98 August 27, 2025 No. 765
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL LEE DIZER,
Defendant-Appellant.
Multnomah County Circuit Court
21CR54911; A181167
Shelley D. Russell, Judge.
Submitted January 21, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Oregon
Public Defense Commission, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.*
HELLMAN, J.
Affirmed.
______________
* O’Connor, Judge vice Mooney, Senior Judge.
Cite as 343 Or App 98 (2025) 99
HELLMAN, J.
Defendant appeals a judgment of conviction entered
after a jury found him guilty of two counts of robbery in the
second degree, ORS 164.405, one count of aggravated theft
in the first degree, ORS 164.057, and one count of theft in
the first degree, ORS 164.055. In his first and second assignments of error, defendant argues that the trial court erred in
denying his motions for a mistrial. In his third assignment,
defendant contends that the trial court erred in denying his
motion to sever. As we explain below, we first conclude that
the court did not abuse its discretion in denying either of
defendant’s mistrial motions because any prejudice identified by defendant did not deny him a fair trial. Second, we
conclude that the court did not err in denying his motion
to sever because defendant has not shown that he suffered
substantial prejudice as a result of joinder of the charges.
Accordingly, we affirm.
Defendant’s convictions are based on armed robberies of two different bars that occurred two days apart. Both
bars had surveillance systems, which recorded the robberies
from various angles, both inside and outside of the bars.
Defendant addresses his first and second assignments of error in a combined argument that the trial court
erred in denying two mistrial motions. 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,
315 Or App 298, 301,
500 P3d 698 (2021).
FIRST MISTRIAL MOTION
At trial, the state called defendant’s parole officer,
Roberts, as an identification witness. At defendant’s request,
the trial court prohibited Roberts from disclosing to the jury
that he was defendant’s parole officer. Roberts testified that
he worked for Multnomah County and had known defendant for about nine years, but did not disclose how he knew
defendant.
The state’s next witness was the lead detective on the
case, Russell. As he described his initial steps in identifying
100 State v. Dizer
a suspect in the case, Russell stated that he “contacted a PO.”
The prosecutor and the court immediately cut Russell off
before he could say anything further. The trial court excused
the jury, and defendant moved for a mistrial, arguing that the
detective had disclosed to the jury that defendant had a probation officer. The trial court denied the motion because Russell
did not testify that the PO had a connection to defendant.
On appeal, defendant contends that the trial court
erred in denying the mistrial motion. Russell’s reference to
a “PO,” defendant argues, was prejudicial because it implicitly told the jury that defendant has a criminal record.
Defendant contends that the jury would have connected
Russell’s statement to Roberts’ testimony and known that
his probation officer was involved in the investigation.
Russell’s reference to his contact with a “PO” did
not deny defendant a fair trial. The prejudicial reference
was made only once, and the court cut Russell off before he
made any statement connecting that reference to defendant
or to Roberts. See State v. Woodall, 259 Or App 67, 75-76,
313 P3d 298 (2013), rev den,
354 Or 735 (2014) (explaining
that when “a prejudicial statement is made inadvertently,
only once, and in passing,” and when it does not explicitly
reference a defendant’s criminal history, then it is not likely
to require a mistrial). Accordingly, the trial court did not
abuse its discretion in denying defendant’s mistrial motion.
See State v. Evans,
211 Or App 162, 169-70,
154 P3d 166
(2007), aff’d,
344 Or 358 (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).
SECOND MISTRIAL MOTION
Before trial, defendant filed a motion to preclude
in-court narration of the surveillance video evidence.
Defendant argued in the motion that the videos and photographs were sufficient on their own, that no law enforcement witnesses were present during the robberies, and that
allowing an officer to narrate the video would “invade the
province of the jury.” Discussing the motion before trial, the
state agreed that it would “refrain from particularly naming
Cite as 343 Or App 98 (2025) 101
[defendant]” when playing the video, except to ask, “who did
you conclude the suspect was.”
During Russell’s testimony at trial, the state did not
play videos from either robbery, but the prosecutor did show
Russell still photos of the suspect from the videos. Russell
had no personal knowledge of defendant and had not met
him before investigating the robberies. In showing Russell
the different photos, the prosecutor repeatedly asked him
“what [he] determine[d]” about the person in the photo.
Russell responded that he “believed” it was defendant, that
“it’s [defendant],” and that he was “100% confident” that it
was defendant in the photographs. When the prosecutor
asked Russell about his review of the “multiple photos and
videos” from the two robberies, defendant objected, and the
court sustained the objection.
On redirect, the prosecutor asked Russell if he
could identify defendant in a photograph, asking if he was
“100% sure [he] had the correct person.” Russell said that he
was. Soon after, when the prosecutor again asked whether
Russell believed that he had the same person, defendant
objected, the trial court again sustained the objection, and
the stated ended its examination.
