State v. Morris (A183017)

674 November 12, 2026 No. 1099 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. MARCUS SHANE MORRIS, Defendant-Appellant. Multnomah County Circuit Court 23CR42812; A183017 Christopher A. Ramras, Judge. Argued and submitted March 3, 2026. Anna R. Johnson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Jose B. Garcia-Fuerte, Assistant Attorney General, argued the cause for respondent. On the brief were Dan Rayfield, Attorney General, Benjamin Gutman, Interim Deputy Attorney General, and Ryan Kahn, Assistant Attorney General. Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge. ORTEGA, P. J. Affirmed. Nonprecedential Memo Op: 354 Or App 674 (2026) 675 ORTEGA, P. J. Defendant appeals a judgment of conviction for one count of strangulation and one count of fourth-degree assault for placing his stepbrother, J, in a chokehold. Defendant assigns two unpreserved errors on appeal. First, he asserts that the trial court plainly erred by failing to instruct the jury regarding the definition of the “physical injury” element of fourth-degree assault. Second, defendant asserts that the trial court plainly erred in failing to declare a mistrial after the prosecutor twice reminded the jury in closing argument that defendant, not J, was on trial. In defendant’s view, those statements denied him a fair trial because they undermined the presumption of innocence to which he was entitled, dis- torted the state’s burden of proof regarding self-defense, and equated to impermissible vouching. We accept the state’s concession that the trial court plainly erred in omitting the definition of physical injury from the jury instructions, but conclude that, even assuming that the error was not harm- less, we would decline to exercise our discretion to correct it because there is little likelihood that it affected the verdict on the assault charge. We further conclude that the prosecu- tor’s statements in closing did not deprive defendant of a fair trial because any error was curable had defendant raised the issue. Accordingly, we affirm. Because neither assignment of error is preserved, we review both for plain error. In doing so, we determine whether (1) the claimed error is one of law, (2) the legal point is “obvious” and “not reasonably in dispute,” and (3) the error is “apparent on the record” such that the court need not choose between competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). We begin with defendant’s first assignment of error. We review a trial court’s jury instructions for errors of law. State v. Vaught-Cantwell, 353 Or App 239, 240, ___ P3d ___ (2026). “A trial court commits reversible error when it incor- rectly instructs the jury on a material element of a claim or defense and that instructional error permits the jury to reach a legally erroneous result.” Id. Here, we accept the state’s concession that the trial court plainly erred in failing to instruct the jury on the definition of physical injury. 676 State v. Morris (A183017) Without the legal definition of “physical injury,” including definitions of its alternative theories of “substan- tial pain” and “impairment of physical condition,” the jury was permitted to reach a guilty verdict without finding that the evidence satisfied the legal definition of physical injury. However, viewing the record as a whole and in the context of the jury’s other findings, there is an extremely low likeli- hood that the verdict on the assault charge would have been different. Had the jury been properly instructed on both prongs of physical injury, it is unlikely that the jury would not have found that the victim suffered substantial pain or impairment of physical condition. Defendant did not dispute that he placed J in a chokehold; rather, he contended that he acted in self-defense and, alternatively, that the state did not establish that J suffered physical injury because J’s pain was fleeting. However, J testified that the chokehold defen- dant placed him in “hurt a lot,” lasted over 10 seconds, and caused him to fall unconscious. J rated the pain he experi- enced as “10 out of 10” on the pain scale and described it as the worst pain he had ever felt. J also testified that his neck was sore for about a week after the incident and that it was hard for him to swallow during that period. Because there is a low likelihood that the trial court’s error would have affected the verdict below, even if the error is not harmless, we decline to exercise our discretion to correct it. State v. Horton, 327 Or App 256, 262-63, 535 P3d 338 (2023). We next consider defendant’s second assignment of error. If, as here, a defendant does not object to a prosecu- tor’s potential misconduct in closing or move for a mistrial, defendant is entitled to review only if we find plain error. State v. Chitwood, 370 Or 305, 310-11, 518 P3d 903 (2022). “All of the requirements for plain error must be met, includ- ing that the error is an error of law.” State v. Durant, 327 Or App 363, 364, 535 P3d 808 (2023), rev den, 374 Or 143 (2025). “To establish an error of law in this context, ‘a defen- dant who seeks review of an unpreserved challenge to pros- ecutorial statements must demonstrate that the statements were so prejudicial that they deprived the defendant of a fair trial.’ ” Id. at 364-65 (quoting Chitwood, 370 Or at 313-14). Further, “a defendant asserting plain error must demon- strate that the prosecutor’s comments were so prejudicial Nonprecedential Memo Op: 354 Or App 674 (2026) 677 that an instruction to disregard them would not have been sufficiently curative to assure the court, in its consideration of all the circumstances, that the defendant received a fair trial.” Chitwood, 370 Or at 312. Here, the prosecutor made two statements in clos- ing reminding the jury that defendant, rather than J, was on trial, which defendant did not object to. Specifically, the prosecutor said: “The defense wants you to believe that it was self-defense[,] that [J] was lying. I want to remind you that [J] is not on trial here, [defendant] is, and [defendant] admits to putting [J] into the chokehold.” “* * * * * * “You need to think about who to believe and who’s on trial today. [J] is not on trial. [Defendant] is, and [defendant] strangled and assaulted [J], and so I’m going to ask that you find him guilty of these crimes.” Defendant contends that those statements undermined the presumption of innocence to which he was entitled, dis- torted the state’s burden of proof regarding his self-defense assertions, and equated to impermissible vouching for J. Accordingly, defendant asserts that he was denied a fair trial and that the trial court plainly erred by not inter- vening to either prevent or correct these statements by the prosecutor. The state responds that even if the prosecutor’s statements lacked a legitimate purpose, the jury may have not construed them as improper in the ways defendant iden- tifies. Additionally, the state asserts that the prosecutor’s comments did not deprive defendant of a fair trial because, if defendant had raised the issues he notes on appeal below, the trial court could have cured any prejudice with an instruc- tion. We conclude that the trial court did not plainly err. Even assuming that the statements could only be understood in the way defendant asserts, they were not so egregious that a curative instruction would have been insufficient to correct any error. Indeed, “[w]e must assume that the jury could have followed a curative instruction to disregard the prosecutor’s remarks, unless there is an overwhelming probability that it could not have.” State v. 678 State v. Morris (A183017) Settlemier, 333 Or App 179, 182, 551 P3d 995 (2024), rev den, 373 Or 212 (2025) (internal quotation marks omitted). Affirmed.