State v. Beisser
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FILED: August 28, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. ROBERT ANTHONY BEISSER, Defendant-Appellant. Lane County Circuit Court 211105237 A148833 Ilisa Rooke-Ley, Judge. Argued and submitted on June 19, 2013. Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge. DUNCAN, J. Reversed and remanded for a new trial on Count 1; otherwise affirmed. 1 DUNCAN, J. 2 In this criminal case, defendant was charged with two counts of assault in 3 the fourth degree, ORS 163.160.1 Count 1 alleged that defendant assaulted his 4 roommate, Saner. Count 2 alleged that defendant assaulted his neighbor, Allen. During 5 trial, defendant sought to present evidence that he was not guilty of Count 1 because he 6 hit Saner in self-defense. The trial court excluded some of that evidence. Also during 7 trial, the police officer who investigated the charged assaults testified that defendant had 8 refused to meet with her. In response to the officer's testimony, defendant moved for a 9 mistrial on both counts, asserting that the testimony constituted an impermissible 10 comment on his invocation of his right to remain silent. The trial court denied the 11 motion. A jury found defendant guilty of both counts. 12 Defendant appeals the resulting judgment of conviction, raising four 13 assignments of error. Defendant's first three assignments of error relate to the trial court's 14 exclusion of evidence he sought to present to support his claim that he was not guilty of 15 Count 1 because he hit Saner in self-defense. We conclude that the trial court erred in 16 excluding the evidence that is the subject of defendant's first assignment of error, and we 17 further conclude that the error was not harmless; accordingly, we reverse and remand for 18 a new trial on Count 1. Because the record may develop differently on remand, we do 19 not reach defendant's second and third assignments of error, which also relate to Count 1. 1 As relevant here, ORS 163.160 provides, "A person commits the crime of assault in the fourth degree if the person * * * [i]ntentionally, knowingly or recklessly causes physical injury to another[.]" 1 1 Defendant's fourth assignment of error relates to the trial court's denial of his motion for a 2 mistrial on both counts. We conclude that, even if the police officer's challenged 3 testimony constituted a comment on defendant's invocation of his right to remain silent, 4 the trial court did not abuse its discretion in denying defendant's motion for a mistrial; 5 accordingly, we affirm on Count 2. 6 Given the nature of defendant's assignments of error, we begin by 7 describing the evidence that defendant sought to present regarding his self-defense claim 8 and the trial court's rulings on the admissibility of that evidence. We then describe the 9 evidence relevant to the issues on appeal that the parties presented at trial. 10 Defendant sought to present evidence that, in the days before the March 9 11 incident that led to the charges in this case, Saner had been increasingly aggressive 12 toward him. Specifically, defendant sought to present evidence about incidents on March 13 4 and March 7. Defendant wanted to testify about both incidents, and he also wanted to 14 present the testimony of another roommate, Parks, who had witnessed both incidents. 15 Regarding the March 4 incident, defendant sought to present evidence that 16 Saner had been verbally aggressive toward him during a dispute about a television. The 17 trial court ruled that neither defendant nor Parks could testify about the incident at trial. 18 In an offer of proof, defendant testified that he had brought a television home on March 4 19 and that he had been watching it with Parks and another roommate when Saner came 20 home. Defendant testified that Saner did not say anything about the television at first, but 21 later that night, after drinking alcohol, Saner "got right in [his] face" and was "ranting and 2 1 raving" about the television. Also in an offer of proof, Parks testified that Saner, who 2 was "drunk as a skunk," told defendant that he should have told him about the television 3 before bringing it into their shared apartment and "got in [defendant's] face * * * just 4 yelling and screaming and calling him names." 5 The trial court excluded both defendant's and Park's testimony about the 6 March 4 television incident on the ground that the incident was not a "violent interaction 7 between the parties." The court explained that defendant had presented only evidence of 8 "yelling and screaming," which, in the court's view, was insufficient to establish that the 9 incident was relevant to defendant's self-defense claim. 