After the court excused the jury, defendant moved
for a mistrial. Defendant argued that Russell had “no personal knowledge” of defendant, and that the prosecutor’s
repeated questions to Russell asking if he believed defendant was the person who committed the robberies based on
the photographs was “highly prejudicial.” The trial court
noted that the prosecutor used the phrase “100%” several
times, which the court found troubling, and the court stated
that the prosecutor had “walked right up to the line … [i]f
not crossing over.” Nevertheless, the trial court denied the
motion for a mistrial.
On appeal, defendant argues that the trial court
erred in denying the second mistrial motion because the
prosecutor’s questions and Russell’s testimony were akin to
vouching testimony or expert testimony that usurped the
role of the jury. Defendant further argues that the prosecutor
exacerbated that harm by “mirroring Russell’s expressions
102 State v. Dizer
of certitude” in closing argument, where the prosecutor
repeatedly stated: “What are the odds [defendant] did that
robbery at the … [first bar]? 100%?” The state argues that
defendant failed to preserve his arguments and that, in any
case, defendant was not denied a fair trial.
Defendant preserved his argument. Defendant’s pretrial motion to preclude in-court narration of the video raised
the argument that officers who lacked “first-hand knowledge”
of the events should be prohibited from “interjecting their
subjective and speculative opinions” about the video or photographic evidence. Moreover, defendant objected twice to the
prosecutor’s questions about what Russell was able to determine from the photographs, defendant timely moved for a mistrial based on repeated questions of that nature, and the court
considered the mistrial motion by observing that the prosecutor had “walked right up to the line.” See State v. Skotland,
372 Or 319, 329,
549 P3d 534 (2024) (observing that, sometimes, preservation can be gauged by considering whether the
trial court would be surprised to find itself reversed on this
issue and for this reason); see also State v. Quebrado,
372 Or
301, 310,
549 P3d 524 (2024) (“At its core, preservation asks
whether the parties, and the trial court, had a fair opportunity to meet the merits of the argument later advanced on
appeal and thereby avoid the error at the outset or to correct
the error upon its occurrence.”). Thus, we turn to the merits.
Abuse of discretion is a “daunting standard of
review that gives the trial court’s decision great deference.”
Woodall, 259 Or App at 74. “If the trial court’s decision was
within the range of legally correct discretionary choices and
produced a permissible, legally correct outcome, the trial
court did not abuse its discretion.” State v. Rogers,
330 Or
282, 312,
4 P3d 1261 (2000). “A trial court abuses its discretion in denying a motion for mistrial if the effect is to deny
the defendant a fair trial.” State v. Cox,
272 Or App 390, 409,
359 P3d 257 (2015). Here, reviewing under that standard,
we conclude that the trial court did not abuse its discretion
in denying defendant’s motion for mistrial.1
1
Despite our conclusion, we agree that the prosecutor improperly solicited
testimony identifying defendant as the person in the photographs. Russell was
presented as an expert witness with 11 years of experience as a detective, yet he
had no personal familiarity with defendant and was no better situated to assess
Cite as 343 Or App 98 (2025) 103
Defendant moved for a mistrial after the prosecutor repeatedly asked Russell to identify defendant from
different photographs. The trial court denied the mistrial
but “caution[ed]” the prosecutor from further questioning
Russell on that issue. Defendant argues that the prosecutor’s questions and Russell’s testimony identifying him in
the photographs was so prejudicial as to deny him a fair
trial. Russell’s testimony, however, was not the only evidence that the state relied on to identify defendant in the
surveillance footage.
In addition to Russell’s testimony, the state elicited
testimony from Roberts, who knew defendant for more than
nine years, and asked Roberts if he could identify the person in the photographs. Roberts testified that he was “very
familiar” with defendant and that he was sure that it was
defendant in the photographs because of the person’s “facial
structure, features, [and] head.” The state also played a
video clip from one of the robberies and asked Roberts if he
could identify the person in the video. Roberts testified that
he knew defendant’s “walk and posture,” and that he was
“100 (percent) confident” that the person in the video was
defendant.
Further, the state submitted evidence of unique
clothing items in defendant’s possession when he was
arrested—including red-bottomed shoes, white pants, and
two hats, one with a particular stain and the other with an
uncommon pattern. Those unique items appeared to match
the clothes worn by the person in the surveillance footage
from both robberies. Given the considerable evidence related
to the identity of the person in the videos and photographs,
we are not persuaded that Russell’s testimony denied defendant a fair trial. See State v. Wyant, 300 Or App 1, 16, 452 P3d
whether it was defendant in the photographs than the jury was. See State v.
Southard,
347 Or 127, 141-42,
218 P3d 104 (2009) (holding that, in situations of
child sexual abuse, a statement from an expert is inadmissible where it “does
not tell the jury anything that it could not have determined on its own”); State
v. Criswell,
282 Or App 146, 158,
386 P3d 58 (2016) (admissibility of expert testimony “turns upon whether the expert testimony assists, rather than usurps,
the jury’s own assessment”). We also observe that the prosecutor solicited that
testimony despite pretrial litigation on the issue, which had precluded Russell
from providing his opinion about the suspect’s identity in a video narration and
warnings from the trial court not to engage in such questioning.
