State v. Bull ( 2024 )

612 October 23, 2024 No. 752
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA WAYNE BULL,
aka Joshua W. Bull,
Defendant-Appellant.
Jackson County Circuit Court
20CR22242; A178698
Laura A. Cromwell, Judge. (Judgment)
Lorenzo A. Mejia, Judge. (Supplemental Judgment)
Argued and submitted August 29, 2024.
David O. Ferry, Deputy Public Defender, argued the
cause for appellant. On the briefs were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and John
Evans, Deputy Public Defender, Oregon Public Defense
Commission.
Greg Rios, Assistant Attorney General, argued the cause
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.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 335 Or App 612 (2024) 613
KAMINS, J.
In this criminal case, defendant challenges his con-
victions, after unanimous jury verdicts, for second-degree
murder, ORS 163.115 (Count 1); first-degree robbery, ORS
164.415 (Count 2); first-degree kidnapping, ORS 163.235
(Count 3); and felon in possession of a firearm, ORS 166.270
(Count 5). We affirm.
Defendant was tried with a co-defendant. The state’s
theory was that the two men acted together and that the jury
could find defendant guilty of the charged offenses either as
a principal or as an accomplice; but the state did not elect
under which theory to proceed. In his first assignment of
error, defendant contends that, because the evidence allowed
the jury to conclude that defendant acted either as a prin-
cipal or an accomplice, and because the state did not elect
to pursue a single theory of liability, the trial court plainly
erred when it failed to instruct the jury that it must unani-
mously concur as to whether defendant was criminally liable
for each crime as a principal or an accomplice. Defendant
asserts that the court’s failure to give a concurrence instruc-
tion likely allowed the jury to base its verdict on alternative
factual occurrences and therefore is not harmless.
Defendant is correct that when the evidence per-
mits a jury to find a defendant criminally liable either as a
principal or as an accomplice, the state is required, when it
is requested, to elect the theory on which to proceed, or the
court, on request, must instruct the jury that it must unan-
imously agree on one theory. See State v. Phillips, 354 Or
598, 606, 612-13, 317 P3d 236 (2013) (holding that when the
state argues that the evidence supports a defendant’s con-
viction under either an accomplice or principal theory of lia-
bility, the trial court must provide an instruction requiring
jury concurrence on a single theory of liability if requested).
Here, the trial court instructed the jury regarding accom-
plice liability; but the court did not instruct the jury that it
needed to unanimously agree about a principal or accom-
plice theory of criminal liability.
Assuming that the trial court did plainly err in fail-
ing to give the concurrence instruction and that the error
614 State v. Bull
was not legally harmless, we decline to exercise our discre-
tion to correct any error. “[A] decision to review a plain error
is one to be made with the ‘utmost caution’ because such
review undercuts the policies served by the preservation doc-
trine.” State v. Vanornum, 354 Or 614, 630-31, 317 P3d 889
(2013) (quoting Ailes v. Portland Meadows, Inc., 312 Or 376,
382, 823 P2d 956 (1991)). Determining whether to exercise
discretion to review an unpreserved error “entails making
a prudential call that takes into account an array of consid-
erations, such as the competing interests of the parties, the
nature of the case, the gravity of the error, and the ends of
justice in the particular case.” Id. at 630. Here, we conclude
that the error itself was not grave. That is because, as the
state argues, the evidence presented at trial on the factual
scenario of accomplice liability also established the princi-
pal theory of liability. See Phillips, 354 Or at 613 (the error
in failing to give the concurrence instruction “was harmless
because, on the facts in this case, the factual findings neces-
sary to find defendant liable on one theory either subsumed
or were the same as the factual findings on the other the-
ory”); State v. Munoz, 270 Or App 490, 500, 348 P3d 296,
rev den, 357 Or 596 (2015) (the failure to give a concurrence
instruction on theory of liability is harmless when alterna-
tive factual scenarios both support principal liability).
Additionally, if defendant had requested a concur-
rence instruction, the court could easily have given one and
avoided the asserted plain error. For both of those reasons,
we conclude that the “ends of justice” do not require us to
overlook “the strong policies requiring preservation,” Ailes,
312 Or at 382, and exercise our discretion to correct the
asserted unpreserved error. See State v. Horton, 327 Or App
256, 263, 535 P3d 338 (2023) (declining to exercise discre-
tion when, “viewing the records as a whole and in the con-
text of the juries’ other findings, even though there is some
likelihood that the verdict would have been different (such
that the error was not legally harmless), it is an extremely
low likelihood”); see also Ailes, 312 Or at 382 n 6.
We turn to defendant’s second assignment of error.
In his defense of the charged acts, defendant argued that
he acted under the duress of his co-defendant. At closing
Nonprecedential Memo Op: 335 Or App 612 (2024) 615
argument, focusing on defendant’s testimony that he acted
under duress, defense counsel argued to the jury, “If you
believe [defendant], he is not guilty of any of these crimes.”
