192
Submitted August 9, affirmed October 16, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
TONY LAMAR BROWN,
Defendant-Appellant.
Multnomah County Circuit Court
16CR55091, 16CR62746;
A165931 (Control), A166092
452 P3d 482
Defendant appeals from a judgment of conviction for first-degree robbery,
first-degree burglary, unlawful use of a weapon, strangulation, second-degree
kidnapping, and menacing. He assigns error to the trial court’s denial of his
motion in limine, as well as his midtrial objection before the witnesses testified,
to exclude evidence that he barricaded himself in the victim’s house and that
police forcibly entered the house to arrest him after a nine-hour standoff. He also
assigns error to the trial court’s denial of his subsequent objection under OEC
403 and motion for mistrial, both based on the evidence of the standoff being
unfairly prejudicial. Held: (1) The trial court’s denials of defendant’s motion in
limine and midtrial objection to exclude evidence of the standoff were preliminary and not appealable. (2) The trial court did not abuse its discretion in rejecting defendant’s pretrial proposal to limit evidence of the standoff, because the
nature and extent of the actions that defendant took to avoid capture bore on the
extent to which the jury could infer his guilty knowledge. (3) Defendant’s OEC
403 objection and motion for mistrial were untimely, as defendant waited until
long after the witnesses had finished their testimony and been excused before
objecting to the specific testimony that they offered.
Affirmed.
Leslie G. Bottomly, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erica Herb, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant. On the
supplemental brief were Ernest G. Lannet and Andrew D.
Robinson, Deputy Public Defender, Office of Public Defense
Services.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the briefs for respondent.
Cite as 300 Or App 192 (2019) 193
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kistler, Senior Judge.
KISTLER, S. J.
Affirmed.
194 State v. Brown
KISTLER, S. J.
Defendant appeals from a judgment of conviction
for first-degree robbery, first-degree burglary, unlawful use
of a weapon, strangulation, second-degree kidnapping, and
menacing. He raises four assignments of error in his opening brief and three additional assignments of error in a supplemental brief. We limit our discussion to the second and
third assignments of error in his opening brief and affirm
the trial court’s judgment.1
The victim and defendant had been in a relationship for some time. In 2016, the victim sought to end the
relationship, but defendant persisted. He repeatedly drove
by the victim’s home, telephoned her, and sent her text messages. On three occasions during August and September,
defendant took actions that resulted in the convictions he
now challenges on appeal. We describe those actions briefly
before turning to the trial court’s evidentiary rulings that
are the subject of defendant’s second and third assignments
of error.
On August 9, 2016, the victim was at home sleeping
on a couch. She woke to find defendant putting a plastic bag
over her head. After struggling with defendant, she was able
to get the bag off her head. However, once she did so, defendant put a gun initially to her head and then in her mouth.
He accused her of seeing other men and told her that he was
going to kill her. He said that he was going to put her body
in the plastic bag and bury her where no one would find her.
At first, the victim told defendant that she was not seeing
anyone. Later, she “started agreeing to what he was saying,
because[, as the victim put it,] the truth wasn’t working.”
When she began “admitting” his accusations, defendant
calmed down. He left the living room briefly, which allowed
the victim to text her adult daughter to call the police.
Defendant became suspicious that the victim had contacted
the police and fled from the house when officers knocked on
the front door.
1
We affirm without discussion defendant’s remaining assignments of error
in his opening brief. We reject on the merits the three assignments of error relating to the nonunanimous jury verdict in this case that defendant raises in his
supplemental brief.
Cite as 300 Or App 192 (2019) 195
After that attack, the victim stayed in her mother’s
house because she “was too scared to go back” to her own
home. However, on August 22, the victim went back to
her home with four members of her family. She wanted to
gather some clothes and secure the house to keep defendant
from getting inside. When they were inside the home, they
“smell[ed] smoke. It just didn’t seem right. It felt like he …
might have just been there.” They looked for defendant but
did not find him. Then, the victim’s daughter went over to
a couch by the window. When she did so, the couch moved,
defendant jumped out from behind the couch, brandished a
gun, and threatened to kill the victim. When the victim’s
uncle and her daughter confronted defendant, he ran out the
back of the house.
After those two encounters, defendant continued to
telephone the victim, and the victim continued to talk with
him. During one of their calls, he offered to meet her in
a public place to help her with her car. He told her that
another person would be there to calm any fears she might
have. Initially, the victim resisted. Later, she relented. On
September 7, the victim drove her car to a public parking lot
where she met defendant. The third person was not there.
