State v. Jose Luis Arreola250 Or.App. 496, 281 P.3d 634. Linder and Landau JJ., would allow. DENIED.
In reviewing the trial court's ruling on a motion for a mistrial, we consider whether "a defendant's ability to obtain a fair trial has been impaired." State v. Arreola , 250 Or App 496, 500, 281 P.3d 634, rev. den. , 353 Or. 103, 295 P.3d 50 (2012) (internal quotation marks omitted). A fair trial is one in which "the verdict is based on the evidence and not on factors external to the proof at trial."
We review a trial court’s denial of a motion for mistrial for abuse of discretion. State v. Arreola , 250 Or. App. 496, 500, 281 P.3d 634, rev. den. , 353 Or. 103, 295 P.3d 50 (2012). On appeal, defendant contends that "the volume and emotional intensity of the disputed statements posed an obstacle to fairness that the court could not overcome with a jury instruction," and that, therefore, the court should have granted his motion for a mistrial.
Defendant separately assigns error to the denial of her motion for a mistrial under two theories: first, that the court's supplemental instruction was coercive, and second, that the jury demonstrated that it was unable to follow the court's instructions when it improperly revealed its voting posture to the court. See State v. Arreola , 250 Or. App. 496, 501-03, 281 P.3d 634, rev. den. , 353 Or. 103, 295 P.3d 50 (2012) (defendant was denied a fair trial because the case presented an overwhelming probability that the jury failed to follow instructions). We review for legal error whether a supplemental instruction resulted in jury coercion and violated a defendant's constitutional rights to a fair trial and due process.
We review a trial court's ruling denying a motion for mistrial for abuse of discretion. State v. Arreola, 250 Or.App. 496, 500, 281 P.3d 634, rev. den.,353 Or. 103, 295 P.3d 50 (2012). Denial of a mistrial motion will be deemed error only “when a defendant's ability to obtain a fair trial has been impaired.”
den.,546 U.S. 874, 126 S.Ct. 384, 163 L.Ed.2d 169 (2005) (“[S]tructural error is a doctrine that originated in federal criminal cases and * * * has not been adopted by this court as an aspect of Oregon law[.]”); State v. Arreola, 250 Or.App. 496, 501, 281 P.3d 634 (2012) (“Oregon courts do not recognize structural error, so the erroneous admission of a medical diagnosis does not necessarily require reversal in every case.”); State v. Wilson, 216 Or.App. 226, 232, 173 P.3d 150 (2007), rev. den.,344 Or. 391, 181 P.3d 770 (2008), adh'd to as modified on recons.