BREWER, J.
This case is before this court on automatic and direct review of defendant’s judgment of conviction and sentence of death for multiple counts of aggravated murder. ORS 163.095; ORS 138.012. For the reasons set out below, we affirm the judgment of conviction and sentence of death.
I. FACTS
Because the jury found defendant guilty, we set out the facts in the light most favorable to the state. State v. Longo, 341 Or 580, 582, 148 P3d 892 (2006). Defendant was married to Melinda. After she discovered that defendant was having an affair with another woman, Melinda decided to end their marriage. Around that time, Melinda became romantically involved with a coworker, Nguyen, who lived with Melody Dang and her two sons, Steven and Jimmy. Melody was aware of Nguyen’s relationship with Melinda.
During their relationship, Nguyen taught Melinda various phrases in Vietnamese, which Melinda wrote down in a check register. Melinda kept the check register in her vehicle, to which defendant did not have a key. In July 2006, Melinda discovered that she was pregnant. She believed that Nguyen was the father. In September, Melinda left defendant and moved into her sister’s apartment. When that living arrangement failed to work out, Melinda moved back in with defendant.
As those events were unfolding, defendant became acquainted with two sisters, Madriz-Mendoza and Miranda-Mendoza. Miranda-Mendoza worked with Melinda and Nguyen, but she did not know that Melinda was married to defendant. Defendant asked Miranda-Mendoza questions about her coworkers, including what they looked like, whether any of the women were pregnant, and whether she knew a curly-haired man named “Mike.” On one occasion, as Melinda was leaving work, she stopped to talk with a group of fellow workers — including Nguyen, who was the only person in the group with curly hair. Defendant drove up and angrily told Melinda that she was disrespecting him by talking to the group.
[175] On the evening of November 2,2006, Melody, Steven, and Jimmy were at Nguyen’s house. Nguyen was at work, as was Melinda. Melody and Nguyen had a phone conversation at about 8:30 p.m. Melody sometimes visited Vietnamese-language internet chat-rooms and often had phone conversations with men whom she had met in those chat-rooms. At about 9:00 p.m., Melody called Tran, a Florida resident whom she had met online. As they were talking, Tran heard dogs barking in the background and heard Melody yell, “Oh my God, Oh my God.” Then the call was disconnected. When Tran called back, there was no answer; he then sent text messages to Melody, but there was no reply.
The next morning, Nguyen returned home from work. The lights were on, and his dogs were barking. Nguyen entered the house through the garage and saw that the house was messy. Then he saw Melody’s body in the hallway. Steven was lying next to her. Their bodies were cold. Nguyen then called 9-1-1. The police arrived within minutes. They observed Melody and Steven lying in the hallway, and they found Jimmy inside a bathroom off the hallway. All three victims had been shot to death.
Three additional noteworthy discoveries were made at the scene. First, when he looked around the living room, Nguyen noticed that a laptop computer was missing. Second, the investigating officers recovered two spent .380 caliber shell casings near the victims’ bodies, along with a live .380 caliber cartridge. Third, there was blood on the hallway floor where the victims were found. Using a chemical test, the officers found shoe impressions in the blood.
Melinda returned to defendant’s house that same morning after her work shift. Defendant was not home and his vehicle was gone. Later that same day, Melinda saw defendant’s vehicle parked down the street. Defendant returned home at 4:00 p.m. He told Melinda that he had not gone to work that day, but he did not appear to be ill.
On November 27, police officers searched defendant’s brother’s house. The officers found two handguns, one a .380 caliber pistol. They also found several magazines for a .380 caliber pistol, along with boxes of .380-caliber [176] ammunition. The .380 pistol was later tested by an Oregon State Police firearms examiner. It appeared to have been recently cleaned. The examiner test-fired the pistol and compared the markings on the test bullets to the markings on the bullets recovered from the crime scene. The markings matched. The examiner concluded that the pistol seized from defendant’s brother’s house had fired the bullets found at the crime scene.
On November 28, police officers executed a search warrant at defendant’s residence. Among other items, they found defendant’s shoes and, in the back of his vehicle, a partially-full bottle of bleach. The shoes were later tested for blood. None was found, but the shoes appeared to have been recently washed. The officers also found Melinda’s check register with the Vietnamese phrases written inside, and they found a key that fit the ignition of Melinda’s vehicle. Defendant was arrested the same day. Later, prior to trial, the state compared the shoe impressions found at the crime scene to the tread of defendant’s shoes. The impressions matched defendant’s right shoe.
