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STATE v. MULLENBURG

90CR0430TM; CA A67429.

829 P.2d 98 (1992)

112 Or. App. 518

STATE of Oregon, Respondent, v. Carolyn Inez MULLENBURG, Appellant.

Court of Appeals of Oregon.

Decided April 22, 1992.

Attorney(s) appearing for the Case

David E. Groom, Portland, filed the brief for appellant.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

RIGGS, Judge.

Defendant appeals her conviction by a jury for driving under the influence of intoxicants (DUII). ORS 813.010. She assigns as error the trial court's denial of her motion for a mistrial based on statements made by the prosecutor during opening argument. We reverse and remand for a new trial.

In opening arguments the prosecutor said:

"The [arresting] officer will tell you that he tried to make a tape recording. And there is a tape recording...

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