State v. Moore

No. 734 August 5, 2026 15 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JOHN CHARLES MOORE, Defendant-Appellant. Clatsop County Circuit Court 23CR17294; A184179 Kirk C. Wintermute, Judge. Submitted December 8, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Deputy Attorney General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent. Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán, Judge. AOYAGI, P. J. Affirmed. 16 State v. Moore Cite as 352 Or App 15 (2026) 17 AOYAGI, P. J. Defendant was convicted of one count of felony pub- lic indecency, ORS 163.465, for exposing his genitals to a teenaged girl in the yoga room of a public gym. The state’s theory at trial was that the exposure was intentional and done for a sexual purpose, while the defense theory was that the complainant was mistaken about what she saw or that, if she did see something, it was an accidental exposure that occurred when defendant scratched himself to relieve itch- ing from psoriasis. The case was tried to the court, which found defendant guilty of public indecency. Because of his criminal history, defendant was sentenced to life imprison- ment without the possibility of release. On appeal, defendant raises four assignments of error. He first claims that the trial court erred in overruling his objection to the prosecutor’s statement in rebuttal closing argument that, if defendant’s psoriasis was a factor in the exposure, defendant would have mentioned it when he spoke to a police officer about the incident. Defendant argues that that was an improper comment on his constitutional right to silence and that he should receive a new trial. The other three claims of error are in the alternative and pertain to sentencing. Defendant challenges the denial of his motion to exclude from consideration at sentencing three prior con- victions that were entered on nonunanimous verdicts and, relatedly, the trial court’s reliance on a presentence inves- tigation report that included those convictions. And he con- tends that his true-life sentence is disproportionate in viola- tion of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. We conclude that the trial court did not err in over- ruling defendant’s objection during the prosecutor’s rebut- tal closing argument. Because defendant voluntarily spoke with the police about the incident, the prosecutor was per- mitted to point out inconsistencies between what he told the police and what he claimed at trial. We therefore affirm defendant’s conviction. As for sentencing, the trial court relied little, if at all, on defendant’s prior convictions entered on nonunanimous verdicts; however, to the extent the court considered them, it was not error to do so because those 18 State v. Moore convictions remain part of defendant’s criminal history unless and until they are vacated through a post-conviction proceeding or otherwise removed from his record. Finally, although defendant’s true-life sentence is obviously harsh— indeed, the harshest sentence available under Oregon law other than the death penalty—it is not unconstitutionally disproportionate as applied to defendant, given his criminal history. I. FACTS On April 12, 2023, a 16-year-old girl, L, and her male classmate, D, went to a public gym near their high school to stretch and work out in the gym’s yoga room. The yoga room was small and had a mirror running along the wall. Defendant was also exercising in the yoga room. L recognized him from a prior gym visit. At one point, L saw defendant rubbing his groin in a way that made her uncom- fortable and looked away. Less than five minutes later, she looked in the mirror and saw defendant in a plank position with both knees and one hand on the ground and the other hand holding his fully erect penis through the leg opening of his shorts. Defendant was looking straight at L in the mirror and appeared to be masturbating. L started crying and ran out of the room. D, who had been facing a different direc- tion, turned and saw L run out of the room looking upset. Defendant was still in the room, and D saw him exercising; he did not see defendant’s penis. L reported the situation to a gym employee, who called the police. The police arrived, and Patrol Sergeant Oya questioned defendant. Defendant, who was on post-prison supervision at the time, answered questions about the terms of his supervision and whether he was allowed to be at the gym. As to L’s allegation, defendant denied exposing his penis, offered to leave the gym and not come back, and offered to take a polygraph examination. He did not mention having a medical condition or say that he had been