” And counsel contended that Davis's testimony did not establish the criteria set out in OEC 803(6) to admit business records created and maintained by the separate business, which he identified as the ITM manufacturer. The court then asked:

“THE COURT: Has there—let me ask, because I'm looking at the rule here. And so, to be succinct, I believe the requirements of the exception have been met. But there is a provision that says unless the source of the information or the method of circumstances of preparation indicates [a lack of] trustworthiness. I didn't hear anything that raises that issue. Is there something in that—the testimony of the witness that the Defense wants to point to. Because otherwise I believe that all the requirements of [OEC] 803.6 have been met.”

“[DEFENSE COUNSEL]: There is not, Your Honor.”

In considering whether the state laid a sufficient foundation under OEC 803(6), we note that the court explained in Arrowood Indemnity Company that “satisfying the requirements of OEC 803(6) is not too onerous.” 369 Or at 239. It observed that a party can lay a foundation for the admission of business records either by “call[ing] a witness from the business that created the record” or by calling “another witness who can testify about the practices of the business that created the record.” Id. at 240. The court quoted, with approval, the following statement from a treatise on federal evidence: “ ‘What is important is that the witness be familiar with the pertinent record-making practices of the business, and with the manner in which records of the particular sort being offered are made and kept, and those points may be shown by anyone with the appropriate knowledge.’ ” Id. at 241 (quoting Christopher B. Mueller & Laird C. Kirkpatrick, 4 Federal Evidence § 8:78 at 727-28 (4th ed 2013)).⁶

It follows that, even if the ITM manufacturer was a separate business that created and maintained some of the business records that the trial court admitted, there was evidence from which the trial court reasonably could find that Davis was familiar with those practices and that her testimony satisfied the criteria in OEC 803(6) for admitting the ITM manufacturer's records.⁷ Specifically, the trial court reasonably could find that the ITM manufacturer recorded images of the documents presented during a banking transaction and made videos of the interaction between a customer and a remote teller “at the time or near the time” those events occurred. See Arrowood Indemnity Company, 369 Or at 223-24 (listing that criterion for the admission of business records). Moreover, the court could find that, because the records were made automatically by the ITM, they were, at a minimum, made “by or from a person with knowledge.”⁸ See id. Finally, the trial court could find that the “records were kept in the course of a regularly conducted business activity” and that they were made because it “was the regular practice of that business activity to make” such records.

At trial, defendant objected that Davis was not qualified to lay a foundation under OEC 803(6) because she was not familiar with the type of camera that the ITM used and because she did not know how the software used in the ITM machines created and maintained the records. As the trial court correctly recognized, OEC 803(6) requires that the witness be familiar with how business records are created and maintained; it does not require that the witness have an engineering degree or be able to explain how a particular type of software works, at least as long as the witness can testify that the software was functioning reliably.

On appeal, defendant takes a different approach. She relies on the standards for admitting testimonial evidence under the federal Confrontation Clause to argue that the state failed to lay a sufficient foundation under OEC 803(6). To the extent that defendant seeks to weave those federal constitutional standards into the criteria set out in OEC 803(6), her argument fails for at least two reasons.

First, the court explained in Arrowood Indemnity Company that it could not rely on policy or other grounds to relax the specific standards that the legislature set out in OEC 803(6). See, e.g., 369 Or at 228, 232-33, 237. By the same token, we cannot incorporate federal Confrontation Clause standards into OEC 803(6) to impose stricter standards than the legislature has provided in OEC 803(6). Second, the federal Confrontation Clause standards that defendant invokes apply to testimonial evidence. They do not apply to out-of-court statements that were not “made or elicited primarily for use in a criminal proceeding.” See State v. Rafeh, 361 Or 423, 435, 393 P3d 1155 (2017) (relying on Ohio v. Clark, 576 US 237, 246-47, 135 S Ct 2180, 192 L Ed 2d 06 (2015), to delimit the set of out-of-court statements to which the federal Confrontation Clause applies). The business records at issue here are not “testimonial evidence.” They were not made for the primary purpose of creating evidence for a criminal prosecution, see id., and we decline to transpose a federal constitutional standard that applies to the admission of testimonial evidence onto the decision whether to admit business records under OEC 803(6). The trial court did not err in admitting all the business records that the state offered, even if those records were created and maintained by two separate businesses.

Defendant's third assignment of error states that “[t]he trial court erred by allowing Davis to give her opinion that defendant came to the credit union that day and withdr[e]w money from the account of [K] while pretending to be [K].” At trial, defendant objected that the state's question impermissibly asked Davis to testify about an “ultimate issue.” As we understand defendant's objection, she viewed the state's question as effectively asking Davis whether, in her opinion, defendant was guilty of theft and identity fraud. The trial court overruled that objection, and defendant assigns error to that ruling.