Melinda moved out of defendant’s house after the search and his arrest. From time to time, she returned to retrieve belongings but, in the meantime, she left the house unlocked. On January 3, 2007, an employee of a property management company cleaned the garage. Underneath a couch, the cleaner found a laptop computer wrapped in a towel inside a garbage bag. When the computer was shown to him, Nguyen recognized that it was similar to the computer that was missing from his living room.
Defendant was indicted on 10 counts of aggravated murder. In counts 1, 2, and 7, which charged defendant with the murder of Melody Dang, the indictment alleged that defendant had murdered her in the course of the same criminal episode that resulted in the death of Steven (count 1); that he had murdered her in the course of the same criminal episode that resulted in the death of Jimmy (count 2); and that he had murdered her in the course of and in furtherance of his commission of first-degree burglary (count 7), ORS 163.095(2)(d); ORS 163.115(l)(b). The counts pertaining to Steven Dang (counts 3, 4, and 8) and Jimmy Dang [177] (counts 5, 6, 9, and 10) were charged in the same manner, except for count 10, which alleged that defendant had murdered Jimmy, who was a person under the age of 14. ORS 163.095(l)(f). A jury found defendant guilty on all counts. In a separate proceeding, the jury answered the relevant death penalty questions, ORS 163.150, in the affirmative. The trial court merged the convictions into three and sentenced defendant to death.
Defendant now raises 30 assignments of error. We have examined each of those assignments of error, and we reject each one. Eight of the assignments merit discussion, and we now turn to them.
II. GUILT PHASE
A. Motions for Judgments of Acquittal on Felony Aggravated Murder Counts
As noted, in counts 7, 8, and 9, defendant was convicted of three counts of aggravated felony-murder. ORS 163.095(2)(d); ORS 163.115(l)(b). The indictment alleged as to each of those three counts that the underlying felony was first-degree burglary. A person commits first-degree burglary when he or she “enters or remains unlawfully” in a dwelling “with the intent to commit a crime therein.” See ORS 164.225; ORS 164.215. The indictment did not specifically identify the underlying crime that defendant intended to commit when he entered the Nguyen/Dang residence. However, the trial court instructed the jury that, to find that defendant had committed first-degree burglary, it must find beyond a reasonable doubt that he had entered the residence with the intent to commit theft therein.
In his third assignment of error, defendant asserts that the trial court erred in denying his motions for judgments of acquittal on the three aggravated felony-murder counts. In support of those motions, defendant had argued to the trial court only that the identified counts required proof that he was “personally involved” in the murders. Before this court, however, defendant does not renew that argument. Instead, defendant asserts that the trial court erred in denying the motions because the state “failed to prove a sufficient causal connection between the homicides and the [178] burglary-theft” of the laptop computer. In short, by focusing on the causal relationship between the homicides and the burglary based on theft of the computer, defendant’s argument on review has a fundamentally different focus from his argument at trial. Because the trial court was never presented with the argument for acquittal that defendant advances on review, defendant’s third assignment of error is unpreserved. See State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (preservation rule exists, in part, to ensure that the trial court had an opportunity to avoid ruling in error). Defendant concedes as much, but he urges this court to review his third assignment as plain error.
Defendant notes that this court previously has held that, to prove aggravated felony-murder under ORS 163.095(2)(d) and ORS 163.115(l)(b), the state must establish a “causal connection” between the underlying felony and the homicide to show that the homicide occurred “in the course of and in furtherance of” the underlying felony. According to defendant, “a homicide committed before the perpetrator forms an intent to commit a felony can rarely, if ever, be [felony murder].” Instead, defendant argues, ORS 163.115(l)(b) requires a person either to commit — or form the intent to commit — the underlying felony before he or she commits the murder. Defendant also argues that, to establish the necessary causal connection, “the deaths must have been a foreseeable risk associated with the commission of the felony.”
