and submitted September 18, 2018
Washington County Circuit Court 16CR13187; Eric Butterfeld,
Du Clos, Deputy Public Defender, argued the cause for the
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Peenesh Shah, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
appeals a judgment of conviction for first-degree criminal
trespass. At trial, a police officer testified that, when he
interviewed defendant after the underlying incident,
defendant twice asserted that he had "nothing to
say." Defendant objected to the officer's testimony,
the trial court sustained the objection and struck that
testimony, and defendant moved for a mistrial when the
officer was done testifying. The trial court denied the
motion, and defendant asserts on appeal that in so doing it
abused its discretion. Held: The trial court erred.
Assuming, without deciding, that the trial court was correct
in ruling that the officer impermissibly commented on
defendant's invocation of his right to remain silent
under Article I, section 12, of the Oregon Constitution, in
the circumstances of this case, defendant's silence
raised the inference that he was guilty. Moreover, the trial
court's instruction to the jury did not negate the
prejudice created by that inference.
Or.App. 45] HADLOCK, P. J.
appeals a judgment reflecting his conviction for first-degree
criminal trespass. It is undisputed that defendant entered
the residence of his former wife, E, during a sale that was
being held there after she moved out, at a time when she
still rented the home. The state prosecuted the trespass case
on the theory that defendant knew it was unlawful for him to
enter E's house; defendant argued that he had no reason
to believe that he could not enter the house during the sale.
At trial, a police officer testified that, when he
interviewed defendant after the incident, defendant twice
asserted that he had "nothing to say." Defendant
objected to the officer's testimony, the trial court
sustained the objection and struck that testimony, and
defendant moved for a mistrial when the officer was done
testifying. The trial court denied the motion. On appeal,
defendant asserts that the trial court abused its discretion
when it denied his mistrial motion. For the reasons set out
below, we agree. Accordingly, we reverse and remand.
review the trial court's decision to deny a mistrial
motion for abuse of discretion, keeping in mind that the
trial court "is in the best position to assess the
impact of the complained-of incident and to select the means
(if any) necessary to correct any problem resulting from
it." State v. Wright, 323 Or. 8, 12, 913 P.2d
321 (1996). "We will not find the denial of a mistrial
to be an abuse of discretion unless the defendant was denied
a fair trial." State v. Swanson, 293 Or.App.
562, 565, 429 P.3d 732 (2018).
facts pertinent to this appeal are not disputed. During her
opening statement, the prosecutor said that Police Officer
McNeilly had interviewed defendant after the alleged trespass
at E's home because McNeilly "wanted to take down
[defendant's] statement, wanted to see what
happened." She continued:
"What the defendant told the officer was I've got
nothing to say. My ex-wife is messing with me. I have nothing
to say. Not once did he say this is a mistake-"
objected. The court sustained the objection and told the
prosecutor to "move on." Nonetheless, the
prosecutor [298 Or.App. 46] repeated what defendant had said
before she wrapped up her opening statement to the jury:
"Thank you. So what [he] told the officer ...