STATE OF OREGON, Plaintiff-Respondent, v. MANUEL ELISHA NORTH, Defendant-Appellant.
No. 397
IN THE COURT OF APPEALS OF THE STATE OF OREGON
June 12, 2024
333 Or App 187 (2024)
Courtland Geyer, Judge.
Argued and submitted May 14, 2024. Zachary J. Stern argued the cause for appellant. Also on the briefs was Zachary J. Stern, PC. Doug M. Petrina, Assistant Attorney General, filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Tookey, Presiding Judge, Egan, Judge, and Kamins, Judge.
Affirmed.
Defendant appeals his conviction for second degree murder with a firearm, seeking a new trial.1 The charge arose out of an incident in which defendant shot and killed the driver of another vehicle after a driving confrontation. In seven assignments of error, defendant challenges four rulings of the trial court: the court‘s admission of other-acts evidence to show defendant‘s propensity to be the initiator of aggression; the sufficiency of the evidence in support of the trial court‘s giving of an instruction on “provocation“; the court‘s exclusion of evidence relevant to show the victim‘s violent character as it pertains to who was the initial aggressor; and the failure of court to either sua sponte strike or grant a mistrial to remedy alleged prosecutorial misconduct during closing arguments that defendant asserts gave rise to plain error.
We summarize the relevant facts as they bear on each assignment of error. As a general overview, defendant and the victim engaged in a confrontation as they were driving in separate vehicles on Interstate Highway 5 and through Salem. After pulling over behind the victim‘s car, defendant and his passenger got out of their car and stood behind the car doors, waiting. The victim came out of his car and walked toward defendant with his arms raised in
At trial, defendant‘s theory was that he shot the victim in self-defense. See
“The defendant is not justified in using physical force on another person if he provoked the use of unlawful physical force by that other person with the intent to cause physical injury or death to the other person.”
We first address defendant‘s second assignment of error, in which he challenges the giving of the instruction relating to provocation, contending that the evidence at trial was insufficient to support it. We will then address defendant‘s contentions, raised in his first and third assignments, relating to the initial aggressor issue.
Defendant does not contest the legal correctness of the provocation instruction and acknowledges that there is evidence that he provoked the victim “in the colloquial sense.” But he argues that the evidence of provocation was not legally sufficient, for purposes of
Defendant is correct that the asserted provocation must be made with the intention of causing the victim to use physical force so that the defendant could, in turn, respond with physical force and then claim self-defense. State v. Longoria, 300 Or App 495, 498, 454 P3d 813 (2019), rev‘d on other grounds, 366 Or 549, 466 P3d 60 (2020) (“[T]he provocation limitation on self-defense applies when a person provokes another person to use physical force so as to justify responding with physical force.“). But contrary to defendant‘s contention, we conclude that the evidence was sufficient to allow an inference by the factfinder that defendant‘s provocation was for the purpose of goading the victim into using force so that defendant could then respond with force.
In reviewing the trial court‘s ruling for legal error, we view the evidence in the light most favorable to the state, as the party that requested the instruction. State v. Daly, 308 Or App 74, 79-80, 479 P3d 335 (2020) (citing State v. Payne, 366 Or 588, 607, 468 P3d 445 (2020)). The jury had before it evidence that defendant, angered by the victim‘s driving, swerved his car into the victim‘s lane, forcing the victim to take evasive action; repeatedly directed racial slurs at the victim; responded to the victim‘s statement, “I‘m not a fighter,” by displaying a gun and stating, “I‘m not a fighter either, I‘m a shooter“; and chased the victim down and pulled his car up behind the victim‘s car when the victim pulled over. That course of conduct continued with defendant getting out of his car and standing behind his car door holding a gun and waiting for the victim to get out of his car and approach. The jury could infer from that evidence that defendant wanted a confrontation with the victim.
