Dеfendant appeals from his conviction by a jury of possessiоn of a stolen motor vehicle, ORS 481.990, and assigns as error (1) the court’s dеnial of his motion for a mistrial based on statements made by the prosecutor during his closing argument, and (2) the court’s denial of his motion for а directed verdict of acquittal. 1
During defense counsel’s opening statement, the following exchange took place:
"[DEFENSE COUNSEL]: You will learn * * * that [defendant] has neverbeen convicted of any crime, except one, when he was either 19 or 20 years old; and he will tеstify * * * that he was in a car with a kid friend of his—
"[PROSECUTOR]: Objection, Your Honor.
"THE COURT: Objection sustained.
"[DEFENSE COUNSEL]: The Court will not allow me to—
"THE COURT: You may not impeach your own witness.
"[DEFENSE COUNSEL]: Okay.
“THE COURT: Prior crimes can only be used fоr impeachment purposes.
"[DEFENSE COUNSEL]: All right.
"* * * well, if that comes out, Mr. Treit will explain the nature of that particular little problem that he had * * * 99
Although defendant testified later in the trial, no evidence of any prior conviction of the defendant was introduced — either by the defendant or by the prosecution. However, during his closing argument, the prоsecutor stated:
"How credible is [the defendant] as a witness?
"One prior conviction in 1958 for theft by possessiоn —what does that tell you, if you really wanted to know?”
Defendant then mоved for a mistrial on the ground that no evidence of the prior conviction had been introduced. The court denied defendant’s mоtion and, after the prosecutor resumed his closing argument, the following transpired:
"[PROSECUTOR]: Where I left off was, I believe, I was talking about the fact that by his own admission through counsel the Defendant was convictеd of a crime some time ago, the crime of theft — does that mean he can’t be believed, Your Honor?
"[DEFENSE COUNSEL]: I move we apprоach the bench, again, Your Honor, the reasons — I won’t apрroach the bench — [the prosecutor] is making a statement on something that is not in evidence, and is not an admission, and I believe I said—
"[PROSECUTOR]: The Court’s ruling is that it is in evidence, I believe, Your Honor.
"[DEFENSE COUNSEL]: I believe, I said in my opening statement that in 1958 he was convicted of a crime, but not of theft.
"THE COURT: I would limit your remarks, Mr. [Prosecutor], to his being convicted of a crime, but the jury will disregard what the crime was.
"[PROSECUTOR]: All right.
"At any rate, the whole point оf all this is that it is something you can take into account only for onе reason, that is to be used in attacking his credibility, and that really is the mаin issue in this case, it is the Defendant’s credibility * * *.”
Ordinarily, a motion for a mistrial is "a matter which should be left largely to the discretion of the trial judge.”
Plourd v. Southern Pac. Transp. Co.,
Here the state concedes that the prosecutor’s remаrks went beyond the scope of any admissions made by defense counsel and were not based on the evidence produced at trial but argues that the court’s election to
admonish the jury to disrеgard the prosecutor’s statement rather than to grant a mistrial was not an abuse of discretion. Several factors convince us to the contrary. The prosecution’s case against the dеfendant was circumstantial and was not so "overwhelming” that the impact of the prosecutor’s remarks was likely to be minimal.
See State v. Miller, 1 Or
App 460,
As for defendant’s second assignment of error, there was evidence from which the jury could have concluded that defendant was in knowing possession of a stolen vehicle.
State v. Krummacher,
Reversed and remanded for a new trial.
Notes
Defendant made a third assignment of error which is mooted by our holding on the first assignment.