State v. Slay

398                    March 6, 2024                No. 159

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 KATIE TAYLOR SLAY,
                  Defendant-Appellant.
                Polk County Circuit Court
                  21CR16924; A178236

   Rafael A. Caso, Judge.
   Submitted December 22, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant. Katie Slay filed the supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
   KAMINS, J.
   Affirmed.
Cite as 

 (2024)   399
400                                              State v. Slay

        KAMINS, J.
         Defendant appeals a judgment of conviction for conspiracy to commit second-degree murder stemming from
defendant’s request that her boyfriend and another friend
kill her ex-husband, K. Defendant assigns error to the trial
court’s decisions to (1) admit two photographs of her boyfriend and coconspirator; (2) decline to strike the prosecutor’s statements against defendant’s and her boyfriend’s
credibility; and (3) decline to declare a mistrial based on
those statements. Defendant also raises two pro se supplemental assignments of error, which we reject. We affirm.
        The pertinent facts are undisputed. Defendant and
K were briefly married. They divorced before their only child,
V, was born. K obtained legal custody of V, but each parent
continued to split time with the child. When K would pick
up V from defendant’s home, the atmosphere was extremely
contentious. Burr (defendant’s boyfriend) and defendant frequently engaged in yelling matches with K and K’s mother.
On one occasion, three men surrounded K with knives when
he attempted to pick up V. The relationship between defendant and K continued to devolve over time.
         As the relationship deteriorated, defendant sent
messages to a friend, Gomez, asking him to help murder K
because K was “trying to take [her] son away from [her] forever.” Defendant later contacted McClure, and he contacted
Burr, defendant’s eventual boyfriend, asking them to murder
K. She suggested multiple ways to have K killed—”make it
look like a car accident, shooting him, break into this house.”
         On February 27, 2021, Burr and McClure followed
K as he pulled into a grocery store parking lot. There, Burr
shot K multiple times with McClure acting as the getaway
driver. K survived the shooting.
        The state charged defendant with conspiracy to
commit second-degree murder and solicitation to commit
second-degree murder. After a bench trial, defendant was
found guilty of both charges.
        In defendant’s first assignment of error, she contends that the trial court erred by admitting Exhibits 68
Cite as 

 (2024)                                            401

and 69—two photographs of Burr with an angry expression
during one of the contentious interactions with K and K’s
mother—because the probative value of those photographs
was substantially outweighed by the danger of unfair prejudice. OEC 403.1 “We review a trial court’s decision to admit
evidence over an OEC 403 objection for abuse of discretion.”
State v. Davis, 

, 

, rev den,

 (2018).
          When determining whether the trial court abused
its discretion, we follow the analytical framework set forth
in State v. Mayfield, 

, 

 (1987).
First, “the trial judge should assess the proponent’s need
for the … evidence.” 

 Second, the trial judge must determine “how prejudicial the evidence is.” 

 Third, the trial
judge must consider the “judicial process of balancing the
prosecution’s need for the evidence against the countervailing prejudicial danger of unfair prejudice.” 

 Finally, the
judge must make the ruling whether “to admit all the proponent’s evidence, to exclude all the proponent’s evidence or
to admit only part of the evidence.” 

          At trial, defendant objected to the two photographs
as irrelevant and overly prejudicial under OEC 401 and 403.
The state responded that the photographs were “relevant to
show the argumentative nature [and] combativeness of the
exchanges.” The trial judge ruled that the two photographs
“could” contain “relevant information” for the state to establish its burden of proof, and “the probative value is not substantially outweighed by any undue prejudice.”
          On appeal, defendant renews her argument: the
photographs were unfairly prejudicial because of the prejudicial effect of showing Burr as “irrationally aggressive and
violent against [K],” and minimal probative value, given that
witness testimony had already established the contentious
relationship among defendant, Burr, K, and K’s mother. We
disagree. First, the photographs were relevant because each
party disputed who was confrontational during the interactions. See State v. Boauod, 

, 

 (2020) (explaining that video evidence was relevant, in
   1
      OEC 403 provides that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
402                                              State v. Slay

part, because it “shows defendant’s demeanor … and, at
times, facial expressions when confronted with the allegations”). However, even relevant evidence can be excluded
as “unfairly prejudicial when it has an undue tendency to
suggest a decision on an improper basis, … and when the
preferences of the trier of fact are affected by reasons essentially unrelated to the persuasive power of the evidence to
establish fact of consequence.” 

 (internal quotation marks
omitted). Here, Burr had already pleaded guilty to shooting
K, and he testified that he attempted to kill K for money.
Thus, depicting Burr as “aggressive and violent against
[K]” in light of those facts diminishes any prejudicial effect.
Accordingly, the trial court did not abuse its discretion in
admitting the two photographs.
         In her second assignment of error, defendant contends that, during closing argument, the prosecutor improperly vouched against defendant’s and Burr’s credibility.
Defendant acknowledges that those arguments are unpreserved and requests that we review the prosecutor’s conduct for plain error. “For an error to be plain error, it must
be an error of law, obvious and not reasonably in dispute,
and apparent on the record without requiring the court to
choose among competing inferences.” State v. Vanornum,

, 

 (2013). A defendant seeking
“an unpreserved challenge to prosecutorial statements must
demonstrate that the statements were so prejudicial that
they deprived defendant of a fair trial.” State v. Chitwood,

, 

 (2022). A defendant must
demonstrate that “if the defendant had made a motion for
mistrial, the trial court would have erred, as a matter of
law, in denying it.” 

