State v. Dumdei

246                  January 2, 2025                  No. 7

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                 DOUGLAS DUMDEI,
              aka Douglas Curtis Dumdei,
                  Defendant-Appellant.
              Marion County Circuit Court
           21CR44006, 19CR20681, 17CR60245;
           A178396 (Control), A178397, A178398

  Audrey J. Broyles, Judge.
  Argued and submitted January 22, 2024.
   Brett J. Allin, 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.
   Christopher A. Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Powers, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
  HELLMAN, J.
  Affirmed.
Cite as 

 (2025)   247
248                                          State v. Dumdei

        HELLMAN, J.
          In this consolidated criminal appeal, defendant
appeals a judgment of conviction for fourth-degree assault,
coercion, and menacing, and two judgments revoking his
probation in case numbers 19CR20681 and 17CR60245. In
his first five assignments of error, defendant argues that the
prosecutor made prejudicial statements that deprived him
of a fair trial by improperly shifting the burden of proof to
the defense. Defendant contends that the improper statements constituted plain error and require reversal under
State v. Chitwood, 

, 

 (2022). In a sixth
assignment of error, defendant argues that the court plainly
erred by failing to include a complete instruction regarding
substantial pain for fourth-degree assault. For the reasons
explained below, we affirm.
         The state charged defendant with strangulation,
ORS 163.187, fourth-degree assault constituting domestic
violence, ORS 163.160, coercion, ORS 163.275, and menacing, ORS 163.190. The case was tried to a jury. The victim,
AP, who lived together with defendant and their children,
testified at trial that defendant came home late one night
and was upset. AP suspected that defendant had been at a
bar and withdrawn money from her account, which started
an argument. AP testified that defendant threw her on the
bed, put both hands around her neck so that for four to five
seconds she could not breathe, and it felt like defendant was
going to kill her. AP testified that, after defendant released
her, she went to the children’s room, that the children were
awake, and that defendant stood in the hallway blocking the
stairway and mumbling things like “I can do this all night,
if I have to kill you I will.” AP testified that she eventually
went downstairs where defendant continued to threaten
her. AP called 9-1-1 and defendant left the home.
          Defendant also testified at trial. His testimony was
as follows: On the night in question, he came home from visiting friends, and AP accused him of infidelity and spending
money from her account. After AP continued to accuse and
harass him, he told AP that he was ending their relationship, and he left for his parents’ house. As he was leaving,
AP held up her phone to show him she was calling 9-1-1. He
Cite as 

 (2025)                                249

never pushed or choked AP, never blocked her from leaving,
and the children were not awake during any of the argument. In the days following the argument, AP frequently
called and texted him seeking to repair the relationship.
       On cross-examination, the prosecutor questioned
defendant about those calls and texts:
       “Q [by the prosecutor]. I know that earlier in the case
   that we were talking about text messages and things that
   had been sent. Where are those, all these, this communication, where is that call log, where are those text messages?
      “A [by defendant]. Honestly, … I don’t know where
   my attorney did with any of those, I gave everything that I
   had-
      “Q. Fair to say that you don’t have any evidence here
   today of all these text messages and phone calls that you’re
   talking about.
      “A. Yes.
      “Q. Yes, you don’t, right?
      “A. I do not.”
Defense counsel did not raise any objections to the questions.
         In his closing argument, defense counsel argued
that the state failed to offer evidence of his whereabouts or
to provide testimony from the children about the alleged
assault. Specifically, defense counsel argued that the children were viable witnesses and would have provided “some
important testimony,” but AP “shut [the children] out of it.”
He also argued that the state failed to present evidence
proving that his client was at a bar on the night in question.
        In the state’s closing rebuttal argument, the prosecutor argued the following:
   “This is an interesting position we’re in when the Defense
   chooses to put on a case, right, because they have the same
   subpoena power that the State has to bring in people and
   the Defense wants to make a big thing saying, hey, look,
   you know what, there were children in the home that the
   State could have brought in and had as witnesses. You
   know who else could do that if there was some smoking gun
   or kids saying, hey, this was totally peaceful and nothing
250                                             State v. Dumdei

