State v. Dent

624                 September 24, 2025              No. 841

   This is a nonprecedential memorandum opinion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.
                  STEVEN LEE DENT,
                  Defendant-Appellant.
             Multnomah County Circuit Court
                  22CR30208; A182204

  Adrian L. Brown, Judge.
  Argued and submitted June 24, 2025.
   Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Kyleigh Gray, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Reversed and remanded.
Nonprecedential Memo Op: 

 (2025)                625

         JACQUOT, J.
          Defendant appeals a judgment convicting him of felony attempt to elude (vehicle), ORS 811.540; driving under
the influence of intoxicants, ORS 813.010; driving while
suspended, ORS 811.182; misdemeanor attempt to elude
(on foot), ORS 811.540; and reckless driving, ORS 811.140.
He raises three assignments of error. Because we are persuaded by defendant’s first assignment of error challenging
the denial of a motion for mistrial after the prosecutor’s comments during opening statement about defendant’s exercise
of his right to remain silent, we reverse.
          Defendant was observed in his Portland neighborhood driving his truck at a high rate of speed. A patrol car
signaled defendant to pull over, using emergency lights.
Defendant initially pulled onto the side of the road, but then
began driving again, leading a police officer on a slow-speed
pursuit through his neighborhood and into his driveway.
Along the way, he veered into the opposite lane for a brief
time. Once in his driveway, he exited and attempted to enter
his front door before being apprehended by the officer. He
left his dog secured in the truck.
          First, defendant challenges the denial of his motion
for mistrial based upon the prosecutor’s statement implicating his right to remain silent. Midway through his opening,
after summarizing the evidence he expected to come in at
trial in the driving under the influence case, the prosecutor
encouraged the jury to draw a negative inference based on
defendant exercising his right to remain silent. The prosecutor stated,
   “And then when he got to his house he jumped out of the car
   and ran for the door, trying to get inside before the police
   could get to him, which is where the elude—felony elude,
   fleeing from the police while in a car, and misdemeanor
   elude, fleeing on foot from the car afterwards, come into
   play.
       “Then after he was caught he first refused to say whether
   or not he understood his [M]iranda rights. Finally, they
   later reminded him of his rights and all he could say is that
   he had to get home—he didn’t say that he had to get home
   for some emergency, just that he wanted to get home.”
626                                                State v. Dent

(Emphasis added.) While considering defendant’s motion
for mistrial, the trial court determined that the statement
was improper. The state does not defend the statement, but
argues that the court’s offer of a curative instruction would
have been sufficient to cure the problem. Defendant argued
that he was offering a choice of evils defense—that defendant feared for the safety of his aggressive dog which might
have thought the officer was a threat and may have caused
the officer to injure it to protect himself—and the statement
about his initial silence would detract from the effectiveness
of the defense. Defendant argued that the state knew he
was going to offer the defense based upon pretrial litigation
about which charges the defense could apply to. Defendant
argues that this is the type of error that is almost impossible
to cure and that mistrial was the only viable remedy. State
v. Swanson, 

, 

 (2018). For
those reasons, defendant argues he was denied a fair trial.
         We review a denial of a motion for mistrial for
abuse of discretion. State v. Osorno, 

,

 (2014). A trial court abuses its discretion if
the defendant does not receive a fair trial. 

 “Reference to
a defendant’s exercise of a constitutional right jeopardizes
the right to a fair trial if the jury was likely to infer that the
defendant had exercised the right because he believed that
he was guilty of the charged offense.” State v. Schumacher,

, 

 (2021); see also State v.
Ashbaugh, 

, 

, rev den,

 (2024) (“[A] prosecutor may not refer to a defendant’s silence with impunity and we presume that reference
was harmful.”).
         An improper comment on defendant’s exercise of
a constitutional right is reviewed in context. Schumacher,

. Unless the surrounding context of the
improper prosecutor remark “draw[s] the jury’s attention
away from the inference of guilt, a mistrial may be necessary.” 

. The absence of any curative instruction is
part of the context that we consider. 

