State v. Knox

No. 1020 October 21, 2026 99 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. STEVEN KNOX, Defendant-Appellant. Multnomah County Circuit Court 23CR32369; A185576 Leslie G. Bottomly, Judge. Submitted September 8, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appel- lant. Steven Knox filed the supplemental brief pro se. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent. Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge. KAMINS, J. Reversed and remanded. 100 State v. Knox KAMINS, J. Defendant appeals from a judgment of convic- tion for second-degree assault, ORS 163.175, and unlawful use of a weapon, ORS 166.220, raising four counseled and three pro se assignments of error. We reverse and remand on defendant’s third assignment of error and address that assignment first. We then address defendant’s first assign- ment of error, as it would provide more complete relief, and his other assignments to the extent they are likely to recur on remand. In defendant’s third assignment of error, he con- tends that the trial court erred in denying his motion for a mistrial following the prosecutor’s improper rebuttal argu- ment. Defendant argues that the improper argument invited the jury to speculate as to why the victim did not testify at the trial, urged the jury to decide the case on an improper basis—sympathy for the victim—and undermined defense counsel’s strategy “to encourage the jury to find reasonable doubt based on the state’s failure to produce [the victim’s] testimony.” Following defense counsel’s closing argument, which highlighted insufficiencies in the state’s evidence, including a lack of testimony by the victim, the prosecu- tor briefly asked the jury to speculate as to why the victim might not testify, offering as a possible explanation that she might have feared for her safety. Defense counsel immedi- ately objected, and the trial court instructed the jury to “dis- regard that argument.” Defense counsel later moved for a mistrial, and the court denied that motion. We review denial of a motion for mistrial for abuse of discretion. State v. Davis, 345 Or 551, 582-83, 201 P3d 185 (2008). A trial court abuses its discretion by denying a mistrial where “the effect of the prosecutor’s conduct was to deny a defendant a fair trial.” Id. at 583. To deny a fair trial where a curative instruction was issued, the comment must be “so prejudicial that, as a practical matter, the bell once rung, cannot be unrung by such an admonishment.” Id. (internal quotation marks omitted). Said differently, we consider “whether the instruction given was sufficient” to Nonprecedential Memo Op: 354 Or App 99 (2026) 101 cure any prejudice. State v. Kurz, 342 Or App 772, 788, 577 P3d 866, rev den, 374 Or 616 (2025). As acknowledged by the state, the prosecutor’s statement was plainly improper, referring to facts not in evidence and inviting the jury to speculate as to the reason why the victim did not testify. See State v. Burton, 373 Or 750, 761-62, 571 P3d 736 (2025) (a prosecutor “may not sug- gest that they are aware of evidence that was not presented to the jury—thereby creating an invitation for the jury to speculate”); see State v. Smith, 340 Or App 636, 641, 571 P3d 1131, rev den, 374 Or 437 (2025) (prosecutor’s reference in closing to discussion during voir dire as to why a victim might not come forward sooner improperly relied on facts not in evidence to bolster the victim’s credibility). The question before us is whether the trial court’s curative instruction was sufficient to remedy any prejudice from that misconduct. See State v. Cox, 272 Or App 390, 411, 359 P3d 257 (2015) (“The dispositive question is * * * whether the purportedly curative instruction was sufficient to unring the bell.” (Internal quotation marks omitted.)). In determining if a curative instruction was adequate, we consider “whether the prosecutor’s misstatements called to mind bias, emotions, or other improper bases for deciding the case” and whether the argument would be easy to dispel. State v. Wilson, 342 Or App 625, 635, 577 P3d 813 (2025) (internal quotation marks omitted). The prosecutor’s improper argument created signif- icant prejudice. It introduced an improper consideration— an emotional appeal for the jury to consider the victim’s fear—and did so relying on facts not in evidence. See State v. Camirand, 314 Or App 791, 799, 499 P3d 154 (2021) (noting facts outside the record can be prejudicial by encouraging the jury to speculate and providing “a preemptive explana- tion for the state’s failure to present evidence that the jury might expect it to present” (internal quotation marks omit- ted)). Specifically, the comment offered an answer—unteth- ered to the evidentiary record—to a question that must have been occupying the jury’s thoughts: Where was the victim? Moreover, it undercut defense counsel’s key strat- egy: pointing to the absence of expected evidence providing 102 State v. Knox a complete account of the stabbing, including the victim’s testimony, and characterizing the lack of testimony as one of “many gaps that could have easily been filled” to meet the state’s burden. See id. at 800-01 (2021) (explaining that an “argument based on facts outside the record undercut[ting] a defendant’s permissible, and potentially powerful, line of defense” and addressing “a potential weakness in the state’s case” was prejudicial); see also State v. Banks, 367 Or 574, 590, 481 P3d 1275 (2021) (recognizing the prejudice of an argument that creates “a risk that jurors would believe that they could not take the state’s failure to present [evi- dence] into account, which would undercut part of defen- dant’s defense” as “significant”); State v. Pruitt, 342 Or App 731, 736, 577 P3d 354 (2025) (determining that the state’s improper argument, which undermined defendant’s central defense, denied the defendant a fair trial). Given the significance of that prejudice, the trial court’s curative instruction was not sufficient to remedy it. The general direction to disregard a comment did not address the adverse inference created by the prosecutor’s argument. See State v. Hunt, 297 Or App 597, 605, 442 P3d 232 (2019) (“Jurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so, but if it is likely that the jury drew an adverse inference, it cannot be assumed that the jury will follow a curative instruction that merely told the jury to disregard the improper statement.” (Internal quota- tion marks omitted.)). The jury was presented with a sug- gested answer to a key question that was not grounded in the evidence. To cure the emotional appeal and invitation to speculate, the trial court must explain the reason that the jury must disregard the prosecutor’s argument—that the jury is only to rely on evidence presented at the trial and that the prosecutor’s argument invited the jury to speculate beyond that—rather than solely directing the jury to disre- gard the comment without explanation. Cf. Smith, 340 Or App at 642 (determining that the court’s failure to grant a mistrial after prosecutor’s improper reference to reasons a victim might delay going to the police was not plain error, suggesting that the court could have struck the statements and “remind[ed] the jury to rely only on the testimony and Nonprecedential Memo Op: 354 Or App 99 (2026) 103 evidence presented during the trial”); State v. Bonczkowski, 337 Or App 701, 712, 564 P3d 481, rev den, 373 Or 815 (2025) (noting that prosecutor’s comments referring to discussion during voir dire about why a victim of sexual abuse may delay reporting could have been cured by instruction “ask- ing the jury to rely on the evidence presented at trial”); State v. Spieler, 269 Or App 623, 644, 346 P3d 549 (2015) (court erred by failing to give any curative instruction “to caution the jury that they could not consider the presence in the courtroom of silent witnesses in aid of the state’s case” after the state referred to facts not in evidence (internal quotation marks omitted)). The state argues that the statements were not so prejudicial because the prosecutor was referring to general reasons a witness might not testify, as raised by the parties during voir dire, and phrased the possible reason as a ques- tion, leaving it as a possibility rather than implying that the state had access to facts not in evidence. Discussions during voir dire, however, are still facts not in evidence. See State v. Chitwood, 370 Or 305, 315, 330, 518 P3d 903 (2022) (reference to dialogue during voir dire was “outside the bounds of proper argument” because it was not considered “facts properly received in evidence”). The prior discussion of general reasons for a witness not to testify does not lessen the prejudice of referring to the alleged victim and suggest- ing, without evidentiary support, that she was too afraid of defendant to testify. In fact, it may have exacerbated the prejudice by reminding jurors of a familiar argument, mak- ing them more likely to rely on it. While the phrasing as a question may be less prejudicial than a direct assertion, the suggestion still invited the jury to speculate and was suffi- ciently prejudicial, without a more specific curative instruc- tion, as to require a mistrial. We next address defendant’s first assignment of error, as it would provide more complete relief. In defendant’s first assignment of error, he contends that the trial court erred by failing to acquit him on his second-degree assault charge, arguing that there was insuf- ficient evidence to prove physical injury. Defendant con- cedes that his assignment is unpreserved and seeks plain 104 State v. Knox error review. In applying plain error analysis, we follow a two-step process. First, we determine whether an error is “plain,” considering three factors: (1) whether the claimed error is one of law; (2) whether the claimed error is obvious and not reasonably in dispute; and (3) whether the claimed error appears on the record. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Second, if the error is “plain,” we decide whether to exercise our discretion to consider the error. Id. Here, any error is not obvious. Second-degree assault requires that a defendant “intentionally or know- ingly causes physical injury to another by means of a deadly or dangerous weapon.” ORS 163.175(1)(b). “Physical injury” means either “impairment of physical condition or substan- tial pain.” ORS 161.015(7). “Substantial pain” “refers to both the degree and the duration of pain subjectively experienced by a victim.” State v. Long, 286 Or App 334, 340, 399 P3d 1063 (2017). The pain must be “ample or considerable, and not fleeting or inconsequential.” Id. at 341 (internal quotation marks omitted). Where there is a lack of direct evidence, as is the case here where the victim has not testified, circum- stantial evidence must be sufficient to allow “a rational jury to reasonably infer that the victim suffered considerable pain and whether the duration of the pain was more than fleeting.” State v. Guzman, 