State v. Cox, 359 P.3d 257

Background

Defendant was convicted of five counts of first-degree sodomy and two counts of first-degree sexual abuse arising from allegations by his daughter W (multiple incidents from age ~5–12) and an earlier allegation by C (single incident in 1999).
W reported the abuse in 2011; police recorded a 42-minute pretext phone call in which defendant admitted past drug use and spoke nonresponsively but did not explicitly admit the sexual abuse.
The state introduced testimony and the recording that referenced defendant’s past methamphetamine use; trial court initially limited but ultimately admitted some evidence and the recording over defense objections.
Defendant moved pretrial to sever C’s count from W’s counts; the trial court denied severance. Defendant also moved multiple times for mistrial based on the prosecution’s elicitation and argument about defendant’s drug use and character.
In rebuttal closing, prosecutor argued defendant was “kind of the exact guy you would expect to abuse his daughter” as a “drug dealer” and “wife beater”; the court sustained an objection, gave curative instructions, denied mistrial, and later offered a written instruction.
On appeal the court affirmed the denial of severance but found the trial court erred in denying mistrial: repeated improper references to drug use and propensity were highly prejudicial and curative instructions were insufficient; conviction reversed and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counts tied to two different victims should have been severed	Joinder appropriate because evidence is interrelated (grooming, victims spoke, W led to C); limiting instructions and cross-exam limits mitigate prejudice	Joinder causes substantial prejudice via impermissible propensity inference and forces testimonial election (Fifth Amendment)	Denial of severance affirmed: incidents sufficiently distinct; prejudice mitigable by instructions and cross-exam limits (Gensler controlling)
Whether prosecutor’s elicitation of defendant’s drug use was admissible	Drug-use references relevant to W’s decision to renew contact, to explain memory/impeachment, and consistent with defendant’s recorded statements	Drug-use evidence was propensity character evidence, unfairly prejudicial and beyond proper relevance	Trial court abused discretion by allowing repeated references and argument using drug use as propensity evidence in closing; curative instructions insufficient; mistrial required
Whether prosecutor’s closing argument crossing into propensity and inflammatory facts warranted mistrial	Sustaining objection and jury instruction cured any prejudice; defendant’s own closing emphasized drug references, lessening harm	Closing crystallized repeated character evidence into explicit propensity argument (including facts not in evidence like “drug dealer” and “wife beater”) so instruction could not "unring the bell"	Motion for mistrial timely and should have been granted; reversal and remand for new trial
Preservation/timeliness of mistrial motion on appeal	State: motion was untimely because made after closing and instructions	Defendant: earlier objections, motions in limine, and court warnings made the later motion timely under preservation principles	Motion was sufficiently preserved; appellate review proceeds to merits

Key Cases Cited

State v. Gensler, 266 Or. App. 1 (affirming denial of severance where separate incidents/victims were distinct and prejudice mitigable)
State v. Veatch, 223 Or. App. 444 (timeliness/preservation of mistrial motion where court and parties were on notice and curative instruction given)
State v. Larson, 325 Or. 15 (preservation and review standards for mistrial motions)
State v. Jones, 279 Or. 55 (reversal where prosecutor repeatedly injected prior bad-act propensity evidence causing pervasive prejudice)
State v. White, 303 Or. 333 (curative instruction insufficient to erase prejudicial inference)
State v. Osorno, 264 Or. App. 742 (jury instruction generally sufficient but not when statements are highly prejudicial)
State v. Norkeveck, 214 Or. App. 553 (joinder/severance analysis re: simplicity and distinctness of joined charges)