State v. Street

588                  January 29, 2025               No. 68

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              MELVIN OLIVER STREET III,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   21CR32818; A180721

  Kathleen M. Dailey, Judge.
  Submitted November 19, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  TOOKEY, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)            589

        TOOKEY, P. J.
        Defendant appeals a judgment of conviction for
one count of first-degree assault, ORS 163.185, one count
of second-degree assault, ORS 163.175, and one count of
unlawful use of a weapon, ORS 166.220. He was charged
with those crimes after he slashed the victim’s hand with a
knife. While defendant was in custody on those charges, the
victim was killed in a shooting.
         At trial, defendant’s theory was that he did not
slash the victim’s hand and that whoever shot the victim
was probably the person who slashed the victim’s hand. In
his sole assignment of error, defendant contends that the
trial court plainly erred “when it allowed the prosecutor to
argue that defendant had failed to present evidence about
the motive behind [the victim’s] murder.”
          We have reviewed the entirety of the closing argument. We conclude that, even if the prosecutor’s argument
was improper—an issue we do not decide—it would not have
been an abuse of discretion for the trial court to have denied
a motion for a mistrial based on the prosecutor’s argument
if one had been requested. Thus, defendant has not established plain error. See State v. Chitwood, 

,

 (2022) (“[A]n 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. Durant, 

, 

 (2023) (“[E]ven if the statements were improper, they
are in the realm of statements that could have been adequately addressed by striking or a curative instruction. It
follows that defendant has not established plain error.”).
        Affirmed.