State v Pouncey

The denial of the motion for mistrial is reviewed for abuse of discretion, “asking whether the prosecutor’s unremedied misstatement so affected the jury’s consideration as to deny defendant a fair trial.” Citing State v. Davis, 345 Or 551, 582-83, 201 P3d 185 (2008), cert den, 558 US 873 (2009).

Defendant appealed his convictions for murder with a firearm, unlawful use of a weapon, and felon in possession assigning error to the trial court’s denial of his motion for a mistrial after the prosecutor stated in closing argument the presumption of innocence was “no more” and application of the firearm minimum sentence to a conviction besides the one for which he was first sentenced under ORS 161.610(4). The denial of the motion for mistrial is reviewed for abuse of discretion, “asking whether the prosecutor’s unremedied misstatement so affected the jury’s consideration as to deny defendant a fair trial.” Citing State v. Davis, 345 Or 551, 582-83, 201 P3d 185 (2008), cert den, 558 US  873 (2009). The Court found Defendant not deprived of a fair trial as the trial court denying his motion for mistrial was not an abuse of discretion and the Defendant misstated case law concerning ORS 161.610(4). Affirmed.