Additionally, the jury could find that defendant acted to entice the victim to use force against him, with the intention of responding by shooting the victim and justifying the shooting as self-defense. That inference is supported by defendant‘s earlier statement to the victim that he was “a shooter.” And it is also supported by evidence from which the jury could infer that defendant was pointing a gun at
We turn to defendant‘s first assignment of error, in which he challenges the trial court‘s admission of evidence in the form of testimony describing defendant‘s prior confrontations with drivers whom he perceived to be driving poorly, which the state sought to admit in order to show that defendant was the initial aggressor here, to counter defendant‘s contention that that he acted in self-defense. See
Having rejected defendant‘s second assignment of error, relating to provocation, we conclude for the following reason that any error in admitting the propensity evidence was harmless. See OEC 103(1)(b) (“Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.“). The jury rejected defendant‘s self-defense argument on two independent legal grounds—provocation and initial aggressor. The jury‘s finding of provocation independently supported its rejection of defendant‘s self-defense theory. Thus, even assuming that the court erred in admitting the propensity evidence, an issue we do not decide, the error was harmless if it did not affect the jury‘s assessment of provocation. And we conclude that it did not. As noted, the court instructed the jury that (1) the propensity evidence could be considered “only for what bearing, if any, it may have on the determination of who the initial aggressor was,” and (2) if the jury could not follow
In his third assignment of error, defendant contends that the trial court erred in excluding evidence of the victim‘s violent character, as would be admissible under OEC 404(2)(b):
“Evidence of a person‘s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
“(a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
“(b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor[.]”
(Emphasis added.) Defendant sought to introduce opinion and reputation evidence concerning the victim‘s violent character, as it pertained to the initial-aggressor issue. The trial court ruled that the evidence would not be admitted, because defendant was required to make, but had not provided, an offer of proof that he was aware of the victim‘s violent character.
The state concedes, and we agree, that the trial court‘s rationale was incorrect and that, under OEC 404(2)(b),
We need not address the merits of the offer-of-proof issue. That is because we conclude that, even assuming, without deciding, that the trial court erred in concluding that the offer of proof was insufficient, the trial court‘s error was harmless. See OEC 103(1)(b) (“Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.“). As noted, the evidence was offered only as it pertained to the initial-aggressor issue. See
In his fourth through seventh assignments, defendant asserts plain error by the trial court in failing to intervene sua sponte, by either declaring a mistrial or providing curative instructions, to correct asserted misstatements by the prosecutor in closing argument. Defendant‘s first argument concerns the prosecutor‘s reference to blood spatters on the back of the driver‘s side of the victim‘s car. He contends that the prosecutor‘s comments referenced facts not in evidence relating to the presence of blood on the car. We analyze defendant‘s contention asserting plain error through prosecutorial misconduct under the Supreme Court‘s template set out in State v. Chitwood, 370 Or 305, 312-14, 317, 518 P3d 903 (2022) (holding that, in the unique context of plain error review of a prosecutor‘s improper statements, statements are “legal error,” so as to constitute plain error, if they were so prejudicial that an instruction to disregard them would not have been sufficiently curative to assure the court, in its consideration of all the circumstances, that the defendant received a fair trial). We have reviewed the record and agree with the state that the prosecutor‘s remarks were not based on facts not in evidence and were not improper, and that, therefore, there was no error, let alone plain error, in failing to intervene.
Defendant‘s second Chitwood argument relates to a comment by the prosecutor during closing argument, after reading to the jury the statutory text of the provocation and initial aggressor limitations, that the limitations ask “simply who started it?”3 The prosecutor repeated that summary,
We agree with defendant that, in isolation, the comment was a generalization of the self-defense limitations. But the jury did not hear it in isolation. The prosecutor recited to the jury the statutory definitions of the provocation and initial aggressor limitations.4 The prosecutor also told the jury that the court would instruct the jury on the law and the elements of the offense and self-defense. Indeed, the court did correctly instruct jury on the law of self-defense, including on the nuances of the provocation and initial-aggressor limitations. The jury is presumed to have followed those instructions, “absent an overwhelming probability that they would be unable to do so.” Smith, 310 Or at 26. We conclude that the prosecutor‘s comments were not improper and did not mislead the jury and, therefore, that the trial court‘s failure to sua sponte take remedial action by ordering a mistrial was not plain error.
Affirmed.