No. 239 April 17, 2024 79
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEONTA JARMEL STRAIN,
Defendant-Appellant.
Washington County Circuit Court
21CR50723; A179175
Beth L. Roberts, Judge.
Argued and submitted March 14, 2024.
Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jon Zunkel-deCoursey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Reversed and remanded.
80 State v. Strain
KAMINS, J.
In this criminal appeal, defendant argues that
certain statements made by the prosecutor during closing
arguments improperly shifted the burden of proof to the
defense. We reverse and remand.
Defendant was charged with various sexual offenses
after a woman, H, reported to the police that defendant had
sexually assaulted her twice. A jury found defendant guilty
of one count of second-degree sexual abuse and acquitted
him of the other counts. The trial court imposed a presumptive sentence of 19 months in prison and three years of postprison supervision, and defendant timely appealed.
All of defendant’s assignments of error relate to the
prosecutor’s closing and rebuttal argument that implied
defendant should have cross-examined certain witnesses.
As a preliminary matter, the parties disagree as to whether
defendant’s third assignment of error is preserved for review.
Defendant contends his argument is preserved, because the
trial court had once overruled his objection to the prosecutor’s argument that defendant failed to cross-examine a
witness, so another objection on that basis would have been
futile. The state responds that defendant’s objection to the
prosecutor’s statements did not render a second objection
futile, as the prosecutor’s statements were directed toward
different witnesses.
We agree with defendant. The prosecutor’s statements were made immediately after the trial court had
overruled defendant’s objection on the same basis to similar prosecutorial statements. A second objection on the
same grounds would have been futile. See State v. George,
337 Or 329, 339,
97 P3d 656 (2004) (explaining that “[o]ur
requirements respecting preservation do not demand that
parties make what the record demonstrates would be futile
gestures”); State v. Mayo,
303 Or App 525, 530 n 2,
465 P3d
267 (2020) (rejecting the state’s argument that the defendant failed to preserve his challenge to the prosecutor’s
argument because “a second objection on the same grounds
would have been futile, insofar as the trial court overruled
defendant’s objection regarding the prosecutor’s statement
Cite as
332 Or App 79 (2024) 81
concerning [one witness] immediately prior to the prosecutor making the statement concerning [another witness]”).
We turn to the merits. In his second and third assignments of error, defendant argues that the trial court erred
in allowing the prosecutor to make arguments emphasizing defendant’s failure to cross-examine certain witnesses.1
Pertinent to his second assignment of error, one of the witnesses—a friend of H—testified that H told her about the
alleged assaults. During closing, defendant questioned the
veracity of that testimony, pointing out that there were no
text messages between H and her friend about that conversation. The prosecutor, during rebuttal, responded,
“You know [the victim] talked to the friend, because she
told you, and the friend came and told you. Did the defendant ever cross about that? No. Was there any cross-examination of the friend to inquire what did she tell you
and what didn’t she tell you[?]”
Defendant’s third assignment of error takes issue with a
similar prosecutorial argument—that if H had made any
statements to the investigating officer or the grand jury that
were inconsistent with her trial testimony, defendant would
have pointed that out in cross-examination. In responding
to defendant’s concern that the state did not call the investigating officer in to testify, the prosecutor stated,
“The last thing was about in regards to Deputy Canning
and something being hidden, because they didn’t call
Deputy Canning. The victim is the one that needs to get
on the stand and tell you what happened. … By the way,
if there were something, again, there’s cross-examination.
You cross-examine the victim about stuff that (inaudible)
Grand Jury was different. No cross-examination (inaudible) you told the officer anything that was different.”
The state acknowledges that the prosecutor’s statements do
not fall within either of the two circumstances in which a
1
In his first unpreserved assignment of error, defendant points out that the
prosecutor again improperly shifted the burden when he claimed that defendant
could have cross-examined the victim about why she did not seek medical treatment for her alleged injuries. Our resolution of the other assignments of error
obviates the need to address this argument. As noted, however, it is improper for
a prosecutor to place the burden to produce evidence on the defendant, including
the burden to cross-examine the victim to negate whether the victim sustained
an injury. Mayo, 303 Or App at 530-31.
82 State v. Strain
prosecutor is permitted to comment on a defendant’s failure to present or contradict evidence identified in Mayo, and
does not make an argument for creating a new exception
under which the prosecutorial statements at issue would
fall. See Mayo,
303 Or App at 531-32 (holding that the two
limited circumstances in which a prosecutor may comment
on a defendant’s failure to present or contradict evidence are
(1) affirmative defenses, and (2) when the defense has raised
an issue on which the defendant bears the initial burden of
production but fails to present any evidence).
Any suggestion that defendant had a burden to produce evidence undermines the rule that the state bears the
burden to submit evidence to prove defendant’s guilt. The
prosecutor’s statements that defendant could have but did
not cross-examine H or her friend suggested to the jury that
defendant had the burden to prove that his version of the
events was true, and the trial court therefore erred when
it overruled defendant’s objection to the argument. See id.
at 537 (concluding that impermissible burden-shifting had
occurred where the “prosecutor’s statements that defendant’s evidence on this point was lacking suggested defendant had the burden to produce evidence to prove that his
version of events was true”).
The state contends that the prosecutor was permitted to comment on defendant’s failure to present evidence
because defendant pointed out the state’s failure to produce
evidence. See State v. Spieler, 269 Or App 623, 641-42,
346
P3d 549 (2015) (explaining that, “when the defense makes
an argument that the state has failed to present certain evidence—with the implication that such evidence would have
supported the defense or undermined the state’s case—the
prosecutor can respond by noting that the defense has the
ability to produce it”). Specifically, the absent evidence identified by the defense included text messages between H and
H’s friend and testimony from the lead investigating officer
on the case. However, unlike in Spieler, the prosecutor did
not argue that defendant could have produced the text messages or called the investigating officer to testify; instead,
the prosecutor’s statements targeted defendant’s failure to
cross-examine H and H’s friend. And again, any suggestion
Cite as
332 Or App 79 (2024) 83
that defendant had the burden to prove that his version of
the events was true through cross-examination amounts to
impermissible burden-shifting. Mayo,
303 Or App at 537.
Therefore, we reject the state’s contention.
Finally, the errors were not harmless. The crux of
defendant’s theory of defense was that the sexual interactions with H were consensual. When the prosecutor was
permitted to argue that defendant failed to cross-examine
H or her friend in support of that theory, the state “improperly undercut defendant’s credibility in a case in which
credibility was key[.]” Id. at 539. The errors were harmful
to defendant’s main theory of defense and, in our view, had
some likelihood of affecting the jury’s verdict. See State v.
Schneider,
328 Or App 697, 706,
538 P3d 1233 (2023) (concluding that prosecutorial misstatements were not harmless
where the statements “were harmful to defendant’s main
theory of defense” and “had some likelihood of affecting the
jury’s verdict”). Accordingly, we reverse defendant’s conviction and remand this case for a new trial.
Reversed and remanded.
