State v. Roberts

220                  April 30, 2025              No. 382

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
               DANNY JOE ROBERTS,
                 Defendant-Appellant.
            Washington County Circuit Court
                 20CR36150; A181422

  Andrew Erwin, Judge.
  Argued and submitted March 3, 2025.
   Jedediah Peterson argued the cause for appellant. On
the briefs were Ryan T. O’Connor and O’Connor Weber LLC.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded.
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        HELLMAN, J.
          Defendant appeals a judgment of conviction for two
counts of first-degree sodomy, ORS 163.405, and two counts
of first-degree sexual abuse, ORS 163.427. On appeal, defendant first contends that during the state’s rebuttal closing
argument, the prosecutor impermissibly argued to the jury
that defense counsel had “fudged.” In defendant’s view, the
trial court erred by overruling his objection to that statement and by denying his subsequent motion for a mistrial.
Second, defendant challenges the admission of testimony
from the complainant’s friend describing a nightmare the
complainant had about defendant. Defendant argues that
the testimony was irrelevant under OEC 401 and unduly
prejudicial under OEC 403, and that it constituted inadmissible hearsay.
         As explained below, we agree with defendant that
the prosecutor’s statement was improper and that the trial
court erred in overruling his objection to it. However, we also
conclude that the prosecutor’s statement did not unfairly
prejudice defendant or deny him a fair trial. Second, we
conclude that the testimony concerning the complainant’s
nightmare should have been excluded on relevancy grounds
because the evidence did not demonstrate a nexus between
the nightmare and the alleged abuse. That error was not
harmless because the prosecutor emphasized the testimony
in closing argument as evidence of the complainant’s credibility. Accordingly, we reverse and remand.
         We briefly state the facts necessary to provide context for our decision and supplement those facts in the discussion of each assignment of error. In 2020, defendant’s
granddaughter, K, disclosed to a mental health therapist
that defendant had sexually abused her from the time she
was in kindergarten until she was in the third or fourth
grade. After making that initial disclosure, K met with a
school resource officer at her high school, and later, she was
also interviewed at Child Abuse Response and Evaluation
Services (CARES) Northwest.
        At trial, the state called a number of witnesses,
including K, K’s mother and father, and K’s friend, D.
222                                             State v. Roberts

Defendant testified in his own defense and denied the allegations against him. The jury found defendant guilty of two
counts of first-degree sodomy and two counts of first-degree
sexual abuse, and it acquitted him of one count of first-degree sexual abuse.
         On appeal, defendant first contends that the prosecutor engaged in an impermissible personal attack against
defense counsel during the state’s rebuttal closing. In defendant’s closing, defense counsel argued that K had fabricated
the allegations against defendant and highlighted certain
inconsistencies between K’s statements to the therapist, the
resource officer, and the interviewer at CARES concerning
the abuse. For example, defense counsel emphasized that
K did not report to either the therapist or resource officer
that defendant had performed oral sex on her, forced her
to touch his genitals, or touched her buttocks, although she
later described those incidents in detail during the CARES
interview.
         In rebuttal, the prosecutor stated,
       “So, the inconsistencies, I knew [defense counsel] was
   going to talk about that. So let’s be clear, an inconsistent
   statement is me saying, ‘Last weekend I went skiing at
   Mount Hood Meadows,[’] and then two days later I tell
   friends, ‘Hey, yeah, last weekend I was at Va[i]l[ ] skiing.’
   That’s an inconsistent statement, things cannot coexist one
   with the other. That’s an inconsistent statement.
      “What [defense counsel] did in his closing argument was
   he fudged. He used inconsistent—”
        At that point, defendant objected, and the trial
court overruled that objection on the basis that “[t]his is
argument; [the prosecutor is] simply making that particular
argument.” The prosecutor continued, arguing that defense
counsel had incorrectly used the term “inconsistent” to
describe K’s statements:
      “[THE PROSECUTOR]: … The absence of information compared to the presence of information is not an
   inconsistent statement. It’s not.
      “How many times in his closing argument did [defense
   counsel] try to argue that the absence of [K] saying—
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       “THE COURT: [Prosecutor], I’m going to—I’m going
   to direct you stay away from, kind of, labeling closing argument and just deal with—with the argument itself.”
         After arguments concluded, defendant moved for a
mistrial, relying on State v. Lundbom, 