scratching himself when L cried and left the yoga room. Defendant was charged with one count of public indecency, ORS 163.465, and one count of endangering the welfare of a minor, ORS 163.575. He waived his right to a jury and was tried to the court. In opening statements, the Cite as 352 Or App 15 (2026) 19 prosecutor laid out the basic facts of the case, and defense counsel explained that he would be calling two witnesses to testify that defendant suffers from psoriasis, which causes itchiness, because defendant “assumes he was just itching” when L saw him. The state proceeded to call L, D, and Oya, who testified as described above. After the state rested its case, defendant called two witnesses—his primary care physician and a staff member from his housing unit— who both testified that defendant has psoriasis, although neither knew whether it affected his groin area. The doc- tor explained that psoriasis can cause scaling and itching. Defendant did not testify. In principal closing argument, the prosecutor walked through the details of L’s testimony, particularly those indicating that the exposure was intentional and for a sexual purpose, and argued that the state had proved the charges. Defense counsel then argued that the case came down to reasonable doubt, particularly reasonable doubt as to whether defendant acted with a sexual purpose, and asked the court to find defendant not guilty. Defense coun- sel questioned certain aspects of L’s testimony, such as sug- gesting that it was implausible that defendant held up his full body weight in a one-handed plank, and argued that defendant would not have stayed in the yoga room after L ran out if he had intentionally exposed himself to her. He also addressed defendant’s demeanor and responses when questioned by police at the gym. In rebuttal closing argument, the prosecutor clari- fied a few points of witness testimony, argued that it would have been easy for defendant to get his penis back into his shorts in the time it took for D to turn around, and then addressed the police interview. As relevant here, the pros- ecutor pointed out that defendant had not said anything to the police about psoriasis or itching and argued that “if that was really what happened,” defendant would have said so “that day, not 10 months later.” Defense counsel objected that “that’s a comment on him exercising his right to remain silent,” and, without hearing from the prosecu- tor, the trial court sustained the objection. The prosecutor tried to “rephrase” but basically said the same thing again, 20 State v. Moore arguing that “he didn’t tell them that at the scene, that was not mentioned at all to the officers.” Defense counsel again objected, stating that defendant was “under arrest” and “Mirandized” at the time and that the prosecutor’s argument therefore amounted to a comment “on his exer- cising his right to remain silent at that time.” The prosecu- tor responded, “But he didn’t exercise his right to remain silent.” The court overruled the objection on the basis that there was no evidence that defendant was in custody or had been given Miranda warnings, while noting that it would “give it the weight it deserves” and that defendant “has the right to remain silent, of course.” The prosecutor resumed her rebuttal closing argument, turning her focus to the evi- dence that defendant acted with a sexual purpose, without further mention of the police interview. After deliberating, the court found defendant guilty of public indecency and acquitted him of endangering the welfare of a minor. Defendant’s sentencing hearing took place two months later. At the hearing, defendant argued that the court should not consider some of his prior sex-offense convictions listed in the presentence investigation report because they were entered on nonunanimous jury verdicts. Specifically, the presentence report listed 12 prior convic- tions for sex crimes—a 1985 conviction for public indecency, a 1987 conviction for first-degree sexual abuse, a 1991 con- viction for first-degree sexual abuse, a 1994 conviction for public indecency, and eight 1996 convictions for first-degree unlawful sexual penetration, first-degree rape, and first- degree sexual abuse—and defendant put forward evidence that three of the 1996 convictions were entered on nonunan- imous verdicts. Defendant further argued that, regardless, it would be unconstitutional to impose the presumptive sen- tence of life imprisonment without the possibility of release (sometimes called “true life”). Regarding the 1996 convictions, the court found that three were based on nonunanimous verdicts and noted that, even if it did