State v. Worth

• Decision Date: 30 September 2009
• Docket Number: A136299.,060532697
• Citation: 218 P.3d 166,231 Or. App. 69
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Joseph WORTH, Jr., Defendant-Appellant.
• Court: Oregon Court of Appeals

218 P.3d 166

231 Or. App. 69

STATE of Oregon, Plaintiff-Respondent, v. Joseph WORTH, Jr., Defendant-Appellant.

060532697

A136299.

Court of Appeals of Oregon.

Submitted on March 31, 2009.

Decided September 30, 2009.

Peter Gartlan, Chief Defender, Legal Services Division, and Tammy W. Sun, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Rolf C. Moan, Acting Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and CARSON, Senior Judge.

BREWER, C.J.

Defendant was convicted of two counts of first-degree kidnapping, ORS 163.235; three counts of first-degree sexual abuse, ORS 163.427; one count of first-degree unlawful sexual penetration, ORS 163.411; and one count of second-degree assault, ORS 163.175.¹ On appeal, he raises three assignments of error. First, defendant asserts that the state failed to lay a sufficient foundation for the introduction of DNA evidence at trial. Second, he argues that the trial court erred in denying his motion for a mistrial when the prosecutor argued during closing argument that the presumption of innocence no longer applied to defendant. Third, he contends that the trial court erred in imposing consecutive sentences—an argument that is foreclosed by Oregon v. Ice, 555 U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). For the reasons set forth below, we conclude that the trial court erred in denying defendant's motion for a mistrial. Accordingly, we reverse and remand on that basis, and need not reach defendant's other arguments.

Because defendant was convicted after a jury trial, we state the facts in the light most favorable to the state. State v. Johnson, 342 Or. 596, 598, 157 P.3d 198 (2007), cert. den., ___ U.S. ___, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). The victim, a minor, was returning to her mother's apartment one evening when, a short distance away from the apartment, she was approached by defendant. Defendant offered the victim drugs, which she refused. Defendant continued to follow the victim toward her home. When they reached the building next to the victim's residence, defendant pushed the victim against a wall and put a knife to her throat. The victim struggled to escape, but defendant threw her to the ground and hit and choked her. Defendant then dragged the victim into a portable toilet located nearby, where he pulled off some of the victim's clothing and then proceeded to sexually assault her.² Thereafter, he tied her hands with her shirt, told her to wait 10 minutes, then left.

The victim waited a few minutes and then returned home. She reported the attack immediately and was transported to the hospital. She was treated for numerous injuries, including bruising and swelling on the face, a broken nose, and cuts on her neck and hand. She also had an abrasion in her genital area. A sexual assault examination was conducted, and swabs from a sexual assault kit were collected from several parts of the victim's body.

The swabs were sent to the Oregon State Police Crime Lab, where DNA tests were conducted. Several of the swabs taken from the chest and thigh of the victim revealed semen that contained DNA that ultimately was matched to defendant's DNA profile. Initial testing of swabs taken from the victim's vagina did not reveal defendant's DNA but, because one of the analysts saw a sperm head when examining this material, the vaginal swabs were sent to the SERI forensic laboratory in California that specializes in certain types of DNA tests, including a test called Y-STR DNA that targets the male chromosome. That test revealed DNA from a vaginal swab that matched defendant's DNA. When defendant ultimately was arrested on a warrant, he was found in possession of a knife that the Oregon State Police Crime Lab determined to have his DNA as well as the victim's DNA on it. The victim identified defendant in a photo throwdown with 50 to 60 percent confidence and subsequently identified him at trial as well.

At the conclusion of the evidence, the prosecutor began her closing argument:

"[PROSECUTOR]: * * * I want to thank you for your time and attention over the past few days in listening to this case, this criminal case against this man, who now does not sit before you presumed innocent. He sits before you—

"[DEFENSE COUNSEL]: Objection, Your Honor.

"THE COURT: Basis?

"[DEFENSE COUNSEL]: Objection. The DA just said he wasn't presumed innocent, but he is.

"THE COURT: He's presumed innocent and I will instruct the jury to that * * * point.

"[PROSECUTOR]: But for a few more minutes, sits before you presumed innocent, until you shut that door and start deciding the facts of this case and how the law applies to the facts of that case.

"[DEFENSE COUNSEL]: Objection, Your Honor. He's presumed innocent at the deliberation.

