314 ORAPP 633 - State v. Sanders

                                 633

  Submitted October 19, 2020, reversed and remanded September 15, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                   MICHAEL D. SANDERS,
                  aka Michael David Sanders,
                     Defendant-Appellant.
                  Curry County Circuit Court
                     18CR77944; A170803

497 P3d 1259

Jesse C. Margolis, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Reversed and remanded.
634 State v. Sanders

PER CURIAM
In this criminal appeal, the jury found defendant
guilty of theft in the third degree. ORS 164.043. During
defendant’s closing argument, the state objected, arguing that certain of defense counsel’s statements concerned
facts not admitted into evidence. In a single assignment of
error, defendant argues that the trial court erred when it
sustained that objection, because the evidence had, in fact,
been introduced into evidence. Having reviewed the briefing
and relevant portions of the record, we reverse and remand.
We also conclude that a more detailed discussion of the facts
and our analysis in this case would not benefit the bench,
the bar, or the public.
As an initial matter, the state argues that defendant
failed to preserve his claim of error “by remaining silent
when the trial court made an incorrect ruling,” reasoning
that “[d]efendant had an obligation to make a sound, clear
and articulate objection explaining why the court made an
incorrect ruling.” However, we rejected a similar argument
in State v. Wirfs,

250 Or App 269, 273-74

281 P3d 616

 (2012).
         Here, we conclude that defendant’s assignment of
error was adequately preserved. That is because the state’s
objection identified the ground on which defendant is now
appealing, and the trial court, having presided over the
entire trial, ruled on that ground. Thus, like in Wirfs, the
purposes of preservation were served: The trial court had a
chance to consider the issue and the state was not taken by
surprise. Id.; see also Peeples v. Lampert,

345 Or 209, 219

191 P3d 637

 (2008) (explaining the purposes of the preservation requirement).
         Regarding the merits of defendant’s assigned error,
the state does not dispute that the trial court incorrectly
concluded that defense counsel was arguing facts not in evidence. We agree that defense counsel’s arguments were supported by evidence that had been admitted into the record.
Thus, the court erred when it sustained the state’s objection to defendant’s closing arguments. See State v. Stull,

296 Or App 435, 442

438 P3d 471

 (2019) (a trial court abuses
its discretion when it makes a choice that is not within the
range of legally permissible outcomes).
Cite as

314 Or App 633

 (2021)                             635

         Lastly, we agree with defendant and conclude that
the trial court’s error was not harmless. We cannot say that
there was little likelihood that the court’s erroneous ruling
affected the jury’s verdict. And that is because the court told
the jury to disregard evidence that was critical to defendant’s theory of the case. Furthermore, we reject the state’s
argument that, notwithstanding the court’s error, defense
counsel was still able “to make the same point” by using
“slightly different phrasing in his argument.” We therefore
reverse and remand.
        Reversed and remanded.