not consider those, there were still five other 1996 convictions (two for first-degree rape and three for first-degree sexual abuse) that were enough to get the Cite as 352 Or App 15 (2026) 21 court into “that presumptive zone.” The court continued, “So I don’t discount that. I give it the weight I think it’s due[.]” The court appears to have meant that it was not discounting the nonunanimity of the verdicts for those three convictions and was giving that fact the weight it considered appropriate. The court then proceeded to explain why it was going to impose the presumptive sentence. The court acknowledged that the incident here was not the most egre- gious as public indecency goes and that, but for defendant’s criminal history, it would be a misdemeanor. The court also stated that it would have a “really hard time imposing the presumptive sentence” in some circumstances, even with prior felony history. But the court felt that it did not have “any choice” but to impose the presumptive sentence in this case given defendant’s extensive criminal history and “trail of victims.” The court noted that defendant’s criminal his- tory included child sexual abuse, forcing himself on an adult girlfriend, and prior acts of public indecency. It also noted defendant’s “complete lack of remorse or responsibility” for his crimes, which gave the court “real concerns.” Ultimately, the court decided that there was no substantial reason to depart from the presumptive sentence. It therefore imposed the presumptive sentence of life imprisonment without the possibility of release. II. THE PROSECUTOR’S ALLEGED COMMENT ON DEFENDANT’S EXERCISE OF THE RIGHT AGAINST SELF-INCRIMINATION Defendant’s first assignment of error is directed to the prosecutor’s statement in rebuttal closing argument that, when questioned by police at the gym, defendant did not say anything about psoriasis or itching. When the prosecutor first made that statement, defense counsel objected that it was “a comment on [defen- dant] exercising his right to remain silent,” and the trial court sustained the objection without hearing from the pros- ecutor. When the prosecutor tried to rephrase but ended up saying the same thing again, defense counsel again objected, this time expounding that defendant was “under arrest” and “Mirandized” at the time and that the prosecutor’s argument 22 State v. Moore amounted to an improper comment “on his exercising his right to remain silent at that time.” The prosecutor responded, “But he didn’t exercise his right to remain silent.” The court overruled the objection, reasoning that the record was silent as to whether defendant was “in custody” or “Mirandized” at the time, although it noted in doing so that it would only “give it the weight it deserves” and that defendant “has the right to remain silent, of course.” The prosecutor finished her rebuttal closing argument without saying anything further about defendant having not mentioned psoriasis or itching when questioned by police at the gym. On appeal, defendant assigns error to the overrul- ing of his second objection. He argues that the prosecutor’s comment invited the factfinder (the court) to use defendant’s silence as evidence of guilt, specifically by suggesting that an innocent person would have told the police about having psoriasis, whereas defendant did not. Defendant urges us to assume for purposes of our analysis that he had received Miranda warnings at the time of the police questioning, even though there was no testimony or other evidence admitted at trial on that issue. The state counters that the trial court did not err in overruling defendant’s objection, because the prosecutor was permitted to highlight inconsistencies between what defendant told police at the time of the incident and his later position at trial. Under the state’s view, such inconsistencies are relevant in assessing the credibility of a late-raised inno- cent explanation for allegedly criminal conduct. The state agrees that it would be improper to cite a defendant’s invo- cation of the right to silence as evidence of guilt, but it main- tains that the prosecutor did not do so here. Alternatively, the state argues that, even if the prosecutor’s statement was improper, it did not deny defendant a fair trial and therefore is not a basis for reversal. The parties’ arguments implicate important princi- ples regarding when and how the “right to silence” may be invoked and when a prosecutor improperly comments on the exercise of that right. We therefore begin with a broad over- view of the relevant case law on those issues, before return- ing to the facts of this specific case. Cite