With respect to the sufficiency of the evidence to satisfy those posited requirements in this case, defendant asserts:
“[T]he evidence is insufficient to conclude that defendant committed the homicide ‘in the course of and in furtherance of the burglary-theft as charged in this case. The state presented evidence that defendant committed first-degree burglary-theft only after he had caused the Dangs’ deaths; therefore, the state failed to prove the required causal connection between the two crimes.”
Defendant contends that the state’s evidence in this case established, at most, that he had entered Nguyen’s residence “with the sole intent to shoot one or more of the three [179] victims” and, thus, the evidence could not support a “reasonable inference that one of defendant’s reasons for causing the victims’ deaths was to obtain property, a motivation that if proved, would provide the necessary causal link.” Defendant urges that “the evidence support [ed] only a single reasonable inference regarding the timing of events: defendant did not commit the first-degree burglary-theft until after he committed the three homicides.” (Emphasis in original.)
The state responds that the trial court did not plainly err because none of defendant’s unpreserved arguments is obvious or beyond dispute. In the alternative, the state argues that, even if this court were to adopt one of defendant’s proposed constructions of ORS 163.115(l)(b), the evidence was sufficient to permit a reasonable juror to find that defendant had formed the intent to steal the laptop before he murdered the Dang family.
Generally speaking, “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court.” ORAP 5.45(1). The principal exception to the preservation requirement involves “so-called ‘plain error’ — that is, an error apparent on the record about which there is no reasonable dispute.” Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). To qualify as “plain error,” an asserted error must be (1) one of “law”; (2) it must be “apparent, i.e., the point must be obvious, not reasonably in dispute”; and (3) “it must appear ‘on the face of the record,’ i.e., the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” Ailes v. Portland Meadows Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (quoting State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990)). If each of those requirements is satisfied, the court proceeds to the second step, where it must decide whether to “exercise its discretion to consider or not to consider the error[.]” Ailes, 312 Or at 382.
With respect to the obviousness requirement, defendant must demonstrate both that (1) the legal principles on which he relies are “obvious” and beyond reasonable dispute and (2), applying those “obvious” legal principles to the evidence in the record, the state’s proof was legally insufficient. [180] See, e.g., Brown, 310 Or at 355-56. As we now explain, the legal points on which defendant relies are not obvious or beyond dispute; accordingly, it is not necessary to determine whether the state’s proof was sufficient to satisfy them.
For the purposes of its incorporation into ORS 163.095(2)(d) (the aggravated murder statute at issue), ORS 163.115(l)(b) provides, in part:
“(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder:
* * * *
“(b) When it is committed by a person * * * who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person * * * causes the death of a person other than one of the participants:
* * * *
“(C) Burglary in the first degree as defined in ORS 164.225 [.]”
(Emphasis added.) To establish that a homicide was committed “in the course of and in furtherance” of the underlying crime, ORS 163.115(l)(b), the state must prove a “causal connection” between that crime and the homicide. State v. Lopez-Minjarez, 350 Or 576, 590, 260 P3d 439 (2011); State v. Rose, 311 Or 274, 285, 810 P2d 839 (1991).
As noted, defendant asserts that that requirement necessarily means that a defendant must either commit, or form the intent to commit, the underlying crime before committing murder. In support of that argument, defendant relies on this court’s statement in Rose that “[s]omething more than a mere coincidence of time and place * * * is necessary to show that the homicide occurred ‘in the course of and in furtherance of’ the felony. There must have been some causal relationship between the [felony] and the homicide.” Rose, 311 Or at 285. However, defendant takes that statement out of context. A more complete quotation follows:
“The relevant question is not whether the victim’s death preceded, occurred during, or followed the [underlying felony], [181] but whether the [felony] and the defendant’s acts that caused the victim’s death are so related in time, place, and circumstances that the trier of fact could find beyond a reasonable doubt that the homicide occurred ‘in the course of and in furtherance of the [felony]. Something more than a mere coincidence of time and place, however, is necessary to show that the homicide occurred ‘in the course of and in furtherance of’ the felony. There must have been some causal relationship between the [felony] and the homicide.”
Id. (citations omitted; emphasis added). As the full quotation above demonstrates, this court’s decision in Rose is inconsistent with defendant’s argument that commission of an underlying felony must precede the victim’s death. Accordingly, defendant has furnished no basis for us to conclude that the trial court erred in failing to acquit him on that ground, much less for us to conclude that the court obviously erred in failing to do so.
