State v. Bull

612                 October 23, 2024              No. 752

   This is a nonprecedential memorandum opinion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.
                JOSHUA WAYNE BULL,
                   aka Joshua W. Bull,
                  Defendant-Appellant.
              Jackson County Circuit Court
                  20CR22242; A178698

  Laura A. Cromwell, Judge. (Judgment)
  Lorenzo A. Mejia, Judge. (Supplemental Judgment)
  Argued and submitted August 29, 2024.
   David O. Ferry, Deputy Public Defender, argued the
cause for appellant. On the briefs were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and John
Evans, Deputy Public Defender, Oregon Public Defense
Commission.
   Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             613

        KAMINS, J.
         In this criminal case, defendant challenges his convictions, after unanimous jury verdicts, for second-degree
murder, ORS 163.115 (Count 1); first-degree robbery, ORS
164.415 (Count 2); first-degree kidnapping, ORS 163.235
(Count 3); and felon in possession of a firearm, ORS 166.270
(Count 5). We affirm.
         Defendant was tried with a co-defendant. The state’s
theory was that the two men acted together and that the jury
could find defendant guilty of the charged offenses either as
a principal or as an accomplice; but the state did not elect
under which theory to proceed. In his first assignment of
error, defendant contends that, because the evidence allowed
the jury to conclude that defendant acted either as a principal or an accomplice, and because the state did not elect
to pursue a single theory of liability, the trial court plainly
erred when it failed to instruct the jury that it must unanimously concur as to whether defendant was criminally liable
for each crime as a principal or an accomplice. Defendant
asserts that the court’s failure to give a concurrence instruction likely allowed the jury to base its verdict on alternative
factual occurrences and therefore is not harmless.
          Defendant is correct that when the evidence permits a jury to find a defendant criminally liable either as a
principal or as an accomplice, the state is required, when it
is requested, to elect the theory on which to proceed, or the
court, on request, must instruct the jury that it must unanimously agree on one theory. See State v. Phillips, 

, 

 (2013) (holding that when the
state argues that the evidence supports a defendant’s conviction under either an accomplice or principal theory of liability, the trial court must provide an instruction requiring
jury concurrence on a single theory of liability if requested).
Here, the trial court instructed the jury regarding accomplice liability; but the court did not instruct the jury that it
needed to unanimously agree about a principal or accomplice theory of criminal liability.
        Assuming that the trial court did plainly err in failing to give the concurrence instruction and that the error
614                                               State v. Bull

was not legally harmless, we decline to exercise our discretion to correct any error. “[A] decision to review a plain error
is one to be made with the ‘utmost caution’ because such
review undercuts the policies served by the preservation doctrine.” State v. Vanornum, 

, 

(2013) (quoting Ailes v. Portland Meadows, Inc., 

, 

 (1991)). Determining whether to exercise
discretion to review an unpreserved error “entails making
a prudential call that takes into account an array of considerations, such as the competing interests of the parties, the
nature of the case, the gravity of the error, and the ends of
justice in the particular case.” Id. at 630. Here, we conclude
that the error itself was not grave. That is because, as the
state argues, the evidence presented at trial on the factual
scenario of accomplice liability also established the principal theory of liability. See Phillips, 

 (the error
in failing to give the concurrence instruction “was harmless
because, on the facts in this case, the factual findings necessary to find defendant liable on one theory either subsumed
or were the same as the factual findings on the other theory”); State v. Munoz, 

, 

,
rev den, 

 (2015) (the failure to give a concurrence
instruction on theory of liability is harmless when alternative factual scenarios both support principal liability).
         Additionally, if defendant had requested a concurrence instruction, the court could easily have given one and
avoided the asserted plain error. For both of those reasons,
we conclude that the “ends of justice” do not require us to
overlook “the strong policies requiring preservation,” Ailes,

, and exercise our discretion to correct the
asserted unpreserved error. See State v. Horton, 

, 

 (2023) (declining to exercise discretion when, “viewing the records as a whole and in the context of the juries’ other findings, even though there is some
likelihood that the verdict would have been different (such
that the error was not legally harmless), it is an extremely
low likelihood”); see also Ailes, 

 n 6.
        We turn to defendant’s second assignment of error.
In his defense of the charged acts, defendant argued that
he acted under the duress of his co-defendant. At closing
Nonprecedential Memo Op: 