, 

, rev den, 

 (1989), to argue that the prosecutor had engaged in an improper personal attack against
defense counsel by claiming that he had “fudged.” The state
responded that the comment was directed at defense counsel’s misuse of the word “inconsistent.” The trial court denied
defendant’s motion:
   “I do not take the context that [the prosecutor] was calling
   out a personal trait to [defense counsel] and labeling that,
   but rather was focused on the nature of the argument.
      “And [the prosecutor] was very specific in context about
   going back and that was where it was. I – I certainly don’t
   believe that that rises to the level of a mistrial in any way,
   shape, or form because it goes to, simply, the nature of the
   arguments that are before this jury and how they should
   review whether something is consistent or inconsistent as
   – as has been argued.
      “So for all those reasons, I am denying the Motion For
      Mistrial. And I would also point out that I clearly, further into the argument, made it clear that [the prosecutor] should focus his arguments on [defense counsel’s]
      arguments not on [defense counsel] at all, and so I was
      careful to do that as well.”
          “We review a trial court’s decision to overrule an
objection to closing arguments for abuse of discretion.” State
v. Totland, 

, 

, rev den, 

 (2019). Although a trial court enjoys “broad discretion” to control counsels’ arguments, we must reverse “when
it is clear that an argument was improper, properly challenged and likely to prejudice the jury unfairly.” State v.
Rosenbohm, 

, 

 (2010) (internal quotation marks omitted). In conducting our review, “we
view statements made by a party during argument in context, not in a vacuum.” State v. Mayo, 

,

 (2020) (internal quotation marks omitted).
224                                          State v. Roberts

         Similarly, we review a trial court’s decision to deny
a mistrial due to a prosecutor’s improper argument for abuse
of discretion. State v. Worth, 

, 

 (2009), rev den, 

 (2010). Even if a prosecutor’s
argument is improper, a jury instruction is generally sufficient to cure any prejudice, and accordingly, “a trial court
does not abuse its discretion by denying a mistrial unless
the effect of the prosecutor’s conduct was to deny a defendant a fair trial.” Id. at 74-75 (internal quotation marks
omitted); see also State v. Chitwood, 

,

 (2022) (“Generally, a proper jury instruction
is adequate to cure any presumed prejudice from a prosecutor’s misconduct. However, some prosecutorial statements
may be so prejudicial that, as a practical matter, the bell
once rung, cannot be unrung by such an admonishment.”
(Citations and internal quotation marks omitted.)).
         A prosecutorial argument is improper if it infringes
on a defendant’s constitutional right to a fair trial, which
“guarantees that a defendant shall be tried by a jury that
will decide guilt based on evidence—not emotion or prejudice.” State v. Durant, 

, 

(2023) (internal quotation marks omitted). Personal attacks
on defense counsel, which urge a conviction based not on
the evidence, but on the jury’s “emotional response” to the
defendant’s attorney and defense case, are thus impermissible. See Lundbom, 

 (holding that the
trial court’s failure to sustain the defendant’s objection to
the prosecutor’s characterization of the defendant’s expert
witness and defense counsel as “pimps” and “hired guns”
was reversible error because the remarks were “inappropriate,” “highly likely to influence the jury,” and “dangerously overshadow[ed] what [the] defendant’s case [wa]
s really about”); see also, e.g., State v. Brunnemer, 

