407
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 8, affirmed April 19, petition for review denied
August 3, 2023 (371 Or 309)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH LEE STONE, JR.,
Defendant-Appellant.
Crook County Circuit Court
18CR44540; A176503
Daina A. Vitolins, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
408 State v. Stone
EGAN, J.
Defendant was charged with menacing, ORS
163.190, and pointing a firearm at another, ORS 166.190.
Prior to trial, the prosecutor admonished witnesses to
refrain from mentioning prior bad acts of defendant; nevertheless, during direct examination when asked about the
argument that led to the incident, two witnesses inadvertently implied or mentioned prior bad acts of defendant. In
each instance, defense counsel objected and asked for a mistrial or, in the alternative, an instruction to ignore the offensive testimony. In each instance, the trial court denied the
motion for mistrial and immediately gave the jury a correcting instruction. Defendant was acquitted of menacing and
convicted of pointing a firearm at another. Defendant now
appeals on the grounds that the trial court erred in denying
his motion for mistrial because, according to defendant, he
was deprived of a fair trial. We disagree and affirm the trial
court.
This court reviews the denial of a mistrial motion
for an abuse of discretion. State v. Simonsen, 329 Or 288,
300,
986 P2d 566 (1999); State v. Wright,
323 Or 8, 12,
913
P2d 321 (1996). A trial court does not abuse its discretion
when denying a motion for mistrial unless the result is to
deny a criminal defendant the right to a fair trial. State v.
Bowen,
340 Or 487, 508,
135 P3d 272 (2006). When a defendant moves for a mistrial, the trial court is tasked with
deciding “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
(2008). The trial court has broad discretion in selecting
among those options because it is “in the best position to
assess the impact of the complained-of incident and to select
the means (if any) necessary to correct any problem resulting from it.” Wright,
323 Or at 12.
The facts pertinent to this appeal are not in dispute. Prior to trial, motions in limine were discussed and
defendant was warned about “opening the door” to prior bad
acts. The prosecutor also instructed witnesses K and B not
to mention evidence of prior bad acts.
Nonprecedential Memo Op: 325 Or App 407 (2023) 409
In direct testimony and despite the warnings, B
testified: “I mean, there was a lot of yelling back and forth.
You know, when you show up to your mom’s house and she’s
got two black eyes.” (Emphasis added.) Defendant objected
to the testimony and the trial court excused the jury to discuss the objection. Defendant moved for a mistrial and, in
the alternative, moved for a correcting instruction. The trial
court denied the motion for mistrial and instructed the jury
to disregard B’s testimony. Later in the trial, K testified:
“And then [defendant’s] like, ‘Well how come she’s not communicating with me?’ We have a restraining order, I mean,
and anyway.” (Emphasis added.) Again, defendant moved
for mistrial or, in the alternative, moved to strike the testimony. The state argued that defendant had opened the door
to the testimony regarding the restraining order. The court
found that defendant had not opened the door to that testimony, but that the problem could be cured with an instruction. The court instructed the jury to ignore that testimony.
Defendant testified that B hit defendant’s golf
cart with a truck and swung a tire iron at him. Defendant
claimed that he only drew his firearm in self-defense so that
he could safely leave. During closing arguments, defense
counsel argued that defendant’s testimony was more credible than K’s and B’s testimony.
On appeal, defendant argues that the testimony
implying that he had previously injured K and that he
was subject to a restraining order was so prejudicial that
an instruction from the court could not cure the prejudicial effect of the evidence and that he was deprived of a
fair trial. He specifically relied on a series of cases in which
the defendants invoked their constitutional rights. State v.
Osorno, 264 Or App 742, 751-52,
333 P3d 1163 (2014); State
v. Veatch,
223 Or App 444, 460,
196 P3d 45 (2008). In the
past, we have said that “[r]eference to a defendant’s exercise of a constitutional right jeopardizes the right to a fair
trial if the jury was likely to infer that the defendant had
exercised the right because he believed that he was guilty of
the charged offense.” State v. Schumacher,
315 Or App 298,
301,
500 P3d 698 (2021). This case does not involve evidence
concerning invocation of constitutional rights, and nothing
410 State v. Stone
in this record indicates that any of the testimony demonstrated that defendant believed he was guilty of the charged
offense. The case law cited in that regard by defendant simply does not apply.
Defendant also argues that this case is like State v.
Jones, 279 Or 55,
566 P2d 867,
182 P3d 175 (1977), in support of the argument that harm from inadmissible prior bad
acts is profound when the credibility of witnesses is at stake.
In Jones, the prosecutor repeatedly and deliberately made
reference to prior rapes despite the fact that there was no
evidence of such offenses. Here, two witnesses made passing
references to implicit bad acts, the trial court immediately
gave correcting instructions in each instance, and the prosecutor made no reference to the inadmissible statements.
Jones simply does not apply.
For the reasons stated above, the trial court did not
abuse its discretion.
Affirmed.