.
          We review whether a prosecutor’s statement constitutes impermissible vouching for legal error. State v. Sperou,

, 

 (2019). Vouching occurs when
“prosecutors giv[e] their own personal opinions on the credibility of” a witness. State v. Kiesau, 

,

 (2021). Prosecutors, like all attorneys, have
“a large degree of freedom to comment on the evidence submitted and urge” the factfinder to “draw any and all legitimate inferences from that evidence.” Cler v. Providence
Cite as 

 (2024)                                 403

Health System-Oregon, 

, 

 (2010)
(internal quotations omitted). “[A]s advocates for the state’s
cause,” prosecutors “have wide latitude to make arguments
from the evidence[.]” Sperou, 

 (emphasis in
original).
        In closing, the prosecutor argued the following in
regard to defendant’s credibility:
   “Frankly, without—with regards to the most damning of
   statements against her, [defendant] has had an answer or
   excuse for everything. She has said that she was just kidding about that, or she was buying marijuana for her sister,
   or she had had a bad day, or she’d been drinking, or it was
   [K’s] mom’s fault, or the reason she didn’t report Mr. Burr’s
   threats against [K] was that she was scared. Frankly, the
   list just goes on and on. And Your Honor, she simply cannot
   be believed.”
After providing some examples of K’s statements that were
questionable, the prosecutor argued the following in regard
to Burr’s credibility:
   “And today we hear for the first time is Mr. Burr testifying
   that there was a plot to hire him for $1400 to kill [K]. I
   submit to you you should give no credibility to that. At no
   point, until today, at any other part of any other investigation, has this plot to hire for money to kill [K] come out in
   any investigation, in any testimony you heard from. But
   it does reveal some interesting details, at least which are
   that [defendant] was apparently—gave money to Mr. Burr
   to help purchase the fire arm ultimately was used in the
   shooting, the revolver, of [K].”
Defendant contends that that closing argument impermissibly vouched against defendant’s credibility because the
prosecutor “relied on a character inference in arguing that
because defendant made apparently untrue statements in
her personal life, she had a propensity to lie in all situations.” Defendant further argues that the prosecutor impermissibly vouched against Burr’s credibility by “express[ing]
[his] personal outrage at lack of credibility of defendant and
Burr’s testimony[.]”
         It is proper—indeed, required—for an attorney to be
able to comment on the evidence presented. Attorneys play
404                                            State v. Slay

an important role in synthesizing evidence and advocating
for their client based on that evidence. Advocacy, whether it
be in the criminal or civil context, would be nearly impossible if attorneys were not able to comment on a witness’s
credibility, provided that their argument is grounded in the
evidence in the record.
         In this case, the prosecutor’s argument that called
defendant’s credibility into question was so grounded. During
closing, the prosecutor pointed out that, although defendant testified that she still loved K and did not love Burr,
evidence undermined that testimony. Specifically, while in
custody, she wrote to Burr professing her love for him and
asking him to marry her. Similarly, defendant testified that,
“personally I have said I wish [K] would go away. He has his
biological father that he has never met and so I was wishing
that he would meet him and just go away.” However, evidence showed that when Gomez messaged defendant asking
why she wanted K dead, she replied, “because [K] is trying to take my son away from me forever,” never mentioning
anything about K’s biological father. The prosecutor pointed
to those types of inconsistencies, as well as to statements
that did not make logical sense, to argue why the factfinder
should doubt defendant’s credibility. That is exactly what a
prosecutor is supposed to do. Cf. State v. Montgomery, 

, 

 (2023), rev den, 

(2024) (the prosecutor’s “repeated statements that defendant
had lied” was improper because the prosecutor did not point
“to evidence in the record to cast doubt on defendant’s testimony”); see also State v. Purrier, 

, 

 (2014) (explaining that “the state permissibly may
attempt to persuade the [factfinder] that it should believe
one version of events and not another”).
         Similarly, the prosecutor’s argument did not interject his personal opinion of Burr’s credibility. During closing, the prosecutor commented, “I submit to you you should
give no credibility to that.” Following that contested statement, the prosecutor went on to explain why Burr’s testimony should be given little weight. Burr testified that he
had received $1,400 from McClure to kill K—an assertion
that was not substantiated by any testimony from McClure,
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 (2024)                              405

detectives, or any other facts on the record. Thus, the prosecutor did not offer a personal opinion of Burr; instead, he
permissibly argued for why Burr’s credibility should be
questioned given the evidentiary record. See Davis v. Cain,

, 

 (2020) (the prosecutor’s
arguments become impermissible when they are “in the
nature of ‘take my word for it,’ [and] not ‘let me show you’ ”).
Accordingly, the trial court did not plainly err in not striking the prosecutor’s statements relating to defendant’s and
Burr’s credibility.
         In defendant’s third assignment of error, she contends that the court erred by not declaring a mistrial based
on the prosecutor’s vouching statements. Our conclusion
that the prosecutor’s argument did not constitute impermissible vouching resolves this assignment of error.
         Defendant submits two additional pro se assignments of error. First, defendant argues that “allowing” the
detective’s “statements to determine the verdict warrants a
new trial or reversal of charges.” Second, she argues that the
trial judge should have struck McClure’s testimony because
it was inconsistent. Both pro se assignments of error are not
preserved, and after reviewing the record, the errors, if any,
are not plain.
        Affirmed.