State v. Oxford

• Decision Date: 26 February 2020
• Docket Number: A161408
• Citation: 461 P.3d 249,302 Or.App. 407
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Nathan OXFORD, aka Nathan Daniel Oxford, Defendant-Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 407

461 P.3d 249

STATE of Oregon, Plaintiff-Respondent,

v.Nathan OXFORD, aka Nathan Daniel Oxford, Defendant-Appellant.

A161408

Court of Appeals of Oregon.

Argued and submitted March 5, 2018.

February 26, 2020

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, 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, and Egan, Chief Judge, and Powers, Judge.^*

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for two counts of first-degree sodomy, five counts of first-degree sexual abuse, and five counts of second-degree sodomy, committed against two of his girlfriend’s three children. Prior to trial, the court granted defendant’s motion to exclude evidence that defendant had told the victims’ mother that he had fantasies about sex with children and had sexually abused his own daughter, who is not a victim in this case. At trial, a witness improperly referred to those admissions in his testimony, and defendant moved for a mistrial. The trial court denied the motion for mistrial, and, on appeal, defendant assigns error to that denial. As explained below, we conclude that the trial court did not abuse its discretion in denying the mistrial motion. We reject defendant’s remaining assignments of error without discussion.¹ Accordingly, we affirm.

Defendant was charged with committing sex crimes against the three minor children of his then-girlfriend, Southwell. Before trial, defendant moved to exclude evidence that he had told Southwell about having fantasies of sex with children and about sexually abusing his own daughter. The trial court granted defendant’s motion and told the state to instruct Southwell not to testify about those matters.

At trial, which occurred about 10 months later due to proceedings not at issue here, the state offered testimony from Detective Malanaphy, who had interviewed Southwell and the victims as part of his investigation. On direct, Malanaphy testified only about the content of his interview with one of the victims. On cross-examination, defense counsel asked Malanaphy about a number of the interviews, including his interviews of Southwell, and whether Southwell had stated in one of those conversations that defendant did not admit to abusing the children. On redirect, the following exchange occurred between the prosecutor and Malanaphy:

"Q Just to be clear, Detective, because I think we’re going in circles here. Was there another conversation where Ms. Southwell * * * told you more information about [defendant] admitting or not admitting?

"A Yes.

"Q And tell us, please, about that conversation.

"A That was in the context of her having—talking about how [defendant] had disclosed to her that he had fantasies about sex with children. And that he had told her he had touched his other daughters—"

Defendant immediately objected, and the trial court sustained that objection. The prosecutor did not attempt to argue in response to defendant’s objection and did not offer any further testimony from Malanaphy.

Defendant then immediately moved for a mistrial outside the presence of the jury based on Malanaphy’s statement that defendant told Southwell that he had fantasies about sex with children. Following that initial argument, both defendant and the prosecutor reminded the trial court that it had excluded evidence about both the fantasy statement and defendant’s alleged abuse of his own child. The trial court explained that defendant had opened the door to the prosecutor asking Malanaphy about other conversations in which defendant made admissions to Southwell; however, because of the pretrial motion excluding the subject matter of those admissions, the trial court admonished that the prosecutor should have instructed Malanaphy to not testify about that subject matter. The prosecutor responded that he had not intended to elicit Malanaphy’s statement about the subject matter of the admissions.

The trial court then had Malanaphy testify outside the presence of the jury. During that testimony, Malanaphy admitted that he misunderstood the prosecutor’s question and that he made an error when he testified that there was another conversation in which defendant made admissions about abusing the victims in this case. Malanaphy also testified that he had not been instructed to not testify about defendant’s admissions of fantasies and sex abuse of defendant’s daughter before trial. The prosecutor stated that Malanaphy had been instructed to not so testify after the trial court’s original ruling, which occurred eight or nine months prior to his testimony in the trial.