276 Or App 208, 215, 366 P3d 816 (2016). Here, the state presented the responding officer’s testimony that the victim was bleeding from a one-to-two- inch stab wound on her back, was in pain, and was having difficulty breathing. The state also presented a photograph of the wound, showing its size and depth. On appeal, the state also argues that the victim’s hospital visit indicates the degree and duration of the pain. As that evidence could support a reasonable inference of physical injury, any error is not obvious. See id. (rational jury could reasonably infer physical injury from photographs of the victim’s injuries and corroborating testimony from witnesses). We address defendant’s remaining assignments that are likely to recur on remand. In defendant’s second assignment of error, he con- tends that the trial court erred when it denied his request Nonprecedential Memo Op: 354 Or App 99 (2026) 105 for a less-satisfactory evidence instruction based on the absence of testimony from the victim. The less-satisfactory evidence instruction applies a presumption stated in ORS 10.095(7) and (8), which require the trial court “on all proper occasions” to instruct the jury: “(7) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore, “(8) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfac- tory was within the power of the party, the evidence offered should be viewed with distrust.” Before applying that presumption, the jury must make two findings: (1) that a party has offered “weaker and less satisfactory evidence,” and (2) that the party either (a) withheld “stronger and more satisfactory evidence that was available to be offered at the time of trial because it was in the party’s possession or power” or (b) “if the stron- ger evidence was not in the party’s possession or power at the time of trial, the party had not gathered or obtained the stronger evidence because it could have been adverse.” State v. Wildeboer, 338 Or App 404, 410 n 14, 566 P3d 1149, rev allowed, 374 Or 188 (2025) (internal quotation marks omitted). Assuming without deciding that the victim’s tes- timony is stronger evidence, the court did not err by not giving the requested instruction because the “stronger” evidence was equally within the power of both parties to obtain. “Within the party’s power” includes “evidence that was available to be offered at the time of trial either because it was within the party’s possession or power to obtain by subpoena or otherwise.” Id. at 415. Therefore, the victim’s testimony was within the state’s power at the time of trial because it was within the state’s power to obtain by sub- poena. However, “within a party’s power” is considered in the context of the evidence being “in the power of one side to produce and of the other to contradict.” ORS 10.095(7). Defendant had equal access to the victim’s testimony, and therefore, the trial court did not err by declining to give 106 State v. Knox the instruction. See State v. Palacios-Romero, 320 Or App 563, 567, 514 P3d 137, rev den, 370 Or 472 (2022) (“[I]t is unclear when, if ever, it would be appropriate to give the less-satisfactory-evidence instruction when both parties have equal access to the purportedly stronger evidence.”). In defendant’s first pro se assignment of error, he contends that the trial court improperly informed the jury of defendant’s prior conviction after defendant stipulated to the prior conviction. However, the record does not indicate that the trial court referred to defendant’s prior conviction, and therefore, the court did not err on that basis. In defendant’s second pro se assignment of error, he contends that the trial court erred in denying his motion for a mistrial based on the state’s introduction of hearsay state- ments by the victim without calling the victim to testify, violating defendant’s right to confront witnesses against him, because the state did not prove that the witness was unavailable or that a hearsay exception applied. The state- ments at issue, however, were admitted for a nonhearsay purpose, and therefore, they did not implicate defendant’s state confrontation clause rights based on the state’s failure to show reliability or unavailability. See State v. Wyant, 300 Or App 1, 12, 452 P3d 471 (2019), rev den, 366 Or 451 (2020) (“Article 1, section 11, imposes a requirement of reliability (and unavailability * * *) only as to hearsay evidence.”). In defendant’s third and final pro se assignment of error, he argues that the trial court violated his right to a speedy trial by delaying trial without his consent and by holding him in pretrial custody for more than 180 days. However, defense counsel requested and consented to var- ious trial delays, and therefore, the court did not err by delaying the trial. Any disconnect between defendant and his trial counsel may be raised in a post-conviction proceed- ing. See State v. Rhodes, 309 Or App 318, 319 n 1, 481 P3d 412, rev den, 368 Or 561 (2021) (“Ineffective assistance of counsel claims must be raised and resolved under the post- conviction relief procedure * * * and not on direct appeal.”). Additionally, the trial court determined that defendant was charged with a non-releasable offense under ORS 135.240(4)(a)(B) to which the 180-day limit does not apply, Nonprecedential Memo Op: 354 Or App 99 (2026) 107 and therefore, the trial court did not err by denying pretrial release. ORS 135.240 (providing an exception to the release requirements of ORS 135.230 to ORS 135.290). Reversed and remanded.