State v. Skotland

368                   January 8, 2025            No. 30

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              JEFFERY JERALD SKOTLAND,
                   Defendant-Appellant.
              Washington County Circuit Court
                   19CR77935; A176291

  On remand from the Oregon Supreme Court, State v.
Skotland, 

, 

 (2024).
  Erik M. Bucher, Judge.
  Submitted on remand June 27, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Jordan R. Silk, Assistant
Attorney General, filed the briefs for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
  Affirmed.
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          KAMINS, J.
         Defendant appeals from a judgment of conviction for
various offenses connected to his purchase of a firearm. The
case is on remand to us after the Supreme Court reversed
our decision in State v. Skotland, 

, 

 (2023), rev’d, 

, 

 (2024) (Skotland I).
Skotland I addressed defendant’s first and second assignments of error—whether the prosecutor’s comments impermissibly shifted the burden of proof by commenting on
defendant’s refusal to provide his lawyer’s name and legal
documents—which the Supreme Court reversed, because
those arguments were unpreserved. State v. Skotland, 

, 

 (2024) (Skotland II). As the Supreme Court
directed in Skotland II, our task on remand is to address
whether defendant’s first and second assignments of error
“qualif[y] as plain error, and if not, to address” defendant’s
third assignment of error—whether the trial court erred by
denying defendant’s jury instruction on impossibility. 

. For the reasons discussed below, we affirm.
          Defendant attempted to purchase a firearm from a
sporting goods store despite having two prior felony convictions in the State of Washington.1 At trial, defendant testified
that he “assumed or was hoping” that he was eligible to purchase a gun, because three or four months prior to attempting to purchase one, he filled out expungement paperwork
with his attorney. On cross-examination, defendant refused
to identify his attorney, claiming that “[i]t’s irrelevant” and
then invoking attorney-client privilege after his defense
counsel advised him of that option. He also testified that he
did not have a copy of the expungement documents, because
his house caught on fire and destroyed all of his possessions.
          During closing argument, the prosecutor argued:
      “He claimed that he filled out a bunch of paperwork in
   the state of Washington. We don’t have that paperwork
   here today. He claims that the paperwork was lost in a fire,
   or his dog ate it, or we don’t know. But perhaps it doesn’t
   exist.

    1
      Skotland I provides a comprehensive factual background. 

.
370                                           State v. Skotland

     “He also claims that an attorney, who he refused to
   name, told him that he could mark ‘no’ on the ATF form.
   And that’s what he told officers when he was confronted.
      “But, today, he said that attorney who he refuses to
   name told him that he needed to wait. So which is it? Was
   he told to wait, or … was he told he was good to go ahead
   and write ‘no’?
      “We don’t know who that attorney is or if that attorney
   exists because he refuses to tell us.”
          Defendant assigns two errors based on that closing argument, contending that the prosecutor shifted the
burden of proof to defendant by commenting on defendant’s
refusal to provide his lawyer’s name and defendant’s failure to produce the expungement documents. Because the
Supreme Court concluded that defendant did not preserve
his arguments, Skotland II, 

, we consider
whether defendant’s arguments raise plain error. “For an
error to be plain error, it must be an error of law, obvious
and not reasonably in dispute, and apparent on the record
without requiring the court to choose among competing
inferences.” State v. Vanornum, 

, 

 (2013). And “an unpreserved challenge to prosecutorial
statements must demonstrate that the statements were so
prejudicial that they deprived defendant of a fair trial”; that
is, “if the defendant had made a motion for a mistrial, the
trial court would have erred, as a matter of law, in denying it.” State v. Chitwood, 

, 

(2022).
        As such, our “review begins with the question
whether the prosecutor’s statements were obviously improper
or impermissible[.]” State v. Montgomery, 

, 

 (2023), rev den, 

 (2024).
          The prosecutor’s statements were not obviously
improper such that they “allowed the jury to consider
facts that had not been received into evidence, or otherwise encouraged the jury to decide the case on an improper
basis.” Id. at 658. Rather, the prosecutor’s argument can
be understood as questioning the credibility of defendant’s
testimony that he was unable to recall his attorney’s name
and that his expungement documents were destroyed in a
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house fire. Within that context, it is not obvious that the
prosecutor was suggesting that defendant needed to produce corroborating evidence rather than challenging defendant’s credibility and arguing “how the jury should assess
defendant’s theory of the case … in light of the evidence
presented during trial.” State v. Brannan, 

