No. 660 September 18, 2024 103

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CRISTAL GARCIA MARTINEZ,

Defendant-Appellant.

Marion County Circuit Court

22CR12936, 21CR02819; A179436 (Control), A179437

Thomas M. Hart, Judge.

Submitted July 25, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Nora Coon, Deputy Public Defender, Office of 

Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Carson L. Whitehead, Assistant 

Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Affirmed.
104 State v. Martinez

MOONEY, J.

Defendant appeals a judgment convicting her of three 

crimes: unauthorized use of a vehicle, ORS 164.135; seconddegree criminal mischief, ORS 164.354; and possession of a 

burglary tool, ORS 164.235. In a single assignment of error, 

she seeks the reversal of those convictions, arguing that the 

trial court plainly erred when it “allowed the state to argue in 

closing, ‘We’ve never seen Patrick, never heard from Patrick.’” 

Defendant argues that the statement was improper and that 

it deprived her of a fair trial. We conclude that defendant was 

not deprived of a fair trial, and therefore, we affirm.1

Defendant was seen sitting in a car that was not 

hers, along with her dog, with the engine running and the 

headlights on. When approached by a law enforcement officer, she told him that her friend Patrick had given her permission to be in the car. The officer stayed at the scene for 

about two hours, but Patrick did not appear. Defendant told 

the officer that she started the car in order to stay warm. 

She used a screwdriver to do so. The officer observed damage to the car, including exposed wiring under the steering 

column. Defendant had a screwdriver, a utility knife, and 

multiple sets of keys, including shaved keys, in her pocket.

She was charged with the crimes already mentioned, and the case was tried to a jury. Defendant testified 

that her friend Patrick told her to wait in the car and that 

she thought Patrick had the owner’s permission to be in the 

car. She was in the car for about 20 minutes before the law 

enforcement officer contacted her. Defendant indicated that 

Patrick’s RV was parked in the same parking lot, but that 

Patrick would not have returned to the scene “if he saw cops.”

The prosecutor stated the following during his closing argument:

“So in—in my line of work and what I do, you always 

hear about the—the shaggy-haired stranger, bushy-haired 

individual, the—the one-armed individual that did it that 

1 The jury trial occurred in Case No. 22CR12936. That case was consolidated 

with Case No. 21CR02819, in which defendant pleaded guilty to second-degree 

robbery and attempted second-degree robbery. Defendant does not assign error 

to any order or the judgment in Case No. 21CR02819.
Cite as 335 Or App 103 (2024) 105

nobody can seem to find, Patrick. So we’re kind of pointing 

everything to—to Patrick.

“This really, ladies and gentlemen, is a kind of a case—a 

little bit of it is about credibility. And that is for you, as 

jurors, to—to weigh that and make those decisions. So 

that’s just kind of how this started.

“* * * * *

“** * Then she meets up with Patrick. He’s got no last 

name. Don’t know his phone number. But before she leaves, 

she happens to grab a coat that—what—has a screwdriver 

in it.

“It’s got keys, lots of keys that the officer testified to. It 

has shaved keys and a pair of pliers. ** *

“You know, the defendant, when she was first contacted, 

as the officer said, she wouldn’t give her name. It took a 

while before she would eventually give the officer her name. 

Why is that? There’s no last name for Patrick. Patrick never 

comes back.

“We’ve never seen Patrick, never heard from Patrick. 

Officers never heard from him. He didn’t call up. Nothing.”

(Emphasis added.) The prosecutor went on to argue that 

Patrick was “a red herring” and that the “Patrick story 

doesn’t make sense[.]” The jury found defendant guilty of 

the charged crimes.

Defendant did not object to the statement that she 

claims rendered her trial unfair, and therefore, she did not 

preserve the argument she now makes on appeal. State v. 

Tacia, 330 Or App 425, 428, 543 P3d 713 (2024). Despite 

that deficiency, she asks us to review for plain error and to 

reverse her convictions. An error is ‘plain’ when it is an error 

(1) of law, (2) obvious and not in dispute, and (3) apparent on 

the record without our having to choose among competing 

inferences. Id. We cannot say that the statement in question 

qualifies as such.

