State v. Garrison

Under OEC 403 and OEC 404, character evidence admitted will not be considered to be an abuse of a trial courts discretion where it is deemed to have little prejudicial effect and the jury has been offered a curative jury instruction. A curative instruction will be assumed to be followed by the jury unless there is an “overwhelming possibility” that the jury was incapable of following it.

Defendant appealed charges of sexual abuse, rape, unlawful sexual penetration, and sodomy resulting from his behavior with his children. Defendant assigned error to two issues from his original trial which the Court discusses. Defendant and his wife had been foster parents since their marriage in 1996. During this time they fostered about one hundred children. Some of the foster children eventually told the wife of Defendant’s abuse, and Defendant was arrested on a seventeen count indictment. Defendant moved for a mistrial, arguing that the testimony of his wife amounted to impermissible character evidence under OEC 403 and 404. The trial court found the testimony was not unfairly prejudicial and offered a curative jury instruction for it. The assignments of error discussed by the Court are the court’s denial of a mistrial motion and the calculation of Defendant’s sentence for his conviction of second-degree sexual abuse. The Court held the trial court had not abused its discretion in denying the mistrial motion because the Court assumes that the jury is to follow a court’s curative instruction, unless there is an overwhelming probability that they are incapable of doing so. With regards to Defendants challenge to his sentence, the Court deemed that the sentence was appropriate because the criminal conduct occurred on many different occasions, rather than during a continual episode as Defendant had claimed. Affirmed.