Defendant got in the backseat of the victim’s car and told
her to drive to a city park. When the victim’s cell phone
rang, defendant told her not to answer it, put a knife to her
throat, and once more accused her of seeing other men.
When they got to the park, the victim began driving
her car into parked cars, hoping that someone would call
the police. During the ensuing confusion, the victim tried to
escape. Defendant, however, managed to get into the front
seat and grab the victim’s braids before she could get completely out of the car. He drove off, holding the victim by her
braids and dragging her along the road for several feet until
her braids broke.
That night, defendant abandoned the victim’s car,
broke into her house, and barricaded himself inside. The
next day, the police discovered him in the house, which led to
a nine-hour standoff during which the police initially tried
to get defendant to give himself up and later forcibly entered
the house and placed defendant under arrest. The trial
196 State v. Brown
court’s rulings admitting evidence regarding the standoff
are the subject of defendant’s second and third assignments
of error, which raise related but separate issues.
I. DEFENDANT’S SECOND
ASSIGNMENT OF ERROR
Before trial, defendant filed a motion in limine
arguing that any evidence regarding the standoff should be
limited under OEC 403. In addressing that motion, the trial
court issued what it described as a preliminary ruling; it
provided general guidelines for the parties to follow, and it
expressly advised defendant that he should object at trial
if the evidence of the standoff became either cumulative or
unduly prejudicial. At trial, defendant renewed his motion
in limine before any testimony regarding the standoff was
offered, and the trial court reaffirmed its pretrial ruling.
Three witnesses then testified about the standoff without
further objection. Some time after the trial had moved on to
other matters, defendant raised an OEC 403 objection to the
standoff testimony that the three witnesses previously had
offered. The trial court overruled that objection.
On appeal, defendant appears to assign error to
each of those rulings.2 In arguing that the trial court erred
in making those rulings, defendant treats the three rulings
as if they were synonymous. However, the record before the
trial court when it made the rulings and the substance of
those rulings differ. Beyond that, each ruling arose in a different procedural posture. For that reason, we discuss each
ruling separately. See Strawn v. Farmers Ins. Co., 350 Or
336, 347-50,
258 P3d 1199, adh’d to on recons,
350 Or 521,
256 P3d 100 (2011), cert den,
565 US 1177 (2012) (explaining
the need to focus on the specific arguments raised and the
precise evidentiary rulings); Hayes Oyster Co. v. Dulcich,
170
Or App 219, 224,
12 P3d 507 (2000) (same).
2
We say “appears” because defendant’s second assignment of error states
generically that “[t]he trial court erred when it admitted evidence of defendant’s
standoff with police before his arrest.” Although defendant’s assignment of error
does not identify the specific ruling or rulings that he contends were erroneous,
see ORAP 5.45(3) (requiring that each challenged ruling be specifically identified), the preservation section of his brief sets out the three evidentiary rulings
described briefly above. We assume that defendant challenges each of those
rulings.
Cite as 300 Or App 192 (2019) 197
A. Defendant’s Pretrial Motion in Limine
Before trial, defendant filed a motion in limine to
exclude evidence regarding the standoff. In making that
motion, defendant acknowledged that a limited amount of
evidence regarding the standoff was admissible to prove
his guilty knowledge. Specifically, defendant acknowledged
that the state could “confirm that … [defendant] did not
cooperate, that he refused to come out, [and that] they had
to forcibly remove him.” However, defendant argued that
anything other than that brief, schematic description of the
standoff would be unduly prejudicial and violate OEC 403.
The state, for its part, recognized that not all the evidence
regarding the standoff should be admitted, but it argued
that more information than defendant would admit was relevant to prove defendant’s guilty knowledge.
As the parties’ discussion progressed, their positions shifted slightly. In part, that shift derived from the
fact that defendant did not know the specific evidence that
the state sought to admit. When he filed his pretrial motion
in limine, he was aware only of the people on the state’s witness list whom it intended to call, and he could only speculate about the evidence the state would seek to admit. In
part, the parties’ positions appear to have changed because
each side saw some value in the other’s arguments and modified their positions accordingly. Defendant, for example,
acknowledged that the officers could add that defendant
had been found in the victim’s home. The state, for its part,
offered to limit the number of witnesses to avoid focusing
too much on the standoff.