. The length
of an improper comment may also be viewed as part of the
context, though that an improper statement is brief does
not necessarily mean a mistrial is unwarranted—we have
Nonprecedential Memo Op: 

 (2025)             627

previously reversed in cases like this even when the reference to the exercise of a right is a “single statement apparently unintentionally elicited.” Id. at 304. We reversed a case
on similar facts with this type of error in State v. Veatch, 

, 

 (2008).
         In this case, we do not believe the brevity of the
improper comment on defendant’s right to remain silent
is the most significant factor, in part, because the state’s
entire opening statement was relatively brief, as was the
trial, which lasted only a few days. See State v. Avdeyev, 

, 

 (2021) (rejecting an argument
made by the state—that erroneous vouching statements
that “occurred only five times during a lengthy trial with
30 witnesses” rendered the impropriety harmless). More
important aspects of context in this case are: the potential
impact that the prosecutor’s improper comment likely had
on jurors, whether the surrounding statements made by the
prosecutor drew the jury’s attention away from a negative
inference, and whether actions by the court mitigated the
impropriety.
         In context, that the prosecutor said defendant
“refused” to confirm whether he “understood his Miranda
rights,” without providing any information about what
Miranda rights are or that one of those rights is a fundamental right to remain silent, some jurors may have believed
that defendant was acting inappropriately in response to a
directive from an officer, rather than simply exercising one
of the rights explained to him during the Miranda warning.
Moreover, the state implied from the balance of its commentary (“not because of some emergency”) about the substance
of defendant’s later statements that defendant was guilty
because if he had a real defense he would have explained
immediately. The prosecutor did not follow with a statement that would discourage jurors from drawing a negative
inference, rather, the prosecutor immediately followed by
saying, “He also nodded to the officers that he knew that
his license was suspended, which means that he knew he
legally shouldn’t be driving that day, at all.”
        In reviewing the entirety of the prosecutor’s opening statement, we cannot say that the prosecutor drew the
628                                              State v. Dent

jury’s attention away from making an inference of guilt
based on defendant’s right to remain silent. Cf. State v. Perez,

, 

 (2025) (that the prosecutor followed a reference to the defendant’s exercise of his right to
jury trial by stating that everyone has an absolute right to
a criminal trial and the state has the obligation of proving
the case to the jury weighed against reversal). Though an
improper statement at the end of trial may be particularly
damaging due to the impact it has on jurors before deliberation, see, e.g., State v. Chitwood, 

, 

 (2022) (“[B]ecause it was the last thing the jury heard,
its impact was likely to have been significant ….”), we are
persuaded by defendant’s argument that in this particular
instance, particularly in light of defendant’s choice of evils
defense, that “every piece of evidence moving forward” may
have been tainted by an improper view of defendant elicited by the prosecutor. Lastly, although the court agreed
with defendant that the statement was improper, the court
ultimately did not mitigate the negative impact of the prosecutor’s improper remark. The court offered to cure any
negative inference that might be drawn by the jury with
an instruction, defendant declined, arguing that the “only
appropriate remedy is mistrial,” and the court did nothing.
         The state argues that the prejudice from the prosecutor’s improper statement could have been cured by an
instruction, as the trial court offered to give, and that defendant’s refusal precludes him from being able to argue that
mistrial was warranted. We considered a similar argument
in Schumacher and attached little significance to the defendant’s refusal. Schumacher, 

. Even if
the court offers an appropriate instruction, if it does not
negate the potential inference of guilt, the instruction may
be insufficient to “unring the bell.” Veatch, 

. Schumacher concludes that when a trial court does
nothing in the face of an error like this, it would be error
to affirm. 

. For the foregoing reasons, we
reverse and remand on defendant’s first assignment of error.
         In his second assignment of error, defendant argues
that there was insufficient evidence to prove he committed
the offense of eluding on foot, because there was no evidence
Nonprecedential Memo Op: 

 (2025)            629

in the record that he did so on premises open to the public
as he was in his private driveway when he got out of the
car and fled to his front door. His argument is unpreserved.
The state responds that there was plenty of evidence that
the offense began on premises open to the public, and the
question of whether all of the elements of the offense must
occur on premises open to the public is subject to statutory
interpretation and beyond the reach of plain error analysis.
We agree with the state that defendant’s proposed interpretation of the statute is beyond the reach of our plain error
review. It is not obvious and beyond reasonable dispute that
the statute must be understood in the way proposed by
defendant. See State v. Reyes-Camarena, 

,

 (2000) (providing the plain error review standards).
         Finally, we turn to defendant’s third assignment
of error—that felony and misdemeanor attempt to elude
should merge for conviction and sentencing. We decide this
issue because it is likely to occur in retrial. This preserved
argument was made in the trial court as two distinct contentions. First, defendant argued that merger does not require a
complete overlap in elements when the legislature intended
only a single statutory provision, citing State v. Slatton, 

, 

 (2015). Second, he argued that
the evidence did not show a significant pause to justify two
separate convictions, otherwise, the misdemeanor should
merge into the felony. The state responds that the legislature intended to create two separate offenses, directed at
separate risks and carrying separate penalties. We have
recently agreed based upon the legislative history of ORS
811.540(1)(b)(A) and (B). State v. Farnham, 

,
___ P3d ___ (2025). The trial court appropriately imposed
two separate convictions here.
        Reversed and remanded.