The state's question occurred after a lengthy OEC 104 hearing that consumed 42 pages of transcript. Faced with strict time constraints, the court explained, after the parties went back on the record, that it was “inclined to allow leading questions that are based on the [OEC] 104 information to help facilitate [speedily recreating Davis's] testimony.”⁹ It follows that, in overruling defendant's objection, the court may have been taking into consideration the information developed at the OEC 104 hearing that supplied some of the factual premises that underlay the state's question.

In any event, even if the court erred, any error was harmless. Before asking the question that gave rise to defendant's third assignment of error, the state asked Davis on the record whether, in reviewing the videos of the November 21 transactions, she could see “who was using [K's] ID that day.” Davis said that she could, and she identified defendant as the person in the videos. Defendant did not object to that question. Shortly after that, the state asked the question that gives rise to defendant's third assignment of error.

Later, after the trial court admitted the business records that the state offered, the state asked Davis: “So the three [previously admitted] exhibits that you're looking [at] in front of you, the checks and the ID of [K], are those the documents that [defendant] presented that day?” Davis answered, “Yes.”¹⁰ The state then played the two videos admitted as State's Exhibit 1. Those two videos show defendant using the ITM to present identification, deposit two checks, make multiple incriminating statements as she talks with the remote teller, and then withdraw approximately $9,950 dollars from K's accounts. Given the two videos and Davis's other testimony, to which defendant either did not object or that were correctly admitted, we conclude that any error in overruling the objection identified in defendant's third assignment of error was harmless. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (explaining when an error will be harmless).

Defendant's fourth assignment of error states that “[t]he trial court erred by finding defendant guilty of first-degree theft in Count 3 as a lesser-included offense of first-degree aggravated theft based on the first withdrawal ($7,150).” Her fifth assignment of error states that “[t]he trial court erred by finding defendant guilty of first-degree theft in Count 6 based on the second withdrawal ($2,800).” The state concedes on appeal that, given the prosecutor's pretrial election, the trial court erred in finding defendant guilty of first-degree theft as a lesser-included offense of Count 3. The state does not agree, however, that the trial court erred in finding defendant guilty of first-degree theft as alleged in Count 6.

This issue arises in an unusual posture. Count 3 of the indictment alleged that defendant was guilty of aggravated first-degree theft for taking personal property of K and a third person that was worth $10,000 or more. Count 6 alleged that defendant was guilty of first-degree theft for taking personal property of K and the same third person worth $1,000 or more. In a pretrial election, the state explained that Count 3 included defendant's withdrawals from Advantis as described in Davis's report. The state also explained that “Count 6 is a lesser included offense of Count 3 * * * for the same reasons.”

As a result of various evidentiary rulings at trial, the state proved only that defendant withdrew $9,950 from K's accounts at Advantis. She withdrew $7,150 initially on November 21. She returned later that day and withdrew an additional $2,800 from K's accounts. In closing argument, the state proposed that the court treat the two withdrawals as separate criminal episodes and find defendant guilty of first-degree theft as a lesser included offense of Count 3 based on the first withdrawal. It proposed, based on the second withdrawal, that the court find defendant guilty of first-degree theft alleged in Count 6, as a second lesser-included offense of Count 3.

Defendant objected to the state's proposal. Defense counsel explained in closing argument that “[m]y notes from the election that the State made was that it was proceeding on [Count] 6 as a lesser included offense of Count 3.” Defense counsel explained that he now understood the state to be asking “the Court to consider theft in the first degree as a lesser included—an uncharged lesser included to Count 3 here and consider an additional count for Count 6.” As we understand defense counsel's objection, defendant argued that the state's pretrial election meant that the court could not find defendant guilty of two lesser-included counts of first-degree theft, as the state had proposed in its closing argument. Defense counsel, however, did not argue at trial that the state's pretrial election precluded the trial court from finding defendant guilty of one count of first-degree theft under Count 6.¹¹

After considering the parties’ closing arguments, the trial court found defendant guilty of two counts of first-degree theft—one as a lesser-included offense of Count 3 and one based on Count 6. On appeal, the state acknowledges that the terms of the pretrial election established that Counts 3 and 6 were based on the same conduct and that Count 6 alleged the sole lesser-included offense of Count 3. The state accordingly concedes that the trial court could not find defendant guilty of a lesser-included offense of first-degree theft under Count 3. It could do so only under Count 6. We accept the state's concession.

We also agree with the state that the terms of the pretrial election did not preclude the trial court from finding defendant guilty of first-degree theft under Count 6. Rather, the pretrial election specifically contemplated that the court could do so. On appeal, defendant raises a host of constitutional reasons why, in her view, the trial court could not have found her guilty of first-degree theft under Count 6. The reasons why defendant believes that those constitutional limitations apply in this circumstance are not completely clear, however.

