No. 552 October 18, 2023 697

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CASEY JAY SCHNEIDER,

Defendant-Appellant.

Clackamas County Circuit Court

17CR79747; A176556

Katherine E. Weber, Judge.

Argued and submitted July 6, 2023.

Marc D. Brown, Deputy Public Defender, argued the 

cause for appellant. Also on the brief was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Patricia G. Rincon, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

JOYCE, J.

Reversed and remanded.
698 State v. Schneider

JOYCE, J.

Defendant appeals from a judgment of conviction 

entered after a jury trial for two counts of first-degree sexual abuse, ORS 163.427. Defendant asserts that the prosecutor made certain statements during closing argument 

that “improperly shifted the burden of production” onto 

defendant, and that the trial court erred in overruling his 

objection to the argument. We agree. And because we further conclude that the error was not harmless, we reverse 

and remand.

FACTS

Although the primary issue is a legal one and the 

facts related to that issue largely procedural, the assessment 

whether any error was harmless requires a description of 

facts that are relevant to that question. The charges against 

defendant arose out of alleged sexual-contact between defendant and the two complainants, K and W. At the time of the 

alleged abuse, K and W were approximately 10 and 8 years 

old, respectively, and defendant was in a relationship with 

their mother.

K and W disclosed the alleged abuse to their mother 

and K also disclosed the alleged abuse to her aunt. Both children then underwent interviews with a forensic examiner at 

the Children’s Center. During these recorded interviews, K 

and W described how defendant had allegedly abused them. 

Additionally, both K and W disclosed during the interviews 

that they knew that their friend had been sexually abused 

by a member of her family. K further disclosed that her 

mother and her aunt had told her that they too were victims 

of sexual abuse. During the interview, K also discussed that 

she had seen some movies with her mother that included 

sexually explicit content including sexual abuse.

At defendant’s jury trial, both children testified 

that defendant had sexually abused them. Their mother 

and their aunt also both testified about the children’s disclosures. Defendant testified and denied abusing the children. Defendant’s theory—conveyed to the jury during 

closing argument—was that K and W must have been influenced to make false disclosures of abuse due to their prior 
Cite as 328 Or App 697 (2023) 699

sexual knowledge or because they had been influenced by 

the knowledge that their mother, aunt, and friend had all 

experienced sexual abuse.

To rebut that theory, during the state’s closing argument, the prosecutor argued that the jury should disbelieve 

the defense’s theory that the abuse was an “implanted memory from prior sexual knowledge or from influence of other 

people or an adopted trauma from one kid to another.” In so 

arguing, the prosecutor made several statements that form 

the basis of this appeal:

“[PROSECUTOR]: The Defense wants you to believe 

that [K] made this allegation because of the influences in 

her life. That because she talked to [her friend] about her 

abuse, that it somehow influenced her memory or her disclosure. We don’t have any evidence of that. If it did, how, 

when, why? [The friend] was interviewed, and if there was 

anything relevant or admissible, you would have heard it.

“[K’s aunt], the Defense wants you to believe that 

because [K’s aunt] asked [K] questions about the abuse and 

told [K] about her own abuse when [K] disclosed, that [K] 

was somehow influenced by that.

“They also want you to believe that [K’s mother] somehow influenced her. [K’s mother] may or may not have asked 

a suggestive question or told [K] that she’d been abused 

herself, and that somehow influenced [K], after the fact. 

That doesn’t make any sense, because [K’s mother] didn’t 

even want this information out.

“The Defense had the opportunity to cross-examine both 

[the mother and the aunt] and [W] and [K] about those conversations to find out if those things occurred and they didn’t 

take that opportunity.”

(Emphasis added.)

At that point, defendant objected and argued 

that the state was “shifting [its] burden to prove this 

case to the defense.” During the course of defendant’s 

objection, defendant also expressed his opposition 

to text that was apparently being displayed on the 

state’s slideshow presentation that referred to an 

additional witness that defendant “could have subpoenaed as well.”
700 State v. Schneider

The court overruled defendant’s objection. 

The prosecutor continued:

“Again, they had the opportunity to cross-examine 

those people and they didn’t on those issues.