With respect to defendant’s alternative argument that, to be guilty of felony murder, a defendant must have formed the intent to commit an underlying felony before committing the murder, the answer is less clear-cut. Although Rose confirms that a “causal relationship” between the two crimes is required, this court has never elaborated on the scope and dimensions of that requirement. In Lopez-Minjarez, this court described the “in the course and furtherance of’ requirement of ORS 163.115(l)(b) as follows:
“The requirement that the homicide be in the course and furtherance of the predicate felony is a familiar concept from the common-law crime of felony murder. As one authority describes it,
“ ‘whether there is a sufficient causal connection between the felony and the homicide depends on whether the defendant’s felony dictated his [or a co participant’s] conduct which led to the homicide. If it did, and the matters of time and place are not too remote, the homicide may be ‘in the commission of’ the felony; but if it did not, it may not be.’
“Wayne R. LaFave, 2 Substantive Criminal Law § 14.5(f), 466 (2d ed 2003); see generally State v. Rose, 311 Or 274, 285, 810 P2d 839 (1991) (‘Something more than a mere coincidence of time and place, however, is necessary to show that [182] the homicide occurred “in the course of and in furtherance of” the felony. There must have been some causal relationship between the robbery and the homicide.’).”
350 Or at 589-90.
The issue in Lopez-Minjarez was whether the defendant had withdrawn from participation in a predicate felony (kidnapping) that admittedly was initiated before the charged homicide was committed. Id. at 590-91. Accordingly, it was not necessary for the court to consider the issue that defendant raises here. Moreover, among courts that have directly considered the issue in interpreting similar statutory language, there is a split of authority as to whether it is necessary that the defendant have intended to commit an underlying felony before committing a homicide. See LaFave, 2 Substantive Criminal Law § 14.5(f) at 468 n 119 (noting division among courts and collecting cases). It may be, as Professor La Fave suggests, that “[i]t would seem that the homicide, done without thought of a felony, could not be ‘in the commission of the felony.” Id. at 468. However, this court has never had that issue before it for resolution. Accordingly, defendant has not demonstrated the obviousness of the posited unpreserved error. See, e.g., State v. Reyes-Camarena, 330 Or 431, 436, 7 P3d 522 (2000) (legal point on which defendant relied was not “obvious,” because “ [n] o Oregon appellate court [had] considered the issue, let alone held that [the] defendant’s position [was] correct.”). We therefore reject that aspect of his plain error argument.
As noted, defendant also asserts that the trial court erred in denying his motion for judgment of acquittal because the victims’ deaths were not a “foreseeable result” of his act of burglary. In support of the “foreseeable result” aspect of his argument, defendant relies on Professor LaFave’s statement that, “[i]n most jurisdictions even more than a but-for causal relationship is required, the usual rule being that the death must be the foreseeable or natural result of the felony.” LaFave, 2 Substantive Criminal Law at 465.1 Again, [183] defendant concedes that he did not preserve that aspect of his argument. Accordingly, its success depends on his ability to establish that the trial court plainly erred and, if so, that we should exercise our discretion to correct the error.
At oral argument, defendant elaborated on that aspect of his argument, asserting that the “causal connection” requirement meant that the death had to be the “foreseeable, natural result” of the felony and “that the felony leads to the homicide, not the other way around.” Apart from arguable implications flowing from the above-quoted statements in Rose and Lopez-Minjarez, this court has not discussed the “foreseeable result” test for which defendant advocates, nor has this court explored its contours. However, for present purposes, two responses suffice. First, the principal purpose of that construct is to address the dilemma of unintended or coincidental killings committed by the defendant or another person in the course of the commission of a predicate felony. See LaFave, 2 Substantive Criminal Law at 452-59. Defendant has not explained how it pertains to the evidence in this case, where the state theorized that defendant personally and intentionally killed the victims in the course of the burglary based on theft, and defendant did not theorize that he or anyone else had unintentionally or coincidentally done so. Second, courts that have adopted a “foreseeable result” test have wrestled at length with questions involving the necessary degree of causal relationship in time, place, and circumstance between an underlying felony and the homicide. See id. However, this court has not adopted that test in any governing precedent and, even if it had, how those considerations would play out based on the record in this case is not obvious. Accordingly, the trial court did not plainly err in failing sua sponte to direct defendant’s acquittal based on that ground.