To begin, we agree that the prosecutor’s statement 

was improper. There is a difference between (1) explaining 

to the jury the state’s view of the evidence and explaining why the evidence should lead the jurors to conclude 

that the state has proved its case against defendant, and 
106 State v. Martinez

(2) discussing the evidence in a way that leads the jurors 

to believe that defendant bears the burden to disprove the 

state’s case. The first type of explanation is proper; the second is not. It is permissible to rely on the evidence to explain 

why the jury should doubt defendant’s credibility. See State 

v. Slay, 331 Or App 398, 403-04, 545 P3d 768, rev den, 372 

Or 560 (2024) (explaining that pointing to inconsistencies 

in the evidence, “as well as to statements that d[o] not make 

logical sense, to argue why the factfinder should doubt 

defendant’s credibility * ** is exactly what a prosecutor is 

supposed to do”). “However, the prosecutor must not inappropriately characterize the jury’s fact-finding function in 

a manner that raises some realistic possibility of confusing 

the jurors about the ultimate standard or burden of proof.” 

State v. Totland, 296 Or App 527, 531, 438 P3d 399, rev den, 

365 Or 502 (2019) (internal quotation marks omitted). For 

that reason, in State v. Mayo, 303 Or App 525, 537, 465 P3d 

267 (2020), we explained that the “state cannot comment on 

a defendant’s failure to adduce evidence to prove that the 

defendant did not have the requisite mental state necessary to establish criminal liability, because doing so could 

erroneously lead the jury to believe that the defendant carried the burden of introducing evidence to prove his or her 

innocence.”

Here, the trial court instructed the jury that to 

establish unauthorized use of a vehicle, the state had the 

burden to prove beyond a reasonable doubt that defendant 

“knowingly exercised control over” the vehicle, and that 

she “knowingly did not have the consent of the owner.” 

Defendant argues that the prosecutor’s comment about 

Patrick impermissibly shifted the state’s burden of proof to 

her, because it implied that she had the burden to present 

evidence at trial to support her defense—that is, either to 

call Patrick as a trial witness or produce evidence explaining why she did not—and that she failed to meet that burden. The state responds that, in context, the jury would 

have understood the prosecutor to argue that contrary to 

defendant’s sworn testimony, “Patrick did not exist.” Such 

an argument, according to the state, is permissible because 

it goes to defendant’s credibility and implores the jury to 

believe the state’s version of events, rather than defendant’s. 
Cite as 335 Or App 103 (2024) 107

Contrary to the state’s argument, we conclude that the prosecutor’s statement—“We’ve never seen Patrick, never heard 

from Patrick”—created the realistic possibility of confusing 

the jury as to the burden of proof.

Nevertheless, it is well-settled that “to establish 

legal error, a defendant who seeks review of an unpreserved 

challenge to prosecutorial statements must demonstrate 

that the statements were so prejudicial that they deprived 

the defendant of a fair trial.” State v. Chitwood, 370 Or 

305, 313-14, 518 P3d 903 (2022). As we explained in State v 

Durant, 327 Or App 363, 365, 535 P3d 808 (2023), “prosecutorial 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.” 

(Emphasis in original.) Here, we cannot say that the statement was so prejudicial as to have denied defendant a fair 

trial. Chitwood, 370 Or at 312. If defendant had objected to 

the prosecutor’s statement, then the trial court could easily 

have stricken it and instructed the jury to disregard it. The 

court might also have reminded the jurors that while the 

arguments of counsel are intended to be helpful to them, 

they are not evidence, and it might have referred the jurors 

back to the court’s instructions concerning matters of proof 

and the state’s burden. Reasonable jurors might have understood the prosecutor’s statement in different ways, one of 

which would have been improper. But the trial court’s failure to grant a mistrial was not plain error because any prejudice caused by the improper statement was curable.

Affirmed.