104 State v. Dizer
471 (2019), rev den,
366 Or 451 (2020) (no abuse of discretion
in declining to grant a mistrial when the challenged evidence was admitted through other testimony). Accordingly,
the court did not abuse its discretion in denying defendant’s
motion for mistrial.2
Finally, we are not persuaded by defendant’s argument that the prosecutor exacerbated the harm by referencing Russell’s statements in closing argument. To be sure, in
closing argument the prosecutor repeatedly stated that the
odds that defendant committed the robberies were “100%,”
which was the level of certainty that Russell expressed.
However, as we have explained, Roberts also indicated that
he was “100%” confident that it was defendant in the photographs. The prosecutor’s references in closing argument as
to the identification of defendant were specific to Roberts;
the prosecutor only referenced Russell when he discussed
defendant’s arrest with the unique clothing items.
MOTION TO SEVER
In his third assignment of error, defendant argues
that the trial court erred in denying his pretrial motion
to sever the charges relating to the two robberies. He contends that the trial court was required to sever the charges
because evidence of one robbery would not have been crossadmissible in a separate trial for the other robbery, the jury
was likely to have found that defendant had a propensity
to commit robberies, and the evidence connecting defendant
to the second robbery was weaker than the evidence connecting him to the first robbery. Defendant also argues that
joinder of the charges violated his due process rights.
When multiple charges have been properly joined
under ORS 132.560(1), either party may move to sever on
the basis that the party will be “substantially prejudiced”
by a joint trial. ORS 132.560(3). “On review of the denial of
a motion to sever, the reviewing court must determine, as
a matter of law, whether the defendant suffered substantial prejudice because of joinder.” State v. Delaney, 370 Or
2
To the extent that defendant argues that the cumulative effect of Russell’s
testimony—that led to his first and second mistrial motions—prejudiced him,
Oregon courts have not recognized a cumulative error theory of relief. Monica v.
Myers, 319 Or App 376, 386-87,
510 P3d 238, rev den,
370 Or 212 (2022).
Cite as
343 Or App 98 (2025) 105
554, 575,
522 P3d 855 (2022). “And we must review for an
abuse of discretion any relief that the trial court provided or
declined to provide to address the substantial prejudice.”
Id.
We are not persuaded that defendant suffered substantial prejudice because of joinder of the charges. A defendant must describe a case-specific theory of prejudice that is
“more than the prejudice that is an inherent risk of joining
charges.” Delaney, 370 Or at 575. “Recognized theories of substantial prejudice include but are not limited to: (1) that the
jury will confuse or cumulate the evidence; (2) that the defendant may be confounded in presenting conflicting defenses;
and (3) that the jury will conclude that the defendant is
guilty of one crime and therefore guilty of others.”
Id. The
Supreme Court has explained that the legislature amended
ORS 132.560 “to adopt the federal approach to joinder” and
that “multiple federal courts had held that severance was
required” when “the evidence of some joined charges was
much stronger than the evidence of other unrelated charges.”
Id. at 569, 572. For example, “severance was required where
… the evidence of one joined charge was sparse,” or insufficient to support a conviction, or likely to have resulted in
an acquittal. Id. at 571-72 (discussing relevant federal cases)
(internal quotation marks omitted); see also United States v.
Foutz, 540 F2d 733, 739 (4th Cir 1976) (“We think it highly
probable that a jury ignorant of the second crime … would
have acquitted him of the earlier robbery.”).
Here, defendant’s case-specific theory of substantial
prejudice is that the state presented stronger evidence concerning the first robbery than the second robbery, and that
the jury may have been inclined to find him guilty of the
second robbery based on its finding that he committed the
first. However, the evidence concerning the second robbery
was not so weak or sparse such that joinder of the charges
resulted in substantial prejudice. The two armed robberies
occurred on different days in different locations, and there
was surveillance video of both robberies. Roberts, a witness
who was familiar with defendant, identified him as the person in the photos or video clips of both robberies. Although
the hat worn by the person in the second robbery was more
generic than the hat worn in the first robbery, the second hat
106 State v. Dizer
had a distinctive stain that appeared to match a hat later
found in defendant’s possession. In addition, the trial court
specifically prohibited the jury from considering evidence of
one robbery as evidence of the other robbery when evaluating defendant’s culpability, which further mitigated the risk
of prejudice. We therefore reject defendant’s argument that
he was substantially prejudiced by joinder of the charges.3
For the same reasons, we also conclude that joinder of the
charges did not result in a fundamentally unfair trial that
violated defendant’s due process rights. See State v. Taylor,
364 Or 364, 378 n 8,
434 P3d 331 (2019) (“Defendant has
offered no basis to conclude that a trial on properly joined
charges could be fundamentally unfair when the joinder
does not cause substantial prejudice.”).
Affirmed.
3
In Delaney, the Supreme Court declined to “unilaterally take up the question” of whether our review is “limited to the state of the record at the time of
the court’s ruling on the motion to sever.” 370 Or at 576 n 14 (internal quotation
marks omitted). Whether or not our review is so limited, we conclude that defendant failed to show that he was substantially prejudiced by joinder.