B. Challenge to the Trial Court’s Answers to the Jury’s Questions
Defendant’s fourth and fifth assignments of error focus on another aspect of the trial of the three aggravated felony-murder charges on which he was convicted. In those assignments of error, defendant asserts that the trial court erred by instructing the jury, in response to two questions [184] that it asked during deliberations, that “in furtherance of the crime of burglary means during the effort to commit the burglary.”
During its deliberations, the jury posed to the court a series of written questions. The court’s answers to two of those questions are at issue here. In the first question, the jury asked:
“Need clarification. Tn furtherance of the crime of burglary. ..’ We’ve read this 10 times. Does this imply that the murders ‘resulted from the crime of burglary?’ Count 7 4(a) and Count 9 4(a).”
(Underscoring in original.) The trial court replied with a written answer:
“You ask if ‘in furtherance of the crime of burglary’ in elements 4(a) of counts 7, 8, and 9 requires that the murders ‘resulted from the crime of burglary?’ In this instance, ‘in furtherance of the crime of burglary’ means during the effort to commit the burglary.”
The record shows that, before answering that question, the court consulted with the parties, and defendant ultimately agreed with the answers that the court gave. As the court explained on the record:
“[T]hey had a question regarding in furtherance of the crime of burglary and, after some discussion, a bit of a compromise from both sides, both sides agreed on the answer that I gave.”
The court then alluded to a second question:
“And then we have another question pending, but it’s almost five o’clock, so I’m going to let them go and I’ve got a proposed answer to give to you, but I’d rather let them out, let them go and then we can talk if we have to talk.”
The court recessed for the day and told the parties:
“And, counsel, I gave you those answers. As far as I’m concerned we can go into recess, we can go back into chambers and discuss that and let everybody else get on about their business if that’s okay with you.”
The parties agreed, and the court and counsel then retired to chambers to discuss the jury’s second question, which asked:
[185] “Seeking clarification on the definition of the elements: Is the sequence of crimes relevant in aggravated murder— felony murder and felony murder?”
The next morning, the trial court gave the following written answer to that question to the jury:
“You ask if the sequence of crimes is relevant in Aggravated Murder — Felony Murder and Felony Murder.
“I suspect that this concern is related to your last few questions. The answer lies in elements 4(a) and 4(b) of those crimes. ‘Sequence’ in the sense of which crime started first is not an element of the offenses. However, the causing of death must have occurred during the effort to commit the burglary — 4(a)—or during immediate flight from the burglary — 4 (b) .”2
After giving that answer, the court recounted on the record the process that had led to its crafting and submission:
“[W]e had a question that came out. I consulted with counsel for both sides on the — on the answer, the answer was agreed upon and you’ve got your copies of the questions and the answer.
“ [The Prosecutor]: And — and, your honor, if — if I might, I’d like to note for the record that there was a question at the end of the day yesterday. The court had a proposal, the parties met in chambers to discuss it and the parties agreed with the ultimate answer that was submitted to the jury this morning on the last question of the day yesterday. Both sides agreed with it.
[186] “[The Court]: That’s—
“[Defense Counsel]: Correct.
“[The Court] — Correct as well. Thank you for reminding me to put that — get that on the record.”
In separate assignments of error, defendant now challenges the trial court’s answers to the two questions that the jury asked. In particular, defendant asserts that the use of the word “during” in both answers essentially instructed the jury that it was not required to find a causal connection between the felony and the homicides to convict defendant of the felony murder charges. Instead, defendant argues, the use of that word permitted the jury to convict him based solely on a temporal overlap between the commission of the burglary and the murders. Defendant concedes that he failed to preserve that argument before the trial court. However, defendant asserts that it is obvious that ORS 163.115(l)(b) requires a causal connection between the two crimes; he further reasons that, because the court did not inform the jury that it was required to find such a causal connection, the answers that the court gave were plainly erroneous. At oral argument, defendant’s counsel amplified that argument, asserting that, whatever the nature of the causal connection required by ORS 163.115(1)(b), the trial court’s answers were plainly erroneous because those answers “completely omitted it.”
