State v. Moriarty , 324 Or. App. 105 ( 2023 )

105
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted April 6, 2021, affirmed February 1, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
PAUL MARK MORIARTY,
Defendant-Appellant.
Deschutes County Circuit Court
17CR07287; A169445
Stephen P. Forte, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erin J. Snyder Severe, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Hellman, Judge,
and DeVore, Senior Judge.
HELLMAN, J.
Affirmed.
106 State v. Moriarty
HELLMAN, J.
Defendant appeals a judgment of conviction on two
counts of harassment, ORS 166.065(4), arising from his con-
duct toward his teenage daughter, C.1 He raises four assign-
ments of error, challenging the admission of C’s out-of-court
statements, the denial of his motion for a mistrial, and the
court’s failure to ensure jury concurrence on the two counts
of harassment. For the reasons explained below, we reject
defendant’s assignments of error and affirm.
In his first assignment of error, defendant chal-
lenges the admission of certain statements C made to an
investigating detective and to a child abuse forensic inter-
viewer at the Bend Kids Center, arguing that they were
inadmissible under the hearsay provisions of the Oregon
Evidence Code and the Sixth Amendment to the United
States Constitution.2 We review a trial court’s evidentiary
rulings for legal error. State v. Pollock, 251 Or App 755, 757-
58, 284 P3d 1222 (2012), rev den, 353 Or 280, cert den, 571
US 851 (2013). We conclude that the trial court did not err in
admitting the challenged evidence.
Following C’s testimony at the trial, the state called
the detective and the forensic interviewer and questioned
them about their conversations with C regarding defendant’s
behavior toward her. The state also played a video of C’s
forensic interview from February 2017. Defendant assigns
error to the trial court’s admission of portions of the testi-
mony and the video relating to an incident that occurred on
January 31, 2017.3
1
Defendant was acquitted of five counts of sexual abuse in the third degree
and one additional count of harassment.
2
The Sixth Amendment to the United States Constitution states: “In all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted
with the witnesses against him[.]”
3
Defendant does not challenge all the evidence from those sources. The chal-
lenged evidence concerned an interaction C had with defendant on January 31
that did not constitute any of the charges. C told the detective and the forensic
interviewer that defendant had made an inappropriate comment to her while
she was wearing only a towel, which made her uncomfortable. She also told the
detective that in the same incident defendant pulled at her towel and partially
blocked her exit from the bathroom.
Nonprecedential Memo Op: 324 Or App 105 (2023) 107
Under OEC 803(18a)(b), statements made by a per-
son concerning an act of abuse are not excluded as hear-
say “if the declarant * * * testifies at the proceeding and is
subject to cross-examination * * *.” C testified at defendant’s
trial and was subject to cross-examination by defendant.
Defendant argues that, because the out-of-court statements
about January 31 were not admitted until after C testi-
fied, he did not have the opportunity to cross-examine her
regarding their contents.4 However, defendant had the right
to recall C as a witness and to question her regarding her
out-of-court statements, pursuant to OEC 806.5 Because C
testified and was cross-examined by defendant, the out-of-
court statements were admissible under OEC 803(18a)(b).
Furthermore, as established in Pollock, the confrontation
clause of the Sixth Amendment is not implicated when
the declarant takes the stand and is available for cross-
examination. 251 Or App at 759 (noting that the defendant
had the opportunity to cross-examine a child witness about
her adoption of the statements in a DVD and could have
recalled the victim under OEC 806 for cross-examination
after the DVD was played, and his choice not to “did not
impair his right to confront a witness against him”). We
therefore conclude the trial court did not err in admitting
C’s prior out-of-court statements.
In his second assignment of error, defendant chal-
lenges the trial court’s denial of his motion for a mistrial.
We review the trial court’s decision for an abuse of discre-
tion. State v. Bowen, 340 Or 487, 508, 135 P3d 272 (2006),
cert den, 549 US 1214 (2007).
Before trial, the parties agreed to redact the video
of C’s forensic interview to exclude references to domestic
violence that defendant had committed against C’s mother
and brother. The state inadvertently played a version of the
video that had not been completely redacted, thus present-
ing some of C’s statements to the jury. Defendant moved for
4
Defendant does not challenge the applicability of OEC 803(18a)(b) on the
grounds that the statements were not about an act of abuse.
5
OEC 806 states, in relevant part: “If the party against whom a hearsay
statement has been admitted calls the declarant as a witness, the party is enti-
tled to examine the declarant on the statement as if under cross-examination.”
