State v. Harris

                                                464
182 v. Harris
State                                                                                    303 8,
                                                                                        April Or2020
                                                                                                 App




                Submitted May 30, 2019; remanded for resentencing, otherwise affirmed
                                           April 8, 2020


                                 STATE OF OREGON,
                                  Plaintiff-Respondent,
                                            v.
                              JOEL ISAAC HARRIS III,
                                 Defendant-Appellant.
                            Washington County Circuit Court
                                 17CR42757; A165932
                                            

    Defendant appeals a judgement of conviction for assault in the fourth degree,
ORS 163.160, and unlawful use of a weapon, ORS 166.220. He argues that the
trial court erroneously denied his motions for a mistrial after the victim suggested in her testimony that defendant previously committed domestic violence
despite a pretrial stipulation that the state would not offer any such evidence.
Defendant also argues, and the state concedes, that the trial court plainly erred
in imposing a sentence of 60 months’ imprisonment and 24 months’ post-prison
supervision on each count, in excess of the 60-month statutory maximum.
Held: The trial court did not err in denying defendant’s motion for a mistrial.
The remarks were ambiguous and, in any event, the trial court permissibly exercised its discretion to give a curative instruction rather than declare a mistrial.
However, the trial court did plainly err by imposing a sentence in excess of the
statutory maximum and the Court of Appeals exercised its discretion to correct
that error.
                Remanded for resentencing; otherwise affirmed.



                James Lee Fun, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary M. Reese, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the briefs for respondent.
  Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Kamins, Judge.
                KAMINS, J.
                Remanded for resentencing; otherwise affirmed.
Cite as 

 (2020)                                               465

           KAMINS, J.
          Defendant appeals a judgment of conviction for felony fourth-degree assault, ORS 163.160, and unlawful use of
a weapon, ORS 166.220. In his first and second assignments
of error, he challenges the trial court’s denial of his motions
for a mistrial when the victim’s testimony suggested that
defendant might have previously committed domestic violence. In his third and fourth assignments of error, defendant contends (and the state concedes) that the trial court
plainly erred by imposing a term of post-prison supervision
that, when combined with his sentence of imprisonment,
exceeds the statutory maximum for the crime. We conclude
that the trial court did not abuse its discretion in declining
to declare a mistrial; therefore, we affirm the judgment of
conviction. However, we accept the state’s concession that
the length of defendant’s sentence exceeds the statutory
maximum, exercise our discretion to correct the error, and
remand for resentencing.1
          Defendant was charged with fourth-degree assault
relating to an incident that resulted in multiple injuries to
his live-in girlfriend. Before his trial began and outside the
presence of the jury, defendant stipulated to the fact that
he had previously been convicted of fourth-degree assault
against the same victim, a fact that converts the crime from
a misdemeanor to a felony. ORS 163.160(3)(b). Because of
the stipulation, the state was precluded from submitting
evidence of the prior conviction. See State v. Brostrom, 

, 

 (2007), rev den, 

(2008) (because defendant’s “judicial admission established
the fact of the prior conviction conclusively[,] … [i]t was
therefore error for the trial court to admit evidence of the
fact of the prior conviction”).
        At trial, however, the victim made a statement
that defendant contends violated that agreement. During
    1
       Because we remand for resentencing, we do not reach defendant’s fifth
assignment of error relating to the trial court’s alleged failure to determine his
ability to pay the fine imposed. See, e.g., State v. Moreno-Hernandez, 

,
191 n 8, 

 (2019) (“Because we remand for resentencing, we need
not consider other issues raised by the parties, including whether … the trial
court gave insufficient consideration to defendant’s ability to pay when imposing
fines.”).
466                                                         State v. Harris

emotional testimony, the victim, in recounting the events of
the night of the incident, stated:
    “[O]h, God, he pulled a knife on me. Well, he left the room
    and I’m like, oh, whew. Then he showed back up with a
    knife and like, oh, my God, and he—well, he had done that
    in the past.”