On rebuttal, the prosecutor responded: “Well, if you
don’t believe him, you have to find him guilty. And we talked
about the reasons earlier why you shouldn’t believe his testi-
mony.” In his second assignment of error, as pertains to the
robbery and kidnapping charges, defendant contends that
the prosecutor’s statement misstated the law, which places
the burden on the state to disprove defendant’s proffered
defenses, not on defendant to prove the defenses. Defendant
contends that the effect of the improper argument was to
confuse the jury on the burden of proof and deny defendant
a fair trial. Thus, defendant contends, the trial court plainly
erred in failing to sua sponte declare a mistrial.
The state responds that, within the scope of proper
advocacy, the prosecutor could permissibly argue that
defendant’s testimony was not credible. We agree with that
argument as a general proposition. See State v. Slay, 331
Or App 398, 404, 545 P3d 768, rev den, 372 Or 560 (2024)
(“Advocacy, whether it be in the criminal or civil context,
would be nearly impossible if attorneys were not able to com-
ment on a witness’s credibility, provided that their argument
is grounded in the evidence in the record.”). But the prosecu-
tor’s statement that if the jury disbelieved defendant it had
to find him guilty was an improper shorthand for that gen-
eral proposition. Even if the jury disbelieved defendant that
he was coerced or acted under duress and rejected defen-
dant’s defense, the jury was not required to find defendant
guilty, a conclusion that depended on whether the state had
met its burden to establish defendant’s guilt beyond a rea-
sonable doubt. The prosecutor’s statement mischaracterized
the burden of proof.
However, in context of the closing argument as a
whole, we conclude that the jury would not have been con-
fused by the prosecutor’s comment. The full context of the
argument shows that the emphasis of the prosecutor’s argu-
ment was that defendant was not a credible witness, not that
defendant had the burden to prove his defense. Additionally,
the prosecutor’s improper statement was an isolated one. In
616 State v. Bull
context, that improper statement was not so egregious as to
draw the jury’s attention away from the proper instructions
on the burden of proof or result in an unfair trial. Therefore,
we conclude that, had defendant made a motion for mistrial,
it would not have been an abuse of discretion for the trial
court to have denied the motion and instead given a cor-
rective instruction. Thus, we conclude that there was no
plain error. State v. Chitwood, 370 Or 305, 312, 518 P3d 903
(2022) (“[A] defendant asserting plain error must demon-
strate that the prosecutor’s comments 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.”).
In his fourth through ninth supplemental assign-
ments of error, defendant contends that the prosecutor made
several statements during closing argument that improp-
erly expressed a personal opinion of defendant’s credibility,
including comments that defendant had “lied” and had fabri-
cated his testimony. A witness may not “vouch” for the cred-
ibility of another witness by expressing a personal opinion
as to that witness’s credibility. State v. Sperou, 365 Or 121,
128, 442 P3d 581 (2019) (the “vouching rule” is a “judicially
created rule of evidence designed to ‘serve[ ] the policy goals
of ensuring that the jury remains the sole arbiter of wit-
ness credibility and that the jury’s role in assessing witness
credibility is not usurped by another witness’s opinion testi-
mony’ ” (quoting State v. Chandler, 360 Or 323, 330, 380 P3d
932 (2016)). “[L]awyers are similarly prohibited from giv-
ing their personal opinions on the credibility of witnesses.”
Id. Citing our recent opinion in State v. Montgomery, 327
Or App 655, 536 P3d 627 (2023), rev den, 371 Or 825 (2024),
defendant contends that the prosecutor’s statements consti-
tuted improper vouching that resulted in an unfair trial.
We have reviewed each of the asserted statements
and agree with the state that, unlike in Montgomery, where
the prosecutor made general statements disconnected from
the record that the defendant was untruthful, the prosecu-
tor’s comments here were instead permissible advocacy on
defendant’s credibility based on the evidence in the record.
Nonprecedential Memo Op: 335 Or App 612 (2024) 617
Slay, 331 Or App at 404. We therefore conclude that the com-
ments provide no basis for plain error review.
Finally, in his third assignment of error, defendant
makes a preserved argument that the trial court erred in
determining that the sentence on defendant’s first-degree
robbery conviction should run consecutive to defendant’s
second-degree murder conviction, because the offenses
resulted in separate harms. We conclude that there was no
error. See ORS 137.123(5)(b) (authorizing a consecutive sen-
tence when the offense “caused or created a risk of causing
greater or qualitatively different loss, injury or harm to the
victim” than the other offense). Defendant’s robbery offense
created a qualitatively different loss and harm to the victim
than that resulting from the victim’s murder.
Affirmed.