407
Argued and submitted March 5, 2018, affirmed February 26, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
NATHAN OXFORD,
aka Nathan Daniel Oxford,
Defendant-Appellant.
Multnomah County Circuit Court
140230856; A161408
461 P3d 249
Defendant appeals from a judgment of conviction for sex crimes committed
against two minor victims. Prior to trial, the court granted defendant’s motion to
exclude evidence that defendant had told the victims’ mother that he had fantasies about sex with children and had sexually abused his own daughter, who was
not a victim in the case. At trial, a witness improperly referred to those admissions in his testimony, and defendant moved for a mistrial. The trial court denied
the motion for mistrial, and, on appeal, defendant assigns error to that denial.
Held: Although it is a close decision based on the potential for unfair prejudice
from the improper testimony, under all the circumstances unique to this trial,
defendant was not so prejudiced by the isolated statements that he was denied
a fair trial.
Affirmed.
Kathleen M. Dailey, Judge.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
ORTEGA, P. J.
Affirmed.
______________
* Egan, C. J., vice Garrett, J. pro tempore.
408 State v. Oxford
ORTEGA, P. J.
Defendant appeals from a judgment of conviction for
two counts of first-degree sodomy, five counts of first-degree
sexual abuse, and five counts of second-degree sodomy, committed against two of his girlfriend’s three children. Prior
to trial, the court granted defendant’s motion to exclude
evidence that defendant had told the victims’ mother that
he had fantasies about sex with children and had sexually
abused his own daughter, who is not a victim in this case. At
trial, a witness improperly referred to those admissions in
his testimony, and defendant moved for a mistrial. The trial
court denied the motion for mistrial, and, on appeal, defendant assigns error to that denial. As explained below, we
conclude that the trial court did not abuse its discretion in
denying the mistrial motion. We reject defendant’s remaining assignments of error without discussion.1 Accordingly,
we affirm.
Defendant was charged with committing sex crimes
against the three minor children of his then-girlfriend,
Southwell. Before trial, defendant moved to exclude evidence that he had told Southwell about having fantasies
of sex with children and about sexually abusing his own
daughter. The trial court granted defendant’s motion and
told the state to instruct Southwell not to testify about those
matters.
At trial, which occurred about 10 months later
due to proceedings not at issue here, the state offered testimony from Detective Malanaphy, who had interviewed
Southwell and the victims as part of his investigation. On
direct, Malanaphy testified only about the content of his
interview with one of the victims. On cross-examination,
defense counsel asked Malanaphy about a number of the
1
Defendant assigns error to the trial court’s denial of his motion for new
trial, which defendant conceded at oral argument is not reviewable. We accept
that well-taken concession. State v. Tooley, 265 Or App 30, 32,
333 P3d 348,
rev den,
356 Or 575 (2014). Defendant also assigns error to the trial court’s denial
of his motion to examine grand jury notes. For the reasons stated in State v.
Cockrell,
284 Or App 674, 683-84,
395 P3d 612, rev den,
361 Or 886 (2017), we
reject that assignment of error. Finally, defendant also assigns error to the trial
court instructing the jury that it could find him guilty based on nonunanimous
jury verdicts and accepting nonunanimous jury verdicts. We reject those two
assignments of error on the merits without discussion.
Cite as
302 Or App 407 (2020) 409
interviews, including his interviews of Southwell, and
whether Southwell had stated in one of those conversations
that defendant did not admit to abusing the children. On
redirect, the following exchange occurred between the prosecutor and Malanaphy:
“Q Just to be clear, Detective, because I think we’re
going in circles here. Was there another conversation where
Ms. Southwell … told you more information about [defendant] admitting or not admitting?
“A Yes.
“Q And tell us, please, about that conversation.
“A That was in the context of her having—talking
about how [defendant] had disclosed to her that he had fantasies about sex with children. And that he had told her he
had touched his other daughters—”
Defendant immediately objected, and the trial court sustained that objection. The prosecutor did not attempt to
argue in response to defendant’s objection and did not offer
any further testimony from Malanaphy.
