368 P.3d 459
Or. Ct. App.2016Background
- Defendant convicted of two counts of first-degree sexual abuse involving a five-year-old child; case remanded from the Supreme Court after Williams II.
- Williams II held underwear evidence admissible under OEC 404(4) but required balancing under OEC 403 for such other-acts evidence; remand instructed court to address remaining errors.
- On remand, defendant argued two assignments about an audiotaped interrogation where the detective commented on credibility and the trial court should have declared a mistrial.
- Defendant also challenged the jury verdict as nonunanimous; prior decisions (e.g., Cobb) reject challenges to nonunanimous verdicts.
- The trial court admitted a 45-minute interrogation recording with credibility comments, instructed the jury to disregard those comments, and the court ultimately denied a mistrial; the court affirmed the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of the detective’s credibility comments required a mistrial | State argues any error was harmless given curative instruction | McQuisten-type error; comment on credibility prejudicial and warranting mistrial | Harmless error; no reversal for mistrial |
| Whether the curative instruction to disregard credibility comments sufficed | Instruction adequately directed jurors to consider only defendant’s responses | Instruction insufficient to cure vouching effect | Instruction sufficient; no reversible error |
| Whether the nonunanimous verdict challenge was properly rejected | N/A (State defense stance) | Nonunanimous verdict invalid under precedent | Challenged verdict rejected; Cobb applied; affirmed |
| Whether the underwear evidence issue on remand could be reached | N/A (addressed earlier) | Balancing under OEC 403 should be reconsidered | Not reached on remand per Supreme Court instruction; not reconsidered |
Key Cases Cited
- State v. Cobb, 224 Or App 594 (2008) (nonunanimous verdict challenges rejected on appeal)
- State v. McQuisten, 97 Or App 517 (1989) (interrogation witness credibility statements can be reversible error when credibility is central)
- State v. Odoms, 104 Or App 658 (1990) (admissibility issues and credibility comments on officer-witnesses)
- B. A. v. Webb, 253 Or App 1 (2012) (trial court must exclude credibility-improper testimony if vouching occurs)
- State v. Smith, 310 Or 1 (1990) (harmless-error standard for evidentiary errors)