State v. Federico , 336 Or. App. 489 ( 2024 )

No. 861 November 27, 2024 489
This is a nonprecedential memorandum opinion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.
NICHOLAS FEDERICO,
Defendant-Appellant.
Marion County Circuit Court
19CR73389; A180247
Erious C. Johnson, Jr., Judge. (Judgment)
Lindsay R. Partridge, Judge. (Amended Judgment)
Argued and submitted October 30, 2024.
Anne Fujita Munsey, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Joanna Hershey, 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, Kamins, Judge, and
DeVore, Senior Judge.
KAMINS, J.
Affirmed.
490 State v. Federico
KAMINS, J.
Defendant, a former high school teacher, appeals
his convictions for various sex offenses after he had a sexual
relationship with J, a 17-year-old student. He assigns three
errors. For the reasons explained below, we affirm.
Defendant first assigns error to the denial of his
motion for a mistrial after the prosecutor referenced a search
warrant in front of the jury. We review a trial court’s denial
of a motion for a mistrial for abuse of discretion; we “will
not reverse a conviction on that basis unless the defendant
was denied a fair trial.” State v. Schumacher, 315 Or App
298, 301, 500 P3d 698 (2021). During trial, defense counsel
attempted to cast doubt on J’s credibility by implying that
she had never disclosed a sexual encounter at the school.
The prosecutor objected and referenced a search warrant
that had been suppressed:
“I don’t believe these are facts in evidence. Law enforce-
ment * * * received a search warrant for the office of the
high school, in fact, because * * * this witness articulated
that sexual contact happened in the school. And counsel is
suggesting that this witness has never said that to anyone
which is a false recitation of what occurred.”
Based on that exchange, defense counsel moved for a mis-
trial. The trial court denied that motion, positing that it
did not “think the jury picked it up” or that the exchange
was prejudicial to defendant’s case. The trial court then
instructed the jury, “[w]hatever the conversation was just
before I asked [the bailiff] to escort you all out, act like it
didn’t happen. Totally disregard it.”
On appeal, defendant advances three arguments as
to how the prosecutor’s conduct prevented him from receiv-
ing a fair trial. First, defendant contends that the prosecu-
tor’s statements were an improper reference to defendant’s
exercise of his constitutional right not to consent to a search.
However, it is not clear that the isolated reference to a search
warrant related to defendant’s refusal to allow law enforce-
ment to search (which was, in fact, not what occurred in this
case). See State v. Hunt, 297 Or App 597, 601, 442 P3d 232
(2019) (A reference to the exercise of a constitutional right
Nonprecedential Memo Op: 336 Or App 489 (2024) 491
“may not be prejudicial if it is incidental to some other point
that diverts the jury’s focus * * * or it is ambiguous and iso-
lated without any elaboration[.]”). Moreover, the trial court
instructed the jury to disregard the statement. See State v.
Babcock, 327 Or App 358, 361-62, 535 P3d 345 (2023) (con-
cluding that because it was “debatable whether” the pros-
ecutor’s statements were likely to imply “that only guilty
people go to trial,” the trial court could have “stricken” the
contested statements or given a curative instruction to rem-
edy any prejudice).
Second, defendant contends that the prosecutor’s
description of defense counsel’s suggestion that J never
reported a sexual encounter at the high school was a “false
recitation” that disparaged defense counsel in front of the
jury. See, e.g., State v. Brunnemer, 287 Or App 182, 187,
401 P3d 1226 (2017) (“When a prosecutor attempts to influ-
ence the jury by making unwarranted personal attacks
on defense counsel, that conduct is not only unfair, but it
impugns the integrity of the system as a whole because
such conduct dangerously overshadow[s] what a defendant’s
case is really about.”) (Internal marks omitted; brackets in
original). However, the prosecutor’s comment focused on the
potential inaccuracy of a single statement by defense coun-
sel, not defense counsel’s general truthfulness or compe-
tency. Cf. State v. Knight, 343 Or 469, 482-83, 173 P3d 1210
(2007) (concluding that the trial court admitting evidence
of the “defendant’s persistent references to [his] trial coun-
sel as ‘this fucking attorney and ‘this motherfucker’ ” prej-
udiced the defendant’s ability to receive a fair trial because
the jury would not “view defense counsel as more credible”
than the prosecutor).
Third, defendant contends that the curative instruc-
tion was too vague to mitigate the prejudice because the
court only instructed the jury to disregard, “[w]hatever the
conversation was.”1 However, the court included the quali-
fier: “just before I asked [the bailiff] to escort you all out.”
That instruction cabined what the jury should disregard—
the conversation among the prosecutor, defense counsel,
1
The state contends that defendant’s argument is unpreserved. For pur-
poses of this appeal, we assume without deciding that defendant’s argument is
preserved.
492 State v. Federico
and the trial court. Because the trial court’s handling of the
prosecutor’s interjection was within “the range of legally
permissible choices,” the trial court did not abuse its dis-
cretion in denying defendant’s motion for a mistrial. State v.
Johnson, 329 Or App 728, 733, 541 P3d 506 (2023), rev den,
372 Or 560 (2024) (internal quotation marks omitted).
Defendant’s second and third assignments of error
challenge the prosecutor’s rebuttal closing argument. He
acknowledges that those arguments are unpreserved and
requests plain error review. In that posture, we assess
whether a prosecutor’s closing argument is so “egregious
that, if the defendant had made a motion for a mistrial, the
court would have erred, as a matter of law, in denying it.”
State v. Durant, 327 Or App 363, 366, 535 P3d 808 (2023)
(internal quotation marks omitted).
Defendant contends that the prosecutor distorted
the burden of proof and made an improper emotional
appeal by arguing that a juror would struggle to explain
how the evidence—text messages between defendant and
victim, hotel receipts, and a nondisclosure agreement—
supports defendant’s case when discussing it with a loved
one. Defendant argues that the implication suggested that
the jury must point to defense evidence in order to vote not
guilty. We disagree.
It is not “ ‘beyond dispute that the prosecutor’s com-
ments were so prejudicial as to have denied defendant a fair
trial.’ ” Id. at 372 (quoting State v. Chitwood, 370 Or 305,
312, 518 P3d 903 (2022)). The prosecutor contended that the
juror should interpret the evidence—the text messages, the
hotel receipts, and the non-disclosure agreement—in the
state’s favor, arguing that no alternative explanation exists.
And the prosecutor’s comments invoking the jurors’ loved
ones—though not optimal—did not confuse the jury as to
which party had the burden of proof. See State v. Settlemier,
333 Or App 179, 181, 551 P3d 995 (2024) (concluding that
the prosecutor’s “characterization of defendant’s con-
duct as ‘evil’ ” did not confuse the jury as to the burden of
proof). Importantly, had defense counsel moved for a mis-
trial because of the prosecutor’s statements, it would not
have been an abuse of discretion for the trial court to deny
Nonprecedential Memo Op: 336 Or App 489 (2024) 493
it because a curative instruction could have remedied the
problem. See id. (explaining that it “would not have been an
abuse of discretion for the trial court to have denied a motion
for a mistrial had defendant made one”). Accordingly, the
trial court did not plainly err.
Affirmed.