“The Defense is right, the State has the burden of proof. 

We have the burden of proof to put on the evidence and to 

prove the case beyond a reasonable doubt. The Defendant is 

not required to put on any evidence, but they did. They put 

on a case. The Defense has the same subpoena power as the 

State.”

(Emphasis added.)

The jury convicted defendant of two counts of firstdegree sexual abuse.

On appeal, defendant argues that the trial court 

erred when it overruled his objection to the prosecutor’s 

statements during closing argument. More specifically, 

defendant contends that the italicized portions of the prosecutor’s statements above “improperly shifted the burden of production because the comments suggested that 

the defendant had a burden to disprove an element of the 

offense or subpoena witnesses to support his theory of the 

case.” The state concedes that the prosecutor’s statements 

were improper but argues that the error was harmless. As 

explained below, we agree with the parties that the trial 

court erred in overruling defendant’s objection to the prosecutor’s statements but disagree with the state that that 

error was harmless.

STANDARD OF REVIEW

Generally, “[w]e review a trial court’s decision to 

overrule an objection to closing arguments for abuse of discretion.” State v. Totland, 296 Or App 527, 531, 438 P3d 

399, rev den, 365 Or 502 (2019). “However, when the court’s 

decision to limit argument is based on a legal determination, as it was in this case, we review the court’s decision 

for legal error.” State v. Sanchez-Cacatzun, 304 Or App 650, 

660, 468 P3d 964 (2020), rev den, 367 Or 559 (2021). We view 

statements made during argument in context and not in a 

vacuum. Totland, 296 Or App at 531. If our review reveals 

that “an argument was improper, properly challenged, and 
Cite as 328 Or App 697 (2023) 701

likely to prejudice the jury unfairly,” then we must reverse. 

Id. (internal quotation marks and brackets omitted).

LEGAL ANALYSIS

Axiomatically, the presumption of innocence is a 

cornerstone of our judicial system. Under that presumption, 

“the law presumes every defendant upon trial charged with 

crime to be innocent[.]” State v. Rosasco, 103 Or 343, 357, 

205 P 290 (1922). Accordingly, the burden is thus placed on 

the prosecution to “prove by evidence to the satisfaction of 

the trial jury beyond a reasonable doubt[] that the defendant committed the crime charged in the indictment.” Id.

Consistent with that bedrock principle, a prosecutor “may attempt to persuade the jury that it should believe 

one version of events and not another.” State v. Purrier, 265 

Or App 618, 620-21, 336 P3d 574 (2014). However, a prosecutor may not “inappropriately characterize the jury’s factfinding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard 

or burden of proof.” Id. at 621.

We have thus previously recognized that there are 

only “two limited circumstances in which a prosecutor is 

permitted to comment on a defendant’s failure to present 

or contradict evidence.” State v. Mayo, 303 Or App 525, 531, 

465 P3d 267 (2020) (internal quotation marks and brackets 

omitted). The first circumstance is when a defendant raises 

an affirmative defense, such as an extreme emotional disturbance defense. State v. Skotland, 326 Or App 469, 478, 

533 P3d 55 (2023). That is because a defendant bears “both 

the burden of production and persuasion on that issue.” 

Mayo, 303 Or App at 532. Because a defendant bears those 

burdens, when a prosecutor comments on a defendant’s failure to present evidence in support of an affirmative defense, 

there is no realistic possibility of confusing jurors about the 

ultimate standard or burden of proof. Id.

The second exception is when a defendant raises 

a defense where the defendant “bears the initial burden of 

production, but fails to present any evidence, (e.g., an alibi 

defense).” Skotland, 326 Or App at 478 (internal quotation 

marks and brackets omitted). In that circumstance, when 
702 State v. Schneider

a defendant decides to raise a defense, such as an alibi, 

and when a prosecutor comments on a defendant’s failure 

to present evidence in support of that defense, there is no 

realistic possibility of confusing jurors about the ultimate 

standard or burden of proof because “the defendant has voluntarily assumed some burden of production by raising a 

‘defense,’ under ORS 161.055(3).” Mayo, 303 Or App at 533.

