Jump To

Top Caption Disposition Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 25, 2026 Get Citation Alerts Download PDF Add Note

State v. Kuehnel

Court of Appeals of Oregon

• Citations: 348 Or. App. 6
• Docket Number: A185079
• Judges: Kamins

• Disposition: Affirmed.

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.3K)

• PDF

Disposition

Affirmed.

Combined Opinion

6 March 25, 2026 No. 226

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

STATE OF OREGON,
Plaintiff-Respondent,
v.
BRIAN DAVID KUEHNEL,
Defendant-Appellant.
Yamhill County Circuit Court
23CR62342; A185079

Cynthia L. Easterday, Judge.
Argued and submitted January 22, 2026.
Kasey Anne Hooker, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Dan
Rayfield, Attorney General, and Benjamin Gutman, Interim
Deputy Attorney General.
Before Lagesen, Chief Judge, Kamins, Judge, and
Armstrong, Senior Judge.
KAMINS, J.
Affirmed.
Cite as 348 Or App 6 (2026) 7
8 State v. Kuehnel

KAMINS, J.
In this criminal appeal, defendant challenges a
judgment convicting him of first-degree criminal mischief,
ORS 164.365(1)(a)(A). Defendant argues that one of the
state’s exhibits, a document outlining the costs for repairs
of a vehicle that he damaged, was hearsay admitted over
his objection, and that the erroneously admitted evidence
affected the jury’s verdict. Because defendant generally
failed to preserve the bulk of the argument that he raises
on appeal, and because the one portion that is arguably pre-
served fails on its merits, we affirm.
Following a dispute between defendant and S,
defendant backed up his pickup truck into S’s truck, causing
damage. For that conduct, defendant was charged with first-
degree criminal mischief.1 As relevant here, first-degree
criminal mischief requires proof of property damage val-
ued over $1,000. ORS 164.365(1)(a)(A). At defendant’s trial,
the state submitted photographs of S’s vehicle that showed
the driver’s side door crumpled and a ball-hitch-sized hole
punched out of the metal. S testified that he took the vehi-
cle to the auto shop where he worked and had an estimate
performed for repairs, and that the estimated cost of repairs
would be $11,345. S further testified that it was a total loss,
as his insurance would have only given him between $4,000
and $5,000 to replace the vehicle. The state also sought to
admit a “repair sheet” from the auto shop estimating the
cost for repairing the vehicle. Defendant objected to that
physical document as hearsay and the trial court overruled
his objection. The jury found defendant guilty.
In his sole assignment of error, defendant challenges
the admission of the “repair sheet,” arguing that it was hear-
say and that “the state did not proffer sufficient evidence that
the repair sheet met the requirements of the business records
exception” to the hearsay rule. Despite never making that
particular argument at trial, defendant argues that his chal-
lenge is preserved, because “[t]he state and the court were on
notice that the document was presumably inadmissible and
that the state had to justify its admissibility.” We disagree.
1
Defendant was also charged with, and convicted of, reckless endanger-
ment. Defendant does not challenge that conviction on appeal.
Cite as 348 Or App 6 (2026) 9

At trial, the state laid a foundation for the repair
sheet by first eliciting testimony from S about what the doc-
ument was:
“[PROSECUTOR:] And, [S], can you tell me what that
is?
“[S:] This is what [sic] a repair sheet usually I receive
one of these a copy as well as a copy in the vehicle of what
is needed to be replaced and where the parts, what kind of
parts you’re going to use, aftermarket, used, it’s a complete
estimate—
“[PROSECUTOR:] Okay—
“[S:] —or estimate on that part on—
“[PROSECUTOR:] And so this is an estimate for
what?
“[S:] The damages on the vehicle.
“[PROSECUTOR:] The damages on your—
“[S:] 4Runner.”
The state next asked S to explain the process for
creating an estimate at his workplace. S, as an employee of
the repair shop, described how the calculations were made:
“[S:] Okay, so the calculations are done by an actual
physical book
“[PROSECUTOR:] Okay.
“[S:] —that are produced by the collision industry that
we go by estimating guides, so if you replace a fender, it has a
standard time of what it is to take to replace a fender, so * * *
it’s usually an itemi[z]ed list of things you need to do * * *.
“[PROSECUTOR:] So this includes standard labor
rates—
“[S:] Yeah.
“[PROSECUTOR:] —standard times to fix every-
thing[.] [W]hat’s the total amount * * * in [ ] the estimate
that you received to fix the damage?
“[S:] [T]he * * * total amount is $11,345. On my profes-
sional opinion and what I would do if this was my job * * *,
this is an incomplete estimate—
10 State v. Kuehnel