 (2024)            615

argument, focusing on defendant’s testimony that he acted
under duress, defense counsel argued to the jury, “If you
believe [defendant], he is not guilty of any of these crimes.”
          On rebuttal, the prosecutor responded: “Well, if you
don’t believe him, you have to find him guilty. And we talked
about the reasons earlier why you shouldn’t believe his testimony.” In his second assignment of error, as pertains to the
robbery and kidnapping charges, defendant contends that
the prosecutor’s statement misstated the law, which places
the burden on the state to disprove defendant’s proffered
defenses, not on defendant to prove the defenses. Defendant
contends that the effect of the improper argument was to
confuse the jury on the burden of proof and deny defendant
a fair trial. Thus, defendant contends, the trial court plainly
erred in failing to sua sponte declare a mistrial.
         The state responds that, within the scope of proper
advocacy, the prosecutor could permissibly argue that
defendant’s testimony was not credible. We agree with that
argument as a general proposition. See State v. Slay, 

, 

, rev den, 

 (2024)
(“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.”). But the prosecutor’s statement that if the jury disbelieved defendant it had
to find him guilty was an improper shorthand for that general proposition. Even if the jury disbelieved defendant that
he was coerced or acted under duress and rejected defendant’s defense, the jury was not required to find defendant
guilty, a conclusion that depended on whether the state had
met its burden to establish defendant’s guilt beyond a reasonable doubt. The prosecutor’s statement mischaracterized
the burden of proof.
        However, in context of the closing argument as a
whole, we conclude that the jury would not have been confused by the prosecutor’s comment. The full context of the
argument shows that the emphasis of the prosecutor’s argument was that defendant was not a credible witness, not that
defendant had the burden to prove his defense. Additionally,
the prosecutor’s improper statement was an isolated one. In
616                                              State v. Bull

context, that improper statement was not so egregious as to
draw the jury’s attention away from the proper instructions
on the burden of proof or result in an unfair trial. Therefore,
we conclude that, had defendant made a motion for mistrial,
it would not have been an abuse of discretion for the trial
court to have denied the motion and instead given a corrective instruction. Thus, we conclude that there was no
plain error. State v. Chitwood, 

, 

(2022) (“[A] defendant asserting plain error must demonstrate that the prosecutor’s comments were so prejudicial
that an instruction to disregard them would not have been
sufficiently curative to assure the court, in its consideration
of all the circumstances, that the defendant received a fair
trial.”).
          In his fourth through ninth supplemental assignments of error, defendant contends that the prosecutor made
several statements during closing argument that improperly expressed a personal opinion of defendant’s credibility,
including comments that defendant had “lied” and had fabricated his testimony. A witness may not “vouch” for the credibility of another witness by expressing a personal opinion
as to that witness’s credibility. State v. Sperou, 

, 

 (2019) (the “vouching rule” is a “judicially
created rule of evidence designed to ‘serve[ ] the policy goals
of ensuring that the jury remains the sole arbiter of witness credibility and that the jury’s role in assessing witness
credibility is not usurped by another witness’s opinion testimony’ ” (quoting State v. Chandler, 

, 

 (2016)). “[L]awyers are similarly prohibited from giving
their personal opinions on the credibility of witnesses.” 

Citing our recent opinion in State v. Montgomery, 

, 

 (2023), rev den, 

 (2024), defendant contends that the prosecutor’s statements constituted
improper vouching that resulted in an unfair trial.
         We have reviewed each of the asserted statements
and agree with the state that, unlike in Montgomery, where
the prosecutor made general statements disconnected from
the record that the defendant was untruthful, the prosecutor’s comments here were instead permissible advocacy on
defendant’s credibility based on the evidence in the record.
Nonprecedential Memo Op: 

 (2024)            617

Slay, 

. We therefore conclude that the comments provide no basis for plain error review.
         Finally, in his third assignment of error, defendant
makes a preserved argument that the trial court erred in
determining that the sentence on defendant’s first-degree
robbery conviction should run consecutive to defendant’s
second-degree murder conviction, because the offenses
resulted in separate harms. We conclude that there was no
error. See ORS 137.123(5)(b) (authorizing a consecutive sentence when the offense “caused or created a risk of causing
greater or qualitatively different loss, injury or harm to the
victim” than the other offense). Defendant’s robbery offense
created a qualitatively different loss and harm to the victim
than that resulting from the victim’s murder.
        Affirmed.