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State v. Sprow

Court of Appeals of Oregon

June 12, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
NED WECKESSER SPROW, III, Defendant-Appellant.

          Argued and submitted September 18, 2018

          Washington County Circuit Court 16CR13187; Eric Butterfeld, Judge.

          Stacy 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 Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant 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.

         Reversed and remanded.

         [298 Or.App. 45] HADLOCK, P. J.

         Defendant 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.

         We 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).

         The 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-"

         Defendant 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 ...


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