as 352 Or App 15 (2026) 23 A. The Right Against Compelled Self-Incrimination Article I, section 12, of the Oregon Constitution pro- vides that no person shall “be compelled in any criminal prosecution to testify against himself.” Similarly, the Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” Although often described as the “right to remain silent” or “right to silence,” the actual constitutional right is against compelled self-incrimination. The “animating princi- ple” of Article I, section 12, is “an aversion to compelled tes- timony.” State v. Davis, 350 Or 440, 450, 256 P3d 1075 (2011). A criminal defendant cannot be compelled to testify at their own trial, at least without immunity. State v. Soriano, 68 Or App 642, 662, 684 P2d 1220, aff’d, 298 Or 392, 693 P2d 26 (1984). A witness cannot be compelled to answer incriminat- ing questions on the stand. State v. Rodriguez, 301 Or App 404, 415, 456 P3d 312 (2019). And a person cannot be com- pelled to talk to the police and then have their statements used against them. Davis, 350 Or at 454-55. The focus on compulsion is discussed at length in Davis, wherein the court analyzed the history and case law on Article I, section 12. See id. at 445-59. The court found “a complete absence of evidence of the recognition of a con- stitutionally protected ‘right to remain silent’ that exists independent of compelling circumstances.” Id. at 453-54. As summarized in Davis: “[A]s a matter of textual analysis, the provision speaks to a right to be free from compelled self-incrimination; if there is a right to remain silent that is guaranteed by Article I, section 12, it is a right to insist that the police refrain from interrogation after a person who is in custody or other- wise in compelling circumstances has invoked the right to remain silent. That reading of the text is most likely what the framers of the Oregon Constitution would have under- stood Article I, section 12, to mean. The constitutional guarantee of a right against self-incrimination, as well as its common-law antecedents, were well and uniformly understood to prohibit only compelled self-incrimination. Moreover, this court has consistently construed the scope of the constitutional guarantee to apply only to questioning 24 State v. Moore while an individual is in custody or otherwise in compel- ling circumstances.” Id. at 459-60 (emphasis in original); see also id. at 460 (“Defendant does not explain how his assertion of a broader ‘right to remain silent’ independent of custody or other com- pelling circumstances can be reconciled with the text of the constitution, with its history, or with this court’s case law.”). The Fifth Amendment right also is a right against compelled self-incrimination. It protects a criminal defen- dant from being compelled to testify at trial and, relatedly, precludes prosecutors from commenting on the exercise of that right. Griffin v. California, 380 US 609, 615, 85 S Ct 1229, 14 L Ed 2d 106 (1965). It also protects people from being compelled to speak to the police while in custody. McNeil v. Wisconsin, 501 US 171, 176-77, 111 S Ct 2204, 115 L Ed 2d 158 (1991). The United States Supreme Court has “never held that a person can invoke his Miranda rights anticipatorily, in a context other than custodial interroga- tion[,]” and has noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” McNeil, 501 US at 182 n 3 (internal quotation marks omitted). The right against compelled self-incrimination is therefore often described as “attaching” or “adhering” when someone is taken into custody or placed in compelling cir- cumstances. E.g., State v. Scott, 343 Or 195, 201, 166 P3d 528 (2007) (“The state constitutional right against self- incrimination and the derivative right to counsel adhere when a suspect is subject to custodial interrogation.”); State v. Rodriguez, 339 Or App 267, 273, 568 P3d 202 (2025) (“The right attaches when a person is in custody or a compel- ling setting and subject to interrogation.”); see also State v. Turnidge (S059155), 359 Or 364, 401, 374 P3d 853 (2016), cert den, 580 US 1070 (2017) (absent compelling circumstances, “the derivative right to counsel under Article I, section 12, did not attach,” and the police “were entitled to continue to ask defendant possibly incriminating questions, as long as they did not do so in a way that rendered his responses involuntary”); State v. Dodge, 297 Or App 30, 32, 441 P3d 599, rev den, 365 Or 533 (2019) (the Article I, section 12, Cite as 352 Or App 15 (2026) 25 right “attaches only when a person is in custody or other compelling circumstances”). Miranda warnings effectuate the right against