State v. Smith

No. 523                  July 31, 2024                        89

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               SCOTT CHRISTOPHER SMITH,
                    Defendant-Appellant.
               Washington County Circuit Court
                     21CR37152; A177810

   Ricardo J. Menchaca, Judge.
   Submitted February 27, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Affirmed.
90                                                   State v. Smith

           POWERS, J.
         Defendant appeals from a judgment of conviction
and sentence for one count of first-degree sexual abuse,
ORS 163.427. On appeal, defendant contends that the pros-
ecutor’s remarks during closing argument constituted plain
error because those remarks included an argument that
defendant bore the burden of persuasion on whether defen-
dant acted knowingly and with sexual purpose. Applying
the analysis from State v. Chitwood, 

, 

 (2022), we conclude that, although the prosecutor’s
challenged statements were improper, it is not beyond dis-
pute that the closing argument when viewed in context
was so prejudicial as to have denied defendant a fair trial.
Accordingly, we affirm.
         The following procedural facts are undisputed.
Defendant was charged with two counts of first-degree sex-
ual abuse. He was accused of twice intentionally touching
the breast of a thirteen-year-old girl, J, who was spending
the night with defendant’s daughter. Defendant testified
that his hand might have accidentally contacted J’s chest
when he tripped and fell onto the couch where she was sleep-
ing. He denied intentionally touching her and denied having
a sexual purpose. Importantly, defendant did not raise any
defense on which he would bear the burden of production or
persuasion.
       During closing argument, the prosecutor made the
statements challenged on appeal:
     “Now this is also where we’re going to start talking about
     the defendant’s trial testimony because, while it is my bur-
     den to prove to you beyond a reasonable doubt this hap-
     pened, the defense has chosen to put on evidence, and
     they’ve chosen to put on a defense, right.
     “So, on some level, if they want you to buy that, we call it a
     burden of persuasion, right.”
Defendant did not object to those statements, ask for a
curative instruction, or move for a mistrial. On appeal, he
asserts that they constitute plain error, and that we should
exercise our discretion to correct the error. See Ailes v.
Portland Meadows, Inc., 

, 

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(1991) (outlining the requirements for plain-error review
as the first step of the inquiry and explaining that, even if
the alleged error meets those requirements, the court must
decide to exercise its discretion to correct the error and
articulate its reasons for doing so in the second step of the
inquiry).
         Defendant argues on appeal, relying on Chitwood,
that the trial court erred when it failed to sua sponte
grant a mistrial or give the jury a curative instruction. In
Chitwood, the Supreme Court explained that a prosecutor’s
misconduct could be remedied on appeal as plain error if the
misconduct ultimately resulted in the denial of a fair trial.
That is, the court explained that even in the absence of pres-
ervation, appellate review is permitted, and reversal may
be warranted, if “it is beyond dispute that the prosecutor’s
comments were so prejudicial as to have denied defendant a
fair trial.” Id. at 312 (internal quotation marks and citation
omitted).
         Generally, a jury instruction is adequate to cure any
presumed prejudice from a prosecutor’s misconduct; how-
ever, some prosecutorial statements are “so prejudicial that,
as a practical matter, the bell once rung, cannot be unrung
by such an admonishment.” Id. at 311-12 (internal quotation
marks and citation omitted). For purposes of a preserved
objection, the court observed that, if an instruction would
not suffice to ensure a fair trial, the trial court would be
required to grant a mistrial. In those circumstances, the
failure to grant a mistrial would constitute an abuse of dis-
cretion. Id.
         Where there was no objection, and in the plain-
error context relating to a prosecutor’s improper statements
during rebuttal closing argument, the standard of review
on appeal becomes the same as when the error is preserved:
The defendant must show not only that the prosecutor’s
comments were improper or impermissible, but that the
prosecutor’s comments were so prejudicial that an instruc-
tion to disregard them would not have been sufficiently
curative to assure the court, in its consideration of all the
circumstances, that the defendant received a fair trial.
State v. Pierpoint, 

, 

92                                                State v. Smith

(2023). In that situation, the court explained, the denial of
the right to a fair trial indicates “plain error.” 

