State v. Woods

No. 1113 November 12, 2026 741 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. JUSTIN MATTHEW WOODS, Defendant-Appellant. Marion County Circuit Court 23CR50712; A185607 Lindsay R. Partridge, Judge. Submitted October 22, 2026. Bear Wilner-Nugent filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Jentry Lanza, Assistant Attorney General, filed the brief for respondent. Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge. PER CURIAM Affirmed. 742 State v. Woods PER CURIAM Defendant was convicted of second-degree criminal trespass and felon in possession of a restricted weapon after pleading guilty, and he was convicted of second-degree bur- glary after a jury trial. In his sole assignment of error, he claims that he did not receive a fair trial on the burglary count because the prosecutor made an improper statement in rebuttal closing argument that was so prejudicial as to have required a mistrial. Defendant acknowledges that he did not move for a mistrial and requests plain-error review. As explained below, we affirm. “Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). We have discretion, however, to cor- rect a “plain” error. ORAP 5.45(1); State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (stating requirements for an error to be “plain”). For a prosecutor’s statements in clos- ing argument to rise to the level of plain error, it must be “beyond dispute” that they “were so prejudicial as to have denied defendant a fair trial.” State v. Chitwood, 370 Or 305, 312, 518 P3d 903 (2022) (internal quotation marks omitted). To meet that standard, the statements, individually or col- lectively, must have been both obviously improper and incur- able. State v. Perez, 373 Or 591, 606, 568 P3d 940 (2025). A statement was obviously improper if its only possible interpretation made it an impermissible remark, whereas a statement was not obviously improper if it was susceptible to more than one interpretation, at least one of which was permissible. Id. at 607. As for curability, “prosecu- torial statements that were improper but curable are not an appropriate subject of plain-error review, because, in such circumstances, the defendant was not denied a fair trial.” State v. Durant, 327 Or App 363, 365, 535 P3d 808 (2023), rev den, 374 Or 143 (2025) (emphasis in original). Only if “no curative instruction would have been effective” can it be said that a mistrial was required and that the error is plain. Perez, 373 Or at 605. In this case, defendant challenges a statement made in rebuttal closing argument. The defense theory Nonprecedential Memo Op: 354 Or App 741 (2026) 743 at trial was that defendant committed the lesser-included offense of trespass but lacked the requisite intent for bur- glary. Defense counsel argued in closing that the jury should find defendant guilty of trespass, not burglary, because it needed to make decisions “based entirely on logic” and “com- mon sense,” and, “when you do that, I know you’ll be able to find alternative explanations” for why defendant was in the shed. Defense counsel pointed to defendant’s statement that he was there “because he was finding somewhere to stay” after his mother kicked him out, while acknowledging that “[y]ou get to give the weight to his statements that you wish.” At the beginning of his rebuttal closing, the prosecu- tor addressed the suggestion that the jury try to “find alter- native explanations.” He argued that the jury should not go “fishing” for alternative explanations but, rather, should consider only alternative explanations that were “readily apparent” as a logical matter or had been suggested by the defense. After defendant made an objection to the accuracy of that statement, which was effectively overruled, the pros- ecutor reiterated, “Again, I just want to emphasize, no fish- ing. If a reasonable alternative’s apparent, then okay, there’s your reasonable doubt.” The prosecutor then proceeded to address the evidence and what reasonable inferences could be made. Defendant argues on appeal that the prosecutor’s statement amounted to burden shifting. We disagree. The statement was not obviously improper, because one rea- sonable interpretation of what the prosecutor said is that the jury could consider alternative explanations for defen- dant’s presence in the shed in deciding whether the state had proved that he was there with the intent to commit theft, but that the jury should not speculate as to potential explanations that no one had suggested and that bore no apparent relation to the evidence. So understood, the state- ment was permissible. It follows that there is no plain error. Accordingly, we affirm the judgment of conviction. Affirmed.