compelled self-incrimination. State v. Vondehn, 348 Or 462, 474, 236 P3d 691 (2010). When a person is in custody or compelling circumstances, such that their Article I, section 12, and Fifth Amendment rights have attached, the police must give Miranda warnings to ensure that any subsequent waiver is knowing and voluntary. Id.; see also State v. Reed, 371 Or 478, 486, 538 P3d 195 (2023) (regarding compelling circumstances short of custody). The person must be told, in substance, that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 US 436, 479, 86 S Ct 1602, 16 L Ed 2d 694 (1966); see Vondehn, 348 Or at 474 (similar requirement under Article I, section 12). The Miranda warnings “serve to counteract ‘the potentiality for compulsion’ and ensure that, if an individual makes a statement during a custodial interrogation, the statement is ‘the product of free choice.’ ” Reed, 371 Or at 485 (quoting Miranda, 384 US at 457). If a person in custody or compelling circumstances is given Miranda warnings and makes a “knowing, intelli- gent, and voluntary” waiver, then the police may proceed to interrogate them, and the person’s statements may be used against them at trial.1 State v. Nichols, 361 Or 101, 107, 390 P3d 1001 (2017); see also Miranda, 384 US at 444 (“The defendant may waive effectuation of these rights, pro- vided the waiver is made voluntarily, knowingly and intelli- gently.”). If a person initially waives but then changes their mind and invokes, Article I, section 12, is more protective than the Fifth Amendment as to what happens next. Under 1 We note that it is arguably a misnomer to refer to a person “waiving” their rights under Article I, section 12, and the Fifth Amendment. A person might waive the right to “remain silent” by voluntarily agreeing to talk, but, as dis- cussed, the right is really a right not to be compelled to talk, and, by “waiving” that right, the person is not agreeing to being compelled. To the contrary, they are making clear that they are not being compelled. Because the right is described in the Miranda warnings as a “right to remain silent,” however, we speak in terms of “waiving” the right. 26 State v. Moore Article I, section 12, the police must stop the interrogation if the invocation is unequivocal, or pause for clarification if it is equivocal. State v. Avila-Nava, 356 Or 600, 609, 341 P3d 714 (2014); see also Nichols, 361 Or at 107 (“The state bears the initial burden of showing that a defendant charged with a crime validly waived the right; if the defendant initially waives the right, then the defendant bears the burden to show that he or she later invoked it.”). By contrast, under the Fifth Amendment, the police must stop interrogation only upon an “unambiguous” invocation. Berghuis v. Thompkins, 560 US 370, 381-82, 130 S Ct 2250, 176 L Ed 2d 1098 (2010). Absent a valid waiver, anything a person says while in custody or compelling circumstances is presumed to have been compelled. See Miranda, 384 US at 460-61 (“An indi- vidual swept from familiar surroundings into police cus- tody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.”); Vondehn, 348 Or at 474 (describing custodial interrogation as “inherently compelling”). Statements that are deemed “compelled” will normally be suppressed at trial, along with any derivative physical evidence. Vondehn, 348 Or at 467. Another way that the right against compelled self- incrimination is effectuated at trial is by keeping out of evidence the defendant’s invocation or exercise of the right and by prohibiting improper comment on it. “[T]he Oregon Constitution does not permit a prosecutor to draw the jury’s attention to a defendant’s exercise of the right to remain silent[,]” and the United States Constitution similarly “pro- hibits a prosecutor from pointing out that a defendant has exercised his or her right to remain silent.” State v. Larson, 325 Or 15, 22-23, 933 P2d 958 (1997); see also Griffin, 380 US at 614-15 (stating that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt,” and describing comment on the refusal to testify as “a penalty imposed by courts for exercising a constitutional privilege” that “cuts down on the privilege by making its assertion costly”). It is “usually reversible error to admit evidence of the exercise by a defendant of the rights which Cite as 352 Or App 15 (2026) 27 the constitution gives him if it is done in a context where- upon inferences prejudicial to the defendant are likely to be drawn by the jury.” State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434 US 849 (1977). Thus, if a defendant says nothing while in custody or compelling circumstances—or