No. 82 February 12, 2025 675
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN ALAN HOWARD,
Defendant-Appellant.
Polk County Circuit Court
22CR22227; A179917
Rafael A. Caso, Judge.
Submitted September 24, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public
Defender, Office of Public Defense Services, filed the briefs
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Armstrong, Senior Judge.
TOOKEY, P. J.
Reversed and remanded.
676 State v. Howard
TOOKEY, P. J.
Defendant appeals a judgment of conviction
entered after a jury trial for first-degree rape, ORS 163.375;
attempted first-degree rape, ORS 161.405 and ORS 163.375;
attempted first-degree sodomy, ORS 161.405 and ORS
163.405; and one count of first-degree sexual abuse, ORS
163.427. Defendant raises eight assignments of error. In his
first assignment of error, defendant contends that the prosecutor made impermissible burden-shifting statements, and
in his second assignment of error, he contends the trial court
erred when it overruled defendant’s objection. Assignments
of error three through eight assert that the prosecutor
made prejudicial statements about facts not in evidence
during closing argument. In reviewing defendant’s first two
assignments of error, we conclude that the prosecutor made
improper statements which created a “realistic possibility of
confusing the jurors about the ultimate standard or burden
of proof.” State v. Totland, 296 Or App 527, 531,
438 P3d 399,
rev den,
365 Or 502 (2019) (internal quotation marks omitted). We further conclude that the error was not harmless.
Accordingly, we reverse and remand based on defendant’s
first two assignments of error and do not reach defendant’s
other arguments.
We summarize the relevant facts: On a night in
September 2018, complainant, K, visited defendant’s home.
Defendant and his teenage son were in the home while K
visited. Defendant and K used methamphetamine. At some
point, K fell asleep or passed out. When K woke in the morning, her pants were around her ankles, a blanket that had
not been on top of her was covering her, and defendant was
gone. Later that day, K told a friend and a relative that
defendant raped and sodomized her while she was unable
to resist; her relative encouraged her to get a sexual assault
examination and report, which she did.
At trial, the state called a number of witnesses,
including K, K’s relative, law enforcement officials, a lab
technician who conducted DNA analysis of samples collected during K’s sexual assault examination, and a nurse
who conducted the exam. Defendant and his son testified
for the defense, with defendant testifying that he did not
Cite as 337 Or App675 (2025) 677
commit the crimes for which he was charged. During closing
arguments, the prosecutor made the following statements,
to which defendant objected in part:
“The other part—another jury instruction says do not
decide this case on guesswork, conjecture, or speculation.
That is exactly what the defendant offers. Now, don’t get me
wrong, it is the state’s burden to prove this case. Defendant
doesn’t have to put on a case. That’s true. But he did. He
chose to take the stand. That’s what you got out of it. That’s
the big defense.
“[Prosecutor]: Guesswork, conjecture, speculation.
Where were all these other people that he—these names that
were thrown around? Does he have any evidence—
“[Defense counsel]: Judge, I’m going to object. We don’t
have a burden of proof here. I don’t think she can—
“The Court: Overruled.
“[Prosecutor]: —who has entered the evidence here in
this case? The state has. Just keep that in mind.”
(Emphases added).
Defendant did not renew his objection after that
last statement. After closing arguments concluded, the trial
court provided final instructions to the jury. The instructions included statements about each charge and that “the
state must prove beyond a reasonable doubt the following
elements,” listing each element for each charged crime.
Defendant was convicted of four counts of sexual offenses
and acquitted of three.
On appeal, in his first assignment of error, defendant argues that the prosecutor erred when she stated, in
reference to defendant, “Does he have any evidence,” and
“who has entered the evidence here in this case? The state
has. Just keep that in mind.” In his second assignment of
error, defendant claims that the trial court erred when it
overruled defendant’s burden-shifting objection.
The state contends that defendant’s argument is
only preserved with regard to the portion of the prosecutor’s
statements made prior to defendant’s objection, and that any
error which may be contained in the prosecutor’s statement
678 State v. Howard
following the court’s overruling may only be reviewed for
plain error. We are unpersuaded by that argument and note
that “the purpose of the preservation rule is a practical one”
requiring a party to provide an explanation of their position
specific enough to ensure that the claimed error can be identified with enough clarity to permit consideration. State v.
Amaya, 336 Or 616, 629,
89 P3d 1163 (2004) (citing State v.
Wyatt,
331 Or 335, 343,
15 P3d 22 (2000)). Furthermore, this
court rejected a similar argument from the state in State v.
Mayo,
303 Or App 525, 530 n 2,
465 P3d 267 (2020) (addressing a similar sequence of burden-shifting statements with
an overruled objection in the middle, and citing a number of
cases illustrating that “[o]ur requirements respecting preservation do not demand that parties make what the record
demonstrates would be futile gestures.” State v. George,
337
Or 329, 339,
97 P3d 656 (2004)). The ends of preservation
were met in this case.
Generally, “[w]e review a trial court’s decision to
overrule an objection to closing arguments for abuse of discretion.” Totland, 296 Or App at 531. “[W]e review whether
“the prosecutor misstated the law during closing arguments
for legal error.” State v. Starr,
337 Or App 682, 686, ___ P3d
___ (Feb 12, 2025).
“If ‘an argument was improper, properly challenged,
and likely to prejudice the jury unfairly, upon review, we
must reverse.’ ” Mayo, 303 Or App at 530 (quoting Totland,
296 Or App at 531). In arguing to the jury, a prosecutor
“must not inappropriately characterize the jury’s factfinding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard
or burden of proof.” Totland,
296 Or App at 531 (internal
quotation marks omitted). It is allowable for a prosecutor
to “explain[ ] to the jury the state’s view of the evidence and
explain[ ] why the evidence should lead the jurors to conclude
that the state has proved its case against [a] defendant.”
