State v. Mayo

A prosecutor is permitted to comment on a defendant’s failure to meet the burden of production or persuasion when an affirmative defense has been raised, State v. Spieler, 269 Or App 623, 641-42, 346 P3d 549 (2015); To establish a defense, the burden of producing evidence rests on the defendant. State v. McCoy, 17 Or App 155, 162, 521 P2d 1074, aff’d on other grounds, 270 Or 340, 27 P2d 725 (1974); ORS 161.055. The prosecutor may comment on a defendant’s failure to present evidence when the defense raises matters, such as alibi, on which, as a practical matter, the defendant bears the initial burden of production, but fails to present any evidence.” Spieler, 269 Or App at 642; see State v. Abram, 273 Or App 449, 456, 359 P3d 431 (2015).

Defendant appealed conviction for possession of methamphetamine under ORS 475.894. On appeal, defendant assigned error to the trial court’s overruling of defendant’s objection to prosecutor’s statements during closing argument, when prosecutor impermissibly shifted the burden of proof onto defendant to prove that defendant was unaware that he had methamphetamine in his backpack. The state argued that the prosecutor’s statements were not improper because a prosecutor may comment on a deficiency in the defendant’s evidence when the defense raises a matter on which it bears a burden of production. A prosecutor is permitted to comment on a defendant’s failure to meet the burden of production or persuasion when an affirmative defense has been raised, State v. Spieler, 269 Or App 623, 641-42, 346 P3d 549 (2015); To establish a defense, the burden of producing evidence rests on the defendant. State v. McCoy, 17 Or App 155, 162, 521 P2d 1074, aff’d on other grounds, 270 Or 340, 27 P2d 725 (1974); ORS 161.055. The prosecutor may comment on a defendant’s failure to present evidence when the defense raises matters, such as alibi, on which, as a practical matter, the defendant bears the initial burden of production, but fails to present any evidence.” Spieler, 269 Or App at 642; see State v. Abram, 273 Or App 449, 456, 359 P3d 431 (2015).  The Court of Appeals held that the trial court erred in overruling defendant’s objection to the prosecutor’s comments during closing arguments. Defendant's claim that he was unaware of the methamphetamine in his backpack was not an affirmative defense, or a defense on which he bore the initial burden of producing evidence. Thus, the prosecutor improperly commented on defendant's failure to call witnesses to corroborate his testimony. Reversed and remanded.