10 Regarding the March 7 incident, defendant sought to present evidence that 11 Saner came into the bathroom when defendant was taking a bath, yelled at him, and 12 pushed him down when he tried to get out of the bathtub. The trial court allowed 13 defendant to testify about the incident at trial, and defendant testified that Saner barged 14 into the bathroom, yelled at him, and pushed him down three times when he tried to get 15 out of the tub. Defendant also testified that his toe was broken during the incident. 16 After defendant testified about the March 7 bathroom incident, the trial 17 court ruled that Parks could not testify about the incident at trial. In an offer of proof, 18 Parks testified that, in response to yelling, he went into the bathroom, where he saw 19 defendant trying to get out of the bathtub and Saner pushing defendant back into the tub 20 and under the bath water. Specifically, Parks testified as follows: 21 22 "[PARKS]: * * * There was a commotion in the bathroom. I go to the bathroom and I just noticed yelling, a lot of yelling. I noticed that 3 1 2 3 [defendant] was in the bathtub and um--he was trying to get out of the bathtub, and I noticed that Mr. Saner was preventing that from happening, and-- 4 5 "[DEFENSE COUNSEL]: How was he preventing it from happening? 6 7 8 9 "[PARKS]: It--he was preventing it from happening by him using his hands and pushing him into the tub. So [defendant] was trying to get out of the tub. He was pushing him back. And I seen him go underneath the water a few times. 10 11 "[DEFENSE COUNSEL]: When you sa[w] him go underneath the water, was it his head and-- 12 "[PARKS]: Yeah. 13 14 "[DEFENSE COUNSEL]: Okay. So was--explain exactly what happened. * * * Mr. Saner did what? He pushed-- 15 16 17 18 19 20 "[PARKS]: So Saner was just infuriated. You know, just yelling and screaming. [Defendant] was doing the same thing too. And [defendant] was trying to, you know, get out of the tub. He was, you know, forcefully pushing him into the tub. And you know--and this happened, you know quite a few times, and then I got involved and stopped the situation. 21 22 23 "* * * * * "[DEFENSE COUNSEL]: How much of [defendant's] body was under the water when he got shoved into it? 24 "[PARKS]: He was fully submersed. 25 "[DEFENSE COUNSEL]: Head and all? 26 "[PARKS]: Yes. 27 "[DEFENSE COUNSEL]: And that was done by Mr. Saner? 28 "[PARKS]: Yes." 29 The trial court excluded Parks's testimony about the March 7 bathroom 4 1 incident on the ground that defendant had already testified about what was in his mind at 2 the time of the alleged crimes and that Parks's testimony would improperly bolster 3 defendant's testimony. The court explained: 4 5 6 7 8 9 10 "THE COURT: [T]he focus is on what was in the defendant's mind. He's already testified to that. So how does a third party relating the incident--which, by the way, when he related it was really quite different in many ways, not particularly helpful. How does that support the claim of self-defense which I think it has to be related? I think that if you're offering * * * someone to testify about a specific act, it then--he becomes someone who's bolstering your client's position that he reacted in self-defense. 11 "[DEFENSE COUNSEL]: Yes. 12 "THE COURT: I'm not going to let him bolster. 13 "[DEFENSE COUNSEL]: Okay. 14 "THE COURT: So that's my ruling." 15 16 17 (Emphasis added.) At trial, Saner and defendant gave conflicting testimony about what happened during the March 7 bathroom incident and March 9 incident. 18 Regarding the March 7 bathroom incident, defendant testified as described 19 above: that Saner came into the bathroom, yelled at him, and pushed him down. For his 20 part, Saner testified that he was frustrated because defendant would not turn down his 21 music, so he went into the bathroom and asked defendant, "[H]ow do you like me being 22 in your space? I'm in your bubble." Saner testified that defendant "instantly started 23 waving his hands and tried to come at me and I was laughing." Saner testified that he did 24 not reach toward or touch defendant, but that defendant flailed around, tore down the 25 shower curtain, and kicked the toilet. 5 1 Regarding the March 9 incident, which led to the charges against 2 defendant, defendant testified that Saner emptied a window-washing bucket that 3 belonged to defendant and threw it in the mud. When defendant asked Saner why he did 4 that, Saner began to taunt and push him. According to defendant, Saner called him 5 names, swore at him, and pushed him backward three times. Defendant testified that, 6 after Saner had pushed him--and in light of what Saner had done during the March 7 7 bathroom incident--he believed that Saner was going to hurt him, so he hit Saner. 