We need not decide whether the constitutional arguments that defendant raises on appeal are well taken. It is sufficient to hold that, to the extent that defendant argues that the trial court could not find her guilty of first-degree theft under Count 6, she failed to preserve that issue. See State v. Wyatt, 331 Or App 335, 345-47, 15 P3d 22 (2000) (explaining that an appellate court can consider whether an appellant preserved an issue even though the respondent does not contest preservation).

As we read defendant's objection at trial, she argued that the state's pretrial election barred the court from finding her guilty of first-degree theft under Count 3. She did not argue that the pretrial election or some other legal doctrine also barred the court from finding her guilty of first-degree theft under Count 6. Beyond that, defendant did not raise the various constitutional objections at trial that she now raises on appeal. We conclude that defendant did not preserve her argument that the trial court could not find her guilty of first-degree theft on Count 6.

We accordingly reverse defendant's judgment of conviction for first-degree theft as a lesser-included offense under Count 3 and remand for resentencing. Because the trial court merged the verdict for first-degree theft under Count 6 with the verdict for the lesser-included offense of first-degree theft under Count 3, our holding reversing the judgment of conviction for first-degree theft under Count 3 and affirming the verdict of first-degree theft under Count 6 necessitates entering a new disposition on both Counts 3 and 6. See State v. Cockrell, 170 Or App 29, 31, 10 P3d 960 (2000) (reversal of one count and affirmance of another that had been merged with it “has the effect of ‘unmerging’ those” counts, allowing the trial court to enter judgment and sentence on the merged count on remand).

Conviction on Count 3 reversed; remanded for entry of a judgment of conviction on Count 6; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   At sentencing, the trial court merged defendant's two first-degree theft guilty verdicts and entered a judgment of conviction for one count of first-degree theft. Merging the two guilty verdicts did not moot defendant's challenge to one or both of them.

2.   The state interprets defendant's first two assignments of error narrowly. It argues that defendant has assigned error only to the admission of Davis's testimony but that she has not assigned error to the admission of State's Exhibits 1, 2, 3, and 4. It follows, the state reasons, that the only issue raised by defendant's first two assignments of error is whether Davis had personal knowledge of the events reflected in those exhibits. Given the way that defendant phrased her assignments of error, the state's position is not unreasonable. However, viewing defendant's assignments of error in the context of her arguments, we interpret those assignments of error as challenging the ruling admitting the proffered business records.

3.   In Arrowood Indemnity Company, the plaintiff had insured a student loan issued by Citibank. See 369 Or at 217-19. When the borrower defaulted, the plaintiff indemnified the lender and brought an action against the borrower in which it relied, in part, on the lender's business records. Id. Factually, there was no dispute that the insurer and the lender were separate businesses. The primary dispute was whether the insurer's reliance on the lender's business records was sufficient to admit those records under OEC 803(6).

4.   Perhaps a trier of fact could find on this record that the business records created and maintained by Advantis's host system duplicated in every respect the records created and maintained by an ITM, but that seems doubtful.

5.   Our decision is limited to the record created in this case. We express no opinion on whether a trier of fact could find, based on a different record, that only one business (Advantis) created and maintained the business records generated by the ITMs.

6.   Consistently with that quotation, the court cited a federal case with approval, which it described in the following parenthetical: “drug enforcement agent laid foundation for the records of a money-exchange business, where the agent had familiarity with the business's record-making practices.” Arrowood Indemnity Company, 369 Or at 240 n 15 (describing United States v. Franco, 874 F2d 1136, 1140 (7th Cir 1989)).

7.   OEC 803(6) provides for the admission of the following business records:“A memorandum, report, record, or data compilation in any form of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of [sic] circumstances of preparation indicate lack of trustworthiness.”

8.   The state argued below that, because the records were made by a machine rather than a person, they did not constitute hearsay at all. Even if they did, defense counsel told the trial court that there was no basis for saying that the images and the videos the ITM created were not trustworthy, which is sufficient, in these circumstances, to satisfy the second criterion in OEC 803(6).

9.   The court initially had considered adopting the testimony from the OEC 104 hearing. Defendant, however, had objected, and the state offered to quickly replicate the substance of that hearing on the record.

10.   Defendant objected to Davis's answer on the same grounds addressed above—that Davis's answer was based on inadmissible hearsay. For the reasons explained above in discussing defendant's first two assignments of error, the trial court correctly overruled that objection.

11.   During the state's rebuttal argument, defendant objected to the state's argument on the ground that it misconstrued her position on finding two counts of first-degree theft under Count 3 and Count 6. As we understand the stated basis for defendant's objection, she sought only to clarify her previously stated position that the pretrial election precluded the court from finding her guilty of two lesser-included counts of first-degree theft. The trial court responded briefly that it understood defendant's position.

KISTLER, S. J.