Despite some movement on both sides, the parties
were unable to agree on which of the events that occurred
during the nine-hour standoff should be admitted, nor could
they agree on the extent to which the witnesses could testify
about those events. Faced with that division, the trial court
announced what it described as a “preliminary ruling.” It
advised the parties that it had “concerns about the quantum and character of the evidence at some point crossing
the line from being probative to being prejudicial.” It recognized that the “evidence of flight and resisting apprehension
clearly is relevant to guilty knowledge.” It also recognized,
198 State v. Brown
however, that “[t]ypically cases involve fleeing police and
being apprehended. They don’t include [a] nine hour standoff, CERT Team, C.N.T. Team, C.I.C Team, tear gas, tasing,
[and] robots.” The court accordingly asked
“the State to make its way through this testimony quickly
and without cumulative coverage of things, without hysteria, without officers testifying that there was a statement
to the effect that ‘I’ve never seen somebody not respond
to this much gas,’ or ‘I’ve never seen somebody go so long.’
That statement particularly, that’s a lot of facts not in evidence that doesn’t [sic] have anything to do with this case,
so if there was an officer who was going to testify something to that effect, I think that goes beyond what would
be appropriate.”
In providing that guidance, the court acknowledged
that “this is a difficult [case] for the State to know where
the Court’s at on this.” The court then advised defense counsel, “If objections are raised I may advise the State it’s time
to move on, that that topic has been covered if I feel that
it’s reaching a point of being cumulative or overly emphasizing beyond the probative value of the Defendant’s quote/
unquote guilty knowledge, evidence[d] by fleeing and resisting arrest.”
Following that admonition, the parties discussed
briefly whether the amount of tear gas that defendant tolerated could be separated from the amount of illegal drugs
in his system, both of which potentially were relevant to his
mental and physical state when he subsequently confessed.
After defendant acknowledged that the state could mention the amount of tear gas used, the court sought to clarify
defendant’s position. The trial court observed, “So they can
say he handled a lot of gas. I just don’t want them saying
of the 200 standoffs … this one [was] the worst.” Defense
counsel interjected, “Right.”
The court then restated its ruling:
“[H]ere’s my preliminary ruling. … I’m not excluding anything at this point, but I’m giving the State fair warning
that if the State chooses to dwell on, repeat, overly emphasize with their questioning, their length of time [that] they
have these CERT officers on the stand, they risk me deciding okay, you’ve made your point, right? Guilty mind. He
Cite as 300 Or App 192 (2019) 199
was fleeing, he was resisting, point made. Anything beyond
that is going to be prejudicial.”
As the court’s statements made clear, it was not excluding
anything “at this point.” It wanted to see how the evidence
played out. It also made clear that it did not want the state
to dwell on the evidence and advised defendant that, “[i]f
objections are raised,” it would exclude cumulative or prejudicial testimony.
Defendant assigns error to that ruling, which the
trial court twice described as “preliminary.” Defendant’s
assignment of error faces a potential hurdle, however.
Following the Supreme Court’s lead, we have long held that
a party may not assign error to a preliminary evidentiary
ruling. Hayes, 170 Or App at 233-34; State v. Jackson,
68 Or
App 506, 512-13,
683 P2d 120, rev den,
297 Or 546, cert den,
469 US 983 (1984); accord State v. Adams,
296 Or 185, 189,
674 P2d 593 (1983). In Jackson, we explained that, when the
trial court’s ruling was anticipatory and merely revealed the
trial court’s inclinations, the ruling could not be challenged
on appeal; counsel needed to do something more to give rise
to a final appealable ruling, such as offer or object to specific
evidence at trial.
68 Or App at 513. Similarly, we explained
in Hayes that “ ‘the trial court’s subjective statement[s] of its
anticipated ruling[s],’ which the trial court expressly made
subject to further consideration at trial” were not final rulings that could be challenged on appeal.
170 Or App at 233
(quoting Adams,
296 Or at 189 (bracketed material added in
Hayes)).
For the most part, the trial court’s ruling on defendant’s pretrial motion in limine was, as the trial court described
it, preliminary. However, the trial court’s ruling was final in
one respect. It is clear from the trial court’s comments that
it rejected defendant’s efforts to limit evidence regarding the
standoff to his proposed schematic description of the event,
which we refer to as defendant’s proposed “stipulation.”3
3
The state argues that defendant never formally stipulated to the admission
of particular evidence. That may be correct. However, even if we assume that
defendant’s schematic, minimal description of the admissible evidence constituted a “stipulation,” the trial court did not err in declining to limit the state to
defendant’s stipulation for the reasons explained below.
