State v. Enslow

No. 1050 October 28, 2026 301 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. JASON CHAD DEAN ENSLOW, JR., aka Jason Chad Enslow, Defendant-Appellant. Multnomah County Circuit Court 23CR38188; A184476 Bryan B. Francesconi, Judge. Submitted September 24, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joel Duran, Deputy Public Defender, Oregon Public Defense Commission, 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 Ortega, Presiding Judge, Lagesen, Chief Judge, and O’Connor, Judge. O’CONNOR, J. Affirmed. 302 State v. Enslow O’CONNOR, J. Defendant appeals a judgment of conviction for menacing, ORS 163.190(1), and second-degree disorderly conduct, ORS 166.025. In a single assignment of error, defendant claims that he did not receive a fair trial because the prosecutor made an improper statement during voir dire that was so prejudicial as to have required a mistrial. Defendant did not object to the statement when it was made, so he 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 to a jury 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); see also State v. McAdoo, 346 Or App 513, 517-18, 585 P3d 610 (2026) (apply- ing Chitwood standard to prosecutor’s statement in jury selection). To meet that standard, the statement must have been both obviously improper and incurable. State v. Perez, 373 Or 591, 606-07, 568 P3d 940 (2025). A statement is obviously improper if its only pos- sible interpretation makes it an impermissible remark, whereas a statement is not obviously improper if it is suscep- tible to more than one interpretation, at least one of which is not impermissible. 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). “That is important because, ‘[g]enerally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecu- tor’s misconduct.’” State v. Babcock, 327 Or App 358, 360, 535 P3d 345 (2023), rev den, 374 Or 143 (2025) (quoting State v. Davis, 345 Or 551, 583, 201 P3d 185 (2008), cert den, 558 Nonprecedential Memo Op: 354 Or App 301 (2026) 303 US 873 (2009)). Only if “no curative instruction would have been effective” can it be said that a mistrial was required and the error plain. Perez, 373 Or at 605. In this case, defendant challenges the prosecutor’s statement during voir dire that “as the state, while I have to prove guilt beyond a reasonable doubt, I don’t have to prove facts beyond a reasonable doubt.” Defendant argues that the statement was improper because it distorted the burden of proof, and that it was so prejudicial as to deny him a fair trial. We conclude that the prosecutor’s statement was not obviously improper, and that even if it was, it was not incurable and thus did not deny defendant a fair trial. Although the statement could lead to an improper inference regarding the burden of proof, that was not the only inter- pretation or inference from the statement. In context, the jury could have understood the statement as properly tell- ing the jury that it could base its verdict on circumstantial evidence and the state did not need to answer every single question or prove every fact that may arise at trial—only those that are required to prove the elements of the charged crimes. Additionally, even if the comment was improper, it could be cured with a curative instruction, such as general instructions on what the jury must find to convict defen- dant. McAdoo, 346 Or App at 518-19 (explaining that had the defendant objected to the prosecutor’s comments in voir dire, the trial court could have ameliorated any prejudice with a curative instruction). Accordingly, we affirm the judgment of conviction. Affirmed.