Defendant also contends that the asserted error requires reversal because the court’s answers prejudiced him. Defendant explains:
“Here, if the jury believed that defendant’s theft of the laptop was a mere afterthought and therefore not causally connected to the homicides, it still could have found defendant guilty of aggravated felony murder based on the trial court’s erroneous instructions because it could have found that defendant committed the homicides during his commission or immediate flight from the burglary-theft. In that way, the trial court’s erroneous definition of‘in the furtherance of’ could have led the jury to convict defendant on a theory of criminal responsibility that does not exist in the law.”
Finally, defendant argues that his conviction on a nonexistent theory of criminal liability violated his rights under the [187] Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The state’s response is multi-layered. First, the state asserts that plain error review of defendant’s assignments is barred by ORCP 59 H because defendant failed to except either to the jury instruction on felony murder or to the trial court’s answers to the jury’s questions. We reject that contention. See State v. Vanornum, 354 Or 614, 628-29, 317 P3d 889 (2013) (failure to meet requirements of ORCP 59 H does not bar appellate court plain error review). Second, the state asserts that the trial court’s answers accurately stated the governing law. The state relies on this court’s decision in State v. Reyes, 209 Or 595, 628, 308 P2d 182 (1957), which held that the trial court in that case had properly instructed the jury that the then-extant felony-murder statutory phrase “in the commission of any felony” meant that the killing must be accomplished “at some time during the interval of the beginning and completion” of the predicate felony. Finally, the state asserts that, even if this court is unwilling to endorse the trial court’s answers as accurate statements of the law, any error in giving them is not “obvious” and, therefore, not plainly erroneous.
We begin by noting that defendant does not argue that the trial court erred by electing to answer the jury’s questions. Rather, defendant challenges the substance of those answers, which were tantamount to supplemental jury instructions. In determining whether it was error to give a particular jury instruction, this court reviews the instructions as a whole to determine whether they accurately state the law. State v. Barnes, 329 Or 327, 334, 986 P2d 1160 (1999); State v. Rogers, 313 Or 356, 383, 836 P2d 1308 (1992).
The parties debate at length whether the trial court’s answers to the jury’s questions erroneously stated the governing law and, if so, whether giving them was plainly erroneous. In this case, however, we conclude that it is unnecessary to make those determinations. That is so because defendant, the party seeking review, agreed to the giving of the supplemental instructions that he now challenges.
[188] This court has consistently declined to review plain error — assuming that it exists — in such circumstances. See State v. Fults, 343 Or 515, 520-23, 173 P3d 822 (2007) (emphasizing the importance, in deciding whether to correct assumed plain error, of the “defendant’s apparent encouragement of the judge’s choice”); see also State ex rel Juv. Dept. v. S. R., 346 Or 592, 606, 215 P3d 847 (2009) (stating that “ [t] his court has determined that it will not exercise its discretion to review an asserted plain error if the party seeking review encouraged commission of the error in question or made a strategic choice not to object.”). Here, defendant made an explicit decision to endorse the court’s answers to the jury’s questions, and “he may not seek refuge from that deliberate choice on appeal.” Id. We therefore reject defendant’s fourth and fifth assignments of error without further discussion.
C. Testimony that Physical Evidence had been Released to Defendant
In his eleventh assignment of error, defendant argues that the trial court erred by permitting a police criminalist to testify, over defendant’s objection, that certain physical evidence had been released to defendant for examination.
At trial, the prosecutor called an evidence officer from the Washington County Sheriffs Office, Marsden, to testify about how physical evidence had been catalogued and stored during the course of the investigation. Marsden testified that items of physical evidence were brought to a sheriff’s evidence storage facility and each item was then bar coded and recorded on a property receipt. Marsden also described how, generally speaking, when a piece of evidence is released to a defendant for examination, that transaction is documented on a property receipt. During Marsden’s description of that process, and following a brief conference with the trial court and the prosecutor out of the jury’s presence, defendant objected. Defendant argued:
“It appears to me that this witness is going to be asked a series of questions about an evidence view that the defense team did. I do not think that’s in any way, shape or form relevant to the jury.