Defendant then immediately moved for a mistrial
outside the presence of the jury based on Malanaphy’s statement that defendant told Southwell that he had fantasies
about sex with children. Following that initial argument,
both defendant and the prosecutor reminded the trial court
that it had excluded evidence about both the fantasy statement and defendant’s alleged abuse of his own child. The
trial court explained that defendant had opened the door to
the prosecutor asking Malanaphy about other conversations
in which defendant made admissions to Southwell; however,
because of the pretrial motion excluding the subject matter of those admissions, the trial court admonished that the
prosecutor should have instructed Malanaphy to not testify
about that subject matter. The prosecutor responded that he
had not intended to elicit Malanaphy’s statement about the
subject matter of the admissions.
The trial court then had Malanaphy testify outside
the presence of the jury. During that testimony, Malanaphy
admitted that he misunderstood the prosecutor’s question
and that he made an error when he testified that there was
410 State v. Oxford
another conversation in which defendant made admissions
about abusing the victims in this case. Malanaphy also testified that he had not been instructed to not testify about
defendant’s admissions of fantasies and sex abuse of defendant’s daughter before trial. The prosecutor stated that
Malanaphy had been instructed to not so testify after the
trial court’s original ruling, which occurred eight or nine
months prior to his testimony in the trial.
After those exchanges, the trial court initially indicated that it would grant the motion for mistrial. The state
urged, however, that it should instead be allowed to correct
the record for the jury and have Malanaphy testify that he
made an error when he stated that there was an additional
conversation about a confession. The state also argued that
the statements were admissible under State v. Williams, 357
Or 1,
346 P3d 455 (2015), which had not yet issued at the
time of the pretrial motion, and that a mistrial would be
inappropriate when the statements were at least arguably
admissible. The state also requested that the trial court
make a specific ruling under Williams and reiterated that it
intended to call Malanaphy to correct his testimony for the
jury, regarding defendant’s admissions about abusing the
victims in this case.
The court then ruled:
“We have to clean it up in front the jury about the
fact that there is no such other statement. That has to be
cleaned up.
“I want—the record needs to reflect that this subject
was subject to motion in limine and granted for the defense
that it was not to be introduced at trial. The record already
provides that this witness was not instructed on that
motion prior to the beginning of this trial.
“In my eyes, it’s not adequate that he was told last
November, and now we’re in July. It should have been revisited with this witness that he was not to reference it. So
that’s a problem.
“Under State v. Williams, it is admissible, but I find it
prejudicial.
“Not—I’m not going to say that its sufficiently prejudicial given the light that now everybody knows it’s not going
Cite as 302 Or App 407 (2020) 411
to be referenced any more in this trial and it’s not going to
be talked about any more in this trial, unless the defense
wants me to do some kind of a limiting instruction and if
they don’t we’re going to go by it.
“And I am marking this, I mean obviously the Court of
Appeals will have to take a look at this and see whether or
not the error is such that the case should be reversed. That
will be up to them.
“But as far as I’m concerned, we’re going forward, so I’m
denying the motion for mistrial.”
Following that ruling, defendant questioned Malanaphy
in front of the jury to correct the record about the conversations between defendant and Southwell:
“Q Detective MALANAPHY, on cross examination I
was asking you about some statements that Ms. Southwell
made to you in a telephone conversation last year?
“A Yes.
“Q And when I asked you that—whether or not
Ms. Southwell had told you the statement, ‘He didn’t not
say it,’ you responded by saying that there were other
conversations?
“A Yes.
“Q And now thinking back on it, you realized there
were no other conversations?
“A That’s correct. I trusted my memory and there is no
other conversation where she mentions that.
“Q So Ms. Southwell did not tell you that [defendant]
confessed to molesting these children?
“A That’s correct.”
Malanaphy’s testimony occurred during the morning of the second day of three days of witness testimony.
At the end of the five-day trial, the jury returned a verdict
convicting defendant of sex crimes against two of the victims and acquitting defendant of the two counts submitted
against the third victim.
After the verdict, defendant moved for a new trial
on the same basis that he had moved for a mistrial. In that
412 State v. Oxford
motion, defendant made clear that he had not asked for
a limiting instruction following the denial of the mistrial
motion to avoid drawing attention to the statements. At the
hearing on the motion for a new trial, the trial court stated
that it believed it had made a mistake in not granting the
mistrial motion because the statements were highly prejudicial. However, the trial court also explained that it had
weighed all of what had happened in light of the arguments
made by defendant at the time it denied the mistrial motion.