We recently revisited the question of burden shifting in Skotland, describing the circumstances in which a 

prosecutor can and cannot comment on a defendant’s failure 

to present corroborating evidence. In that case, the defendant was convicted of a variety of crimes, including unlawful purchase of a firearm, after he attempted to purchase 

a firearm despite having prior felony convictions. Skotland, 

326 Or App at 470. Part of the defendant’s defense was 

that, because he had been working with an attorney to get 

his record expunged, he lacked the requisite knowledge of 

whether he had a felony conviction that precluded him from 

purchasing a firearm (an element of establishing unlawful 

purchase of a firearm). Id. at 471-72. However, during crossexamination, the defendant would not identify the attorney 

who had assisted him and testified that he did not have copies of the expungement paperwork. Id. at 472.

Before closing arguments, the defense attorney 

made a preemptive objection to prevent the state from making a burden-shifting argument. Id. In response, the trial 

court ruled that it would be permissible for the prosecutor to 

argue that the defendant “could have” presented certain evidence “if [the defendant] wanted to * * * because [the defendant] was asked about that” evidence. Id. at 479-80. During 

closing argument, the prosecutor made statements insinuating that “defendant ‘could have’ presented corroborating 

evidence by answering [particular] questions on cross[]

examination.” Id. at 480.

On appeal, we held that the trial court erred 

because that line of argument permitted the prosecutor to 

improperly shift the burden of proof to the defendant. Id.

at 480. More specifically, we explained that “[b]y suggesting that defendant ‘could have’ presented corroborating evidence by answering the prosecutor’s questions on cross[]
Cite as 328 Or App 697 (2023) 703

examination, the trial court allowed the state to ‘suggest 

that defendant had the burden’ to produce that corroborating evidence ‘to prove that his version of events was true, 

to create reasonable doubt about his knowledge’ of his felon 

status.” Id. (quoting Mayo, 303 Or App at 537 (brackets omitted)). We further explained that it was error for the trial 

court to allow the state to make this suggestion because the 

defendant “had no burden” to present any evidence on that 

issue. Id.

Here, as in Skotland, the prosecutor’s statements 

pointing out that defendant “didn’t take [the] opportunity” to 

cross-examine witnesses or to subpoena certain individuals 

allowed the prosecutor to argue that defendant “could have,” 

but did not, present certain evidence to support his theory 

of defense. In doing so, the trial court permitted the state 

to suggest that defendant had the burden to prove that his 

version of events was true, to create reasonable doubt about 

whether he had subjected the children to sexual contact. 

Thus, the prosecutor’s statements during closing argument 

resulted in shifting the burden of proof onto defendant.

Furthermore, and again as in Skotland, defendant’s 

theory of defense did not trigger either of the two limited circumstances in which a prosecutor is permitted to comment 

on a defendant’s failure to present or contradict evidence. 

In arguing that the children had been influenced by others to make erroneous disclosures of abuse, defendant was 

challenging whether the state could establish that he had 

subjected the children to sexual contact at all—an element 

of proving that he had committed first-degree sexual abuse. 

ORS 163.427.

In sum, given the presumption of innocence, the 

state is the only party who has the burden to prove the 

elements of the crime for which a defendant is charged. 

Therefore, when a defendant has a theory of defense based 

on challenging whether the state can prove an element 

of the charged crime, comments from a prosecutor about 

a defendant’s failure to present evidence to support that 

defense theory carry a risk of confusing jurors and causing them to misapprehend and misallocate the burden of 

proof. Given defendant’s theory here—that the state could 
704 State v. Schneider

not establish that he had subjected the children to sexual 

contact (an element of the charged crime)—any suggestion 

that defendant had a burden to produce evidence in support 

of that theory goes against the fact that the state is the only 

party who had a burden to submit evidence on that issue. 

The prosecutor’s statements stating that defendant “could 

have” presented certain evidence to support his theory of 

defense—that he had never sexually contacted the children 

and that the children had been influenced to make erroneous disclosures of abuse—suggested that defendant had the 

burden to prove that his version of events was true to create reasonable doubt about whether the sexual contact had 

occurred. Therefore, we conclude that the trial court erred 

when it overruled defendant’s objection to the prosecutor’s 

argument.

