State v. Skotland

At trial, the state cannot comment on a defendant’s failure to produce evidence when the evidence is “related to the defendant’s lack of knowledge.” (internal quotations omitted) State v. Mayo, 303 Or App 525, 534, 465 P3d 267 (2020).

Defendant appealed convictions related to an attempt to purchase a firearm when Defendant claimed he did not know he was precluded from doing so. Defendant assigned error to the trial court permitting the state to shift the burden of proof. Defendant argued that the State shifted the burden of proof onto the Defendant during closing arguments because the State suggested that Defendant should have identified his previous attorney and produced certain paperwork during the trial. In response, the State argued that Defendant did not properly preserve the claims for appeal. At trial, the state cannot comment on a defendant’s failure to produce evidence when the evidence is “related to the defendant’s lack of knowledge.” (internal quotations omitted) State v. Mayo, 303 Or App 525, 534, 465 P3d 267 (2020). The Court found that Defendant properly preserved the claim. The Court reasoned that the State had the burden of proof, and by allowing the State to raise Defendant’s failure to produce evidence related to Defendant’s knowledge of his ability to purchase firearms, the trial court had impermissibly allowed the State to shift the burden of proof. Further, the Court found that the error was not harmless. Reversed and remanded.