initially speaks but then invokes and remains silent thereafter—the prosecutor gen- erally cannot use their invocation or silence as evidence of guilt or to impeach their trial testimony. For example, in State v. Ragland, 210 Or App 182, 190, 149 P3d 1254 (2006), where the defendant was arrested for driving under the influence of intoxicants (DUII) and given Miranda warn- ings, invoked her rights and remained silent, and then tes- tified at trial to an innocent explanation for her breath-test results, it was improper for the prosecutor to comment on the defendant’s post-arrest silence and suggest that, if what she said at trial was true, she would have said it to the police instead of remaining silent. In State v. Mullenburg, 112 Or App 518, 520-21, 829 P2d 98 (1992), where the defendant was arrested for DUII and given Miranda warnings, after which she refused to answer the officer’s questions, it was improper for the prosecutor to comment on her silence. And, in Doyle v. Ohio, 426 US 610, 612-14, 618-20, 96 S Ct 2240, 49 L Ed 2d 91 (1976), where the defendant was arrested and given Miranda warnings, remained silent, and later testi- fied at trial with an exculpatory story, it was improper for the prosecutor to ask the defendant why he had not pro- tested his innocence to the police and told them the story he put forward at trial.2 It is permissible, however, to impeach a defendant at trial with prior inconsistent statements to the police, includ- ing statements made voluntarily while in custody or compel- ling circumstances. See, e.g., State v. House, 282 Or App 371, 378, 385 P3d 1099 (2016) (under Article I, section 12, and the 2 It should be noted that, under the federal constitution, it is a due process violation, rather than a Fifth Amendment violation, to use silence against a person who has been implicitly promised through Miranda warnings that their silence will not be used against them. Doyle, 426 US at 618; see Wainwright v. Greenfield, 474 US 284, 292, 106 S Ct 634, 88 L Ed 2d 623 (1986) (“The point of the Doyle holding is that it is fundamentally unfair to promise an arrested per- son that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.”). 28 State v. Moore Fifth Amendment, the state may impeach a defendant’s trial testimony with prior inconsistent statements voluntarily made to the police); Anderson v. Charles, 447 US 404, 408, 100 S Ct 2180, 65 L Ed 2d 222 (1980) (the prosecutor may ask a testifying defendant about prior inconsistent statements voluntarily made to police because, “[a]s to the subject matter of his statements, the defendant has not remained silent at all”). For example, in State v. Pickett, 37 Or App 239, 243, 586 P2d 824 (1978), it did not violate Article I, section 12, or the Fifth Amendment for the prosecutor to explore discrepancies between the defendant’s trial testimony and what she told the police after her arrest for shoplifting, because the defendant had waived her Miranda rights in speaking with the police, and “[t]here simply was no silence as to why she left the store without paying for the sweater.” (Emphasis in original.) A prosecutor also may impeach the defendant with inconsistencies in the nature of omissions, at least to some extent. If the defendant voluntarily spoke to the police on a particular subject while in custody or compelling circum- stances, then testifies on the same subject at trial, the pros- ecutor may point out differences between the two versions, including things the defendant did not say to the police but later said at trial. See Anderson, 447 US at 409 (explaining that it does not violate the Fifth Amendment to question a defendant about something omitted from the prior rendition, because, while that could be viewed as a form of “silence,” it is really in the nature of an inconsistent statement). And, in State v. Attebery, 39 Or App 141, 146-47, 591 P2d 409, rev den, 286 Or 449 (1979), where the defendant elicited evidence that he told the police after receiving Miranda warnings that he had an alibi, it was permissible for the prosecutor to elicit evidence that he had not provided any details to the police and suggest in closing argument that the claimed alibi was concocted. We distinguished a “case of talking” from “a case of refusal to talk” and reasoned that, when a defendant vol- untarily speaks with the police, he cannot hide the facts sur- rounding what he said by asserting that he was exercising his right to silence as to the rest of the story.3 Id. at 147. 