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 prosecutor’s remarks during closing argument constituted plain 

error because those remarks included an argument that 

defendant bore the burden of persuasion on whether defendant acted knowingly and with sexual purpose. Applying 

the analysis from State v. Chitwood, 370 Or 305, 518 P3d 

903 (2022), we conclude that, although the prosecutor’s 

challenged statements were improper, it is not beyond dispute 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 sexual 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 sleeping. 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 burden to prove to you beyond a reasonable doubt this happened, 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., 312 Or 376, 381-82, 823 P2d 956 
Cite as 334 Or App 89 (2024) 91

(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 preservation, 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; however, 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 discretion. Id.

Where there was no objection, and in the plainerror 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 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. 

State v. Pierpoint, 325 Or App 298, 302-03, 528 P3d 1199 
92 State v. Smith

(2023). In that situation, the court explained, the denial of 

the right to a fair trial indicates “plain error.” Id. at 303 (citing Chitwood, 370 Or at 312). 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, 370 

Or at 312 (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 unconvincing, 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 persuasion. The problem, of course, is that defendant did not raise 

a defense in which he would have had the burden of production or the burden of persuasion. As defendant’s argument 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 closing 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 defendant. We disagree. Although it is true that the prosecutor 
Cite as 334 Or App 89 (2024) 93

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 understanding 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 deliberating 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 situation 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 reasonable doubt about whether defendant’s conduct was volitional and intentional, and whether it was done for a sexual 

purpose.

After considering the entire context of the prosecutor’s challenged statements, we conclude that the prosecutor’s remark was improper. It was a misstatement of a foundational 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 persuasion. 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, 325 Or App at 302-03. 

Essentially, we understand the Chitwood analysis to require 
Cite as 334 Or App 89 (2024) 95

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 consequences of defendant deciding to put on evidence, testify, 

and mount a defense. See State v. Durant, 327 Or App 363, 

365, 535 P3d 808 (2023) (explaining that “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 omitted)).

In sum, we conclude that the prosecutor’s statement concerning defendant’s “burden of persuasion” associated 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 prejudicial 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 sentencing 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.