State v. Martinez

Prosecutorial statements that are improper but curable are not appropriate for plain error review. State v. Durant, 327 Or App 363, 365 (2023).

Appellant appealed her judgment of conviction for unauthorized use of a vehicle, second-degree criminal mischief, and possession of a burglary tool. She assigns error to all three convictions, arguing that the trial court plainly erred when it “allowed the state to argue in closing, ‘We’ve never seen Patrick, never heard from Patrick,’” on the basis that the statement was improper and deprived her of a fair trial. To establish legal error, “a defendant who seeks review of an unpreserved challenge to prosecutorial statements must demonstrate that the statements were so prejudicial that they deprived the defendant of a fair trial.” State v. Chitwood, 370 Or 305, 313-14 (2022). Additionally, prosecutorial statements that are improper but curable are not appropriate for plain error review. State v. Durant, 327 Or App 363, 365 (2023). Although the Court of Appeals agreed that the prosecutor’s statements were improper, they held the error did not meet the high bar of plain error and did not prejudice appellant’s right to a fair trial. AFFIRMED.