After those exchanges, the trial court initially indicated that it would grant the motion for mistrial. The state urged, however, that it should instead be allowed to correct the record for the jury and have Malanaphy testify that he made an error when he stated that there was an additional conversation about a confession. The state also argued that the statements were admissible under State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), which had not yet issued at the time of the pretrial motion, and that a mistrial would be inappropriate when the statements were at least arguably admissible. The state also requested that the trial court make a specific ruling under Williams and reiterated that it intended to call Malanaphy to correct his testimony for the jury, regarding defendant’s admissions about abusing the victims in this case.

The court then ruled:

"We have to clean it up in front the jury about the fact that there is no such other statement. That has to be cleaned up.

"I want—the record needs to reflect that this subject was subject to motion in limine and granted for the defense that it was not to be introduced at trial. The record already provides that this witness was not instructed on that motion prior to the beginning of this trial.

"In my eyes, it’s not adequate that he was told last November, and now we’re in July. It should have been revisited with this witness that he was not to reference it. So that’s a problem.

"Under State v. Williams , it is admissible, but I find it prejudicial.

"Not—I’m not going to say that its sufficiently prejudicial given the light that now everybody knows it’s not going to be referenced any more in this trial and it’s not going to be talked about any more in this trial, unless the defense wants me to do some kind of a limiting instruction and if they don’t we’re going to go by it.

"And I am marking this, I mean obviously the Court of Appeals will have to take a look at this and see whether or not the error is such that the case should be reversed. That will be up to them.

"But as far as I’m concerned, we’re going forward, so I’m denying the motion for mistrial."

Following that ruling, defendant questioned Malanaphy in front of the jury to correct the record about the conversations between defendant and Southwell:

"Q Detective MALANAPHY, on cross examination I was asking you about some statements that Ms. Southwell made to you in a telephone conversation last year?

"A Yes.

"Q And when I asked you that—whether or not Ms. Southwell had told you the statement, ‘He didn’t not say it,’ you responded by saying that there were other conversations?

"A Yes.

"Q And now thinking back on it, you realized there were no other conversations?

"A That’s correct. I trusted my memory and there is no other conversation where she mentions that.

"Q So Ms. Southwell did not tell you that [defendant] confessed to molesting these children?

"A That’s correct."

Malanaphy’s testimony occurred during the morning of the second day of three days of witness testimony. At the end of the five-day trial, the jury returned a verdict convicting defendant of sex crimes against two of the victims and acquitting defendant of the two counts submitted against the third victim.

After the verdict, defendant moved for a new trial on the same basis that he had moved for a mistrial. In that motion, defendant made clear that he had not asked for a limiting instruction following the denial of the mistrial motion to avoid drawing attention to the statements. At the hearing on the motion for a new trial, the trial court stated that it believed it had made a mistake in not granting the mistrial motion because the statements were highly prejudicial. However, the trial court also explained that it had weighed all of what had happened in light of the arguments made by defendant at the time it denied the mistrial motion. The trial court took the new trial motion under advisement, but failed to issue a timely ruling so the motion for new trial was deemed denied. ORCP 64 F(1).

On appeal, defendant challenges the trial court’s denial of his motion for mistrial. Defendant argues that he was denied the right to a fair trial due to the profound prejudice stemming from Malanaphy’s inadmissible testimony about defendant’s fantasies and prior bad acts, a position that defendant asserts is supported by the trial court’s after-the-fact assessment during the hearing on the motion for new trial. Defendant also argues that the error leading to Malanaphy’s testimony cannot be described as inadvertent, because the prosecutor failed to properly instruct Malanaphy before trial, which weighs in favor of requiring a new trial. Finally, defendant argues that that prejudice could not have been cured by a jury instruction and, thus, granting a mistrial was the only legally correct option for the trial court. In that respect, defendant asserts that this case is controlled by State v. Jones , 279 Or. 55, 566 P.2d 867 (1977).

The state responds that the trial court acted within its discretion by offering defendant a curative instruction with regard to the improper testimony, but otherwise...