State v. Herring

No. 272                 April 24, 2024                      269

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                TANIA LYNNE HERRING,
                    Defendant-Appellant.
               Jefferson County Circuit Court
                    21CR05594; A178592

   Wade L. Whiting, Judge.
   Submitted March 8, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   MOONEY, J.
   Affirmed.
270                                                     State v. Herring

         MOONEY, J.
         Defendant appeals a judgment of conviction for two
counts of second-degree animal neglect of a mare and the
mare’s foal (Counts 2 and 3), ORS 167.325.1 The jury acquitted defendant of practicing veterinary medicine without a
license (Count 1), second-degree animal neglect (Count 4),
and second-degree animal abuse (Count 5), all of which concerned a horse that defendant was alleged to have gelded
without pain medication. Defendant assigns error to the trial
court’s denial of her motion for a mistrial based on prosecutorial misconduct and to its failure to acquit her, sua sponte,
on Count 3. For the reasons explained below, we affirm.
         We review the denial of a motion for mistrial for
abuse of discretion. State v. Soprych, 

,

 (2022). Whether the trial court abused its discretion by denying a motion for mistrial based on prosecutorial misconduct depends on whether the conduct was such
as to deny defendant “a fair trial.” State v. Davis, 

, 

 (2008), cert den, 

 (2009).
A curative jury instruction is generally an adequate alternative remedy to minimize the risk of prejudice, but there
are “some prosecutorial statements [that are] so prejudicial”
that a mistrial may be the only adequate remedy available
to the trial court. See State v. Chitwood, 

,

 (2022) (reciting the well-known idiom “the bell
once rung, cannot be unrung” in conjunction with its discussion of jury instructions and prosecutorial misconduct
in a plain-error context). “Ultimately, an appellate court is
required to decide whether, under the circumstances as a
whole, [the] defendant was denied the right to a fair trial, as
a matter of law, by the events that transpired at trial.” 

 (internal quotation marks omitted).
         Defendant’s first assignment of error concerns this
exchange that occurred while the prosecutor was making
his closing argument to the jury:
   1
       ORS 167.325(1) provides, as relevant:
       “A person commits the crime of animal neglect in the second degree if,
   except as otherwise authorized by law, the person intentionally, knowingly,
   recklessly or with criminal negligence:
       “(a) Fails to provide minimum care for an animal in such person’s custody or control[.]”
Nonprecedential Memo Op: 

 (2024)                  271

       “[PROSECUTOR]: Practicing Veterinary Medicine
   Without a License. Again, this is just for that incident with
   [the gelded horse]. I don’t want you to get confused that
   we’re talking about anything other than that castration.
   And here we said that [defendant] recklessly practiced
   veterinary medicine or surgery without holding a valid
   license. Again, didn’t give the proper medication. When
   the procedure went wrong, didn’t change anything about
   what [defendant] was doing. Still the five minutes, used the
   same materials, used the same drugs. Didn’t give the animal pain relieving non-steroidal, anti-inflammatory drugs
   right after because [defendant] had a mistaken understanding of what they do. Recklessly practiced veterinary
   medicine.
       “And one thing that I’ll point out to you that the Judge
   told you is that it’s not against the law in Oregon to practice
   veterinary medicine on your own animal. I wouldn’t do it.
     “[DEFENSE COUNSEL]: Objection, matter for the
   Court.
      “THE COURT: Objection sustained.
      “[DEFENSE COUNSEL]:           Matter for the Court.
      “THE COURT: [Prosecutor]?
      “[PROSECUTOR]:        Withdrawn.”
(Emphasis added.) Defendant did not ask the court to
declare a mistrial. After arguments were concluded and the
jury was sent out to deliberate, the trial court asked counsel
for exceptions, at which point defense counsel said:
   “I would have wanted a mistrial for the State’s obvious
   vouching in violation of the law. Thank you.”
Again, defendant did not ask the court to declare a mistrial. The prosecutor acknowledged that his comment was
improper and offered to draft a curative instruction. Defense
counsel declined the offer of an instruction, and the trial
court indicated that it would not “grant a mistrial at this
point in time[.]”
         The trial court correctly sustained defendant’s
objection to the prosecutor’s statement, “I wouldn’t do it,” as
improper argument. See, e.g., State v. Wasyluk, 

, 

 (2015) (noting that it is improper for
272                                          State v. Herring

a prosecutor to use the expressions “I think” or “I believe”
when describing the evidence). The prosecutor immediately
withdrew his statement. The ruling on the objection and the
withdrawal of the improper statement occurred in the jury’s
immediate presence. The jury was instructed that the statements and arguments of counsel are not evidence, and that
only evidence received by the court during the trial may be
considered by them as they deliberate and reach their verdict. Defendant declined the offer of a curative instruction.
In the end, the jury acquitted defendant of the three counts
that were related to the gelded horse. Viewing the record as
a whole, we cannot say that the trial court abused its discretion in declining to declare a mistrial. See, e.g., State v.
Pouncey, 

, 

, rev den, 

 (2020) (holding that the trial court did not abuse its
discretion in denying a mistrial where “the prosecutor …
did not emphasize his improper comments,” “the trial court
did not compound the prejudice by overruling any defense
objection in the presence of the jury,” and “viewing the prosecutor’s statements in context rather than in a vacuum,”
the jury would not have been misled by the improper statements). The statement here is certainly not “beyond dispute
… so prejudicial as to have denied defendant a fair trial.”
Chitwood, 

 (internal quotation marks omitted). The trial court did not err when it declined to declare a
mistrial.
         We turn to defendant’s second assignment of error,
regarding the conviction on Count 3 for second-degree animal neglect of the foal. We note that defendant did not move
the trial court for a judgment of acquittal (MJOA) on Count 3
and that she, therefore, failed to preserve the argument she
now makes on appeal. Defendant argues, however, that the
trial court plainly erred when it failed to sua sponte enter
an MJOA on Count 3, and she implores us to acquit her of
that crime.
         We generally do not consider unpreserved issues,
State v. Wyatt, 

, 

 (2000), although
we have discretion to correct plain error. “An error is plain
when it is an error of law, the legal point is obvious and
not reasonably in dispute, and the error is apparent on the
Nonprecedential Memo Op: 

 (2024)              273

record without our having to choose among competing inferences.” State v. Tacia, 

, 

(2024) (internal quotation marks omitted). To establish an
error of law here, defendant must demonstrate that it is obvious and not reasonably in dispute that no reasonable trier
of fact could have found that the state proved the essential
elements of second-degree animal neglect beyond a reasonable doubt. 

.
         In reviewing the sufficiency of the evidence in conjunction with an MJOA, we view the evidence in the light
most favorable to the state, State v. Daniels, 

,

 (2010), and we “resolve all conflicts of evidence
in favor of the state and give the state the benefit of all reasonable inferences.” State v. Rader, 

, 

 (2010).
          The gravamen of the charge against defendant in
Count 3 is that she failed to “provide minimum care for” the
foal. ORS 167.310(9) defines “minimum care” to be “care sufficient to preserve the health and well-being of an animal,”
including “[f]ood of sufficient quantity and quality to allow for
normal growth or maintenance of body weight[,]” and “[o]pen
or adequate access to potable water in sufficient quantity
to satisfy the animal’s needs.” The state presented evidence
that the very young, injured foal was found attempting to
nurse from a mare with no milk supply. It is neither obvious nor beyond reasonable dispute on this record that the
evidence was insufficient to establish each element of the
charged crime beyond a reasonable doubt. Any error is not
plain. We, thus, reject the second assignment of error.
         Affirmed.