3 Our decisions in House and Ashbaugh should not be read as contrary. In House, we distinguished between affirmative statements and omissions in hold- ing that, where the defendant testified that she smelled of alcohol when arrested Cite as 352 Or App 15 (2026) 29 The final issue that we will address is how the fore- going principles do or do not apply when a person was not in custody or compelling circumstances. When a person is not in custody or compelling cir- cumstances, they do not need to be given Miranda warnings, the police are free to question them, and any statements voluntarily made are generally admissible at trial. See, e.g., Minnesota v. Murphy, 465 US 420, 440, 104 S Ct 1136, 79 L Ed 2d 409 (1984) (no Fifth Amendment violation in admit- ting evidence of the defendant’s confession to his probation officer, which was made voluntarily while not in custody and without Miranda warnings); State v. Neal, 73 Or App 816, 818 & n 1, 699 P2d 1171, rev den, 299 Or 663 (1985) (no impropriety in the prosecutor commenting on a statement that the defendant made “voluntarily, without compulsion,” before his arrest). That is true even if a person prematurely invokes their rights before voluntarily speaking. See State v. Anderson, 285 Or App 355, 356-57, 396 P3d 984, rev den, 362 Or 94 (2017) (where the defendant was stopped for a traffic violation and immediately invoked her right to remain silent and her right to an attorney, the officer was nonetheless free to question her because she was not in custody or compelling circumstances, and the admission of her statements at trial did not violate Article I, section 12, or the Fifth Amendment). It does not necessarily follow, however, that, if a person who is not in custody or compelling circumstances for DUII because she had drank three nonalcoholic beers, it was improper for the prosecutor to try to impeach her by pointing out that she did not tell the police that on the night of her arrest. 282 Or App at 378. The defendant in House had invoked her rights multiple times, and the state did not dispute that her post- waiver omissions were “the product of [her] invocation of her constitutionally pro- tected right to remain silent.” Id. As for Ashbaugh, we held in that case that it was plain error under both Article I, section 12, and the Fifth Amendment for the prosecutor to comment on the defendant’s silence when receiving a citation for theft. State v. Ashbaugh, 330 Or App 680, 686-88, 544 P3d 414, rev den, 372 Or 588 (2024). The defendant was given Miranda warnings, spoke to the officer, but then said nothing upon receiving the citation—he “didn’t argue it” and “didn’t seem upset that he was receiving a citation[,]” which the officer viewed as “kind of odd.” Id. at 681-82. In closing argument, the prosecutor posited, “If that were me—you know how frustrated you would be to be falsely accused of theft? Instead, he sits there, doesn’t say anything.” Id. at 682. Noting that it was unclear whether the prosecutor was referring to the defendant’s silence while receiving the citation or his silence in not testifying at trial, we concluded that either way it was plainly improper to point to his silence as evidence of guilt. Id. at 687. 30 State v. Moore refuses to speak or prematurely tries to invoke their rights before they attach, then their silence may be used against them at trial. In State v. Schiller-Munneman, 359 Or 808, 813, 377 P3d 554 (2016), the Oregon Supreme Court recog- nized an open question under both Article I, section 12, and the Fifth Amendment “whether, absent custody or compel- ling circumstances, a defendant’s invocation of the right to silence in response to police questioning may be admitted as substantive evidence at trial.”4 See also Salinas v. Texas, 570 US 178, 183, 133 S Ct 2174, 186 L Ed 2d 376 (2013) (“We granted certiorari to resolve a division of authority in the lower courts over whether the prosecution may use a defen- dant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.” (Citations omitted.)). As for using noncustodial silence for impeachment purposes, that is permissible under the federal constitution. See Brecht v. Abrahamson, 507 US 619, 628, 113 S Ct 1710, 123 L Ed 2d 353 (1993) (explaining that the “Constitution does not prohibit the use for impeachment purposes of a defendant’s silence prior to arrest, or after arrest if no Miranda warnings are given,” because it is their potential reliance on the Miranda warnings that makes it a due pro- cess violation to comment on post-Miranda silence (citation omitted)); see also Jenkins v. Anderson, 447 US 231, 238-40, 4 Long ago, in State v. Mason, 53 Or App 811, 819, 633 P2d 820 (1981), we stated, “It is clear * * * that a person not in custody may assert his right to remain silent under the Fifth Amendment