, 

 (2017) (“[V]iewing the prosecutor’s statement that the defense was ‘not asking for justice’
within the context of the state’s entire rebuttal argument,
we conclude that the prosecutor improperly urged the jury
to find [the] defendant guilty based, not exclusively on the
strength of the state’s evidence, but on a desire to punish
defense counsel for [the complainant’s] treatment at trial.”).
Further, unwarranted personal attacks diminish the jury’s
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perception of an attorney’s competency and persuasiveness.
See State v. Knight, 

, 

 (2007)
(concluding that a tape recording in which the defendant
repeatedly made derogatory statements about his lawyer
was unduly prejudicial under OEC 403 because “[a]fter the
jury heard that [the] defendant was unimpressed with his
lawyer’s ability … [n]o juror thereafter was going to view
defense counsel as more credible and persuasive than the
prosecuting attorney”).
         Here, we conclude that the prosecutor’s statement
that defense counsel “fudged” was improper because it conveyed to the jury that defense counsel had somehow acted
dishonestly by questioning K’s credibility as a witness and
by describing some of her statements as inconsistent. The
remark did not, as the state contends, simply challenge
defense counsel’s characterization of the evidence because
the remark did not call upon the jury to assess defendant’s
and K’s credibility. Rather, by calling into question defense
counsel’s candor, the prosecutor improperly encouraged
the jury to consider defense counsel’s character in deciding
defendant’s guilt. Defendant timely objected to the statement, and we conclude that the trial court erred in overruling defendant’s objection.
         Having determined that the prosecutor made an
improper statement, we turn next to whether that improper
statement “was likely to prejudice the jury unfairly.”
Rosenbohm, 

. As explained above, to make
this determination we consider the improper statement in
the context of the entirety of the closing argument. After the
trial court overruled defendant’s objection to the remark,
the trial court also advised the prosecutor to focus his rebuttal on defense counsel’s argument itself. The prosecutor
heeded that advice, and the focus of his argument returned
to K’s credibility and the state’s evidence. Specifically, the
prosecutor argued that K’s failure to include certain details
about the abuse during the initial interviews with the
therapist and school resource officer was not inconsistent
with K’s statements to CARES Northwest. The prosecutor
emphasized that interviewers at CARES Northwest are
specially trained to speak with children about sexual abuse,
226                                             State v. Roberts

and therefore, it was not unsurprising or inconsistent that
K made a more detailed disclosure in that setting. In the
full context of closing argument, the prosecutor’s statement
that defense counsel had “fudged” was an isolated remark,
and after receiving additional direction from the trial court,
the prosecutor appropriately re-focused the argument on
the strength of the state’s evidence. In that context, it is
unlikely that the prosecutor’s statement influenced the jury
to decide defendant’s guilt based on defense counsel’s character or that the statement removed defense counsel’s ability to effectively advocate for defendant before the jury. We
therefore conclude that the statements did not unfairly prejudice defendant. For the same reasons, we conclude that the
prosecutor’s statement did not deny defendant a fair trial,
and accordingly, the trial court did not abuse its discretion
by denying defendant’s motion for a mistrial.
        Defendant next challenges the admission of testimony from K’s friend, D, in which she described a nightmare
K had about defendant. At trial, D testified that K told D
that defendant had done something to her when she was
younger, and in response, D told K that she would leave her
phone on during the night if K ever needed to talk. K would
sometimes call D, and one night in particular, K described a
nightmare she had about defendant:
     “Q Okay. So after you told her that, were there times
   where [K] would call you late at night to talk about things?
      “A Yes. It had to be months later or so, but she would
   call me after having severe nightmares, often crying and
   hyperventilating. There was one specific night that I—I
   don’t remember all the—all the nightmares and I usually
   didn’t ask.
      “But one time I did ask, and she said that she had a
   nightmare that her grandfather broke into her house and
   was holding her down and she couldn’t breathe and anytime she tried to scream, nothing would come out. And
   then she felt like she was suffocating.”
        Defendant argues, as he did below, that D’s testimony about K’s nightmare was irrelevant under OEC
401 because “there was no nexus between the substance
of the dream and a fact at issue.” The state responds that
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the evidence was relevant “because it was evidence of the
trauma [K] suffered as a result of defendant’s abuse,” which
“tend[s] to show that the alleged crime occurred.” We conclude that the evidence of K’s nightmares was irrelevant,
and thus, the trial court erred by admitting the testimony.1
        Whether evidence is relevant presents a question of
law that we review for legal error. State v. Titus, 

