81
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted March 23, 2022, affirmed February 1, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER HOLLOWAY,
Defendant-Appellant.
Yamhill County Circuit Court
19CR30089; A172616
Cynthia L. Easterday, Judge.
Francis C. Gieringer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs were Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
MOONEY, P. J.
Affirmed.
82 State v. Holloway
MOONEY, P. J.
Defendant appeals from a judgment of conviction
for fourth-degree assault constituting domestic violence.
ORS 163.160; ORS 132.586.1 He assigns error to the trial
court’s (1) denial of his motion for mistrial, and (2) failure to
instruct the jury that it must concur on the factual occurrence supporting a conviction for fourth-degree assault. For
the reasons that follow, we conclude that the court did not
abuse its discretion in denying the motion for mistrial and,
therefore, we reject the first assignment. We reject defendant’s second assignment without further discussion, noting only that the asserted error was neither preserved nor
plain. We affirm.
We provide the following limited description of the
facts underlying the assault charge, as well as significant
procedural events that occurred during trial, to explain
our decision to counsel, the parties, and the trial court.
Defendant and his domestic partner, E, split a bottle of
tequila on the day in question. By the time they finished
the bottle, they were both intoxicated. They argued about
whether to go to a bar, and the argument became physical.
Defendant twice placed E in a bear hug and, at one point,
pinned part of her body against a wall. At trial, E testified
that she thought that something like the charged incident
“would have happened eventually between” her and defendant, and she referred to the escalating nature of their arguments. Defendant objected and moved the court for an order
striking that testimony from the record and for an order
declaring a mistrial, arguing that E’s testimony amounted
to impermissible and prejudicial character evidence. The
court sustained the objection to the testimony, struck it
1
ORS 163.160 provides, in part:
“(1) A person commits the crime of assault in the fourth degree if the
person:
“(a) Intentionally, knowingly or recklessly causes physical injury to
another[.]”
ORS 132.586(2) provides:
“When a crime involves domestic violence, the accusatory instrument
may plead, and the prosecution may prove at trial, domestic violence as an
element of the crime. When a crime is so pleaded, the words ‘constituting
domestic violence’ may be added to the title of the crime.”
Nonprecedential Memo Op: 324 Or App 81 (2023) 83
from the record, and provided a limiting instruction for the
jury. It denied defendant’s motion for a mistrial.
Our review is for abuse of discretion and, unless
“defendant was denied a fair trial,” we will affirm the court’s
decision not to declare a mistrial. State v. Hunt, 297 Or App
597, 600,
442 P3d 232 (2019). To determine whether a trial
court abused its discretion, we consider (1) the degree to
which the defendant was prejudiced by the alleged error,
(2) whether the prejudice was ameliorated by an appropriate jury instruction, and (3) whether the alleged error was
sufficiently isolated so as to not compromise the fairness of
the trial.
Id.
To discern the degree of prejudice, we review the
objectionable testimony in context, beginning with the
series of questions and answers that preceded that testimony along with the redirect examination question that
elicited the testimony to which defendant objected.
Defense counsel elicited the following testimony
when he cross-examined E:
“Q. You said, do you recall [defendant] trying to calm you
down during this event?
“A. I don’t recall. It was just a lot of just, we would do that,
just always butt heads. We never agreed on anything, and
he is not very good at calming—
“Q. Okay.
“A. —down so.
“Q. So adding tequila to the mix did not calm the situation?
“A. Absolutely not.
“Q. It aggravated the situation probably exponentially?
“A. Yes.
“Q. Okay.
“A. But—
“Q. Okay. There are no questions in front of you.
“A. Okay.”
The following discussion occurred when the prosecutor examined E on redirect:
84 State v. Holloway
“Q. You were testifying about how this incident in response
to [defense counsel’s] question exaggerated exponentially
you agreed, but had a but to that. Was there something you
wanted to add to that response?
“A. Outside of this incident, I believe that it would have
happened eventually between [us]. We were arguing to the
point it would happen—”
Defendant objected to the statement that “it would
have happened eventually between [us]” as improper “character” evidence. In defendant’s view, that testimony invited
the jury to infer that defendant was “becoming increasingly
violent with E” and that, although E had no memory of the
assault in question, it was inevitable based on that escalating history between them. Thus, the assault that E could
not recall likely did occur. The trial court sustained defendant’s objection to the testimony, ordered it stricken from
the record, and gave this limiting instruction to the jury:
“[THE COURT]: Okay. The objection was sustained. The
answer is stricken. The mistrial, the request for mistrial is
denied. The jury is not to draw any inferences about what
[E] meant or speculated.”
Prejudice is minimal in cases where a statement
“is made inadvertently, only once, and in passing.” State v.
Woodall, 259 Or App 67, 75,
313 P3d 298 (2013). And we
presume that juries will follow a court’s instructions unless
there is an “overwhelming probability” that the jury is incapable of doing so. State v. Garrison,
266 Or App 749, 757,
340
P3d 49 (2014), rev den,
356 Or 837 (2015). Here, the testimony that “it would have happened eventually” was a vague
statement inadvertently elicited from the witness, and it was
mentioned only once. It is not altogether clear that the testimony actually given by E constituted “character” evidence.
But, assuming without deciding that it was, we nevertheless
conclude that the potential prejudicial effect of the stricken
testimony was low and that any prejudice was ameliorated
by the court’s limiting instruction. The trial court did not
abuse its discretion when it denied defendant’s motion for
mistrial.
Affirmed.