to the United States Constitution or to his right to counsel under the Sixth Amendment, even though he is not entitled to specific advice as to those rights. Oregon v. Mathiason, [429 US 492, 97 S Ct 711, 50 L Ed 714 (1977)].” Then, in State v. Marple, 98 Or App 662, 666 n 2, 780 P2d 772 (1989), we reiterated Mason’s statement regarding the Fifth Amendment and summarily added, “A person not in custody can also assert the right to remain silent under Article I, section 12.” But Mathiason does not support the proposition for which it was cited in Mason—the defendant in Mathiason never invoked his right to remain silent, nor does the opinion discuss his ability to do so. See Mathiason, 429 US at 492-96 (holding that it did not violate the Fifth Amendment to admit the defendant’s stationhouse confession, which he made without Miranda warnings, because the defendant was not in custody and was free to leave). Moreover, in State v. Schiller-Munneman, 270 Or App 22, 33, 346 P3d 636 (2015), rev’d on other grounds, 359 Or 808, 377 P3d 554 (2016), we suggested that Marple either had to be understood as a case involving a defendant in compelling circumstances or had to be seen as overruled by Davis. Cite as 352 Or App 15 (2026) 31 100 S Ct 2124, 65 L Ed 2d 86 (1980) (holding that, where the defendant turned himself in to the police two weeks after killing someone and claimed self-defense for the first time at trial, it was permissible for the prosecutor to impeach the defendant’s testimony by asking about his failure to remain at the scene to talk to the police and his delay in going to the police; doing so did not violate the Fifth Amendment because the defendant “cast aside his cloak of silence” by testifying and was subject to “the traditional truth-testing devices of the adversary process,” nor did it violate due process under Doyle because the defendant was not induced into silence by Miranda warnings during the two-week period at issue (internal quotation marks omitted)). It appears to be an open question whether the same is true under Article I, sec- tion 12. See Schiller-Munneman, 359 Or at 812 & n 1 (noting that the issue is settled under federal law, and not citing any comparable Article I, section 12, case law). In sum, a person may always choose to be silent or to limit what they say to a police officer. But not all “silence” implicates a person’s constitutional rights under Article I, section 12, and the Fifth Amendment. Whether and how a person’s silence—or failure to say something that they later rely on in court—may be used against them depends on the specific circumstances, including whether they were in custody or compelling circumstances at the time. We now return to the specific facts of this case. B. Application Defendant contends that the prosecutor improperly commented on his constitutional right to silence when she pointed out in rebuttal closing that defendant did not say anything to the police about psoriasis or itching and argued that he would have done so if that really was what happened, thus suggesting that he concocted that explanation for tri- al.5 The state disagrees, asserting that it was permissible argument. 5 Oya testified to his conversation with defendant at the gym, including stat- ing that defendant did not mention having a medical condition or offer any expla- nation for what L saw. Defendant did not object to Oya’s testimony and does not claim plain error in allowing that testimony. He challenges only the overruling of his objection during the prosecutor’s rebuttal closing argument. 32 State v. Moore As previously described, defendant asks us to assume for purposes of our analysis that he was given Miranda warnings before talking to Oya—which we under- stand him to be using as shorthand to mean that he was in custody or compelling circumstances, received Miranda warnings, validly waived his rights, and then spoke to Oya.6 When the trial court pointed out that there was no evidence on the Miranda issue, which the court viewed as dispositive, defendant did not respond. On appeal, defen- dant acknowledges the lack of evidence and points to an unsworn statement in the presentence investigation report indicating that he was “Mirandized” before talking to Oya. Had defendant chosen to remain silent when ques- tioned by Oya, then whether he was in custody or compel- ling circumstances and received Miranda warnings could be significant to the analysis. As described in the prior sec- tion, when a person in custody or compelling circumstances receives Miranda warnings and invokes or remains silent, that may not be used against them as substantive evidence, nor may t