State v. Perez

                                  308

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
   Submitted March 8, reversed and remanded June 7, petition for review
                 allowed October 19, 2023 (

)
                     See later issue Oregon Reports



                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
             IVAN ROSALIO MENDEZ PEREZ,
               aka Ivan Rosalio Mendez-Perez,
                    Defendant-Appellant.
                 Linn County Circuit Court
                    20CR69674; A175803


  Rachel Kittson-MaQatish, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
  Reversed and remanded.
Nonprecedential Memo Op: 

 (2023)                   309

         KAMINS, J.
         Defendant appeals from a judgment of conviction
for second-degree disorderly conduct, ORS 166.025, second-degree criminal trespass, ORS 164.245, harassment, ORS
166.065, and resisting arrest, ORS 162.315. In five assignments of error, defendant challenges as plain error several
statements made by the prosecutor in rebuttal argument.
We reverse and remand.
        Defendant focuses on the following argument, made
by the prosecutor at the close of rebuttal:
   “I think oftentimes when you have trial, [the] jury might
   have a misconception about the purposes of trial. The trial is
   this. Every person has the absolute right to a criminal trial
   in every case. That should be celebrated. The state should
   have the obligation of proving the case to the jury. In this
   case, the state submits to you that it has demonstrated that
   evidence through the production of the testimony. Every
   element is satisfied. Just because there is a trial doesn’t necessarily mean there’s a controversy of fact. Everybody has
   a right to trial. I think we should celebrate this process,
   and I think you should go back and deliberate and return a
   guilty verdict to every charge. Thank you.”
(Emphases added to denote the challenged statements.) At
trial, defendant did not raise any objections to the prosecutor’s arguments.
          Improper arguments made by a prosecutor amount
to plain error when “it is beyond dispute that the prosecutor’s comments were so prejudicial as to have denied [the]
defendant a fair trial.” State v. Pierpoint, 

, 

 (2023) (citing State v. Chitwood, 

, 

 (2022)). To determine whether that
standard is met, we must first determine whether the
asserted error is “plain,” that is, whether it (1) is one of law,
(2) is obvious and not reasonably in dispute, and (3) appears
on the record. Id. at 304.
         As it is undisputed that the error appears on the
face of the record, we focus on the first and second prongs.
Addressing the second prong first, the challenged arguments
were obviously improper because they “were an impermissible comment on defendant’s invocation of the constitutional
310                                             State v. Perez

right to trial” and “distort[ed] the presumption of innocence.” State v. Soprych, 

, 

 (2022) (concluding that a prosecutor’s argument was
improper where it implied that “obviously guilty people will
invoke their right to a trial” and the “defendant was one of
that group”).
         As to the first prong, to amount to an error of law in
this context, the prosecutor’s arguments must be “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.” Pierpoint, 

. We conclude that
that standard has been met here because the presumption
of innocence is “fundamental to the American justice system,” the misstatements were made at the end of rebuttal,
and the prosecutor compounded the error by arguing that
the state is also entitled to due process. Chitwood, 

 (describing factors to determine whether a prosecutor’s impermissible comments rise to the level of “legal
error”). Given the gravity of the errors, we exercise our discretion to correct them, and therefore reverse defendant’s
convictions.
        Reversed and remanded.