200 State v. Brown
In that limited respect, the trial court’s ruling was final,
and we turn to that aspect of the trial court’s ruling.
On appeal, defendant argues that the trial court
abused its discretion in rejecting his proposed stipulation.
The validity of defendant’s argument turns initially on
whether the state’s proffered evidence was relevant to prove
more than the limited “stipulation” that defendant urged
was sufficient to prove the state’s case. See State v. Sparks,
336 Or 298, 309-12,
83 P3d 304, cert den,
543 US 893 (2004)
(concluding that, because post-mortem photographs were
relevant to prove more than the defendant stipulated, the
trial court did not err in declining to limit the state to the
defendant’s stipulation). We cannot say that the trial court
erred in declining to accept defendant’s stipulation.
The nature and extent of the actions that defendant
took to avoid capture bore on the extent to which the jury
could infer his guilty knowledge. See State v. McCormick,
280 Or 417, 420-21,
571 P2d 499 (1977) (explaining that the
question whether an inference of guilty knowledge should be
drawn from a defendant’s actions and the strength of that
inference will vary with the facts in each case). The trial
court reasonably could conclude that defendant’s abbreviated version of the facts would not give the jury a sufficient
evidentiary basis from which to draw (or not draw) an inference concerning his guilty knowledge. Moreover, the duration of the standoff and the physical and mental stresses
arising from the standoff bore on the validity of his confession following his arrest.4 To be sure, too great a focus on the
details of the standoff could become unduly prejudicial, as the
trial court recognized. However, we cannot say that the trial
court abused its discretion in declining to limit the evidence
4
There was no evidence before the trial court when it ruled on defendant’s
pretrial motion, only the representations of the parties. The state represented
(and defendant did not dispute) that, because defendant “does give an interview
… after his arrest, the jury would be able to consider whether or not he was
under the influence of any intoxicants and that sort of thing.” The trial court
discounted the state’s focus on defendant’s mental and physical state as raising
a separate issue. However, the effect of the prolonged standoff and defendant’s
extended exposure to the tear gas bore on his physical and mental state when
he confessed after his arrest. Defendant’s proposed stipulation was not sufficient
to provide the jury with a complete basis for assessing his mental and physical
state.
Cite as 300 Or App 192 (2019) 201
regarding the standoff to the abbreviated schematic version
of the events in defendant’s proposed stipulation.5
We accordingly affirm the one aspect of the trial
court’s ruling on defendant’s pretrial motion in limine that is
final. Beyond that, however, the trial court’s ruling was, as
the court twice described it, preliminary. That is, the trial
court declined to rule pretrial on the specific evidence of the
standoff that would and would not be admissible. Instead,
it identified general guidelines that the state should follow in eliciting the evidence, and it advised defendant that,
“[i]f objections are raised,” it would exclude cumulative or
prejudicial testimony. That aspect of the trial court’s ruling
on his pretrial motion was not final, and his challenge to
that part of the trial court’s pretrial ruling is not properly
before us. See Hayes, 170 Or App at 233-34; Jackson,
68 Or
App at 513.
B. Midtrial Ruling
After the trial court ruled on defendant’s pretrial
motion in limine, the case proceeded to trial. The state called
witnesses who testified regarding defendant’s assaults on
August 9, August 22, and September 7. It then called three
witnesses to testify regarding the standoff: Officers King,
Sparling, and Chamberlin. King began his testimony by
stating that his “full-time job [was to] run the crisis negotiation team for [the] Portland Police.” At that point, before
King had offered any specific evidence about the standoff,
defense counsel renewed his pretrial motion in limine:
5
In arguing that the trial court abused its discretion in not accepting his
proposed stipulation, defendant contends that, in light of the evidence that he
had fled on August 9 and 22, the evidence of his resistance on September 8 was
only marginally relevant to proving his guilty knowledge. That argument is
problematic for three reasons. First, when the trial court ruled on defendant’s
pretrial motion, there was no evidence (or representation) that defendant had
fled on August 9 and 22. Second, and more importantly, defendant’s flight on
August 9 and 22 permitted the jury to draw an inference of guilty knowledge
regarding his acts on those days, but his flight on August 9 and 22 provided no
basis for inferring guilty knowledge regarding his acts on September 7. Finally,
the defendant’s stipulation (even after he modified it to permit a limited reference
to the use of tear gas) did not provide a complete basis for the jury to assess his
mental and physical condition after the police removed him from the victim’s
house on September 8 and shortly before he confessed.
