State v. Baker

                                       83

             Submitted December 15, 2020, affirmed March 2, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    RICHARD LEROY BAKER,
                        Defendant-Appellant.
                    Clatsop County Circuit Court
                        18CR08451; A170344
                                   

     In this criminal appeal, defendant contests his convictions for one count
each of manufacturing heroin and delivering heroin. On appeal, among other
assignments of error, defendant specifically argues that the trial court erred by
refusing to grant a mistrial after the state mentioned “stolen” firearms during
opening argument, and that the curative instruction was insufficient to cure the
resulting prejudice. Held: In the totality of the circumstances surrounding the
state’s reference to “stolen” firearms, the prejudice flowing from that reference
did not deny defendant a fair trial, and therefore the trial court did not abuse
its discretion in denying the motion for mistrial. As the prejudicial effect of the
erroneous reference was minimal, the trial court’s curative instruction, though
also minimal, was not insufficient as a matter of law.
    Affirmed.



    Dawn M. McIntosh, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
  Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
    PAGÁN, J.
    Affirmed.
84                                                             State v. Baker

           PAGÁN, J.
          Defendant appeals his judgment of conviction after
a jury trial for one count of delivering heroin and one count
of manufacturing heroin. He raises five assignments of
error, asserting that the trial court erred by (1) denying his
motion for a mistrial after the prosecutor improperly referenced “stolen” firearms during opening statement; (2) failing to require the state to elect a theory regarding the delivery of heroin charge; (3) failing to instruct the jury that it
must concur on the conduct for the delivery of heroin charge;
(4) failing to instruct the jury that a guilty verdict must be
unanimous; and (5) imposing consecutive sentences. We
reject his second, third, and fifth assignments without discussion. Defendant’s fourth assignment is unpreserved and
he seeks plain error review. Although defendant is correct
that the court plainly erred, we decline to exercise our discretion to correct that error because the jury was not polled.
See State v. Dilallo, 

, 

 (2020)
(court would not exercise discretion to correct plainly erroneous nonunanimous instruction when no jury poll was
taken). As we explain below, we conclude that the trial court
did not err when it denied defendant’s motion for a mistrial,
and, therefore, we affirm.
           The underlying facts are not disputed.
         On February 3, 2018, after a controlled-buy operation, law enforcement in Clatsop County executed a search
warrant on defendant’s home. As a result of their search,
law enforcement found 4.22 grams of heroin, a large quantity of plastic baggies of the type typically associated with
drug dealing, and other evidence consistent with manufacturing and delivering heroin.1 Defendant also made admissions to law enforcement about his prior deliveries and how
he cut the heroin.
        During opening statement, the state remarked to
the jury that law enforcement agents who were executing a
    1
      The state proceeded on a Boyd delivery theory, see State v. Boyd, 

, 

 (1988), overruled by State v. Hubbell, 

, 

 (2021). Defendant did not object to the theory below, did not raise the issue in
their opening brief, and did not request supplemental briefing after Hubbell was
decided. We do not address it in this opinion.
Cite as 

 (2022)                                 85

search warrant encountered “stolen” firearms in defendant’s
residence. Defendant immediately objected, and the judge
removed the jury from the courtroom. After argument, the
court sustained the objection, and defendant moved for a
mistrial. The court denied the motion and recalled the jury.
Upon returning, the court stated to the jury: “Okay folks,
we’ll continue. You are to disregard the last statement that
was made by [the prosecutor].” The prosecution did not offer
any evidence during the trial that firearms seized during
the execution of the search warrant were stolen.
        The jury returned guilty verdicts on the two charges
but rejected the requested sentence enhancement fact
that defendant possessed a firearm in furtherance of the
crime.
          On appeal, defendant argues that the court should
have granted a mistrial, and, when it erroneously chose not
to, it gave an insufficient curative instruction to the jury. In
response, the state contends that a mistrial was not appropriate, the curative instruction was sufficient, and any error
in the curative instruction was harmless. We review the
denial of a motion for a mistrial for abuse of discretion. See
State v. Larson, 

, 

 (1997). We will
reverse when the denial of a motion for mistrial results in
depriving the defendant of a fair trial. See State v. Woodall,

, 

 (2013), rev den, 

(2014). When faced with improper remarks to a jury, a trial
court must determine whether the remarks have a likelihood of prejudicing the defendant’s right to a fair trial if the
trial continues, or if curative instructions may ameliorate
whatever prejudice resulted from the improper conduct. See
State v. Flores, 

, 

 (1977).
        Neither party disputes that the state’s reference
in opening statement to “stolen” firearms was improper
and prejudicial. Defendant argues that the jury must have
inferred his guilt on the delivery and manufacture charges
as a result of this lone remark. But the evidence against
defendant in this case was strong, and so in that context
the prejudicial effect of the remark that the defendant possessed “stolen” firearms was minimal. Cf. State v. Williams,

, 

 (1980) (finding no abuse
86                                                         State v. Baker

of discretion in denying a motion for mistrial where prejudice was “minimal”). Law enforcement had watched defendant for a time and engaged in “controlled-buys” before the
search. The search unveiled large quantities of drugs, cash,
firearms, packing equipment used for distribution, and
equipment used to “cut” heroin. Defendant also admitted to
delivering and cutting heroin. Also, the jury did not find the
requested enhancement fact that the defendant possessed
firearms in furtherance of any criminal activity. See 

 (noting that acquittal on charges related to prejudicial statement supported a finding that the defendant was not denied
a fair trial). Finally, the remark in this case involved an
improper reference to uncharged conduct, and not the invocation of a constitutional right.2 See State v. Bowen, 

, 

 (2006) (finding, in part, that, because
the nature of the improper conduct regarded an evidentiary
rule and not a constitutional right, the “magnitude” of the
harmful effect did not warrant a mistrial). We thus agree
with the state that the singular reference to allegedly stolen
firearms did not deprive the defendant of a fair trial and
conclude that the decision to continue the trial was not an
abuse of discretion.
         Likewise, because we find that the prejudice was
minimal, the curative instruction, though perfunctory—cf.
State v. Osorno, 

, 

 (2014)
(reversing where curative instructions were minimal and
vague)—was sufficient in this context and defendant was not
denied a fair trial. See State v. Middleton, 

, 

, rev den, 

 (2013) (“Ultimately, we
must decide whether, under the circumstances as a whole,
prejudice to defendant denied him the right to a fair trial, as
a matter of law.”).
           Affirmed.




    2
      Defendant argues that the reference to allegedly stolen firearms violated
the state and federal constitutions. We reject that argument without further
discussion.