The trial court took the new trial motion under advisement,
but failed to issue a timely ruling so the motion for new trial
was deemed denied. ORCP 64 F(1).
On appeal, defendant challenges the trial court’s
denial of his motion for mistrial. Defendant argues that he
was denied the right to a fair trial due to the profound prejudice stemming from Malanaphy’s inadmissible testimony
about defendant’s fantasies and prior bad acts, a position
that defendant asserts is supported by the trial court’s
after-the-fact assessment during the hearing on the motion
for new trial. Defendant also argues that the error leading to Malanaphy’s testimony cannot be described as inadvertent, because the prosecutor failed to properly instruct
Malanaphy before trial, which weighs in favor of requiring
a new trial. Finally, defendant argues that that prejudice
could not have been cured by a jury instruction and, thus,
granting a mistrial was the only legally correct option for
the trial court. In that respect, defendant asserts that this
case is controlled by State v. Jones, 279 Or 55,
566 P2d 867
(1977).
The state responds that the trial court acted within
its discretion by offering defendant a curative instruction
with regard to the improper testimony, but otherwise denying the mistrial motion because the evidence would not be
referenced again.2 The state further argues that the prejudice in this case was not so great as to require a mistrial,
because, unlike in Jones, the improperly introduced evidence
2
To the extent the state argues that defendant’s motion for a mistrial was
limited to Malanaphy’s statement about defendant’s “fantasies,” we reject that
argument. As set out above, both of Malanaphy’s statements about fantasies and
defendant’s abuse of his own daughter were made part of the argument on the
mistrial motion.
Cite as 302 Or App 407 (2020) 413
was not patently inadmissible under Williams, was inadvertent, was referred to just the once in the lengthy trial, and
resulted from the prosecutor’s attempt to obtain clarification after a confusing cross-examination.
“In ruling on a motion for mistrial, a trial court
must decide whether to grant the motion, to cure the effect
of inappropriate conduct or testimony by giving a proper
instruction instead, or to do nothing at all.” State v. Evans,
211 Or App 162, 166,
154 P3d 166 (2007), aff’d,
344 Or 358,
182 P3d 175 (2008). The trial court is in the best position to
assess the effect of the complained-of incident and to determine the means necessary to correct it. State v. Garrison,
266 Or App 749, 755-56,
340 P3d 49 (2014), rev den,
356
Or 837 (2015). As a result, the decision is committed to the
discretion of the trial court, and we will not reverse a denial
of a motion for mistrial “unless the defendant was denied
a fair trial.” State v. Osorno,
264 Or App 742, 747,
333 P3d
1163 (2014).
We use several factors taken from our prior case law
to guide our evaluation of whether a trial court has abused
its discretion in denying a motion for mistrial. Those factors
include whether the prejudicial effect of the incident “is so
grave that … a mistrial is the only legally acceptable alternative,” whether the prejudice was cured by an appropriate
jury instruction, and whether the incident was sufficiently
isolated to not compromise a fair trial. Evans, 211 Or App
at 166-68 (discussing prior case law). As we have explained,
“[a] mistrial is most likely to be required when a prosecutor
intentionally and repeatedly makes comments that suggest
a defendant has a history of committing similar crimes.”
State v. Woodall,
259 Or App 67, 75,
313 P3d 298 (2013),
rev den,
354 Or 735 (2014). “At the other end of the spectrum
are cases in which a prejudicial statement is made inadvertently, only once, and in passing.”
Id.
We further take into consideration, in the context of this case, that the trial court offered to give a curative instruction to the jury, which defendant declined.
“Consequently, in evaluating whether the trial court abused
its discretion in denying defendant’s mistrial motion, we
take into account that, to the extent that the trial court did
414 State v. Oxford
not deliver a curative instruction, it was because defendant
elected not to request one.” Evans, 211 Or App at 169. See
also State v. Davis,
345 Or 551, 589,
201 P3d 185 (2008), cert
den,
558 US 873 (2009) (taking into consideration that the
defendant declined the offered curative instruction); State v.
Dalby,
251 Or App 674, 678,
284 P3d 585 (2012), rev den,
353
Or 209 (2013) (failure to request a curative instruction is a
factor to consider, but it is not dispositive).
