State v. Vannorman ( 2024 )

472 August 21, 2024 No. 582
This is a nonprecedential memorandum opinion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.
STEVEN ROBERT VANNORMAN,
Defendant-Appellant.
Douglas County Circuit Court
22CR13603; A179949
Frances Elaine Burge, Senior Judge.
Submitted March 8, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emma McDermott, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
SHORR, P. J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 472 (2024) 473
SHORR, P. J.
Defendant appeals from a judgment of conviction for
one count of harassment, ORS 166.065(3), for spitting on his
girlfriend. Defendant raises two assignments of error. In his
first assignment of error, defendant contends that the trial
court erred in overruling his objection to the prosecutor’s
argument that relied on facts not in evidence. Assuming
without deciding that the trial court erred in overruling
defendant’s objection, we nonetheless affirm because any
error was harmless. In his second assignment of error
defendant argues that the trial court erred by not giving
a “less satisfactory evidence” instruction. Defendant argues
that the current case law on “less satisfactory evidence” is
plainly wrong because the cases interpreting the relevant
statute, ORS 10.095(7), (8),1 were decided before both State
v. Gaines, 346 Or 160, 206 P3d 1042 (2009), and State v.
Payne, 366 Or 588, 468 P3d 445 (2020). We conclude that the
trial court did not err, and accordingly affirm the judgment
of the trial court.
Defendant was involved in a domestic dispute with
this girlfriend, K, that began in defendant’s home. When
K left defendant’s home, she walked along the shoulder of
a nearby highway. Defendant followed her in his truck and
spat on her. Officer Brown responded to a call about the
incident and initially made contact with K on the side of
the highway, where Brown activated his bodycam and inter-
viewed K. She gestured to a “white substance on her over-
alls” and told Brown that defendant had spat on her. Brown
did not photograph or swab the white substance or collect
the overalls.
With his bodycam recording, Brown then inter-
viewed defendant at defendant’s home. Defendant initially
suggested that he was unaware why Brown was interview-
ing him or what incident Brown was asking him about.
1
ORS 10.095 provides, in relevant part,
“(7) That evidence is to be estimated, not only by its own intrinsic weight, but
also according to the evidence which it is in the power of one side to produce
and of the other to contradict; and, therefore,
“(8) That if weaker and less satisfactory evidence is offered when it appears
that stronger and more satisfactory was within the power of the party, the
evidence offered should be viewed with distrust.”
474 State v. Vannorman
When Brown clarified that the interview concerned defen-
dant’s domestic dispute with K, defendant stated that K had
“flipped out” and threw a bench at him. Defendant later said
that there was a confrontation in the bathroom in which K
grabbed defendant by the beard and he responded by grab-
bing K’s hair. He also stated that he later drove his truck
up to approach K and told her to take all of her “shit” and to
move out.
At trial, before closing argument, defendant requested
a less satisfactory evidence instruction, arguing in relevant
part, that police should have taken photos and swabs of the
“white substance” on K’s clothing, and that those photos
and swabs would have been stronger evidence of defendant’s
guilt. The trial court denied that request. Then, during
the state’s closing argument, the prosecutor stated that
“[w]hen…Brown first arrives [defendant] says nothing hap-
pened between [defendant and K]. There wasn’t anything.”
Defense counsel objected to that statement, arguing that
“[t]hat was not in the body cam,” and the trial court sus-
tained defendant’s objection. The prosecutor immediately
continued “When Deputy Brown arrived [defendant] said
nothing had happened. He just grabbed her hair.” Defense
counsel objected on the same grounds, but this time the
trial court overruled the objection. Then, after the court
overruled defendant’s objection, the prosecutor elaborated,
“He just grabbed her hair. Nothing physical had happened
except he grabbed her hair and she grabbed his beard and
the stool. Then I didn’t go after her. When she was leav-
ing she was leaving. But oh, yeah. I did go after her in my
truck.”
The jury ultimately convicted defendant of harassment for
spitting on K and acquitted defendant of all other charges.2
Defendant now appeals from that conviction.
In defendant’s first assignment of error, he con-
tends that the trial court erred in overruling his objection
to the prosecutor’s closing argument wherein the prosecu-
tor claimed that defendant said “nothing happened” when
2
Defendant was charged with one count of strangulation, ORS 163.187(4),
one count of assault in the fourth degree, ORS 163.160(2), and two counts of
harassment, ORS 166.065(3).
Nonprecedential Memo Op: 334 Or App 472 (2024) 475
interviewed by police. Assuming without deciding that the
trial court erred in overruling defendant’s objection, we con-
clude any error was harmless. To determine whether an
error is harmless we must determine whether there is “little
likelihood that the particular error affected the jury’s ver-
dict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
Defendant argues that the error was not harmless
because (1) the error could not be cured because when the
trial court overruled defendant’s objection, it “accentuated
the error,”3 (2) the timing of the prosecutor’s statements,
which occurred during rebuttal, and gave the defendant no
opportunity to respond,4 and (3) defendant’s credibility was
a central issue in the case. We disagree for the following
reasons.
We must first consider the nature of the alleged
error. Davis, 336 Or at 32. In the portion of the state’s closing
argument at issue before us, the prosecutor was character-
izing Brown’s bodycam footage, commenting that defendant
said “nothing happened” when interviewed by the police.