Defendant immediately objected and, after the jury was
excused, moved for a mistrial. Although acknowledging
that an improper reference “did slip out” during the victim’s testimony, the prosecutor argued that the jury heard
no specific facts or information about a prior incident. The
trial court observed that the victim’s statement that “he’s
done that in the past,” in context, would not necessarily
have indicated that defendant was previously convicted of
domestic abuse. Concluding that any negative impact could
be mitigated with a curative instruction, the court advised
the jury that the witness’s last answers “are stricken from
the record” and ordered the jury to “disregard any and all
portions of the testimony that she gave in response to the
last two questions.” Defendant assigns error to the trial
court’s decision to offer a curative instruction rather than
declare a mistrial and asserts that the testimony by the
victim was unfairly prejudicial and deprived him of a fair
trial.2
         We review a trial court’s decision whether to order
a mistrial for abuse of discretion. State v. Serrano, 

, 

 (2014), cert den, ___ US ___, 

, 

 (2015). In reviewing a trial
court’s decision, we are mindful that “granting a motion for
a mistrial is a drastic remedy to be avoided if possible.” State
v. Woodall, 

, 

 (2013), rev den,

 (2014) (internal quotation marks omitted). And,
further recognizing that “[t]he 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,” we will only
    2
      Defendant argued below that the testimony violated the parties’ stipulation not to submit evidence of defendant’s prior domestic violence conviction. On
appeal, defendant argues that the testimony amounted to unfairly prejudicial
character evidence. We assume, without deciding, that the current argument was
preserved.
Cite as 

 (2020)                             467

reverse a denial of a motion for mistrial if the defendant was
denied a fair trial. State v. Oxford, 

, 

 (2020).

         We conclude that defendant was not denied a fair
trial. The victim’s allusion to what defendant “had done in
the past” was ambiguous, as the trial court observed. And,
even if the jury would draw the inference that the victim
meant that defendant had engaged in a prior act of domestic violence, the jury was instructed to disregard that testimony. The decision to give a cautionary instruction rather
than declare a mistrial “falls within the permissible range
of choices committed to the court’s discretion unless the
instruction was insufficient to cure the problem as a matter of law.” State v. Williams, 

, 

, rev den, 

 (2016) (internal quotation marks
omitted). Moreover, we generally assume that a jury has
followed a court’s curative instruction unless there is an
“overwhelming probability that the jury was incapable of
following the instruction.” State v. Garrison, 

, 

 (2014), rev den, 

 (2015) (internal quotation marks omitted). There is no suggestion of that
probability here, nor is there any reason to conclude that
the trial court’s instruction was insufficient as a matter of
law.

        Indeed, we have previously considered circumstances that carried a greater risk of prejudice to be appropriately addressed with a curative instruction. See, e.g.,
Oxford, 

 (testimony that defendant in sex
abuse trial had admitted to having sexual fantasies about
children appropriately addressed by offer to give curative
instruction); Williams, 

 (curative
instruction was sufficient to mitigate jury’s view of videotaped interview in which detective repeatedly stated that
he could “read body language” and that defendant’s body
movements indicated he was lying); Garrison, 

 (curative instruction appropriate to mitigate testimony that defendant had previously been investigated for
sexual abuse); Woodall, 

 (in sex abuse trial,
curative instruction sufficient to mitigate jury learning that
defendant was a registered sex offender). The trial court did
468                                                            State v. Harris

not abuse its discretion in offering a curative instruction
rather than declaring a mistrial.3
         Turning to the remaining assignments of error,
defendant argues—and the state concedes—that the imposition of post-prison supervision (PPS) exceeded the statutory maximum sentence. We agree and accept the state’s
concession. Defendant was convicted of two Class C felonies,
which each carry a maximum sentence of 60 months. ORS
161.605. Defendant was sentenced to 60 months’ imprisonment and 24 months of PPS on each count, totaling
84 months. Because that sentence exceeds the statutory
maximum of 60 months, the trial court plainly erred.
Further, for the reasons expressed in State v. Evans, 

, 

 (2016), rev den, 

(2017), we exercise our discretion to correct the error and
remand for resentencing. See State v. Reyes, 

, 

 (2020) (remanding for resentencing
where sentence of 42 months’ imprisonment and 24 months’
PPS, when combined, exceeded the statutory maximum of
60 months).4
           Remanded for resentencing; otherwise affirmed.




    3
      Defendant also assigns error to the trial court’s refusal to declare a mistrial
as to another statement in the victim’s testimony—that she had told defendant’s
employer that there “had been a previous issue.” Given how ambiguous that
statement was, we reject that assignment of error without further discussion.
    4
      In a supplemental brief, defendant contends that the trial court plainly
erred by refusing to instruct the jury that it was required to return a unanimous
verdict and by entering convictions based on a nonunanimous verdict. Those
assertions are foreclosed by State v. Bowen, 

, 

(2007), adh’d to as modified on recons, 

, 

, rev den, 

 (2008), cert den, 

 (2009), and we reject them without further
discussion.