, 

 (2024); see also State v. Smith, 

, 

 (2024) (observing that “it is permissible for
a prosecutor to argue that a defendant’s evidence is unconvincing, and that the jury should not be persuaded by it” so
long as that argument does not suggest that “a defendant
was required to or had a burden to present corroborating
evidence, evidence that contradicts the state’s evidence, or,
indeed, any evidence at all”).
          Defendant contends that State v. Mayo, 

, 

 (2020), requires reversal. There, the defendant testified that the drugs found in his backpack did not
belong to him and may have belonged to two other individuals. 

. In closing, the prosecutor pointed to the
defendant’s failure to call those witnesses to corroborate his
theory. 

. We held that that “argument improperly shifted the burden to [the] defendant by inviting the
jury to convict [the] defendant for failing to call witnesses
to create a reasonable doubt about his knowledge of the
methamphetamine in his backpack.” 

; see also
State v. Arena, 

, ___ P3d ___, (2024)
(concluding that a prosecutor’s argument that the defendant
only elicited testimony from “people with a strong relationship connection” to the defendant and that the defendant did
not call other roommates who may have been more impartial
suggested that the defendant bore the burden to call additional witnesses “to support his theory of defense” (emphasis
in original)).
        However, as explained above, it is not obvious that
the prosecutor here was suggesting that defendant must
produce evidence to support his theory of defense rather
than arguing that the jury should be unpersuaded by the
evidence that defendant did put in the record—his own
testimony. See State v. Purrier, 

, 

 (2014) (concluding that “it is unlikely that the jury
372                                         State v. Skotland

would have understood the prosecutor’s subsequent statements about the parties’ competing ‘stories’ as anything
other than advocacy about how the jury should assess the
credibility of the witnesses”). Accordingly, the prosecutor’s
comments were not obviously improper. Any error, therefore,
is not plain and does not qualify for plain error review.
         In his final assignment of error, defendant contends
that the trial court erred in denying defendant’s proposed
jury instruction on impossibility, which can be a defense for
a defendant who believed that they were not committing a
crime, on Count 3, attempted felon in possession of firearm
charge. Below, defense counsel argued that defendant was
entitled to that instruction, because “if the facts were as
[defendant] believed them to be” (that defendant was “actually legally” trying to purchase the firearm because he was
not a felon), “he wouldn’t have been committing a crime.”
The trial court declined to provide that instruction, opining
that if defendant “intended to buy a gun and the state can
prove it beyond a reasonable doubt and he was a convicted
felon, impossibility cannot be used as a defense.”
         On appeal, defendant challenges that ruling, raising the same argument as below. The state responds in the
main that any error is harmless because, by returning a
guilty verdict, “the jury necessarily found that defendant did
know he was a felon.” We agree that any error is harmless.
         “We must affirm the judgment below if we determine that there was ‘little likelihood that the error affected
the verdict[.]’ ” State v. Payne, 

, 

(2020) (quoting State v. Davis 

, 

(2003)). In addition to Count 3, defendant was also found
guilty of unlawful purchase of a firearm, Count 1, and providing false information in connection with the transfer of a
firearm, Count 2. In order to convict on those counts, the jury
had to find that defendant “knew he was prohibited by state
law from owning” a firearm and that defendant “knowingly
provide[d] any false information in connection with a purchase or transfer of a firearm.” (Emphases added.) Because
the jury returned guilty verdicts on those counts—thereby
discrediting defendant’s assertion that he believed he could
lawfully purchase a firearm—we are unpersuaded that an
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impossibility instruction would have affected the outcome;
the jury did indeed find that defendant knew he had a prior
felony conviction and knew he was prohibited by state law
from owning a firearm. Therefore, any error, on this record,
would be harmless. See State v. Kerne, 

,

 (2017), rev den, 

 (2018) (concluding
that the trial court’s jury instructional error as to the correct culpable mental state with regard to the element of
forcible compulsion was harmless because the jury’s guilty
verdict “necessarily discredited defendant’s assertion”).
        Affirmed.