[189] “Also, we had at one time, pursuant to the court’s order, the shoes that were released to a forensic expert along with the gun and the bullets in question to a forensic expert. No information has been provided to the prosecutor about what those results were, but it’s certainly trying to create an inference with this jury that somehow the defense is withholding information from the jury.
“And the reality is the defense has no burden of proof whatsoever in a criminal case like this, yet this argument, this line of questioning is putting that burden on us that somehow we withheld information that we should have been presenting to the jury.”
The trial court asked defense counsel how the prosecutor’s line of questioning would suggest that inference, and counsel replied:
“Because the jury’s going to infer that some result was— came out of that examination and the fact that we didn’t present it to the jury would certainly create the inference that the findings from our own expert may have been consistent with the state’s findings.
“And again, we have no burden of proving anything in the courtroom. Whether we test something or not, it’s solely up to us to decide whether we want to present evidence of that. And I think it’s a shifting of the burden to the jury with the inference they can make there was some finding that wasn’t given to them, that it’s now put some burden on us.”
In response, the prosecutor argued that:
“I don’t think it does that at all, your honor. [Defense counsel] has made statements kind of obliquely to the jury and made them elsewhere that this evidence is not of any value, that it doesn’t tie the defendant to the homicide scene.
“He has attacked with his questioning [another evidence officer]. He’s questioned the verification process, required us to bring in the verifier. This is chain of custody. These items were provided to the defense. If there was an issue, I’m sure that they would have been — it would have been brought up with respect to the jury.”
The prosecutor went on to assert that, because defendant was likely to argue that the physical evidence in [190] the case had been somehow tainted, or that someone had framed him for the murders, evidence of how the evidence was handled after it had been seized from defendant was relevant to rebut those potential arguments. Defense counsel replied that he had not made a chain of custody argument and that he did not intend to assert that the police had planted any of the physical evidence in the case.
The trial court overruled defendant’s objection, explaining that:
“Well, I think there is some probative value to showing the chain of custody and showing that the defense had the opportunity to examine the items. And I don’t think it puts an unfair burden on the defense or raises the inference that the defense has to prove anything.”
Marsden proceeded to testify that several pieces of physical evidence, including the shoe impressions made in the Dang residence and ballistics evidence from the handgun found in defendant’s brother’s home, had been released to the defense for examination. Marsden also testified that the same items had been released to the Oregon State Crime Lab. Defendant did not cross-examine Marsden.
On review, defendant asserts that (1) Marsden’s testimony was irrelevant under Oregon Evidence Code (OEC) 4013 because defendant had not challenged the integrity of the physical evidence against him; and (2) the testimony was unfairly prejudicial under OEC 4034 because it had suggested to the jury that defendant was required to disclose the results of any tests that he may have performed on the physical evidence that was released to him. The state responds that the evidence was relevant to establish the chain of custody of the physical evidence and that the chain of custody [191] was relevant because the state’s case against defendant was circumstantial, and its probative weight depended on the strength of physical evidence linking defendant to the crime scene. The state further argues that Marsden’s testimony was not unfairly prejudicial because it was unlikely that the jury would have drawn the layered set of inferences that defendant posits.
Whether evidence is relevant under OEC 401 is question of law. State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999). OEC 401 establishes a “low threshold” for the admission of evidence. Id. (quoting State v. Hampton, 317 Or 251, 255 n 8, 855 P2d 621 (1993)). Where evidence is offered to support an inference, the evidence is relevant “so long as the inference desired by the proponent is reasonable, even if the evidence also could support a contradictory inference.” Titus, 328 Or 475. Defendant’s relevance argument is grounded in the premise that, because he had not challenged the integrity of the physical evidence before Marsden testified, her testimony was irrelevant.
Defendant’s argument misses the mark. As this court recognized in State v. Zybach, 308 Or 96, 775 P2d 318 (1989), a party bearing the burden of proof is entitled to anticipate, as part of its case-in-chief, inherent weaknesses that might make its case less believable. In Zybach, the state offered evidence of certain encounters between the defendant and the victim to explain why the victim had delayed reporting that the defendant had raped her. Id. at 100. The trial court admitted the evidence over the defendant’s objection, and, following his conviction, the defendant appealed. The Court of Appeals reversed, holding that testimony regarding the victim’s delayed reporting was not admissible unless the defendant had first raised that issue. State v. Zybach, 93 Or App 218, 222, 761 P2d 1334 (1988). On review, this court concluded that the challenged evidence was properly admitted. This court observed that to characterize the evidence as “rehabilitative” was to “miscast” it; rather, the evidence was relevant “to show why the child had not reported the original sexual assault,” and it was “admissible in the state’s case-in-chief under [the state’s] obligation to prove the charge beyond a reasonable doubt.” Zybach, 308 Or at 100.
