State v. Logston

A defendant who immediately objects to the prosecutor’s argument, but whose objection is overruled, need not engage in futile efforts to obtain a curative instruction or a mistrial.

The Defendant appealed a judgment of conviction for first-degree sexual abuse, arguing that the prosecutor made an improper closing argument. The prosecutor argued under Oregon evidence rule that the defendant was precluded from presenting specific instances of the complainant’s untruthfulness. The complainant argued that she had been sexually abused by the defendant, and had reported the abuse to witnesses. At trial, three defense witnesses, relatives of defendant and the complainant, stated that the complainant had an untruthful reputation. During the closing argument, the prosecutor stated that defendant had not given a good example of what exactly an untruthful reputation meant, urging jurors to disbelieve the defense witnesses regarding the complainant’s lack of credibility. The trial court overruled defendant’s objection, which affected the verdict. On appeal, defendant contends that the state’s closing argument was improper. The state argued that to challenge the convictions on appeal, defendant was required either to request a curative instruction or move for a mistrial. This court concluded that “a defendant who immediately objects to the prosecutor’s argument, but whose objection is overruled, need not engage in futile efforts to obtain a curative instruction or a mistrial.” Reversed and remanded for a new trial.