No. 239 April 17, 2024 79

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KEONTA JARMEL STRAIN,

Defendant-Appellant.

Washington County Circuit Court

21CR50723; A179175

Beth L. Roberts, Judge.

Argued and submitted March 14, 2024.

Matthew Blythe, Deputy Public Defender, argued the 

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

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, argued

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

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

KAMINS, J.

Reversed and remanded.
80 State v. Strain

KAMINS, J.

In this criminal appeal, defendant argues that 

certain statements made by the prosecutor during closing 

arguments improperly shifted the burden of proof to the 

defense. We reverse and remand.

Defendant was charged with various sexual offenses 

after a woman, H, reported to the police that defendant had 

sexually assaulted her twice. A jury found defendant guilty 

of one count of second-degree sexual abuse and acquitted 

him of the other counts. The trial court imposed a presumptive sentence of 19 months in prison and three years of postprison supervision, and defendant timely appealed.

All of defendant’s assignments of error relate to the 

prosecutor’s closing and rebuttal argument that implied 

defendant should have cross-examined certain witnesses. 

As a preliminary matter, the parties disagree as to whether 

defendant’s third assignment of error is preserved for review. 

Defendant contends his argument is preserved, because the 

trial court had once overruled his objection to the prosecutor’s argument that defendant failed to cross-examine a 

witness, so another objection on that basis would have been 

futile. The state responds that defendant’s objection to the 

prosecutor’s statements did not render a second objection 

futile, as the prosecutor’s statements were directed toward 

different witnesses.

We agree with defendant. The prosecutor’s statements were made immediately after the trial court had 

overruled defendant’s objection on the same basis to similar prosecutorial statements. A second objection on the 

same grounds would have been futile. See State v. George, 

337 Or 329, 339, 97 P3d 656 (2004) (explaining that “[o]ur 

requirements respecting preservation do not demand that 

parties make what the record demonstrates would be futile 

gestures”); State v. Mayo, 303 Or App 525, 530 n 2, 465 P3d 

267 (2020) (rejecting the state’s argument that the defendant failed to preserve his challenge to the prosecutor’s 

argument because “a second objection on the same grounds 

would have been futile, insofar as the trial court overruled 

defendant’s objection regarding the prosecutor’s statement 
Cite as 332 Or App 79 (2024) 81

concerning [one witness] immediately prior to the prosecutor making the statement concerning [another witness]”).

We turn to the merits. In his second and third assignments of error, defendant argues that the trial court erred 

in allowing the prosecutor to make arguments emphasizing defendant’s failure to cross-examine certain witnesses.1

Pertinent to his second assignment of error, one of the witnesses—a friend of H—testified that H told her about the 

alleged assaults. During closing, defendant questioned the 

veracity of that testimony, pointing out that there were no 

text messages between H and her friend about that conversation. The prosecutor, during rebuttal, responded,

“You know [the victim] talked to the friend, because she

told you, and the friend came and told you. Did the defendant ever cross about that? No. Was there any crossexamination of the friend to inquire what did she tell you 

and what didn’t she tell you[?]”

Defendant’s third assignment of error takes issue with a 

similar prosecutorial argument—that if H had made any 

statements to the investigating officer or the grand jury that 

were inconsistent with her trial testimony, defendant would 

have pointed that out in cross-examination. In responding 

to defendant’s concern that the state did not call the investigating officer in to testify, the prosecutor stated,

“The last thing was about in regards to Deputy Canning 

and something being hidden, because they didn’t call 

Deputy Canning. The victim is the one that needs to get 

on the stand and tell you what happened. *** By the way, 

if there were something, again, there’s cross-examination. 

You cross-examine the victim about stuff that (inaudible) 

Grand Jury was different. No cross-examination (inaudible) you told the officer anything that was different.”

The state acknowledges that the prosecutor’s statements do 

not fall within either of the two circumstances in which a 

1 In his first unpreserved assignment of error, defendant points out that the 

prosecutor again improperly shifted the burden when he claimed that defendant 

could have cross-examined the victim about why she did not seek medical treatment for her alleged injuries. Our resolution of the other assignments of error 

obviates the need to address this argument. As noted, however, it is improper for 

a prosecutor to place the burden to produce evidence on the defendant, including 

the burden to cross-examine the victim to negate whether the victim sustained 

an injury. Mayo, 303 Or App at 530-31.
82 State v. Strain

prosecutor is permitted to comment on a defendant’s failure to present or contradict evidence identified in Mayo, and 

does not make an argument for creating a new exception 

under which the prosecutorial statements at issue would 

fall. See Mayo, 303 Or App at 531-32 (holding that the two 

limited circumstances in which a prosecutor may comment 

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

(1) affirmative defenses, and (2) when the defense has raised 

an issue on which the defendant bears the initial burden of 

production but fails to present any evidence).

Any suggestion that defendant had a burden to produce evidence undermines the rule that the state bears the 

burden to submit evidence to prove defendant’s guilt. The 

prosecutor’s statements that defendant could have but did 

not cross-examine H or her friend suggested to the jury that 

defendant had the burden to prove that his version of the 

events was true, and the trial court therefore erred when 

it overruled defendant’s objection to the argument. See id.

at 537 (concluding that impermissible burden-shifting had 

occurred where the “prosecutor’s statements that defendant’s evidence on this point was lacking suggested defendant had the burden to produce evidence to prove that his 

version of events was true”).

The state contends that the prosecutor was permitted to comment on defendant’s failure to present evidence 

because defendant pointed out the state’s failure to produce 

evidence. See State v. Spieler, 269 Or App 623, 641-42, 346 

P3d 549 (2015) (explaining that, “when the defense makes 

an argument that the state has failed to present certain evidence—with the implication that such evidence would have 

supported the defense or undermined the state’s case—the 

prosecutor can respond by noting that the defense has the 

ability to produce it”). Specifically, the absent evidence identified by the defense included text messages between H and 

H’s friend and testimony from the lead investigating officer 

on the case. However, unlike in Spieler, the prosecutor did 

not argue that defendant could have produced the text messages or called the investigating officer to testify; instead, 

the prosecutor’s statements targeted defendant’s failure to 

cross-examine H and H’s friend. And again, any suggestion 
Cite as 332 Or App 79 (2024) 83

that defendant had the burden to prove that his version of 

the events was true through cross-examination amounts to 

impermissible burden-shifting. Mayo, 303 Or App at 537. 

Therefore, we reject the state’s contention.

Finally, the errors were not harmless. The crux of 

defendant’s theory of defense was that the sexual interactions with H were consensual. When the prosecutor was 

permitted to argue that defendant failed to cross-examine 

H or her friend in support of that theory, the state “improperly undercut defendant’s credibility in a case in which 

credibility was key[.]” Id. at 539. The errors were harmful 

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

some likelihood of affecting the jury’s verdict. See State v. 

Schneider, 328 Or App 697, 706, 538 P3d 1233 (2023) (concluding that prosecutorial misstatements were not harmless 

where the statements “were harmful to defendant’s main 

theory of defense” and “had some likelihood of affecting the 

jury’s verdict”). Accordingly, we reverse defendant’s conviction and remand this case for a new trial.

Reversed and remanded.