202 State v. Brown
“[DEFENSE COUNSEL]: Your Honor, I’m going to
take this moment just to object, to renew my original objection in limine regarding crisis negotiation.
“THE COURT: Understood.”
King then testified about the negotiations during
the standoff. He touched briefly on the length of the standoff, the officers’ attempts to make contact with defendant,
and their efforts to gain entry into the house. Sparling then
testified briefly about entering the home after using a robot
to determine defendant’s location. Finally, Chamberlin
described arresting defendant and taking him to the hospital. After Chamberlin stated that defendant had been
taken to a hospital, the state asked, “[W]e heard that there
was a lot of tear gas deployed, is that the reason for him to
go to the hospital and be checked out?” Chamberlin said,
“Correct.” When asked whether defendant had tear gas on
him, Chamberlin replied, “He was literally covered in tear
gas. The white dust from the tear gas was just all over his
body.” During the officers’ testimony, defendant did not object
to any of King, Sparling, or Chamberlin’s specific testimony
about the standoff beyond renewing his pretrial motion in
limine at the beginning of King’s testimony.
Defendant assigns error to the trial court’s ruling
on his renewed pretrial motion. However, in stating “Understood” in response to defendant’s renewed pretrial motion,
the trial court did no more than it had done in ruling on
the pretrial motion. The court reaffirmed the one aspect
of its ruling that was final—it was not going to limit the
state to defendant’s proposed stipulation. It also reaffirmed
what it had described as its preliminary ruling, which provided general advice to the parties about the way that the
state should present its evidence (move quickly through it
without focusing unduly on it) and during which the trial
court advised defendant that it would exclude cumulative or
unduly prejudicial testimony if objections were raised.
For the reasons explained above, the trial court did
not err in declining to limit the state to defendant’s proposed
stipulation—the one part of the trial court’s pretrial and
midtrial ruling that was final. Because defendant renewed
Cite as 300 Or App 192 (2019) 203
his pretrial motion before any of the three witnesses testified about the events that occurred at the standoff, the
remainder of the trial court’s reaffirmation of its pretrial
ruling was preliminary and cannot be challenged on appeal.
C. Defendant’s Later OEC 403 Objection
Chamberlin was the last of the three witnesses who
testified about the standoff. As noted, he began by describing his arrest of defendant in the house and explaining why
he took defendant to the hospital. That aspect of the standoff formed only a small part of Chamberlin’s testimony. The
remainder (and the majority) of Chamberlin’s testimony
focused on his interview with defendant the following day
at the police station. Chamberlin recounted defendant’s
description of his daily drug use during that interview.
He explained that defendant told him that he and the victim had separated because of his drug use, that defendant
believed that the victim had been cheating on him, and that
defendant said that “if he was sober, he would not have done
the things that he did in his relationship with [the victim].”
Chamberlin also recounted defendant’s version of the events
on August 9, August 22, and September 7, and Chamberlin
explained that, when asked about the victim’s version of the
events, defendant said that he did not remember much of
what the victim reported. Finally, Chamberlin read a letter
of apology that defendant had written the victim at the police
station. Defense counsel then cross-examined Chamberlin,
and the state examined him on redirect.
After Chamberlin finished his testimony and was
excused, the parties discussed with the trial court how to
handle a juror’s use of a cell phone during trial. Defendant
then raised a question regarding medical records that had
come to light for the first time during trial and argued that
those records should be excluded and a mistrial granted
because of the records’ late appearance. After the trial court
ruled against defendant on those matters (approximately 43
transcript pages after Chamberlin testified about arresting
defendant during the standoff and why he took him to the
hospital), defendant raised an OEC 403 “objection to the
[specific] evidence about the SWAT team standoff.” He told
the trial court:
204 State v. Brown
“There was excessive testimony about robots being deployed,
tear gas being broken into the home, explosives blowing
the door off. And then to sort of cap it all off, Detective
Chamberlain said exactly what I was afraid he would,
which is that he had never seen somebody handle that
much gas before.”
Defendant explained that, in his view, the three
witnesses’ testimony had “cross[ed] a line into unfair prejudice from 403 balancing.” The state offered a different view
of the evidence. It explained that the officers’ testimony had
been restrained and touched only briefly on the various
ways in which the officers had tried to make contact with
defendant before entering the home. After considering the
parties’ arguments, the trial court ruled, “I do not find that
the amount of testimony was prejudicial or cumulative to
the point of denying a fair trial.”