   happened, you know who can do that? The Defense. … so
   I’d suggest to you that you can look at the people that they
   didn’t bring as much as you can look at the people that they
   chose to bring because they chose to put on a case and, you
   know, Defense wants to say, … they never went to the bar
   to see, you know, what he did with the money on the bar
   tab, you know, whether he was, you know, gambling at a
   machine, whether was eating food, whether it was alcohol,
   again you know who can bring people in? Well, he was with
   friends that night according to him, right, friends, that’s
   his description, you know who’s not here? The friends that
   he was with. Right, that are going to say that yeah, no,
   he was with us, he wasn’t at a bar, he was totally fine, he
   wasn’t intoxicated, right?”
Defense counsel raised no objections. Following closing arguments, the trial court read instructions to the jury, including
that the “burden is on the State and the State alone to prove
the guilt of the defendant beyond a reasonable doubt.” The jury
acquitted defendant for the strangulation charge and found
him guilty of the assault, coercion, and menacing charges.
         On appeal, defendant argues that the prosecutor’s
questions and argument violated the presumption of innocence and improperly shifted the state’s burden of proof onto
him, thereby denying him a fair trial. Defendant acknowledges that he did not object or otherwise preserve the argument he now makes on appeal, but he contends that, under
the framework set out in Chitwood, the statements constituted plain error and asks that we exercise our discretion to
correct them.
         Generally, issues that are “not preserved in the trial
court will not be considered on appeal.” State v. Wyatt, 

, 

 (2000). However, we have discretion to correct an error that is “plain.” ORAP 5.45(1). An error is plain
when it is an error of law, the legal point is obvious and not
reasonably in dispute, and the error is apparent on the record
without our having to choose among competing inferences.
State v. Vanornum, 

, 

 (2013). It is
a matter of discretion whether we will correct a plain error.
State v. Gornick, 

, 

 (2006).
       In the specific context of challenges to prosecutorial
statements to which the defendant did not object, appellate
Cite as 

 (2025)                             251

review is permitted if the defendant demonstrates that “it
is beyond dispute that the prosecutor’s comments were so
prejudicial as to have denied defendant a fair trial,” and
an instruction from the trial court to disregard the comments “would not have been sufficiently curative to assure
the court, in its consideration of all the circumstances, that
the defendant received a fair trial.” Chitwood, 

(internal quotation marks omitted). “In other words, prosecutorial 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) (emphasis in original).
         Defendant challenges both the prosecutor’s questions on cross-examination and his comments in closing
argument that highlighted defendant’s failure to produce
supporting evidence, arguing that the questions and comments impermissibly shifted the burden of proof to defendant. It is well-established that the state carries the burden
to prove all elements of a crime beyond a reasonable doubt.
State v. Mayo, 

, 

 (2020).
Therefore, it is improper for a prosecutor to comment on a
defendant’s failure to present evidence at trial because such
comments “may reasonably cause the factfinder to misapprehend and misallocate the burden of proof.” State v. Spieler,

, 

 (2015).
         Although the prosecutor’s questions to defendant
during cross-examination—“where is that call log, where
are those text messages?”—appear to have been designed
to draw attention to the lack of evidence supporting defendant’s testimony, we have never held that asking a question
in cross-examination is equivalent to impermissible burden
shifting. Because we conclude that it is not “beyond dispute” that the prosecutor’s questions on cross-examination
were so prejudicial as to have denied defendant a fair trial,
there is no plain error on this record as to those questions.
Chitwood, 

.
        Whether the prosecutor’s comments during closing
rebuttal were improper is a closer call. As the state argues,
there are limited exceptions to the categorical prohibition
252                                                      State v. Dumdei

on commenting on a defendant’s failure to present evidence.
Spieler, 269 Or at 642. In some circumstances, “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.” Id. However, the response must
be limited to noting that the defense also had the capacity to
produce the omitted evidence. Put another way, “if defense
counsel invites the factfinder to consider nonadmitted evidence as undermining the state’s case, the prosecutor is entitled to respond, again, so long as that response comports with
the proper allocation of the burden of proof.” Id. A prosecutor’s
response that goes beyond the narrow scope of the exception
is improper because it risks distorting the burden of proof.1
          Here, defense counsel’s arguments that the state
failed to present testimony from the children or evidence
of defendant’s whereabouts permitted the state to respond.
But the response the state used here was not a permissible
one. The prosecutor’s response went beyond “noting” that
the defense also had the ability to produce the highlighted
evidence. In particular, the prosecutor’s argument that “I’d
suggest to you that you can look at the people that they didn’t
bring as much as you can look at the people that they chose
to bring” suggested that defendant had a burden to call witnesses or produce evidence. It therefore did not comport with
the proper allocation of the burden of proof. Accordingly, the
prosecutor’s statements during closing were improper statements that prejudiced defendant by distorting the burden of
proof.
          As mentioned above, however, that the prosecutor
made improper and prejudicial statements during trial does
not establish plain error under the legal framework the
Supreme Court set forth in Chitwood. Defendant must also
demonstrate that, had he “made a motion for mistrial, the
    1
      We note that the principles of Cler may also limit if and how a prosecutor may respond to a defendant’s argument about unadmitted evidence. See Cler
v. Providence Health System-Oregon, 