That said, we must determine whether, despite the 

error, there is “little likelihood that the particular error 

affected the verdict[.]” State v. Davis, 336 Or 19, 32, 77 P3d 

1111 (2003). To be sure, as the state observes, the trial court 

provided a number of instructions to the jurors regarding the 

burden of proof. Prior to voir dire, the trial court informed 

the prospective jurors of the presumption of innocence and 

explained that “the burden [was] on the State to prove the 

Defendant’s guilt beyond a reasonable doubt.” Then, during 

the trial court’s preliminary instructions to the jury, the 

trial court told the jury that “[a]ny defendant is innocent of 

any crime unless and until the State proves his or her guilt 

beyond a reasonable doubt.” Before closing arguments, the 

court further instructed the jury that, “The Defendant is 

innocent unless and until the Defendant is proven guilty 

beyond a reasonable doubt. The burden is on the State, and 

the State alone, to prove the guilt of the Defendant beyond a 

reasonable doubt.”

But we have previously concluded that instructions, 

like those above, do not go far enough to correct the particular harm that results from an argument that improperly 

shifts the burden of proof. See Mayo, 303 Or App at 538-

39 (explaining that “the court’s generic instructions, while 

clarifying that the state bore the ultimate burden of proof, 

failed to specifically inform the jury that defendant need not 
Cite as 328 Or App 697 (2023) 705

present witnesses to corroborate his testimony to create a 

reasonable doubt as to whether he had knowledge of the drugs 

in his backpack”); Skotland, 326 Or App at 482 (noting that 

the court’s generic instructions did not cure possible harm 

resulting from improper burden-shifting argument because 

the instructions “did not clarify that defendant did not need 

to corroborate his testimony to create reasonable doubt as to 

whether he knew he was a felon”); State v. Solis, 326 Or App 

60, 63, 530 P3d 537 (2023) (stating that “[t]he court’s generic 

instructions did not cure the misrepresentation”).

Here, the trial court’s instructions are virtually 

indistinguishable from those in Skotland, Mayo, and Solis, 

inasmuch as the instructions failed to specifically inform 

the jury that defendant need not cross-examine witnesses or 

subpoena individuals to corroborate his theory of defense to 

create reasonable doubt as to whether he had made sexual 

contact with the children. As such, those instructions were 

insufficient to cure the potential harm that the improper 

argument created.

Furthermore, the harm was also not cured by the 

prosecutor correctly articulating the proper allocation of 

the burden of proof while the prosecutor was in the midst of 

making the challenged statements. Although the prosecutor 

accurately explained that the state has “the burden of proof 

to put on the evidence and to prove the case beyond a reasonable doubt” and that “the [d]efendant is not required to 

put on any evidence,” any curative value those remarks had 

was undermined because they were sandwiched between 

statements that improperly shifted the burden of proof to 

defendant. Therefore, the prosecutor’s explanation of the 

burden of proof during closing argument was also insufficient to cure the harm that the improper argument created.

Lastly, we disagree with the state that the error 

was harmless because, given “the strength of the state’s evidence[,] *** there was little risk that the jury would have 

found defendant guilty based on the evidence he failed to 

introduce.” The prosecutor’s argument “did not pertain to an 

incidental or a collateral matter.” Mayo, 303 Or App at 539. 

To the contrary, the crux of defendant’s defense was that 

the alleged sexual contact had never occurred and that the 
706 State v. Schneider

children had been influenced to make erroneous disclosures 

of abuse. When the prosecutor was permitted to argue that 

defendant “didn’t take [the] opportunity” to cross-examine 

or subpoena certain individuals in support of his theory of 

defense, the state “improperly undercut defendant’s credibility in a case in which credibility was key[.]” Id. Therefore, 

the prosecutor’s improper arguments were harmful to 

defendant’s main theory of defense and, in our view, had 

some likelihood of affecting the jury’s verdict. Accordingly, 

we conclude that the trial court’s error in overruling defendant’s objection to the prosecutor’s improper argument was 

not harmless.

Reversed and remanded.