State v. Smith

292                   January 2, 2025                  No. 15

   This is a nonprecedential memorandum opinion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.
               DAVID JONATHAN SMITH,
                  Defendant-Appellant.
               Douglas County Circuit Court
                  17CR51085; A180982

   George William Ambrosini, Judge.
   Submitted November 21, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel Bennett, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney General,
filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
   SHORR, P. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2025)              293

         SHORR, P. J.
         Defendant appeals a judgment of conviction for
burglary in the second degree, aggravated theft in the first
degree, and criminal mischief in the first degree. In a single
assignment of error, defendant argues that the trial court
erred in denying his motion for a mistrial. We conclude that
the trial court did not abuse its discretion in denying the
motion and defendant was not denied a fair trial. We therefore affirm.
         We review a trial court’s denial of a motion for a
mistrial for abuse of discretion, and we “will not reverse a
conviction on that basis unless the defendant was denied a
fair trial.” State v. Schumacher, 

, 

 (2021).
         Here, defendant was accused of breaking into and
stealing merchandise from a cannabis business in Roseburg.
At his jury trial, the state played video from a police officer’s
body camera. On the video, a dispatcher referred to defendant’s criminal history. The dispatcher said, “Your subject,
David Smith, (inaudible) drugs, DWS violation.” Outside the
presence of the jury, defendant moved for a mistrial arguing
that the jury heard a reference to his post-prison supervision status and his drug history.
          The trial court took a recess and listened again to
the audio in chambers. The trial court “cranked it all the
way up … and there was a reference to [a] DW[S] infraction. There might have been some mention of drugs. … It’s
very hard to catch but … if you crank it way up … you
see it.” The trial court denied the motion for a mistrial, but
ordered the state to redact the exhibit in case the jury chose
to listen to it again. The trial court noted that both the prosecutor and defense counsel missed it until the exhibit was
played at trial. The trial court found no intentional attempt
by the prosecutor to present inadmissible evidence to the
jury, it did not think the reference to defendant’s criminal
history was “prominent,” and it was not sure that the jury
heard it. When the jury returned, the trial court provided a
curative instruction, telling the jury to disregard any radio
dispatch communications contained on the exhibit.
294                                             State v. Smith

         We conclude that the trial court did not abuse its
discretion in denying the motion. “A mistrial is most likely to
be required when a prosecutor intentionally and repeatedly
makes comments that suggest a defendant has a history of
committing similar crimes.” State v. Woodall, 

, 

 (2013), rev den, 

 (2014). “At the
other end of the spectrum are cases in which a prejudicial
statement is made inadvertently, only once, and in passing.
Also relevant is the extent to which a prejudicial statement
explicitly references a defendant’s criminal record.” Id. at
75-76 (citations omitted).
         This case falls toward the latter end of the spectrum. The trial court found that the prosecutor’s failure to
redact the reference to defendant’s criminal history was not
intentional. The jurors might not have heard it at all, and
if they did, they heard it only once and in passing. The reference to defendant’s criminal history was not explicit or
prominent; indeed, the trial court had to “crank” the volume
on the exhibit all the way up to hear it. It is also not clear
that the jury would have understood a reference to a “DWS
infraction,” or that it would have suggested to the jury that
defendant had a history of committing crimes similar to his
current charges. Each of those factors supports the trial
court’s decision not to declare a mistrial. See State v. Evans,

, 

 (2007), aff’d, 

, 

 (2008) (no abuse of discretion in denying
motion for a mistrial where the improper statement was isolated, made in passing, and it was not the product of deliberate prosecutorial misconduct).
         Turning to the trial court’s curative instruction, it
expressly instructed the jury to disregard any radio dispatch
communications. That instruction was effective because
it did not draw further attention to defendant’s criminal
history or his involvement with drugs. The trial court provided the instruction almost immediately after the jury had
viewed and listened to the exhibit. See State v. Veatch, 

, 

 (2008) (immediacy “is a factor in the effectiveness of a curative instruction.”). “[J]urors
are assumed to have followed their instructions, absent an
overwhelming probability that they would be unable to do
Nonprecedential Memo Op: 

 (2025)             295

so.” State v. Smith, 

, 

 (1990). We conclude that the curative instruction was sufficient to cure any
prejudice.
         We further reject defendant’s suggestion that admission of the reference to his criminal history or involvement
with drugs violated his constitutional rights. The touchstone is whether defendant received a fair trial. Woodall,

. We conclude that defendant received a fair
trial when the jury, despite possibly hearing a passing reference to defendant’s criminal history from the dispatcher,
was almost immediately instructed to ignore all of the statements from the dispatcher.
         In sum, the trial court did not abuse its discretion by
denying defendant’s motion for a mistrial based on the prosecutor’s inadvertent presentation of inadmissible evidence
about defendant’s criminal history that the jury might or
might not have heard or understood.
        Affirmed.