, 

 (2010)
(explaining when an objection, rather than rebuttal argument, is the proper
way to respond to a defense argument about missing evidence); see also State
v. Morehead, 

, 

 (2020) (concluding that the
prosecutor’s rebuttal argument exceeded what was permissible, in view of Cler).
Cite as 

 (2025)                                                  253

trial court would have erred, as a matter of law, in denying
it.” 

. That requires defendant to demonstrate that
a curative instruction would have been insufficient in the
situation. Because we conclude that the prosecutor’s statements could have been adequately addressed by a curative
instruction, they do not meet the standard for plain-error
review.2
         “Generally, a proper jury instruction is adequate
to cure any presumed prejudice from a prosecutor’s misconduct.” 

. Such is the case here. Unlike the circumstances in Chitwood, the improper comments did not
“appeal[ ] to the jurors’ moral sensibility” or encourage the
jury to decide the case on an improper basis. 

 at 316-
17; see also State v. Smith, 

, 

(2024) (denying plain-error review where the prosecutor’s
improper statement did not call to mind “bias, emotions, or
other improper bases for deciding the case”). Instead, the
comments were improper based on the possibility of confusing the jury as to who had the burden of proof. We therefore
conclude that an instruction clarifying the correct burden
of proof would have been sufficiently curative to assure the
court that defendant was not denied a fair trial.
         The context of the prosecutor’s statements distinguishes this case from our recent opinion in State v. Arena,

, ___ P3d ___ (2024), in which we determined
that the prosecutor’s improper statements were not curable
with an instruction. As here, the prosecutor in Arena made
improper arguments suggesting that the defendant had
an obligation to call witnesses in support of his theory of
defense. 

. However, in making those improper
arguments, the prosecutor correctly acknowledged that the
state bore the burden of proof, thereby “entangl[ing] the
correct burden of proof with its mischaracterization of that
burden.” 

. In effect, the prosecutor redefined the
burden of proof to include a requirement that the defendant

    2
      As we observed in State v. Smith, 

, 95 n 1, 

 (2024),
the current Chitwood framework presents analytical challenges, including insulating clear instances of prosecutorial misconduct from review on direct appeal
and creating different plain error analyses for different types of plain errors without regard to the harm those errors cause. Despite those challenges, we recognize,
as we did in Smith, that we are bound by Chitwood and have applied it in this case.
254                                           State v. Dumdei

produce evidence. We determined that that “increased the
likelihood that the jury was misled” and would have made
it “nearly impossible” for the trial court to craft an effective
curative instruction. 

         By contrast, there was no such entanglement or
redefining that took place in this case. Instead, the prosecutor’s improper comments came in the context of responding
to defense counsel’s extensive closing arguments regarding
the state’s failure to produce evidence, including that the
state failed to call the children as witnesses and present
evidence of defendant’s whereabouts. As we have explained,
those arguments entitled the prosecutor to respond by noting that the defense also had the ability to present evidence.
Although the prosecutor made additional statements that
went beyond a permissible response, the prosecutor did not
link his improper statement with the correct burden of proof
or any legal standards. Instead, his response was limited to
comments on factual matters. Because the improper statements were in the context of responding to defense counsel’s
argument and did not entangle the correct legal standard, it
would have been possible for the trial court to craft a curative instruction that sufficiently minimized the possibility
that the prosecutor’s argument misled the jurors about the
correct burden of proof.
         Had defense counsel immediately objected to the
prosecutor’s improper closing argument statements, the
trial court would have had the opportunity to give the jury a
curative instruction about the permissible scope of the prosecutor’s response that emphasized that defendant bore no
burden to offer evidence. See State v. Veatch, 