“[PROSECUTOR:] Okay, and why is that?
“[S:] Why is that, the trim panel, the door’s not on
there—
“[PROSECUTOR:] Okay.
“* * * * *
“[S:] * * * [A]nd the other thing is, is until a complete
teardown [is] done * * * we cannot determine how bad the
inner damage is to the inners—
“[PROSECUTOR:] I guess is this—
“[S:] Close enough.”
S then confirmed that the repair sheet was “a fair and accu-
rate representation of the estimate * * * [he] received.”
Counsel for defendant then asked, in aid of objec-
tion, if S made the document himself, or just received it as a
“customer.” S responded that he did not make the document
himself and received it as a customer:
“As soon as my supervisor and my estimator started
ta[l]king and evaluating the damage to the vehicle, I
became a customer. That’s how that anybody would look
at it, it’s there’s a format that they’re required to try to
stick in within these [para]meters for the insurance compa-
nies that, you know, it doesn’t matter if it’s private person
paying or the insurance company, they have to stick with
these certain [para]meters and they’re very strict on that,
and I got to say that [the estimator] did a very more than
a fair assessment of that prior to the teardown because it
changes after it tears down.”
Counsel for defendant then said, “I guess the objection, Your
Honor, would be a hearsay issue.” The court asked defense
counsel, “Are you objecting as to hearsay?” and defense
counsel said, “Yes.” The court then said, “Okay. Do you want
to be heard?”2 The state responded that S had training as
an employee and could provide the basis of the document:
“Your Honor, do I need to be heard? Your Honor, he—not
only is this a representation of what I’m saying it is, it’s the
estimate he received, but aside from that, which I believe
2
The record is not clear as to whether the court was asking that question to
defense counsel or the prosecutor.
Cite as 348 Or App 6 (2026) 11

would be sufficient to admit it as evidence as to the cost
of repair, but [S] has specific training and is actually an
employee there and knows how to provide the basis, there
it’s—”
The court then interrupted the prosecutor and ruled that
the document was admissible:
“That’s okay, it’s a little unusual situation because he
actually kind of authenticates it because he’s an employee
there as well, so objection noted, but I’m going to overrule
and admit it.”
Defendant was ultimately convicted of first-degree
criminal mischief and this appeal followed. On appeal, the
parties dispute whether defendant adequately preserved the
issue for our review. We conclude that defendant’s objection
is insufficient to preserve the argument he makes now on
appeal, for two reasons. First, defendant’s objection followed
by questions in aid of objection did not alert the court that
he disputed the state’s view that the hearsay was subject to
the business records exception. Second, even if the court was
generally aware that defendant took issue with the business
records exception (by virtue of defendant’s questions in aid
of objection), those questions did not alert the court, or the
state, to the specifics of defendant’s argument on appeal. We
address those points in turn.
First, merely calling something out as a “hearsay
issue” does not necessarily apprise the court, or the opposing
party, as to the nature of the issue. See Peeples v. Lampert,
345 Or 209, 219-20, 191 P3d 637 (2008) (explaining that
preservation serves several purposes, including providing
the trial court the chance to consider and rule on an issue,
ensuring fairness to the opposing party by giving them
an opportunity to respond, and fostering full development
of the record). In this case, defendant may have only been
challenging the document as hearsay (and therefore pre-
sumptively inadmissible). To explain that he was challeng-
ing whether the state sufficiently proved it was admissible
under a hearsay exception, defendant needed to argue that
that exception did not apply or that the state’s foundation for
it was insufficient.
12 State v. Kuehnel

