State v. Smith

The “Chitwood analysis [requires] prosecutorial misconduct so severe that the only permissible remedy was for the trial court to grant a mistrial.”

Defendant appeals from a judgment of conviction and sentence, arguing the prosecutor’s remarks during closing argument were plain error because they argued Defendant had the burden of persuasion on whether he acted knowingly and with sexual purpose. Defendant also claims on appeal the trial court erred when it did not sua sponte grant a mistrial or issue a curative jury instruction. Defendant was charged with two counts of first-degree sexual abuse. The Prosecutor claimed Defendant had the burden of persuasion during his closing argument. Defendant did not object to the statements, ask for curative instruction, or move for a mistrial. “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.” The Court determined the statements by the Prosecutor were impermissible because the jury could believe the statements were framing the law. The Court applied the precedent of State v. Chitwood, 370 Or 305 (2022) and determined the “Chitwood analysis [requires] prosecutorial misconduct so severe that the only permissible remedy was for the trial court to grant a mistrial.” The Court reasoned the statements did not invoke emotion or bias, and no objection was made at the time. The Court held the Prosecutor’s statements were impermissible, but curable. Affirmed.