8 Specifically, on direct examination, defendant told the jury that he "didn't understand 9 why the hostility was happening," and that he was "confused" and "afraid [Saner] was 10 going to do something" because Saner was "right in [his] face." He testified that Saner 11 was "being very aggressive" and reiterated that he was "confused" and "scared." 12 When questioned by the prosecutor, defendant acknowledged that Saner did 13 not make any verbal threats and was not pushing hard enough to knock him down, but 14 that Saner was taunting and shoving him. Defendant testified that Saner's "whole 15 behavior was totally threatening" and, based on that behavior, he believed that Saner was 16 going to hurt him. Defendant testified that he did not step toward Saner; instead, "[Saner] 17 kept going out to me, I'm backing up, and then finally I hit him." The prosecutor asked 18 defendant why he hit Saner: 19 "[PROSECUTOR]: Did you hit him because you were mad at him? 20 21 "[DEFENDANT]: I was definitely mad and definitely frustrated 22 but-"[PROSECUTOR]: Did you hit him because you were mad at him? 6 1 "[DEFENDANT]: It's self-defense. He had his hands on me-- 2 "[PROSECUTOR]: Okay. 3 "[DEFENDANT]: --a number of times." 4 Defendant further testified that, due to events that had occurred between him and Saner, 5 when he hit Saner he was "[a]ngry, hurt, frustrated, all of it." 6 Regarding the March 9 incident, Saner testified that he emptied defendant's 7 window-washing bucket, which upset defendant. According to Saner, defendant started 8 to yell and scream at him. Saner testified that he tried to walk away, but defendant 9 lunged at him twice, hit him in the face, and then pushed him down and hit him in the 10 back multiple times. 11 The investigating officer, Hall, testified that she called defendant on the 12 afternoon of March 9, but he "refused to meet [her] that day." Defendant moved for a 13 mistrial on the ground that Hall's testimony was a "comment on [defendant's] silence." 14 The trial court denied the motion, stating, "I'm not going to grant a mistrial. I don't think 15 that it's a comment on his silence." 16 As mentioned, the jury found defendant guilty of both counts of assault in 17 the fourth degree, and defendant appeals the resulting judgment, raising four assignments 18 of error. In his first assignment of error, defendant asserts that the trial court erred in 19 excluding Parks's testimony about the March 7 bathroom incident. In his second 20 assignment of error, defendant asserts that the trial court erred in excluding his own 21 testimony about the March 4 television incident, and in his third assignment of error, 7 1 defendant asserts that the trial court erred in excluding Parks's testimony about that 2 incident. In his fourth assignment of error, defendant asserts that the trial court erred in 3 denying his motion for a mistrial based on Hall's testimony that defendant had refused to 4 meet with her. 5 Defendant's first, second, and third assignments of error relate only to 6 Count 1, to which defendant claimed self-defense. Defendant's fourth assignment of 7 error relates to both Count 1 and Count 2. 8 We begin by addressing defendant's first assignment of error: that the trial 9 court erred by excluding Parks's testimony about the March 7 bathroom incident. On 10 appeal, defendant asserts that the evidence was admissible under OEC 404(1), which 11 provides, "Evidence of a person's character or trait of character is admissible when it is an 12 essential element of a charge, claim or defense." If evidence of a person's character is 13 admissible under OEC 404(1), "proof may be made by testimony as to reputation or by 14 testimony in the form of an opinion," OEC 405(1), and "proof may also be made of 15 specific instances of conduct of the person," OEC 405(2). Whether evidence is 16 admissible under OEC 404(1) is a question of law, which we review for errors of law. 17 See State v. Whitney-Biggs, 147 Or App 509, 527-28, 936 P2d 1047, rev den, 326 Or 43 18 (1997). 19 A defendant charged with a crime for using physical force against another 20 person may raise the defense of self-defense. ORS 161.209 provides that, except under 21 circumstances not relevant here: 8 1 2 3 4 5 "[A] person is justified in using physical force upon another person for selfdefense * * * from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose." 6 Thus, the applicability of the defense of self-defense depends, inter alia, on whether the 7 defendant reasonably believed that the alleged victim had used, or was about to use, 8 unlawful physical force. 