[192] The situation in this case is analogous. The state’s case against defendant was circumstantial, and the physical evidence linking defendant to the crime scene — including the shoe impressions and ballistics evidence — was crucial. The state was entitled to adduce testimony establishing the chain of custody of that physical evidence; it was not required to wait for defendant to lead with a challenge to its probative weight. Marsden’s testimony tended to make the probative weight of the physical evidence greater than it would have been without her testimony, because it showed how the evidence was maintained while in the state’s custody and that the only break in the state’s custody occurred when the evidence was in the hands of the defense and the state was not responsible for its condition and security. That is all OEC 401 requires. The evidence was relevant.
We turn to whether the trial court abused its discretion by admitting Marsden’s testimony over defendant’s objection that it was unfairly prejudicial under OEC 403. We review a trial court’s decision to admit evidence over such an objection for abuse of discretion. State v. Brumwell, 350 Or 93, 107, 249 P3d 965 (2011). As noted, defendant argues that Marsden’s testimony suggested to the jury that defendant was bound to disclose the results of any tests performed on the evidence released to him. According to defendant, that suggestion likely led the jury to hold against him his failure to introduce the results of such tests. It follows, defendant reasons, that the jury probably assumed that he had failed to meet a burden of proof and then concluded that it could convict him on that ground. We disagree.
The jury was instructed that the state had the burden of proof, and this court presumes that a jury followed trial court instructions in the absence of a showing that it is unlikely that they were able to do so. See, e.g., State v. Smith, 310 Or 1, 26, 791 P2d 836 (1990). Nothing in the record suggests that the jury in this case was unable to follow the court’s instructions. Based on those instructions, it is improbable that the jury drew the chain of inferences that defendant posits from Marsden’s testimony regarding how evidence was logged in and out of the evidence storage facility and the fact that the shoe impressions and ballistics [193] evidence had been released to defense counsel. Because the probative value of the challenged evidence was not outweighed by unfair prejudice to defendant, the trial court did not abuse its discretion in admitting it over defendant’s objection under OEC 403.
D. Limitation of Defense Counsel’s Closing Argument
In his seventeenth assignment of error, defendant argues that, by instructing the jury to disregard a statement that his counsel made during closing argument, the trial court abridged his right to counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.5
During closing argument, defense counsel argued:
“Let’s talk about the motive here. Okay? This is where the state’s circumstantial evidence case comes up short. How much has the state proved to you that my client knew? Okay. How much did [defendant] know about the affair? Did he know about the sexual activity between [Melinda and Nguyen]? Did you hear one piece of evidence that he even knew about the pregnancy or the fact that he wasn’t the father?”
At that point, the prosecutor objected. The trial court held a sidebar conference with the parties and then instructed the jury to “disregard [defense counsel’s] last comments and he’s going to rephrase them.” Defense counsel then told the jury that:
“What, I guess, I’m going to ask you to do, and I’ll shorten this, is what evidence has the state shown you about the knowledge that my client had about the circumstances that were going on?”
After the jury retired to deliberate, the trial court engaged counsel regarding the prosecutor’s objection. Defendant explained:
[194] “Essentially, what I was — the argument I’m making here is a key component of the state’s case has been the motive behind this alleged crime. The court’s ruling I feel has handicapped us to kind of not be able to respond to that. I was not intending to make the argument that the state withheld this information, but I was intending to incorporate it into the overall lack of proof and how it hasn’t met the standard of proof beyond a reasonable doubt and, essentially, that the jury hadn’t been given — given any information as to the level of knowledge that my client possessed in order for that motive to exist.”
The trial court then explained why it had sustained the prosecutor’s objection:
“I did sustain the objection and on the theory that — on that particular event there was evidence, I believe, suppressed. I think it was out of the telephone records the issue that went to the Supreme Court in this case.