Full Opinion (html_with_citations)

                                      358

                   Submitted July 6, affirmed August 9, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   RALPH EDWARD BABCOCK,
                        Defendant-Appellant.
                   Deschutes County Circuit Court
                        19CR01071; A176785
535 P3d 345

    Defendant was convicted of driving under the influence of intoxicants, ORS
813.010(4). On appeal, he argues that the trial court erred in failing to intervene
sua sponte to strike improper statements by the prosecutor during rebuttal clos-
ing argument. Defendant did not object to the challenged statements at trial, so
he requests plain-error review. Held: It was not beyond dispute that the prose-
cutor’s remarks were so prejudicial that defendant was denied a fair trial. The
requirements for plain error in this context therefore are not met.
    Affirmed.


    Beth M. Bagley, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
    AOYAGI, P. J.
    Affirmed.
Cite as
327 Or App 358
 (2023)                                   359

         AOYAGI, P. J.
        Defendant was convicted of driving under the influ-
ence of intoxicants, ORS 813.010(4). On appeal, he raises
a single assignment of error, arguing that the trial court
erred in failing to intervene sua sponte to strike improper
statements by the prosecutor during rebuttal closing argu-
ment. Applying the principles recently articulated in State
v. Chitwood,
370 Or 305, 307
,
518 P3d 903
 (2022), we affirm.
         In rebuttal closing argument, the prosecutor
referred to two “things” that were discussed during jury
selection “that are now important.” The first was that the
jury had to follow the law, even if it disagreed with it. The
second was tied to the state’s legal theory that, even under
defendant’s view of the case, he was guilty of the charged
offense:
      “And two, just because—just because we’re here doesn’t
   necessarily mean there is a big issue. I’m telling you right
   now defense’s theory is he was guilty, just not guilty the
   way you think he’s guilty. ‘You’ being me.
       “Just because we’re here doesn’t mean there’s some dia-
   mond in the rough you’ve got to find. Everyone has a con-
   stitutional right to a trial. We’re here. That’s it. I say he’s
   guilty. I—the State proffers he’s guilty. The defense just
   proffered to you that he’s guilty. Every single witness,
   including defense expert, who said he’s—but for controlled
   substance use, he would be—he would not be suffering for
   a substance-induced psychotic episode. That’s it.
      “And so at the end of the day, we’re asking you to follow
   the law and find him guilty of DUI.”
(Emphases added.)
         Defendant challenges the above-italicized state-
ments. Because he did not object at trial, he requests plain-
error review. “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). However, we have discretion
to correct a “plain” error. ORAP 5.45(1). An error is “plain”
when it is an error of law, the legal point is obvious and
not reasonably in dispute, and the error is apparent on
the record without our having to choose among competing
360                                          State v. Babcock

inferences. State v. Vanornum,
354 Or 614, 629
,
317 P3d 889
(2013). It is a matter of discretion whether we will correct a
plain error. State v. Gornick,
340 Or 160, 166
,
130 P3d 780
(2006).
          The Supreme Court recently addressed in Chitwood
how to approach plain-error review in this specific context.
It must be “beyond dispute that the prosecutor’s comments
were so prejudicial as to have denied defendant a fair trial.”
Chitwood,
370 Or at 312
 (internal quotation marks omitted).
Moreover, “a defendant asserting plain error must demon-
strate 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.” Id.; see also State v. Durant,
327 Or App 363, 365
,
535 P3d 808
 (2023) (“In other words, prosecutorial statements
that were improper but curable are not an appropriate sub-
ject of plain-error review, because, in such circumstances,
the defendant was not denied a fair trial.” (Emphasis in
original.)). That is important because, “[g]enerally, a proper
jury instruction is adequate to cure any presumed prejudice
from a prosecutor’s misconduct.” State v. Davis,
345 Or 551, 583
,
201 P3d 185
 (2008), cert den,
558 US 873
 (2009).
          In this case, defendant challenges both the prosecu-
tor’s references to defendant’s right to a trial and the prose-
cutor’s remark, “I say he’s guilty.”
         As to the latter (“I say he’s guilty”), defendant
argues that it was improper for the prosecutor to offer a
personal opinion as to guilt. That is essentially a vouch-
ing argument, and it is not well-taken. In context, the jury
would have understood the prosecutor to be asserting the
state’s position that the evidence proved that defendant was
guilty, not to be expressing his personal opinion on the mat-
ter. See Heroff v. Coursey,
280 Or App 177, 194
,
380 P3d 1032
(2016), rev den,
360 Or 851
 (2017) (“[I]t is permissible for a
prosecutor to argue that the jury should infer that a witness
is credible based on the evidence in the record, so long as the
prosecutor does not vouch for the witness by interjecting his
or her personal opinion of the witness’s credibility.”).
Cite as
327 Or App 358
 (2023)                             361