9 When a defendant raises the defense of self-defense, evidence of the 10 alleged victim's prior violent acts toward the defendant is admissible under OEC 404(1). 11 State v. Lunow, 131 Or App 429, 885 P2d 731 (1994). In Lunow, the defendant, who was 12 charged with assault in the fourth degree and harassment, raised the defense of self- 13 defense. In support of his defense, the defendant sought to testify that, a few days before 14 the incident that gave rise to the charges against him, the alleged victim had hit him with 15 her cast, knocking him to the floor.2 The trial court excluded the evidence, and we 16 reversed, holding: 17 18 19 20 21 22 23 24 25 "The plain language of OEC 404(1) permits evidence of a person's character when it is an essential element of a defense. 'Reasonable belief' is an element of the defense of self-defense. To the degree that defendant's belief that he needed to defend himself depended on [the victim's] character, that character was placed 'in issue.' The incident when [the victim] hit defendant three times with her cast, knocking him to the floor, was probative of the conduct against which defendant would have reasonably believed it necessary to protect himself. It was error to exclude defendant's testimony of the specific incident." 2 The defendant also sought to present testimony by two witnesses, but he did not make an "offer of proof as to the content of the specific incidents that the witnesses would relate," and, therefore, we could not determine "if the trial court erred in limiting [the] witnesses to reputation and opinion testimony." Lunow, 131 Or App at 436 n 6. 9 1 Id. at 435-36 (brackets in Lunow; internal citations omitted; emphasis added).3 2 In this case, as in Lunow, evidence of the alleged victim's prior violent acts 3 was relevant to the reasonableness of defendant's belief that he needed to defend himself. 4 Specifically, evidence that, on March 7, Saner had pushed defendant repeatedly when 5 defendant was trying to get out of the bathtub and that Saner had done so with such force 6 that he submerged defendant's head under the water was relevant to whether defendant 7 believed, as he claimed, that Saner was about to use unlawful physical force against him 8 during the incident on March 9 that gave rise to the charges in this case. Under Lunow, 9 Saner's character was at issue, and evidence regarding the March 7 incident was probative 10 of that character. Therefore, the trial court erred in excluding Parks's testimony regarding 11 the March 7 incident.4 12 13 The state acknowledges that "the trial court may have erred when it excluded [Parks's] testimony on the ground that it constituted improper 'bolstering' of 3 As we noted in Whitney-Biggs, Professor Kirkpatrick "takes issue with Lunow's analysis but not with its result": "'Although the court reached the right result, a preferred ground of decision would be that OEC 404 does not regulate this type of evidence at all. OEC 404 does not address all possible uses of 'character' evidence. Evidence of a victim's prior acts of violence, provided they are known to the defendant, have long been admissible to show the defendant's reasonable belief in the need to use self-defense.'" 147 Or App 528 n 19 (quoting Laird C. Kirkpatrick, Oregon Evidence, 28 (2d ed Supp 1995)). 4 Because we conclude that Parks's testimony was admissible under OEC 404(1), we do not address defendant's alternative argument that Parks's testimony was admissible under OEC 404(3). 10 1 defendant's testimony about [the March 7 incident.]" Improper bolstering occurs when a 2 party attempts to enhance a witness's credibility either in an impermissible manner or at 3 an impermissible time. See State v. Charboneau, 323 Or 38, 44-48, 913 P2d 308 (1996) 4 (describing examples of improper bolstering). But, as the state observes in its brief, 5 "there is nothing improper about a party 'bolstering' its case by presenting evidence that 6 corroborates that party's version of the facts." 