Of course, a party need not use any magic words, so
long as their objection sufficiently clues in the other parties
and the court to the nature of their argument. See State
v. Haynes, 352 Or 321, 335, 284 P3d 473 (2012) (“[A] short-
hand reference, such as a single word or phrase, must be
used in a way and context in which the other parties and the
court would understand that the word or phrase refers to a
particular legal or factual argument, and also would under-
stand from that single reference the essential contours of
the full argument.”); State v. Montwheeler, 277 Or App 426,
433, 371 P3d 1232 (2016) (“We have never held that a valid
objection requires the use of magic words. Rather, an objec-
tion is made whenever a party communicates to a trial court
that he or she disagrees with the court’s actual or potential
ruling.”). Here, however, defendant’s objection did not alert
the parties or the court as to his concern. There was no way
of knowing that defendant had any issue with the specific
hearsay exception that the state used to submit the evidence.
In that regard, this case bears a strong resemblance
to State v. Ferry, 255 Or App 625, 298 P3d 63, rev den, 353
Or 868 (2013). In Ferry, the prosecutors sought to have a
child victim read a letter she wrote to the district attorney,
in which she discussed what a school official and a police
officer had told her. The prosecutor asserted that, although
the letter was hearsay, it was admissible under OEC 803
(18a)(b), a hearsay exception encompassing statements by a
child declarant concerning an act of abuse. Id. at 627. The
defendant objected to the admission of the letter on three
grounds: (1) the letter was hearsay and the officials’ state-
ments quoted in the letter were double hearsay; (2) the offi-
cials were not identified, so they could not be cross-examined;
and (3) the officials’ statements amounted to vouching. Id. In
response, the prosecutor reasserted that the letter fell under
OEC 803(18a)(b) and that the statements by third parties
within the letter were not offered for the truth of the matter
asserted and thus were not hearsay. Id. at 628. The defen-
dant did not challenge either of the prosecutor’s assertions
and instead moved on to his confrontation arguments. Id.
The trial court admitted the letter under OEC 803(18a)(b)
and the defendant was ultimately convicted. Id.
Cite as 348 Or App 6 (2026) 13

On appeal, the defendant argued that the trial court
erred because the legislature intended OEC 803(18a)(b),
under those circumstances, to only encompass statements
by victims of abuse themselves, and not statements made
by others to victims of abuse. Id. at 628. We concluded that
the defendant’s argument was not preserved because the
defendant had not made that argument below, and did not
challenge the prosecutor’s assertion that OEC 803(18a)(b)
applied:
“As explained above, before the trial court, when defendant
asserted that the letter was hearsay and the officials’ state-
ments were double hearsay, the prosecutor responded that,
although the letter was hearsay, it was admissible under
OEC 803(18a)(b) and the officials’ statements were not
double hearsay because they were not offered for the truth
of the matters asserted. Defendant did not challenge the
prosecutor’s assertion that OEC 803(18a)(b) applied[.] * * *
“By contrast, on appeal, defendant challenges the
admissibility of the letter under OEC 803(18a)(b), contend-
ing that OEC 803(18a)(b) does not cover statements made
by anyone other than the victim of abuse. He did not make
that argument below, and, under our case law, his failure
to do so precludes us from reaching it.”
Id. at 629.
Like in Ferry, defendant here raised a hearsay
issue. And just like in Ferry, the state then indicated that
a specific hearsay exception applied, and—importantly—
defendant did not subsequently challenge the application
of that hearsay exception. Now, on appeal, defendant chal-
lenges the applicability of that specific hearsay exception,
providing an argument in support that was not presented to
the trial court. Preservation requires more. Defendant “did
not make that argument below” and “his failure to do so
precludes us from reaching it.” Id.
In arguing otherwise, defendant contends that the
“business records exception” issue was preserved because
he did ask two questions in aid of his objection: Whether
S received the document (as opposed to created it himself),
and if S received the document because he was the cus-
tomer or because he worked there. We disagree. Defendant’s
14 State v. Kuehnel

