Full Opinion

No. 1100 November 12, 2026 679 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. DUNIEL RODRIGUEZ-BARZAGA, Defendant-Appellant. Washington County Circuit Court 24CR03078; A186978 Oscar Garcia, Judge. Submitted October 7, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kelsey T. Townsend, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Julia Glick, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Egan, Judge, and Jacquot, Judge. EGAN, J. Affirmed. 680 State v. Rodriguez-Barzaga EGAN, J. In this criminal case, defendant appeals from a judgment of conviction for fourth-degree assault constitut- ing domestic violence, ORS 163.160, arising from an alterca- tion with his girlfriend. Defendant raises four assignments of error. In the first two unpreserved assignments, he chal- lenges comments made by the prosecutor during closing argument concerning the meaning of “physical injury” and the burden of proof. In the third and fourth, he challenges the trial court’s use of Uniform Criminal Jury Instruction (UCrJI) 1005 and the court’s denial of his request to modify that instruction. We affirm. Defendant concedes that he failed to object to the prosecutor’s challenged comments and, therefore, he did not preserve the first two assignments of error. However, defen- dant urges this Court to review the assignments as plain error under ORAP 5.45(1). For an unpreserved claim to qualify for plain-error review, a defendant must demonstrate that the alleged error is one of law, is obvious and not reasonably in dispute, and appears on the record. State v. Chitwood, 370 Or 305, 311, 518 P3d 903 (2022). Even when those requirements are satis- fied, the court must determine whether the case is one of the rare and exceptional cases warranting discretionary review. State v. Inman, 275 Or App 920, 928, 366 P3d 721 (2015), rev den, 359 Or 525 (2016) (internal citation omitted). In the context of prosecutorial misconduct, the defendant must also establish that the challenged comments were so prejudicial that no curative instruction by the trial court could have assured him a fair trial and that, had the defendant raised an objection, the trial court’s only lawful option would have been to declare a mistrial. State v. Perez, 373 Or 591, 605, 568 P3d 940 (2025). Prosecutorial comments that are improper but curable do not constitute plain error because they do not deprive a defendant of a fair trial. State v. Dumdei, 337 Or App 246, 251, 562 P3d 634, rev den, 373 Or 736 (2025). Defendant’s first assignment challenges the prose- cutor’s explanation of “physical injury.” During closing argu- ment, the prosecutor explained that, if a person is cut and Nonprecedential Memo Op: 354 Or App 679 (2026) 681 bleeding, the skin is impaired because one of its functions is to keep blood inside the body. The prosecutor then stated that bruising likewise would constitute an injury because it represents bleeding underneath the skin. Defendant argues that those comments improperly informed the jury that any cut or bruise categorically constituted physical injury. The prosecutor’s comments, considered in context, do not establish plain error. The prosecutor’s comments aimed to discuss the trial court’s instruction which defined impairment of physical condition as an injury that results in a reduction in a person’s ability to use the body or a bodily organ or in a reduction in a bodily organ’s ability to per- form its ordinary function. More importantly, the prosecu- tor’s comments were not the last word to the jury on the subject. During defendant’s closing argument, defense coun- sel directly addressed the physical injury requirement and argued that not every bruise constituted a criminal physi- cal injury. During rebuttal, the prosecutor likewise clarified that the state was not relying on the photographs or the mere existence of bruising alone to establish physical injury, but on the photographs along with defendant’s girlfriend’s testimony concerning pain and impairment. Defendant has failed to demonstrate that the prose- cutor’s comments were obviously and indisputably improper or that the comments were so prejudicial that a curative instruction would not have assured him a fair trial. The comments were made during the prosecutor’s closing argu- ment, defense counsel directly responded to them, and the prosecutor subsequently addressed the subject in rebuttal. Those circumstances distinguish this case from the rare cases in which improper prosecutorial comments were so inflammatory or pervasive that their effects could not have been cured. See Chitwood, 370 Or at 317 (noting that the prosecutor’s remarks likely had a significant impact on the jury because they were made during the prosecutor’s rebut- tal closing argument, leaving the defendant with no oppor- tunity to counter the argument to the jury). Defendant’s second assignment challenges the prosecutor’s statements that the definition of impairment of physical condition was “not as overwhelming as one may 682 State v. Rodriguez-Barzaga think it is” and that “frankly, it’s a pretty low bar to hit the physical injury.” Defendant contends that those comments minimized the state’s burden of proof. Taken in context, the prosecutor made the first statement immediately after read- ing the court’s instruction defining impairment of physical condition and describing that definition as “quite a mouth- ful.” The prosecutor made the second statement after dis- cussing the two ways in which physical injury could be estab- lished (i.e., impairment of physical condition or substantial pain) and immediately explained that the evidence still had to establish that requirement for fourth-degree assault. In that context, the comments concerned the relative difficulty of satisfying the particular definition of “physical injury,” not the state’s ultimate burden to prove the elements of the