That bodycam footage was submitted to the jury. The trial
court instructed the jury according to Uniform Criminal
Jury Instruction 1005, noting that “[t]he lawyers’ state-
ments and arguments are not evidence. If your recollection
of the evidence is different from the lawyers’ recollection,
you must rely on your own memory.” It is true that defen-
dant never used the words “nothing happened” when speak-
ing with the officer. However, the prosecutor’s statements
appeared to be a characterization of defendant’s recorded
statements in the officer’s bodycam video in which defendant
initially expressed confusion regarding any particular inci-
dent and then, after follow up, suggested that it was only K
that had initiated physical conduct by throwing a bench and
grabbing him by the beard. The jury was able to assess the
prosecutor’s characterization against the video that was in
evidence. See Cler v. Providence Health System-Oregon, 349
Or 481, 487, 245 P3d 642 (2010) (“In general, in presenting
closing arguments to the jury, counsel have a large degree
of freedom to comment on the evidence submitted and urge
3
See State v. Newburn, 178 Or 238, 241, 166 P2d 470 (1946).
4
See State v. Chitwood, 370 Or 305, 318, 518 P3d 903 (2022).
476 State v. Vannorman
the jury to draw * * * all legitimate inferences from that evi-
dence.”) (Internal quotations omitted.). Furthermore, the
nature of the error in State v. Newburn, 178 Or 238, 166 P2d
470 (1946), which the defendant relies on for support, was
far more serious. In Newburn, the prosecutor suggested to
the jury that the state had evidence in its possession that
was incriminating of the defendant but that was inadmissi-
ble under the rules of evidence. Id. at 240-41. Here, as noted,
the state made a passing remark about admitted evidence,
which the jury had the ability to credit or discredit.
We must also consider the context of the alleged
error and its relation to the theories in the case. Davis,
336 Or at 33. Defendant compares this case to State v.
Chitwood, 370 Or 305, 518 P3d 903 (2022), arguing that
the disputed error occurred during the prosecutor’s rebut-
tal, affording the defense no opportunity to respond. Again,
in Chitwood, the prosecutor’s impermissible statement was
much more serious; it “distorted the burden of proof by sug-
gesting, incorrectly, what the jury must find in order to con-
vict defendant.” Id. at 316. Furthermore, in Chitwood the
alleged error occurred at the end of the prosecutor’s rebuttal
and was “the last thing that the jury heard before begin-
ning deliberations.” Id. at 317. Here, contrary to defendant’s
assertions, the alleged error occurred during the prosecu-
tion’s closing argument—which gave defendant the ability
to respond—and was a passing comment characterizing evi-
dence that the jury had already seen and heard. In addition,
the spitting incident was not mentioned during the prosecu-
tor’s comments and despite defendant’s insistence that the
prosecutor’s comments undermined defendant’s credibility,
the jury acquitted defendant of all charges except for the one
count of harassment for the spitting incident. We conclude
that the alleged error had little likelihood of affecting the
jury’s verdict.
Turning to defendant’s second assignment of error,
he contends that the trial court erred in denying his request
for a “less satisfactory evidence” instruction. We review the
refusal to give a statutory instruction for legal error. Payne,
366 Or at 606-07. Defendant embarks on a Gaines analysis
of ORS 10.095(7), (8), contending, among other things, that
Nonprecedential Memo Op: 334 Or App 472 (2024) 477
we construe the statute such that we “look[ ] backwards at
historical steps that a party could have taken to produce
superior evidence, but elected not to” to determine whether
evidence was “within the power of the party.” In this con-
text, defendant wants us to consider that the state could
have produced superior evidence by taking photos and DNA
swabs of the white substance on K’s overalls but elected not
to do so. On that basis, defendant argues he was entitled to
a “less satisfactory evidence” instruction.
But as defendant correctly notes, to accept his statu-
tory construction we would, at a minimum, have to overturn
precedential opinions construing the statute differently. We
decline to do so. We have not construed ORS 10.095(7), (8)
to require the instruction whenever an improved investiga-
tion may have resulted in better evidence. See e.g., State v.
Sellers, 76 Or App 552, 554-55, 709 P2d 768 (1985), rev den,
300 Or 478 (1986) (holding that the court’s refusal to give
the “less satisfactory evidence” instruction was not error
“because the record does not indicate that the state had
and failed to produce stronger evidence”); see also State v.
Woodfield, 62 Or App 69, 74, 659 P2d 1006, rev den, 295 Or
259, (1983) (holding that the court’s refusal to give the “less
satisfactory evidence” instruction was not error because
“[t]he only indication in the record [was] that the state did
not have any evidence that was not offered”) (emphasis in
original); see also State v. Brock, 53 Or App 785, 791, 633
P2d 805, aff’d, 294 Or 15, 653 P2d 543 (1982) (“We decline
to hold that just because the state possibly could have by a
more diligent investigation obtained the record * * *, the evi-
dence is within the power of the state to produce.”). We are
not persuaded that those cases have been overruled by the
Supreme Court or are plainly wrong and must be overruled
by us. As a result, we also reject defendant’s second assign-
ment of error.
Affirmed.