         As for referring to defendant’s right to a trial, “[a]
prosecutor’s reference to or comment on a defendant’s invo-
cation of a constitutional right, such as the right to counsel,
the right to remain silent, or the right to a trial, may prej-
udice a defendant’s ability to have a fair trial if the jury is
likely to draw a negative inference from the exercise of that
right.” State v. Soprych,
318 Or App 306, 309
,
507 P3d 276
(2022) (emphasis added). Defendant argues that the state-
ments here “degraded the presumption of innocence” and
“invited the jury to infer that defendant was guilty because
the prosecutor believed he was guilty and only guilty people
exercise their right to a trial.”
         We have already addressed the “I say he’s guilty”
remark. The gist of the remaining statements was that not
every case has a “big issue,” that not every case has some
hidden gem for the jury to find, and that cases are tried
simply because everyone has a constitutional right to a trial.
Thus, the prosecutor suggested to the jury that this partic-
ular case was an easy one—in the context of arguing that
this was an unusual case in which the parties disagreed
on the law but largely agreed on the facts, such that, in the
state’s view, the elements of the offense were proved whether
the jury accepted the state’s version of events or defendant’s
version of events (which differed only as to the timing of
when defendant used methamphetamine).
         It is debatable whether the challenged statements
were likely to cause the jury to draw a negative inference
from defendant’s exercise of the right to a trial, i.e., that
only guilty people go to trial. We disagree with defendant
that the situation is directly comparable to that in Soprych.
There is similarity between the underlying point that the
prosecutor was trying to make in Soprych (as described
to the trial court in responding to the defendant’s objec-
tion)—“that just because ‘there’s a trial doesn’t mean there’s
an issue,” 318 Or App at 311—and what the prosecutor said
in closing here. However, our holding in Soprych was based
on what the prosecutor actually said to the prospective
jurors, not just the underlying premise. The prosecutor in
Soprych illustrated the right to a trial with a single lengthy
hypothetical about a very obviously guilty person, which, in
362                                                       State v. Babcock

context, undermined the presumption of innocence.
Id. at 311
. “In short, the implication of the prosecutor’s hypotheti-
cal and additional comments was that obviously guilty peo-
ple will invoke their right to a trial, and this jury had been
called only as a formality, because defendant was one of that
group.”
Id.
 It is not as obvious that the prosecutor’s state-
ments in this case would have been understood to imply that
only guilty people go to trial. Moreover, the defendant in
Soprych objected at trial, so, on appeal, we could decide the
issue in his favor even if the legal point was not “obvious.”
See Vanornum,
354 Or at 629
 (one requirement for “plain”
error is that the legal point is obvious and not reasonably in
dispute).
         Ultimately, we are unpersuaded that the prosecu-
tor’s statements in this case were so prejudicial that the
trial court could not have stricken them or given a curative
instruction and, instead, had to declare a mistrial.1 That is
dispositive under the standard for plain-error review dis-
cussed in Chitwood. See Chitwood,
370 Or at 312
; Durant,
327 Or App at 364-65
. Accordingly, we reject defendant’s
claim of plain error.
           Affirmed.




    1
      Indeed, in his appellate briefing, which was filed before the Supreme
Court’s decision in Chitwood, defendant does not even argue that the prosecutor’s
statements rose to the level of requiring a mistrial. He argues only that it was
plain error not to strike them. We nonetheless address the alleged error in the
mistrial framework, consistent with Chitwood, given the timing.