, 

 (1999). Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” OEC
401. That rule requires a “rational relationship between
the evidence offered and the substantive issues properly
provable in the case.” State v. Turnidge (S059155), 

, 

 (2016), cert den, 

 (2017)
(internal quotation marks omitted). Generally, relevance is
a “very low threshold for the admission of evidence.” State
v. Naudain, 

, 

 (2021) (internal
quotation marks omitted). However, the relevance of certain
evidence may “depend[ ] upon the existence of a particular
preliminary fact,” in which case “[t]he threshold issue is
whether a proper foundation was laid to establish the relevance of the testimony.” State v. Beaty, 

, 

, rev den, 

 (1994) (citing OEC
104(2) and OEC 104 Commentary (1981)).
        We have previously concluded that the relevance of a
statement made while the speaker is dreaming requires the
proponent of that evidence to establish a nexus between the
utterance and the alleged criminal conduct. State v. Presley,

, 

 (1991); see also State v.
Beden, 

, 

 (1999) (concluding
     1
       In the alternative, defendant argues (1) that D’s testimony was inadmissible under OEC 403 because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and (2) that the testimony
was hearsay that did not satisfy the state-of-mind exception under OEC 803(3).
Because we conclude that the testimony was not relevant, we do not reach defendant’s alternative arguments. Even if evidence is admissible under an exception
to the hearsay exclusionary rule, as a threshold matter, the evidence must also
be relevant. See State v. Manrique, 

, 

 (1975) (“The
fundamental rule of evidence is that in order to be admissible evidence must be
relevant, i.e., have some probative value to prove some issue in a case, and that all
relevant evidence is admissible unless it falls within one of the so-called ‘exclusionary’ rules of evidence.”).
228                                           State v. Roberts

that evidence of past sexual abuse of the child was relevant
to the defendant’s theory that the child had mistaken a
nightmare for reality, where the child’s report of abuse by the
defendant was substantially similar in detail to the previous
abuse and the morning after the alleged abuse by the defendant took place, the child had called out the name of her prior
abuser while sleeping). In Presley, the defendant was charged
with first-degree sexual abuse, and at his trial, the child victim’s foster parent testified that, one night, while sleeping,
the child cried out in her sleep, “Daddy, get off me. Daddy,
stop, leave me alone.” 

. We concluded that
the trial court erred by admitting that testimony because
the relevance of the child’s utterance depended on the existence of underlying facts that had not been established, and
thus, the state failed to “demonstrate a nexus between the
child’s vocalization and the alleged incidents” of abuse. 

. Importantly, the evidence did not establish the substance of the dream, and “[i]nstead, the jury was allowed to
infer that the child was dreaming about [the] defendant, that
in the dream [the] defendant was attacking or molesting her
and that, because [the] defendant had molested her in the
dream, he had sexually abused her when she was awake.” 

(emphasis in original). We further concluded that the error
prejudiced defendant because “the evidence evoked considerable sympathy for the child’s distress” and because the “case
rested on a jury determination of who was more believable—
the child or [the] defendant.” 