In this case, we conclude that the trial court did
not abuse its discretion in denying defendant’s motion for
mistrial. In so concluding, we first address Jones, on which
defendant primarily relies for his position. In Jones, the
defendant was charged with rape. During the trial, the
prosecutor repeatedly insinuated through questions and
argument that the defendant had previously committed several rapes, including improperly having a witness testify
that a neighbor of the defendant had said that the defendant had “done it so many times before.” 279 Or at 61-62.
The trial court denied the defendant’s motion for mistrial
and instead instructed the jury to disregard the statement.
The Supreme Court concluded that the pervasive prejudice that resulted from the prosecutor’s conduct could not
be cured by the trial court instructing the jury to ignore
those statements, particularly when the trial came down to
a credibility contest between the defendant and the victim.
Id. at 62-63. The court thus concluded that the defendant
was denied a fair trial and reversed.
Id. at 63.
This case does not involve the sort of pervasive
prejudice that was present in Jones. Here, the trial court
correctly assessed the potential for grave prejudice from
the improper testimony, but determined that, because the
testimony was isolated, would not be referenced again, and
“we’re going to go by it,” the statements were not so prejudicial as to require a mistrial. We disagree with defendant
that the hindsight statements later made by the trial court
undercut that reasonable assessment made during trial. The
offending testimony was brief and occurred in the midst of
a confusing portion of three days of witness testimony. The
trial court quickly stopped Malanaphy’s improper testimony
when it sustained defendant’s immediate objection, and the
prosecutor did not attempt to argue in response in front of
Cite as 302 Or App 407 (2020) 415
the jury that the testimony should be allowed and instead
ended the examination. Malanaphy’s improper statements,
or the subject of them, were not referred to again.3
In addition, the improper testimony was followed by
the additional cross-examination during which Malanaphy
adjusted his prior testimony by clarifying that he did not,
in fact, have another conversation with Southwell in which
she stated that defendant had admitted to abusing the victims in this case. Although that testimony did not address
the improper statements made by Malanaphy on redirect,
it did suggest to the jury that Malanaphy’s immediately
prior testimony on redirect was not correct, because that
redirect testimony was limited to short answers to only two
questions. It also would have provided a useful opportunity
for the court to instruct the jury to disregard Malanaphy’s
testimony on redirect, all of which was either improper or
factually incorrect. The harmful prejudice from the isolated improper statements could have been further dissipated through an instruction without drawing additional
attention to the exact nature of the improper statements.
However, defendant chose to not have an instruction delivered, determining that it was better to avoid drawing any
attention to Malanaphy’s improper testimony.
Under those circumstances, this case is more similar to those cases that have affirmed a trial court’s denial
of a mistrial motion based on improper witness testimony.
See State v. Farrar, 309 Or 132, 164,
786 P2d 161 (1990)
(affirming denial of a mistrial motion based on a witness’s
reference to a lie detector test, because the statement was
isolated, made in passing, the results of the test were not
disclosed, and the state did not argue that the test had any
significance); Garrison,
266 Or App at 756-57 (affirming
denial of a mistrial motion based on a witness’s testimony
about the Department of Human Services involvement
3
We note that whether or not the prosecutor inadvertently elicited
Malanaphy’s improper testimony does not factor into our analysis, because the
sole question is whether defendant received a fair trial in light of what happened.
And, here, what happened was that the prosecutor’s questions reasonably did
elicit that improper testimony. See Osorno, 264 Or App at 751-52 (whether prosecutorial misconduct was inadvertent “is simply not relevant to the question
whether the prosecutor’s actions affected defendant’s right to a fair trial”).
416 State v. Oxford
with the defendant’s family, because the events did not
involve misconduct or a constitutional violation that could
not be cured with an instruction, the trial court reasonably
assessed the prejudicial effect, and the jury is assumed to
have followed the court’s curative instruction); Woodall,
259
Or App at 76 (affirming denial of a mistrial motion based
on improper testimony that the defendant was a registered
sex offender, because the statement was in passing and not
referred to again and the jury received an immediate curative instruction).
Although this is a close decision based on the potential for unfair prejudice from the improper testimony, under
all the circumstances, we cannot say that defendant was so
prejudiced by those isolated statements that he was denied
a fair trial. Accordingly, the trial court did not err in denying defendant’s motion for mistrial.
Affirmed.