"THE COURT: Okay. Okay. That— overruled. You made your point."

(Emphasis added.)

The prosecutor then reviewed the evidence as it related to each of the charges, and toward the end of her closing argument, stated that "[w]hen that door shuts, when you sit down and you take your initial vote, the presumption of innocence is over." Defense counsel then stated that he had a matter for the court and was heard off the record in chambers.

In his closing argument, defense counsel countered the prosecutor's statements by emphasizing that defendant "is presumed innocent as you deliberate."

After closing arguments, the court noted on the record that defense counsel had made a motion for a mistrial in chambers based on the prosecutor's comments and that the court had denied the motion on the ground that the comments were permissible during closing argument. The court then allowed defense counsel to put his objection on record:

"The presumption of innocence is required by fair trial provisions of the Oregon Constitution and the due process clause of the Federal Constitution. [Defendant] has been denied fair trial because the prosecutor told the jury three times that he was no longer presumed innocent.

"She first said that, right now, he's no longer presumed innocent, and then she revised that, `Oh, she's—he's no longer presumed innocent once they get into the jury room.' But the very essence of the presumption of innocence is that he is presumed innocent when the jury goes into the jury room.

"This repeated reference to him no longer being presumed innocent and no corrective instruction at the time and my objections being overruled has made it so that the jury is now quite likely no longer feeling like they need to take seriously that presumption of innocence."

Thereafter the court instructed the jury. One of the instructions stated "To each of these charges, the defendant is innocent unless and until the defendant is proven guilty beyond a reasonable doubt. The burden is on the State to prove the guilt of the defendant beyond a reasonable doubt."

The court went on to instruct the jury on reasonable doubt but gave no further instruction concerning the presumption of innocence.

Thereafter, the jury convicted defendant of the crimes stated above and acquitted him on the first-degree rape count. At sentencing, the court imposed consecutive sentences on a number of the convictions.

On appeal, defendant first argues that the trial court erred in admitting the DNA evidence from both the Oregon State Police Crime Lab and from the SERI forensic lab in California. In particular, defendant contends that the state failed to lay an adequate foundation for this scientific evidence pursuant to State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995). Defendant also argues that the trial court erred in denying his motion for a mistrial based on the prosecutor's comments. We do not reach defendant's arguments concerning whether an adequate foundation was laid for the DNA evidence, because we conclude that the trial court erred in denying defendant's motion for a mistrial.

We review a trial court's decision to deny a mistrial due to a prosecutor's conduct for abuse of discretion. State v. Bowen, 340 Or. 487, 508, 135 P.3d 272 (2006), cert. den., 549 U.S. 1214, 127 S.Ct. 1258, 167 L.Ed.2d 89 (2007). In doing so, we consider whether the decision was within a range of legally correct choices and whether it produced a permissible, legally correct outcome. State v. Martinez, 224 Or.App. 588, 592, 198 P.3d 957 (2008), rev. den., 346 Or. 364, 213 P.3d 578 (2009). "Even if we conclude that a prosecutor's conduct was improper, a trial court does not abuse its discretion by denying a mistrial unless the effect of the prosecutor's conduct was to deny a defendant a fair trial." State v. Davis, 345 Or. 551, 583, 201 P.3d 185 (2008) (citing Bowen, 340 Or. at 508, 135 P.3d 272). Generally, a jury instruction is adequate to cure any prejudice caused by a prosecutor's misstatement. Id.

However, as explained below, in this case, the trial court erred in overruling defendant's objections to the prosecutor's misstatements of the law. Moreover, the court did not appear to recognize that it had erred in doing so and, accordingly, did not exercise its discretion to correct its erroneous rulings. Because, under the circumstances, the effect of those errors was to deny defendant a fair trial, the court's decision to deny defendant's motion for a mistrial did not fall within the range of legally correct choices and did not produce a permissible, legally correct outcome. See State v. Mayfield, 302 Or. 631, 645, 733 P.2d 438 (1987) (explaining that, in some circumstances, a trial court can err if it "fails to exercise discretion, refuses to exercise discretion[,] or fails to make a record which reflects an exercise of discretion"); see also State v. Pemberton, 226 Or.App. 285, 289, 203 P.3d 326 (2009) (holding that, under Mayfield, the exercise of discretion based...