7 Although the state acknowledges that "it appears that the trial court erred by 8 excluding [Parks's] testimony on the ground that it constituted improper bolstering[,]" the 9 state argues that any error was harmless. See Or Const, Art VII (Amended), section 3 (if 10 "the judgment of the court appealed from was such as should have been rendered in the 11 case, such judgment shall be affirmed"); OEC 103 (evidentiary error is not reversible 12 "unless a substantial right of the party is affected"). According to the state, even if the 13 jury had heard Parks's testimony regarding the March 7 bathroom incident, the jury 14 would have rejected defendant's self-defense theory because defendant's own testimony, 15 "as a whole, reflects that defendant hit Saner because Saner provoked defendant until 16 defendant was angry enough to hit him." 17 Evidentiary error is harmless if there is "little likelihood that the error 18 affected the verdict." State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). When 19 determining whether there is little likelihood that a trial court's erroneous exclusion of 20 evidence affected a jury's verdict, we review the record and consider the "content and 21 character of [the] evidence, as well as the context in which it was offered." State v. Klein, 11 1 352 Or 302, 314, 283 P3d 350 (2012). When doing so, we focus on "the possible 2 influence of the error on the verdict rendered, not whether this court, sitting as a 3 factfinder, would regard the evidence of guilt as substantial and compelling." Davis, 336 4 Or at 32. That is, "we do not determine, as a factfinder, whether the defendant is guilty. 5 That inquiry would invite this court to engage improperly in weighing the evidence and, 6 essentially, retrying the case, while disregarding the error committed at trial[.]" Id. 7 If erroneously excluded evidence "relates to a 'central factual issue' in the 8 case, it is more likely to have affected the jury's determination than if it deals with a 9 tangential issue." State v. Johnson, 225 Or App 545, 550, 202 P3d 225 (2009) (quoting 10 State v. Marrington, 335 Or 555, 566, 73 P3d 911 (2003)). "By contrast, if the particular 11 issue to which the error pertains has little relationship to the issues being determined by 12 the jury, then there is less likelihood that the error affected the verdict." Johnson, 225 Or 13 App at 550 (citing Marrington, 335 Or at 566). 14 State v. Griffin, 19 Or App 822, 529 P2d 399 (1974), a case similar to this 15 one, is instructive. In Griffin, the defendant was charged with murder for shooting the 16 alleged victim, Lyman. The defendant claimed that he shot Lyman in self-defense and 17 sought to present a witness to testify about the effects of alcohol on Lyman. The trial 18 court excluded the evidence, a jury convicted the defendant, and the defendant appealed. 19 On appeal, the defendant challenged the trial court's exclusion of the 20 evidence regarding the effects of alcohol on Lyman. We reversed, concluding that the 21 exclusion of the evidence was error and that it was prejudicial. Regarding the prejudice, 12 1 we explained, 2 3 4 5 6 7 8 9 "A great deal of defendant's claim of self-defense was predicated upon his assertion that he believed Lyman had a gun and fully intended to kill defendant and Carol Lyman. The jury may well have been more inclined to believe defendant's version of the events preceding the shooting, including his claim that Lyman initiated an unprovoked attack, had it been presented with testimony regarding Lyman's unpredictable swings of mood and potentially violent behavior while intoxicated." Id. at 833-34. 10 In this case, as in Griffin, we conclude that the trial court's erroneous 11 exclusion of defendant's proffered evidence was prejudicial. Whether defendant acted in 12 self-defense when he hit Saner was the "central factual issue" at trial. Marrington, 335 13 Or at 566. Defendant and Saner offered competing versions of the events of March 9; 14 each claimed that the other was the initial aggressor. As described above, defendant 15 testified that, based in part on the March 7 bathroom incident, he believed that Saner was 16 about to hurt him and that he needed to protect himself during the March 9 incident. As 17 in Griffin, the jury may well have been more inclined to believe defendant's testimony 18 about his belief that Saner was about to hurt him on March 9 if it had been presented with 19 Parks's testimony that Saner had used physical force against defendant on March 7. 20 Parks's testimony would have corroborated and supplemented defendant's testimony 21 about Saner's actions on March 7 and, thereby, would have supported defendant's claim 22 that he acted in self-defense on March 9.5 5 The state does not contend, nor could it, that Parks's testimony about the March 7 bathtub incident was merely cumulative. Although defendant had testified to the March 7 bathroom incident, Parks's proffered testimony was not duplicative of defendant's, 13 1 We cannot accept the state's argument that the trial court's erroneous 2 exclusion of the evidence was harmless in light of defendant's testimony. As mentioned, 3 the state argues that defendant's testimony "as a whole, reflects that defendant hit Saner 4 because Saner provoked defendant until defendant was angry enough to hit him." The 5 state acknowledges that defendant testified that he was afraid of Saner because of the 6 bathroom incident but argues that "the balance of [defendant's] testimony reflects that his 7 act of hitting Saner stemmed from anger and frustration at the taunting, rather than any 8 sense of need to protect himself." 