108 State v. Moriarty
a mistrial in response to the video. The trial court denied
defendant’s motion and instead instructed the jury not to
consider any of C’s allegations about domestic violence
involving defendant and the other family members. The
court also provided a correctly redacted copy of the inter-
view to the jury for deliberations, explaining that the new
video replaced the video played earlier.
On appeal, defendant argues that the trial court’s
denial of his motion for a mistrial was an abuse of discretion
and denied him a fair trial. He asserts that the curative
instruction was insufficient to cure the prejudice caused by
C’s descriptions of prior domestic violence.
The granting of a mistrial is a “drastic remedy that
is to be avoided if possible” and the trial court is “in the best
position to assess the effect of the complained-of incident
and to determine the means necessary to correct it.” State v.
Harris, 303 Or App 464, 466, 461 P3d 1080, rev dismissed,
367 Or 291 (2020) (internal quotation marks omitted). We
will only reverse a denial of a motion for a mistrial if the
defendant was denied a fair trial. Id. at 466-67.
We conclude that defendant was not denied a fair
trial. C’s references to defendant’s prior domestic violence
toward C’s mother and brother were brief and contained in
a more substantive discussion regarding defendant’s behav-
ior toward C herself. The state did not emphasize the inad-
vertently admitted evidence in its closing statement. Most
significantly, the court gave the jury a curative instruction,
directing jurors not to consider any of the allegations of
domestic violence involving other family members. Jurors
are generally assumed to have followed a court’s curative
instruction unless there is an “overwhelming probability
that the jury was incapable of following the instruction.”
State v. Garrison, 266 Or App 749, 757, 340 P3d 49 (2014),
rev den, 356 Or 837 (2015) (internal quotation marks omit-
ted). In previous cases we have held that a curative instruc-
tion appropriately addressed the wrongful admission of
evidence that carried a greater risk of prejudice, such as
testimony about a defendant admitting to having sexual
fantasies about children and evidence of prior charges or
Nonprecedential Memo Op: 324 Or App 105 (2023) 109
investigations for child sex abuse. See Harris, 303 Or App
at 467-68 (summarizing prior cases). We therefore conclude
that the trial court did not abuse its discretion in offering a
curative instruction rather than declaring a mistrial.6
In his third and fourth assignments of error, defen-
dant argues the trial court plainly erred in failing to give
the jury a concurrence instruction with respect to pre-
cisely which actions constituted each count of harassment.
Defendant acknowledges that this argument is unpreserved,
but requests that we exercise our discretion to review for
plain error.
When an indictment charges a single count of a par-
ticular offense, but the evidence would permit the jury to find
multiple occurrences of the crime, a defendant is entitled to
have the state “elect” the occurrence that it seeks to prove,
or to have the court instruct the jury that it must agree
on which occurrence constituted the crime. State v. Ashkins,
357 Or 642, 659, 357 P3d 490 (2015). Defendant was charged
with three counts of harassment, yet the evidence referred
to more than three separate occasions and types of poten-
tially harassing behavior. Defendant argues that, because
the jury was not instructed that it was required to rely only
on particular occurrences in order to convict, it was possible
that some jurors found him guilty based on some incidents
and others may have relied on other incidents.
Assuming, without deciding, that the trial court
plainly erred, we decline to exercise our discretion because
we conclude that any error was harmless. See State v. Owen,
369 Or 288, 323, 505 P3d 953 (2022) (error is harmless if
there was “little likelihood that the error affected the ver-
dict”); Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823
P2d 956 (1991) (court must exercise its discretion to con-
sider or not to consider plain error). In its closing statement,
the state specifically identified what conduct constituted
6
To the extent defendant assigns error to the content of the trial court’s
curative instruction and the trial court’s explanation to the jury for the replace-
ment video, we conclude that those arguments are not preserved. Defendant’s
counsel did not object to the wording of the curative instruction and agreed that
the court’s explanation for the replacement video was a reasonable way to handle
the situation.
110 State v. Moriarty
each count.7 Though no formal election occurred, the jury
was aware of the conduct associated with each charge, and
indeed found defendant not guilty of one of the charges of
harassment. We therefore conclude that there is little like-
lihood that the failure to formally elect or to give the jury a
concurrence instruction affected the verdict.
Affirmed.
7
Each charge of harassment mirrored a charge of sexual abuse in the third
degree. The state described in detail which behavior made up each individual
count. The jury found defendant not guilty of the sexual abuse charges.