The state argues that the trial court’s ruling is correct on the merits. There is, however, a more fundamental
problem with defendant’s objection. It came too late. See
OEC 103(1)(a) (requiring a timely objection or motion to
strike). As the Supreme Court explained in State v. Keller,
315 Or 273, 283,
844 P2d 195 (1993):
“In order for a ruling on evidence to be considered as
an assignment of error on appeal, a timely objection to, or
motion to strike, the evidence must appear on the record.
OEC 103(1)(a). An objection is ‘timely’ if it is made as soon
as its applicability to the offered evidence is known to the
opponent of the evidence. An objection need not necessarily
be made to the first question in a series of foundation questions, because in that situation the court often will have no
basis properly to assess the admissibility of the evidence.”
(Footnote and citations omitted.)
In announcing its preliminary ruling on defendant’s pretrial motion in limine, the trial court advised
defendant that it would exclude specific evidence that was
either cumulative or unduly prejudicial if objections were
raised. Defendant, however, did not do so. He waited until
long after the three witnesses had finished their testimony
and been excused to object to the specific evidence they
offered. A timely objection permits a trial court to correct
Cite as 300 Or App 192 (2019) 205
any error. By waiting until long after the specific evidence
had been admitted, defendant waived any objection to it. See
Blanton v. Union Pacific Railroad Co.,
289 Or 617, 623,
616
P2d 477 (1980) (“Normally, if improper evidence is offered,
objection must be made at the time of the offer or it is deemed
waived.”).
We recognize that, early on, defendant raised a
concern that evidence regarding the standoff could become
either cumulative or unduly prejudicial. However, at the
two points during the litigation when defendant raised that
concern (pretrial and at the beginning of King’s testimony),
no specific evidence regarding the standoff was before the
trial court, and the court made, for the most part, only a
preliminary ruling. As the trial court explained, it was not
excluding any evidence “at this point,” and it advised the
parties that, if defendant objected, it would exclude evidence
if it became either cumulative or too prejudicial. Defendant,
however, did not raise any objection to the specific evidence
of the standoff that the state’s three witnesses offered until
long after those witnesses had been excused. As a result,
defendant waived any objection he might have had to their
specific testimony.
II. DEFENDANT’S THIRD
ASSIGNMENT OF ERROR
After defense counsel unsuccessfully moved under
OEC 403 to exclude the specific evidence that the state had
offered regarding the standoff, the trial court asked counsel if he wished to make any other motion. Defense counsel
stated:
“I guess I should make a conclusion from what I just said
about the—what I think was an excessive [amount of] evidence regarding the standoff, and that being unfairly prejudicial, that now that that’s been heard by the jury, this is
a new basis for a mistrial request.”
The trial court ruled: “Okay. And so, [defense counsel], I am
denying that motion as well.”
On appeal, defendant assigns error to that ruling.
The state responds that defendant’s mistrial motion was
untimely and that, in any event, the trial court did not
206 State v. Brown
abuse its discretion in denying the motion. We agree with
the state’s first argument and do not reach the merits of
the trial court’s ruling. The Supreme Court has long recognized that, “[t]o preserve error, a motion for a mistrial must
be timely,” and that a motion is “timely if it is made when
the allegedly objectionable statements were made.” State v.
Walton, 311 Or 223, 248,
809 P2d 81 (1991). There are exceptions to that rule. For instance, “ ‘[w]here it is clear that the
trial court understands that the defendant intends to seek
a mistrial, and it responds by giving a curative instruction,
the need for an immediate mistrial motion is obviated.’ ”
State v. Cox,
272 Or App 390, 406,
359 P3d 257 (2015) (quoting State v. Veatch,
223 Or App 444, 453,
196 P3d 45 (2008)
(emphasis in Veatch)).
In this case, defendant did not make an immediate motion to exclude the witnesses’ specific testimony
under OEC 403, much less a motion for a mistrial at that
time. Much of the testimony that he viewed as objectionable
evidence came from King, but he waited until after King,
Sparling, and Chamberlin had testified and been excused
before moving for a mistrial based on King’s testimony. The
other evidence he found objectionable was Chamberlin’s (and
perhaps Sparling’s) testimony regarding tear gas. However,
defendant’s failure to raise a timely objection both waived
his evidentiary objection and resulted in his mistrial motion
being untimely. See Blanton, 289 Or at 623 (mistrial motion
untimely in the absence of a timely evidentiary objection).
We accordingly affirm the rulings challenged in defendant’s second and third assignments of error. As noted above,
we have considered defendant’s other assignments of error
and reject them without further discussion.
Affirmed.