State v. Martinez,
335 Or App 103, 105,
557 P3d 556 (2024).
It is improper for a prosecutor to “discuss[ ] the evidence in
a way that leads the jurors to believe that defendant bears
the burden to disprove the state’s case.” Id. at 106. “[G]eneric
instructions—that defendant was presumed innocent until
Cite as 337 Or App675 (2025) 679
proven guilty beyond a reasonable doubt and that the burden was on the state to so prove—d[o] not provide guidance
as to the longevity of the presumption of innocence, such as
to remove confusion about whether the presumption of innocence extend[s] through jury deliberations.” State v. Worth,
231 Or App 69, 79,
218 P3d 166 (2009), rev den,
347 Or 718
(2010).
ORS 136.415 provides that “[a] defendant in a criminal action is presumed to be innocent until the contrary is
proved. In a case of a reasonable doubt whether the guilt of
the defendant is satisfactorily shown, the defendant is entitled to be acquitted.” It is one of the most basic and important
precepts of our legal system that “[t]he law presumes every
defendant upon trial charged with crime to be innocent, and
it devolves upon the prosecution to prove by evidence to the
satisfaction of the trial jury beyond a reasonable doubt, that
the defendant committed the crime charged in the indictment,” Mayo, 303 Or App at 530 (internal quotation marks
omitted).
Consistent with the foregoing principles, as a general matter, it “is improper for a prosecutor to comment on
a defendant’s failure to present evidence at trial.” State v.
Dumdei, 337 Or App 246, 251, ___ P3d ___ (2025). But we
have recognized that “a prosecutor may comment on a defendant’s failure to present evidence (1) of 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.” State v. Arena,
336 Or App 291, 294,
560 P3d 757 (2024) (citing State v. Strain,
332 Or App 79, 80,
548 P3d 169, rev allowed,
372 Or 763 (2024) and Mayo,
303 Or
App at 532). Additionally, “a prosecutor may be permitted to
comment on a defendant’s failure to present evidence when
a defendant 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.”
Id. At 295 (internal quotation marks omitted). In that latter circumstance, a “prosecutor can respond
by noting that the defense has the ability to produce that
evidence.”
Id. (internal quotation marks omitted).
680 State v. Howard
But, whereas here, when the burden of proof rests
with the state, it is improper for a prosecutor to suggest that
the defendant carries a burden to submit evidence, Totland,
296 Or App at 530-31, or to invite “the jury to convict defendant for failing to call witnesses to create a reasonable
doubt.” Mayo,
303 Or App at 537. At bottom, a prosecutor’s
statements that create a realistic possibility of confusing
the jurors about the ultimate standard or burden of proof
are improper. Totland,
296 Or App at 531.
In this case, when the prosecutor said, “Where
were all these other people that he—these names that were
thrown around? Does he have any evidence—” and followed
up by saying “—who has entered the evidence here in this
case? The state has. Just keep that in mind,” she created a
realistic possibility of confusing the jurors about the foundational assumption of innocence and the state’s burden of
proof. We think the prosecutor’s comments, in context, both
suggested that defendant carried the burden to submit evidence and invited the jury to convict defendant for failing to
call witnesses to create a reasonable doubt.
The state accurately points out that “a prosecutor
is expected to be a zealous advocate for the public” and may
“urge the jury to draw any and all legitimate inferences from
[the] evidence.” State v. Sperou, 365 Or 121, 135,
442 P3d
581 (2019) (internal quotation marks omitted). However, the
words used by the prosecutor in this case emphasized that,
in the state’s view, defendant did not provide any evidence.
Such statements do not invite the jury to specifically assess
defendant’s credibility and the credibility of other defense
witnesses; rather, the prosecutor’s statements improperly
invited jurors to consider lack of evidence from defendant as
evidence of guilt or wrong-doing.
Having determined that the prosecutor made
improper statements, we must now analyze whether the error
at trial “prejudice[d] the jury unfairly.” Mayo, 303 Or App at
530 (citing Totland,
296 Or App at 531). “We must reverse
when it is clear that an argument was improper, properly
challenged and likely to prejudice the jury unfairly.” State v.
Rosenbohm,
237 Or App 646, 649,
241 P3d 344 (2010) (internal quotation marks omitted).
Cite as 337 Or App675 (2025) 681
When the trial court overruled defendant’s objection about improper burden-shifting, the jury may have
been led to believe that the prosecutor provided an accurate
statement of the law, or that it was proper to suggest that
defendant needed to submit evidence. After the objection
was overruled, the prosecutor made an additional improper
statement. In context, we think that the exchange likely
undermined the jury’s understanding of the ultimate standard or burden of proof. See Starr, 337 Or App at ___ (slip
op at 10-11) (analyzing a similar error and determining the
error was not harmless when “[c]onsidering the prosecutor’s
comment in context”). Thus, the trial court’s error in overruling defendant’s objection was not harmless. Accordingly,
we reverse and remand.
Reversed and remanded.