9 As we understand it, the state's argument is that defendant's testimony is 10 internally inconsistent and we should resolve the inconsistencies by crediting defendant's 11 statements that he was angry and frustrated but not his statements that he was afraid and 12 believed that Saner was going to hurt him. We decline to do so for two reasons. First, it 13 is debatable whether defendant's testimony is internally inconsistent. The fact that 14 defendant testified that he felt emotions other than fear does not establish that defendant 15 did not also feel fear. Indeed, it does not strike us as unusual that a person would feel 16 multiple strong emotions during the March 9 incident, as defendant described it, 17 especially given that the incident occurred in the context of a deteriorating roommate because it was qualitatively different. It was more specific than defendant's; only Parks testified that Saner pushed defendant completely underwater. It was also from a different perspective; Parks was a third party, both to the March 7 incident and to the criminal prosecution. As a result, a jury might give greater weight to Parks's testimony than defendant's testimony, both because Parks observed the March 7 incident without being involved in it, except to terminate it, and because Parks did not have the same stake in the outcome of the prosecution. 14 1 relationship. Second, and more importantly, even if there are inconsistencies in 2 defendant's testimony, it is the role of the trier of fact to resolve them. Davis, 336 Or at 3 32 (reviewing court is to focus on "the possible influence of the error on the verdict 4 rendered, not whether [the reviewing] court, sitting as a fact-finder, would regard the 5 evidence of guilt as substantial and compelling"). What defendant believed when he hit 6 Saner is a question of fact, to be resolved by the trier of fact. Here, as a result of the trial 7 court's erroneous exclusion of Parks's testimony, the trier of fact did not have the benefit 8 of all of the available evidence relevant to that question and, therefore, remand for a new 9 trial on that count is required. 10 In sum, we conclude that, as defendant asserts in his first assignment of 11 error, the trial court committed reversible error in excluding Parks's testimony about the 12 March 7 bathtub incident. The evidence was admissible under OEC 404(1), and the 13 exclusion of it denied defendant the opportunity to present available evidence that was 14 relevant to the central factual dispute regarding Count 1. Accordingly, we reverse and 15 remand for a new trial on Count 1. 16 Because we remand for a new trial on Count 1 and the evidentiary record 17 and legal arguments may develop differently on remand, we decline to address 18 defendant's second and third assignments of error, which, as described above, relate to 19 the exclusion of evidence of Saner's verbal aggression toward defendant during the 20 March 4 television incident. 21 We turn to defendant's fourth assignment of error: that the trial court erred 15 1 in denying his motion for a mistrial based on Hall's testimony that defendant "refused to 2 meet [her]" on March 9. On appeal, defendant argues that Hall's testimony constituted an 3 improper comment on defendant's exercise of his right to remain silent under Article I, 4 section 12, of the Oregon Constitution and the Fifth Amendment to the United States 5 Constitution and that the trial court's denial of his motion for a mistrial requires reversal 6 because the jury likely drew the impermissible inference that, based on his decision not to 7 speak with the officer, defendant was guilty. 8 The state responds that Hall's testimony did not constitute a comment on 9 defendant's invocation of his right to remain silent and, even if it did, the court did not 10 abuse its discretion in denying defendant's motion for a mistrial. 