crime beyond a reasonable doubt. Moreover, the statement that physical injury is a “pretty low bar” was not, standing alone, an inaccurate char- acterization of the statutory definition. See State v. Stone, 326 Or App 200, 206, 532 P3d 90, adh’d to as modified on recons, 328 Or App 203 (2023) (noting that physical injury is a relatively low bar that only requires impairment of phys- ical condition or substantial pain). Considering the prose- cutor’s comments, the court’s instructions, and the party’s arguments, we find that the court properly instructed the jury on the applicable law, and neither comment by the pros- ecutor expressly told the jury that it could convict defendant without proof beyond a reasonable doubt. Defendant has failed to show that the prosecutor’s comments were either obviously and indisputably improper or so prejudicial that no curative instruction could have rem- edied any resulting misunderstanding. Because defendant has not established plain error, we do not reach whether to exercise our discretion to correct the asserted errors. Defendant’s preserved assignments of error con- cern jury instructions on witness testimony. Defendant sub- mitted a proposed modification of UCrJI 1005 that would have provided that “the testimony of any witness whom you believe beyond a reasonable doubt is sufficient to prove any fact in dispute.” Defendant explained the requested modi- fication to the trial court and argued that, without it, the Nonprecedential Memo Op: 354 Or App 679 (2026) 683 jury could understand the uniform instruction to mean that believing a witness was sufficient to establish a fact without applying the beyond-a-reasonable-doubt standard. The trial court declined to give the requested modification and gave the uniform instruction over defendant’s objection. Hence, defendant’s third and fourth assignments challenge the uni- form instruction as given and the court’s refusal to give his proposed modification, respectively. We review a trial court’s jury instructions for errors of law. State v. Taylor, 182 Or App 243, 245, 48 P3d 182 (2002). We consider the instructions as a whole and will reverse only if we can fairly say that the instructions proba- bly created an erroneous impression of the law in the minds of the jurors that affected the outcome of the case. State v. Burris, 309 Or App 604, 609, 483 P3d 1213, rev den, 368 Or 511 (2021) (internal citation omitted). Similarly, a trial court’s refusal to give a requested instruction is reviewed for legal error. State v. Payne, 366 Or 588, 603, 468 P3d 445 (2020). Conversely, “we review a trial court’s choice among requested jury instructions that supply the same informa- tion for abuse of discretion.” State v. Moore, 324 Or 396, 427, 927 P2d 1073 (1996). In this case, the trial court instructed the jury: “Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute. You are not simply to count the witnesses, but you are to weigh the evidence.” (Emphases added.) In his third assignment, defendant challenges the first sentence of the uniform instruction as improperly per- mitting the jury to find any fact in dispute based merely on its general belief in a witness. That is, the instruction may have allowed a juror to treat a witness’s testimony as sufficient to prove disputed elements of the crime, therefore, reducing the state’s burden of proof. After declining defen- dant’s request to modify the instruction, the court expressly stated that “anything proven here has to be proof beyond a reasonable doubt” and that “any fact that comes from any 684 State v. Rodriguez-Barzaga witness still has to be proven beyond a reasonable doubt in order to get to the elements.” We disagree with defendant that the instruction likely created an erroneous impression of the law in the minds of the jury. We have previously held that the other portions of UCrJI 1005 inform the jury to not simply count the witnesses but also weigh the evidence. Hence, consid- ering the entire context of UCrJI 1005, the instructions did not improperly comment on the evidence or reduce the state’s burden of proof. See State v. Avalos-Lezama, 346 Or App 604, 606, 585 P3d 1133 (2026) (holding that “the more straightforward reading of the instruction is that the jury could rely on the testimony of any witness whom they believe regarding a disputed fact in deciding that particular fact.”). Moreover, the trial court instructed the jury that the state was required to prove the elements of the charged offenses beyond a reasonable doubt. Under those circumstances, we conclude that the court did not leave the jury with the impression that a general finding that a witness was believ- able relieved the state of its burden to prove the elements of the charged offense beyond a reasonable doubt. Similarly, defendant’s fourth assignment of error regarding the court’s denial of defendant’s modified instruc- tion does not provide a basis for reversal. Even if a requested instruction correctly states the law, a trial court need not give it when the subject is adequately covered by other instructions. See State v. Thomas, 324 Or App 114, 120, 524 P3d 969 (2023). Here, the instructions as a whole adequately informed the jury that the state was required to prove its case beyond a reasonable doubt. Therefore, the trial court did not err in declining to modify UCrJI 1005. Defendant’s first and second assignments of error are unpreserved, and he has not demonstrated the plain error necessary for this court to consider them. Defendant preserved his third and fourth assignments of error. However, his challenges to UCrJI 1005 and denial of his requested modification do not compel reversal because the trial court’s other instructions adequately informed the jury of the state’s burden of proof. Nonprecedential Memo Op: 354 Or App 679 (2026) 685 Accordingly, the judgment of the trial court is affirmed. Affirmed.