.
          Here, we similarly conclude that D’s testimony
about K’s nightmare should have been excluded as irrelevant because the state did not establish a nexus between
the nightmare and the alleged abuse. Absent that nexus, K’s
description of her nightmare, by itself, was insufficient to
support the factual inferences that the jury was permitted
to make. Specifically, the jury was allowed to infer that the
nightmare was a psychological symptom of trauma, that K’s
trauma stemmed from sexual abuse that had taken place
years prior, and that, because defendant was the subject of
her nightmare, K’s trauma was inflicted by defendant. The
fact that K unconsciously dreamt that defendant broke into
her home, an act that he is not alleged to have committed in
reality, cannot, by itself, support that inferential chain.
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          The state argues that jurors could use their common
sense and personal experience to conclude that trauma from
sexual abuse can manifest itself in the form of nightmares
about the perpetrator years later. We disagree. Although
many people experience traumatic events, determining
whether a specific behavior is an established response to a
particular event is not simply a matter of common sense.
Something more is needed in terms of evidence before the
jury could draw that conclusion. And the state did not present any evidence to establish that link. Moreover, the evidence did not establish that when K called D hyperventilating, she was suffering from trauma symptoms specifically, as
opposed to experiencing the distress that might accompany
a disturbing nightmare. Without such evidence, a rational
factfinder could not reasonably infer that K’s trauma resulted
from sexual abuse years earlier and that that trauma manifested itself as a nightmare in which defendant engaged
in fictitious misconduct unrelated to the alleged abuse. We
therefore conclude that the trial court erred in admitting the
testimony over defendant’s relevancy objection.
         Finally, we turn to whether the error was harmless. Under Article VII (Amended), section 3, of the Oregon
Constitution, we must affirm a judgment despite error if
there is “little likelihood that the particular error affected
the verdict.” State v. Davis, 

, 

(2003). An evidentiary error is more likely to affect a verdict
if the error “relates to a central factual issue in th[e] case.”
State v. Bement, 

, 

 (2018) (internal quotation marks omitted). Even when evidence relates
to a central factual issue, “its exclusion may be harmless if
[the evidence] is merely cumulative of, instead of qualitatively different than, evidence presented to the factfinder.”

 (Internal quotation marks omitted.)
         Here, we conclude that the error was not harmless.
First, the evidence of K’s psychological trauma related to a
central factual dispute. As in Presley, the state’s case rested
largely on the jury’s determination as to whether K was
more credible than defendant. D’s description of K’s panic
and fear after the nightmare was likely to elicit an emotional response from the jury and support a finding that K
230                                                State v. Roberts

was credible. Moreover, during closing argument, the prosecutor highlighted the testimony as evidence that K’s allegations were truthful:
      “Again, [D], right, she’s a good friend of [K], but she’s not
   family, right? She’s another third party who’s giving you
   this evidence that is very consistent with [K] telling the
   truth.
       “And then additionally that [K], after hearing that her
   friend saying to her, ‘Hey, I’ll leave my phone on if you need
   to get a hold of me,’ there were several instances where [K]
   called her having nightmares, and one time talked about
   how the nightmares were about the defendant breaking in.
   You—you heard what [D] said. This is all evidence, right?
   When you look at all of this together, it’s overwhelming evidence that [K] was telling the truth about what happened.”
Because the inadmissible testimony bolstered K’s credibility, as expressly argued by the prosecutor during closing
argument, the error could have influenced the jury’s verdict
such that the error was not harmless.
         Further, the testimony was not cumulative of other
evidence. As the state emphasizes, K’s mother and father
each testified that later in elementary school, K stopped
wanting to go to her grandparent’s house and would become
visibly upset at the prospect of having to visit. Additionally,
D testified that K called her on multiple occasions “crying
and hyperventilating.” Those pieces of testimony are qualitatively different from D’s testimony describing K’s nightmare. With respect to the testimony from K’s parents, neither parent connected K’s behavior to defendant or to any
potential abuse until years later, after K disclosed the abuse
to her therapist. Moreover, D’s testimony about the nightmare describes K in acute distress and panic, while the parents’ testimony described a more general resistance to visiting her grandparents. Finally, although D received multiple
phone calls from K, D’s description of K’s nightmare explicitly connected K’s distress to defendant. Under those circumstances, we cannot say that there was little likelihood
that the error affected the verdict.
         Reversed and remanded.