 (cit-
ing Chitwood, 

). Ultimately, our review must
determine “whether, under the circumstances as a whole,
defendant was denied the right to a fair trial, as a matter
of law, by the events that transpired at trial.” Chitwood, 

 (internal quotation marks and citation omitted).
         With those standards in mind, we start our analysis
by determining whether the prosecutor’s remarks during
closing were improper. Remarks concerning evidence that
a defendant has or has not presented can sometimes fall on
either side of a thin line. On one side, it is permissible for
a prosecutor to argue that a defendant’s evidence is uncon-
vincing, and that the jury should not be persuaded by it.
On the other side of that thin line, it is impermissible for a
prosecutor to argue that a defendant was required to or had
a burden to present corroborating evidence, evidence that
contradicts the state’s evidence, or, indeed, any evidence at
all.
        Here, the prosecutor’s statements imply that, by
choosing to “put on evidence,” and choosing to “put on a
defense,” defendant therefore took on a burden of persua-
sion. The problem, of course, is that defendant did not raise
a defense in which he would have had the burden of pro-
duction or the burden of persuasion. As defendant’s argu-
ment asserts, the statements were impermissible because
they were framed in terms that the jury might believe to
be an explanation of the law. The prosecutor used the legal
term “burden of persuasion,” referred to it as a term that
lawyers use—”we call it”—and referred to defendant having
made a choice to “put on evidence” and “put on a defense,”
which impermissibly implied that those choices carried the
consequence of acquiring a burden of persuasion as to that
evidence and defense.
         The state remonstrates that the prosecutor’s clos-
ing argument was lengthy, and that the prosecutor referred
multiple times to the state having the burden of proof. In that
context, the state asserts, the challenged statements would
not have been understood as shifting a burden to defen-
dant. We disagree. Although it is true that the prosecutor
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referred multiple times to the state having the burden of
proof, in context, the statements about defendant’s burden
could still have been misleading or confusing to the jury.
That is, the prosecutor’s formulation of the state’s burden
of proof, at least in some instances, left room for an under-
standing that defendant also had a burden of persuasion
because he had chosen to “put on evidence” and “put on a
defense.” Specifically, the prosecutor referred, at times, to
the state’s burden as being a burden to persuade the jury
that the complaining witness was telling the truth:
       “So, it is my burden to prove to you beyond a reasonable
   doubt that [J] is telling the truth, and I want to make sure
   that I put that out there clearly, unambiguously, right out
   of the gate, okay.”
         The case turned largely on whether the jury believed
J’s testimony or defendant’s testimony. During closing, the
prosecutor posited that there were three possible conclusions
about J’s testimony: (1) she was telling the truth; (2) she was
lying; or (3) she was mistaken. Emphasizing that those were
the only possible conclusions, the prosecutor argued to the
jury why it should not believe defendant:
      “[M]y expectation, again, is that, when you start delib-
   erating on this case, you’re going to quickly come to the
   conclusion we believe [J]. We don’t believe [defendant]. He’s
   lying to us. He sexually abused her. Did he do it once? Did
   he do it twice? That’s where I think you’re going to end up.”
The prosecutor did not repeat his earlier statement that
defendant had a burden of persuasion.
         Defense counsel began his closing statement by
acknowledging that the defense was not asking the jury to
find that J lied. Instead, the defense focused on the situ-
ation where J had woken up in the middle of the night to
find defendant with a hand on her breast, not knowing what
had happened immediately before that. Defense counsel
asserted that J’s testimony could have been the truth as she
understood it, based on her after-the-fact interpretation of
what she experienced:
      “Number one, the defense is not suggesting that [J]
   is lying. Something traumatic happened to her. She’s
94                                                 State v. Smith