, 

 (2008) (whether the court gives the curative
instruction immediately after a prejudicial statement “is a
factor in the effectiveness of a curative instruction”). Such
an instruction, immediately following the improper statement, would have been sufficient to minimize the “realistic possibility of confusing the jurors about the ultimate
standard or burden of proof.” State v. Totland, 

, 

, rev den, 

 (2019) (internal
quotation marks omitted). Indeed, we understand the “curative instructions” contemplated in the current plain error
Cite as 

 (2025)                                          255

analysis to refer to instructions given immediately following
the prosecutor’s improper statements which directly address
the misconduct. Accordingly, defendant has not established
plain error as to the prosecutor’s closing argument.
         Finally, in his sixth assignment of error, defendant
contends that the trial court plainly erred by failing to properly instruct the jury for the charge of fourth-degree assault,
which required the state to prove that the victim suffered a
physical injury. ORS 163.160(1)(a). “Physical injury” means
that the victim suffered “impairment of physical condition
or substantial pain.” ORS 161.015(7). For pain to be substantial, the degree of pain must be “ample” or “considerable,”
and the duration cannot be “fleeting.” State v. Haws, 

, 

 (2019). Defendant argues
that the trial court’s instruction was incomplete because it
did not include the durational component—that pain is not
substantial if it is fleeting. The trial court’s jury instruction
regarding fourth-degree assault was as follows:
   “The term physical injury means an injury that impairs a
   person’s physical condition or causes substantial pain. An
   injury impairs a person’s physical condition if it results in a
   reduction in the person’s ability to use the body or a bodily
   organ or if it results in a reduction in a bodily organ’s ability to perform its ordinary function. Pain is substantial if it
   is ample or considerable.”
Defendant did not object to the trial court’s instruction and
asks that we review for plain error, a standard we have
already described above.
        The state argues that the trial court did not plainly
error because it is not obvious that an instruction on the
durational component for substantial pain was required.
Defendant’s testimony and argument at trial, the state contends, was that he never pushed or choked AP; he never
challenged whether she suffered any injury, only that he did
not cause it. We agree with the state’s argument.
         When instructing a jury, the trial court’s obligation
is to state “all matters of law necessary for its information
in giving its verdict.” ORCP 59 B.3 A party is entitled to have
   3
       ORS 136.330(1) makes ORCP 59 B applicable to criminal trials.
256                                            State v. Dumdei

the jury instructed on the law that supports that party’s
theory of the case when (1) there is evidence to support that
theory and (2) the requested instruction is a correct statement of the law. State v. Roberts, 

, 

 (2018) (internal quotation marks omitted).
         The fundamental dispute in this case was one of
credibility—did defendant take physical action towards AP
(as the state alleged) or not (as he claimed)? In that circumstance, it is not obvious whether the duration of AP’s pain was
an issue that was before the jury. See Haws, 

 (explaining that, in considering whether the durational
component for fourth-degree assault should be included in
the instruction, “we ask whether the issue of duration was
before the jury”). Defendant made no arguments related to
the duration of time that AP was in pain. Instead, he testified that he did not choke or push AP and argued that her
testimony to the contrary was not credible. Similarly, the
state did not base its case for substantial pain on the duration of the pain. Therefore, it is not obvious that an instruction about the durational component of substantial pain was
required, and defendant has not established plain error.
         Further, even if we assumed that the trial court did
plainly err by failing to include the instruction, we would
not exercise our discretion to correct the error. See Ailes v.
Portland Meadows, Inc., 

, 382 n 6, 

(1991) (a key factor guiding our discretion whether to correct an unpreserved error is “whether the trial court was,
in some manner, presented with both sides of the issue and
given an opportunity to correct any error”). In both cases
that defendant now cites to support his argument, the defendants requested to have the durational component included
in the jury instructions and were denied. See Haws, 

 (trial court denying the defendant’s request
to include an instruction that substantial pain “excludes
pain that is fleeting”); Roberts, 

 (trial
court denying the defendant’s request to include an instruction that, to be substantial, “[f]leeting pain is insufficient”).
Here, had defendant sought to have the durational component included with the jury instructions at the time of trial,
the court could have easily considered it. See State v. Inman,
Cite as 

 (2025)                             257

, 

 (2015), rev den, 

 (2016) (explaining that “the ease with which any error
could have been avoided or corrected should be a significant
factor in an appellate court’s decision whether to exercise its
discretion to correct a plain, but unpreserved, error”).
        Affirmed.