State v. Settlemier

No. 395              June 12, 2024                   179

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
          THEODORE HOLLAND SETTLEMIER II,
                   Defendant-Appellant.
              Deschutes County Circuit Court
                   19CR33737; A177197

  Raymond D. Crutchley, Judge.
  Argued and submitted March 14, 2024.
  Nora Coon, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Rolf C. Moan, 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.
  TOOKEY, P. J.
  Affirmed.
180                                                      State v. Settlemier

           TOOKEY, P. J.
         Defendant appeals from a judgment of conviction
after a jury trial of one count of fourth-degree assault constituting domestic violence, ORS 163.160, and one count of
menacing constituting domestic violence, ORS 163.190.1 He
seeks reversal, contending that the trial court should have
sua sponte granted a mistrial or issued a curative instruction when the prosecutor, during rebuttal closing argument,
argued, “Ladies and gentlemen, one person once said that
for evil to triumph, good people—good men and women do
nothing. Don’t let evil triumph in this time. Find the defendant guilty.”
        Defendant argues that the prosecutor’s remarks
regarding “evil” were error because they mischaracterized
the burden of proof, were not based on evidence in the record,
and appealed to the jurors on an improper basis. Defendant’s
argument was not made below; thus, it is unpreserved, and
we would exercise our discretion to correct the asserted
error only if it constitutes “plain error.”
         Since the Supreme Court’s opinion in State v.
Chitwood, 

, 

 (2022), we have had
frequent occasion to consider unpreserved error relating to
improper arguments made by a prosecutor during trial or in
closing arguments. As the Supreme Court held in Chitwood,
those asserted errors will be considered “legal error,” for
purposes of plain-error review, where it would have been
an abuse of discretion for the trial court to have denied a
motion for mistrial, because “it is beyond dispute that the
prosecutor’s comments were so prejudicial as to have denied
[the] defendant a fair trial.” 

; 

 at 312 (quoting
State v. Montez, 

, 

 (1996)); see also
State v. Pierpoint, 

, 

 (2023)
(citing Chitwood, 

).2
   1
     The jury acquitted defendant of one count of fourth-degree assault and one
count of menacing.
   2
     As we said in Pierpoint, under Chitwood,
   “in the unique context of plain error review of a prosecutor’s improper statements, statements are ‘legal error,’ so as to constitute plain error, if they 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. 

. See State
Cite as 

 (2024)                                                    181

          Here, we disapprove of the prosecutor’s remarks.
Although we do not agree with defendant that the remarks
confused the jury as to the burden of proof, we agree that
they had no basis in the evidence and encouraged the jury to
determine defendant’s guilt or innocence based on the prosecutor’s characterization of defendant’s conduct as “evil,” a
consideration that is not among the elements of the charged
offenses that the state had a burden to prove beyond a reasonable doubt. See Chitwood, 

 (“[I]n deciding
a defendant’s guilt or innocence, a jury may consider only
facts properly received in evidence,” and “a prosecutor may
not encourage the jury to decide the case on an improper
basis.”); see also State v. Lundbom, 

, 

, rev den, 

 (1989) (disapproving of prosecutor’s statements “calculated to elicit an emotional response
from the jury.”).
          But we conclude that any error does not constitute
“legal error,” because we conclude that it would not have
been an abuse of discretion for the trial court to have denied
a motion for mistrial, had defendant made one. Indeed,
defendant’s own assignment of error asserts that the court
“plainly erred when it failed to declare a mistrial or issue
a curative instruction.” (Emphasis added.) “[P]rosecutorial
statements that were improper but curable are not an appropriate subject of plain-error review, because, in such circumstances, the defendant was not denied a fair trial.” State v.
Durant, 

, 

 (2023). See State
v. Davis, 

, 

 (2008), cert den, 558
   v. Flores, 

, 

 (1977) (When faced with improper
   remarks to a jury, a trial court must determine whether the remarks have a
   likelihood of prejudicing the defendant’s right to a fair trial if the trial continues, or if curative instructions may ameliorate whatever prejudice resulted
   from the improper conduct.). In other words, the misconduct constitutes
   ‘legal error’ if it would have been an abuse of discretion for the trial court
   to deny a motion for a mistrial had one been made. In addressing that issue
   in Chitwood and concluding that the comments constituted ‘legal error,’ the
   court cited the collective effect of the prosecutor’s incorrect characterization
   of the burden of proof, the influential timing of the prosecutor’s misstatement
   at the end of rebuttal, the prosecutor’s suggestion to the jurors that they
   could decide the defendant’s guilt based on emotional factors that were not
   elements of the offense, and the closeness of the case. 

. The court
   concluded: ‘The error was one of law because the statements were so prejudicial that, if defendant had objected and moved for a mistrial, the trial court
   would have committed legal error had it denied the motion.’ 

.” 

.
182                                       State v. Settlemier

US 873 (2009) (“Generally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutor’s
misconduct[.]”). We must assume that the jury could have
followed a curative instruction to disregard the prosecutor’s
remarks, unless there is “an overwhelming probability”
that it could not have. State v. Harris, 

,

, rev den, 

 (2020) (quoting State v.
Garrison, 

, 

 (2014), rev den,

 (2015)). Additionally, as the state points out,
the court had previously instructed the jury that a criminal defendant is presumed innocent, that the state bears
the burden to prove guilt beyond a reasonable doubt, that
the jury was required to base its verdict “on the evidence
and these instructions,” and that it must not rely on “guesswork, conjecture, or speculation.” The trial court had also
instructed the jury on the elements of the offenses, that the
lawyers’ statements were not evidence, and to “disregard[ ]”
any suggestion that it could rely on defendant’s “character”
to draw conclusions about why the victim did not immediately report the assault. Each of those instructions countered the inappropriate implication of the prosecutor’s statement that the jury should convict defendant because he was,
or his acts were, evil, and we must presume that the jury
followed them. 

         Further, we conclude that the prosecutor’s remarks,
although inappropriate, were not among the rare statements that are “so prejudicial that, as a practical matter,
the bell once rung, cannot be unrung[.]” State v. Jones, 

, 

 (1977); cf. State v. Muniz, 

, ___ P3d ___ (2024) (prosecutor’s arguments at the
end of rebuttal, when viewed in the context of the record as
whole in an emotionally fraught case, including an earlier
appeal to the jurors’ emotions, were so prejudicial that, as
a practical matter, they could not have been cured by an
instruction); State v. Montgomery, 

, 

 (2023) (“[The] prosecutor’s repeated inappropriate
statements of the prosecutor’s personal view that defendant
was a liar were so prejudicial that, if defendant had objected
and moved for a mistrial, the trial court would have abused
its discretion in denying the motion.”). Thus, we conclude
that the denial of a motion for mistrial would not have been
Cite as 

 (2024)                            183

an abuse of discretion, and that the record therefore does
not establish “legal error.” Chitwood, 

. For that
reason, we decline to consider defendant’s asserted plain
error.
        Affirmed.