State v. Beisser

308 P.3d 1121, 258 Or. App. 326, 2013 WL 4554552, 2013 Ore. App. LEXIS 1019
CourtCourt of Appeals of Oregon
DecidedAugust 28, 2013
Docket211105237; A148833
StatusPublished
Cited by11 cases

This text of 308 P.3d 1121 (State v. Beisser) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Beisser, 308 P.3d 1121, 258 Or. App. 326, 2013 WL 4554552, 2013 Ore. App. LEXIS 1019 (Or. Ct. App. 2013).

Opinion

DUNCAN, J.

In this criminal case, defendant was charged with two counts of assault in the fourth degree, ORS 163.160.1 Count 1 alleged that defendant assaulted his roommate, Saner. Count 2 alleged that defendant assaulted his neighbor, Allen. During trial, defendant sought to present evidence that he was not guilty of Count 1 because he hit Saner in self-defense. The trial court excluded some of that evidence. Also during trial, the police officer who investigated the charged assaults testified that defendant had refused to meet with her. In response to the officer’s testimony, defendant moved for a mistrial on both counts, asserting that the testimony constituted an impermissible comment on his invocation of his right to remain silent. The trial court denied the motion. A jury found defendant guilty of both counts.

Defendant appeals the resulting judgment of conviction, raising four assignments of error. Defendant’s first three assignments of error relate to the trial court’s exclusion of evidence he sought to present to support his claim that he was not guilty of Count 1 because he hit Saner in self-defense. We conclude that the trial court erred in excluding the evidence that is the subject of defendant’s first assignment of error, and we further conclude that the error was not harmless; accordingly, we reverse and remand for a new trial on Count 1. Because the record may develop differently on remand, we do not reach defendant’s second and third assignments of error, which also relate to Count 1. Defendant’s fourth assignment of error relates to the trial court’s denial of his motion for a mistrial on both counts. We conclude that, even if the police officer’s challenged testimony constituted a comment on defendant’s invocation of his right to remain silent, the trial court did not abuse its discretion in denying defendant’s motion for a mistrial; accordingly, we affirm on Count 2.

Given the nature of defendant’s assignments of error, we begin by describing the evidence that defendant sought to present regarding his self-defense claim and the [329]*329trial court’s rulings on the admissibility of that evidence. We then describe the evidence relevant to the issues on appeal that the parties presented at trial.

Defendant sought to present evidence that, in the days before the March 9 incident that led to the charges in this case, Saner had been increasingly aggressive toward him. Specifically, defendant sought to present evidence about incidents on March 4 and March 7. Defendant wanted to testify about both incidents, and he also wanted to present the testimony of another roommate, Parks, who had witnessed both incidents.

Regarding the March 4 incident, defendant sought to present evidence that Saner had been verbally aggressive toward him during a dispute about a television. The trial court ruled that neither defendant nor Parks could testify about the incident at trial. In an offer of proof, defendant testified that he had brought a television home on March 4 and that he had been watching it with Parks and another roommate when Saner came home. Defendant testified that Saner did not say anything about the television at first, but later that night, after drinking alcohol, Saner “got right in [his] face” and was “ranting and raving” about the television. Also in an offer of proof, Parks testified that Saner, who was “drunk as a skunk,” told defendant that he should have told him about the television before bringing it into their shared apartment and “got in [defendant’s] face * * * just yelling and screaming and calling him names.”

The trial court excluded both defendant’s and Park’s testimony about the March 4 television incident on the ground that the incident was not a “violent interaction between the parties.” The court explained that defendant had presented only evidence of “yelling and screaming,” which, in the court’s view, was insufficient to establish that the incident was relevant to defendant’s self-defense claim.

Regarding the March 7 incident, defendant sought to present evidence that Saner came into the bathroom when defendant was taking a bath, yelled at him, and pushed him down when he tried to get out of the bathtub. The trial court allowed defendant to testify about the incident at trial, and defendant testified that Saner barged into the bathroom, [330]*330yelled at him, and pushed him down three times when he tried to get out of the tub. Defendant also testified that his toe was broken during the incident.

After defendant testified about the March 7 bathroom incident, the trial court ruled that Parks could not testify about the incident at trial. In an offer of proof, Parks testified that, in response to yelling, he went into the bathroom, where he saw defendant trying to get out of the bathtub and Saner pushing defendant back into the tub and under the bath water. Specifically, Parks testified as follows:

“[PARKS]: *** There was a commotion in the bathroom. I go to the bathroom and I just noticed yelling, a lot of yelling. I noticed that [defendant] was in the bathtub and um — he was trying to get out of the bathtub, and I noticed that Mr. Saner was preventing that from happening, and—
“[DEFENSE COUNSEL]: How was he preventing it from happening?
“[PARKS]: It — he was preventing it from happening by him using his hands and pushing him into the tub. So [defendant] was trying to get out of the tub. He was pushing him back. And I seen him go underneath the water a few times.
“[DEFENSE COUNSEL]: When you sa[w] him go underneath the water, was it his head and—
“[PARKS]: Yeah.
“[DEFENSE COUNSEL]: Okay. So was — explain exactly what happened. *** Mr. Saner did what? He pushed—
“[PARKS]: So Saner was just infuriated. You know, just yelling and screaming. [Defendant] was doing the same thing too. And [defendant] was trying to, you know, get out of the tub. He was, you know, forcefully pushing him into the tub. And you know — and this happened, you know quite a few times, and then I got involved and stopped the situation.
* * * *
“[DEFENSE COUNSEL]: How much of [defendant’s] body was under the water when he got shoved into it?
[331]*331“[PARKS]: He was fully submersed.
“ [DEFENSE COUNSEL]: Head and all?
“[PARKS]: Yes.
“[DEFENSE COUNSEL]: And that was done by Mr. Saner?
“[PARKS]: Yes.”

The trial court excluded Parks’s testimony about the March 7 bathroom incident on the ground that defendant had already testified about what was in his mind at the time of the alleged crimes and that Parks’s testimony would improperly bolster defendant’s testimony. The court explained:

“THE COURT: [T]he focus is on what was in the defendant’s mind. He’s already testified to that. So how does a third party relating the incident — which, by the way, when he related it was really quite different in many ways, not particularly helpful. How does that support the claim of self-defense which I think it has to be related?

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Cite This Page — Counsel Stack

Bluebook (online)
308 P.3d 1121, 258 Or. App. 326, 2013 WL 4554552, 2013 Ore. App. LEXIS 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beisser-orctapp-2013.