11 We review a trial court's denial of a motion for a mistrial for abuse of 12 discretion. State v. Larson, 325 Or 15, 22, 933 P2d 958 (1997). "[I]t is usually reversible 13 error to admit evidence of the exercise by a defendant of the rights which the constitution 14 gives him if it is done in a context whereupon inferences prejudicial to the defendant are 15 likely to be drawn by the jury." State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600 16 (1977). Nevertheless, "[i]f there is little likelihood that any inference adverse to the 17 defendant could be drawn by the trier of fact, reference to defendant's exercise of [the] 18 constitutional right is not prejudicial error." State v. Williams, 49 Or App 893, 897, 621 19 P2d 621 (1980) (citing Smallwood, 277 Or at 506; State v. Nulph, 31 Or App 1155, 572 20 P2d 642, rev den, 282 Or 189 (1977)). 6 6 Defendant recognizes that we typically review a trial court's denial of a motion for 16 1 Larson is instructive. In Larson, the defendant moved for a mistrial after 2 the prosecutor commented on the defendant's failure to testify. The trial court denied the 3 motion, and the Oregon Supreme Court affirmed. After considering the record, the court 4 held that, although the prosecutor's comment on the defendant's failure to testify was 5 improper under both the state and federal constitutions, the context of the comment was 6 not one in which the jury was likely to draw prejudicial inferences against the defendant. 7 Larson, 325 Or at 23-24. The Supreme Court noted that the prosecutor made only a 8 single reference to the defendant's failure to testify; that the comment was directed to the 9 judge, not the jury; and that the comment was made in frustration, in the course of 10 objecting to the defendant's repeated attempts to introduce inadmissible hearsay. "Under 11 those circumstances, the trial court was faced with a question that it could decide either 12 way." Id. at 25. The Supreme Court therefore held that the trial court did not abuse its 13 discretion when it denied the defendant's motion for a mistrial. Id. at 23. 14 Here, assuming, without deciding, that the officer's testimony constituted an 15 improper comment on defendant's exercise of his right against self-incrimination, we 16 hold that the trial court did not abuse its discretion in denying defendant's motion for a mistrial for abuse of discretion, but he asserts that we should review for legal error in this instance because the trial court's decision was "'not singularly a matter of discretion, but a question of law calling for an application of a rule of law to a particular set of facts[.]'" State v. Rogers, 330 Or 282, 310, 4 P3d 1261 (2000) (quoting Yundt v. D & D Bowl, Inc, 259 Or 247, 256, 486 P2d 553 (1971)). We are unpersuaded by defendant's argument and decline to modify our standard of review for a trial court's denial of a mistrial. 17 1 mistrial.7 The officer made only a single comment regarding defendant's decision not to 2 meet with her. Neither the officer nor the prosecutor referred to the comment again. See 3 State v. Farrar, 309 Or 132, 164, 786 P2d 161 (1990) (trial court did not abuse its 4 discretion in denying the defendant's motion for a mistrial after a witness referred to a 5 polygraph examination, when the reference was isolated, did not mention the result of the 6 test, and the state did not argue that the jury should draw any particular inference from 7 the reference). As in Larson, 325 Or at 25, "the trial court was faced with a question that 8 it could decide either way." The trial court did not abuse its discretion in denying 9 defendant's motion for a mistrial. 10 In sum, we conclude that, as defendant asserts in his first assignment of 11 error, the trial court erred in excluding Parks's testimony relevant to Count 1 and the error 12 was not harmless. Accordingly, based on that assignment of error, we reverse and 13 remand for a new trial on Count 1, and do not reach defendant's second and third 14 assignments of error, which relate to that count. We also conclude that, as the state 15 asserts in response to defendant's fourth assignment of error, even if Hall's testimony that 16 defendant refused to meet with her constituted a comment on defendant's invocation of 17 his right to remain silent, the trial court did not abuse its discretion in denying defendant's 18 motion for a mistrial. 7 See, e.g., State v. Lotches, 331 Or 455, 497, 17 P3d 1045 (2000) (assuming, without deciding, that prosecutor's alleged gesticulations constituted improper comment on a witness's testimony, that conduct was not so prejudicial that the trial court abused its discretion in denying defendant's motion for a mistrial). 18 1 Reversed and remanded for a new trial on Count 1; otherwise affirmed. 19
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