     explained it. There are some reasons she might not be
     exactly accurate.
        “But she’s somebody who was not a problem child. She
     seems like a good kid. She’s a 13-year-old young lady. And
     she wakes up with somebody on her, and that would be
     shocking to anybody. And, as she deals with it, she talked
     about going and trying to process it and think about it and
     figure out what’s going on.”
That is, the defense strategy proposed that there was rea-
sonable doubt about whether defendant’s conduct was voli-
tional and intentional, and whether it was done for a sexual
purpose.
         After considering the entire context of the prosecu-
tor’s challenged statements, we conclude that the prosecu-
tor’s remark was improper. It was a misstatement of a foun-
dational principle of criminal law, that a criminal defendant
is presumed innocent and, except in limited circumstances
not relevant here, has no burden of production or persua-
sion. Further, in context, the prosecutor’s statement could
have left the jury with the erroneous impression that, if it
disbelieved defendant’s testimony, the state had necessarily
met its burden. That impression, of course, is not accurate
with respect to how the state meets its burden to prove all
of the elements beyond a reasonable doubt. That is, the jury
could have disbelieved defendant’s testimony and also found
that the state failed to meet its burden. Thus, because the
prosecutor’s injection of a burden of persuasion could have
confused the jury on who had the burden of proof and the
consequences of failing to meet that burden, we agree with
defendant’s argument that the challenged statements were
impermissible.
         The Supreme Court, however, has instructed us
that to prevail on this type of claim, a defendant must show
not only that the prosecutor’s comments were improper or
impermissible, but that the prosecutor’s comments were so
prejudicial that an instruction to disregard them would not
have been sufficiently curative to assure the court, in its
consideration of all the circumstances, that the defendant
received a fair trial. See Pierpoint, 

.
Essentially, we understand the Chitwood analysis to require
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prosecutorial misconduct so severe that the only possible
remedy was for the trial court to grant a mistrial.1
          Here, although the prosecutor’s statements were
improper, a mistrial was not the only appropriate or available
remedy. Had there been an objection, the trial court could
have provided an instruction to the jury to disregard the
prosecutor’s misstatement of the law. Although improper, the
prosecutor’s single misstatement was not a statement that
called to mind bias, emotions, or other improper bases for
deciding the case. Nor did the misstatement introduce new
or inadmissible evidence. It was, instead, a straightforward
and potentially easy-to-dispel misstatement of the legal con-
sequences of defendant deciding to put on evidence, testify,
and mount a defense. See State v. Durant, 

, 

 (2023) (explaining that “prosecutorial state-
ments 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” (emphasis omitted)).
          In sum, we conclude that the prosecutor’s state-
ment concerning defendant’s “burden of persuasion” asso-
ciated with defendant choosing to “put on evidence” and to
“put on a defense” was improper but curable. Accordingly,
it is not beyond dispute that the comments were so prejudi-
cial as to have denied defendant a fair trial considering the
circumstances.2
          Affirmed.
     1
       We observe that some challenges arise from the Supreme Court’s analysis
in Chitwood. First, despite defining the claim as one of prosecutorial misconduct,
Chitwood uses a standard for assessing trial court error to analyze the claim,
specifically asking whether the trial court would have been required to grant
a mistrial. Because Chitwood equates plain error with a mandatory mistrial,
it insulates instances of clear prosecutorial misconduct from review on direct
appeal. Second, Chitwood focuses on the level of harm to determine whether there
was plain error (the first step under Ailes). That approach arguably conflates the
discretionary question about whether to correct an error (the second step under
Ailes) with the first. In so doing, Chitwood arguably insulates on direct appeal
one form of prosecutorial misconduct in a manner inconsistent with other plain
errors, particularly vouching testimony. At the end of the day, however, we are
bound by Chitwood and have applied it in this case.
     2
       Defendant also assigns error to the trial court’s imposition of a post-prison
supervision term that differed from what the court had announced during sen-
tencing when defendant was present. The trial court, however, subsequently
entered an amended judgment on its own motion correcting the PPS term, which
defendant acknowledges moots that assignment of error.