arguments on appeal were not encompassed by the ques-
tions he asked in aid of objection. To understand why, it is
helpful to explain what, exactly, defendant is now arguing
on appeal. On appeal, defendant contends that the state
failed to lay a sufficient foundation for the “business records
exception” because it failed to adduce evidence that the
repair sheet was “made at or near the time” of the event,
that the person who created the repair sheet “had a first-
hand account of the evaluation,” that the estimator’s calcu-
lations came from a reliable source, and that S was a qual-
ified witness. See OEC 803(6) (explaining requirements of
business records exception).3
Defendant’s questions in aid of objection did not
relate to when the repair sheet was made, what the source
of the repair sheet’s calculations was, or whether the per-
son who created the repair sheet had first-hand knowledge.
As a result, the questions that were asked are insufficient
to demonstrate that the state and the court understood
what defendant’s concerns with the document were. See
State v. Manigo, 342 Or App 384, 388, 576 P3d 525 (2025)
(“Ordinarily, it is the appellant’s burden to furnish a suf-
ficient record to demonstrate that the trial court erred.”
(Internal quotation marks omitted.)); State v. Graves, 264
Or App 358, 369, 332 P3d 319, 325 (2014) (“Had defendant
actually raised [the specific hearsay argument presented on
appeal], the record may well have developed differently in
important ways.”). Compare State v. Britt, 335 Or App 91,
94-95, 557 P3d 524 (2024) (generic objection to admission
of medical records as outside the scope of business records
exception, and thus business records exception did not
apply, was sufficient to preserve more specific arguments
3
OEC 803(6) provides, as an exception to the general rule that hearsay is
inadmissible, that the following is admissible:
“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 circumstances of
preparation indicate lack of trustworthiness. The term ‘business’ as used in
this subsection includes business, institution, association, profession, occupa-
tion, and calling of every kind, whether or not conducted for profit.”
Cite as 348 Or App 6 (2026) 15

on appeal that medical records were too speculative to fall
under the business records exception) with Ferry, 255 Or App
at 629-30 (challenge to letter as hearsay and double hearsay
followed by admission of letter under a hearsay exception,
absent more, insufficient to preserve challenge to hearsay
exception on appeal) and State ex rel Juv. Dept. v. K. S., 229
Or App 50, 55, 209 P3d 845, rev den, 347 Or 259 (2009) (the
youth’s objection to the admission of a hearsay statement
on the ground that the witness could not properly authenti-
cate it did not preserve the youth’s appellate argument that
the state had failed to satisfy a different requirement for
admission).
One of defendant’s questions in aid of objection—
whether S was receiving the report as a “customer” or an
“employee”—does relate to an argument that defendant
makes on appeal, that S was not “a custodian or other qual-
ified person.” See OEC 803(6) (a foundation for the business
records exception must be shown “by the testimony of the
custodian or other qualified witness”). Assuming that argu-
ment is preserved, we are not persuaded by it because S was
familiar with the record-making practices of the business.
“[A] party seeking to utilize [the business-records excep-
tion] must put on evidence regarding the record-making
practices of the business that created the record sufficient
to establish that the record has the characteristics set out
in the rule itself.” Arrowood Indemnity Co. v. Fasching, 369
Or 214, 239-41, 503 P3d 1233 (2022). “To do so, a party can
call a witness from the business that created the record.
Or, a party can call another witness who can testify about
the practices of the business that created the record.” Id.
That witness may be a custodian of records, although that
is not a requirement. See id. at 241 (citing Christopher B.
Mueller & Laird C. Kirkpatrick, 4 Federal Evidence § 8:78,
727-28 (4th ed 2013) (describing, for the equivalent federal
rule, that “[w]hat is important is that the witness be famil-
iar with the pertinent record-making practices of the busi-
ness, and with the manner in which records of the particu-
lar sort being offered are made and kept, and these points
may be shown by anyone with the appropriate knowledge”)).
Although S testified that he received the repair sheet as a
customer, he also testified—as a certified auto body collision
16 State v. Kuehnel

technician who worked at the shop—as to how those types
of documents were created by the business, including the
procedure for determining the estimate. S explained how
calculations were done, and that the supervisor and esti-
mator were required to stick within the parameters for the
insurance companies. The trial court thus did not err in con-
cluding that defendant was a “qualified person” to testify
“about the practices of the business that initially made and
kept the record.” Id. at 240-41.
Affirmed.