State v. Starr

682                 February 12, 2025              No. 83

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                JADE DAMIAN STARR,
                  Defendant-Appellant.
               Lane County Circuit Court
                  22CR17208; A180618

  Stephen W. Morgan, Judge.
  Submitted September 25, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
  SHORR, P. J.
  Reversed and remanded.
Cite as 

 (2025)   683
684                                           State v. Starr

        SHORR, P. J.
         Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010(4), raising two assignments of error. We focus on
defendant’s second assignment of error in which he argues
that the trial court erred in denying his motion to strike
a comment made by the prosecutor during closing argument. Defendant’s theory of the case was that he became
impaired after he stopped driving, when he took a Xanax
pill and drank a can of beer, and that the state failed to
prove beyond a reasonable doubt that defendant drove while
intoxicated. During his closing argument, the prosecutor
stated that defendant “never actually presented a bottle
or even a prescription tape of Xanax.” Defendant moved to
strike the comment pointing out that he was not required
to present any evidence, but the trial court overruled his
objection. We conclude that the trial court erred in declining to strike the comment because it suggested to the jury
that defendant was required to present evidence to corroborate his account of what occurred. That suggestion undermined the presumption of innocence and improperly shifted
the burden of proof. We further conclude that the error was
not harmless. We therefore reverse and remand defendant’s
DUII conviction.
      FACTUAL AND PROCEDURAL BACKGROUND
         In March 2022, at about 11:00 p.m., Deputy
Blackburn from the Lane County Sheriff’s Office responded
to a report of a vehicle off the side of the road. Blackburn
spotted the vehicle about 10 to 15 feet off the edge of the
road. The vehicle’s lights were on, the passenger window
was rolled down, and the engine was running. The tire
tracks indicated that the vehicle had traveled about 316 feet
while off the road. Defendant was in the driver’s seat and he
“appeared to be passed out or unconscious or asleep.”
         The deputy was concerned that defendant had suffered a medical emergency, so he called for medics. Blackburn
initially had trouble rousing defendant, but defendant woke
up when Blackburn poked him through the open window
with his flashlight and called out to him. Defendant had
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bloodshot, watery eyes, slurred speech, and the deputy could
smell the odor of an alcoholic beverage. Using his flashlight,
Blackburn observed an empty beer can inside the car.
         Blackburn suspected that defendant had been driving while under the influence of alcohol. The deputy administered field sobriety tests (FSTs), and defendant exhibited
signs of intoxication. Blackburn arrested defendant for
DUII. At the Lane County Jail, a breath test revealed that
defendant had a blood alcohol content of 0.16 percent.
        Before trial, defendant moved to suppress evidence
obtained from the deputy’s search of his vehicle. The trial
court denied the motion. In his opening statement, defendant argued that he took a Xanax pill and drank a can of
beer in his car after he had stopped driving, and that the
state would be unable to prove that he drove while impaired.
         The jury heard testimony from Blackburn, and from
defendant and his daughter. Defendant testified that he and
his family were in Arizona when they learned that their dog
was missing. Defendant and his daughter traveled home to
search for the dog, and defendant had very little sleep in the
days leading up to his encounter with the deputy. On that
day, defendant bought a four-pack of “Rogue Dead Guy Ale.”
Defendant ate dinner at a restaurant in Veneta, where he
drank a Coors Light beer. Defendant testified that he did not
feel any effect from the beer that he had at the restaurant.
         While driving to the area where he had set an animal trap, defendant noticed that he was falling asleep at the
wheel, so he stopped and parked on the side of the road. While
there, defendant had a “panic attack” and took a Xanax.
Defendant opened a can of beer, and he did not remember
anything else until the deputy woke him.1 During his interaction with the deputy, defendant was “a little disoriented.”
         On cross-examination, defendant stated that he
had a prescription for Xanax, but he could not explain why
he told the deputy administering the FSTs that he had not
taken any medications. Defendant stated, “I mean, I could
show you my health records, but I—I don’t know.” In rebuttal,
    1
      It is not clear what happened to the four-pack of beer. Only one empty beer
can was found in the car.
686                                                 State v. Starr

Blackburn testified that when he searched defendant’s vehicle, he did not find a bottle for Xanax. In addition, an inventory report prepared by another deputy did not indicate that
Xanax was found in the car.
         Defendant’s theory of the case was that he became
impaired after he took the Xanax pill and drank a can of beer
in his car, but that he was not intoxicated when he drove. In
closing argument, the prosecutor argued as follows:
       “[PROSECUTOR]: The—the [d]efense seems to—
   seems to agree that, yes, when Officer Blackburn found the
   [d]efendant that he was quite impaired to … say the very
   least, a combination of Xanax, which was never actually
   found. The [d]efense never actually presented a bottle or even
   a prescription tape of Xanax.
      “[DEFENSE COUNSEL]: Judge, we’re not required
   to present any evidence, and so I’d move to strike that
   comment.
      “THE COURT: It’s overruled.”
(Emphasis added.) During defendant’s closing argument,
defendant reiterated that the state failed to prove beyond a
reasonable doubt that he drove while under the influence as
opposed to becoming intoxicated after he stopped driving.
The jury found defendant guilty of DUII.
                           ANALYSIS
         Because it is dispositive, we begin with defendant’s
second assignment of error in which he argues that the
trial court erred in denying his motion to strike the prosecutor’s comment about his failure to produce evidence.
Generally, we review a trial court’s decision to overrule an
objection to closing arguments for abuse of discretion. State
v. Totland, 

, 

, rev den, 

 (2019). However, we review whether the prosecutor
misstated the law during closing arguments for legal error.
State v. Purrier, 

, 

 (2014).
        After this case was submitted, we requested supplemental briefing to address the effect on this case of State v.
Skotland, 

, 

 (2024) (Skotland I). In
that case, the defendant testified that he believed that he
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 (2025)                                  687

was eligible to purchase a firearm despite prior felony convictions because he filled out expungement paperwork with
an attorney. Id. at 322. In closing arguments, the prosecutor pointed out that the defendant refused to identify the
attorney and the defendant claimed that the expungement
documents were destroyed in a fire. Id. at 325. On appeal,
the defendant argued that the prosecutor’s comments constituted impermissible burden-shifting, but the Supreme Court
held that the defendant’s arguments were unpreserved. Id.
at 330. On remand, we addressed whether the defendant’s
arguments qualified for plain-error review. State v. Skotland,

, ___ P3d ___ (2025) (Skotland II). We
concluded that they did not. We explained that it was not
obvious “that the prosecutor here was suggesting that [the]
defendant must produce evidence to support his theory of
defense rather than arguing that the jury should be unpersuaded by the evidence that [the] defendant did put in the
record—his own testimony.” 

 (emphasis in original).
        By contrast, here, we address a preserved argument.
When the prosecutor argued that defendant “never actually
presented a bottle or even a prescription tape of Xanax,”
defendant moved to strike the comment on the ground that
he had no burden to produce evidence, and the trial court
overruled the objection. We conclude that the trial court
erred when it did so, and that the error was not harmless.
         In State v. Smith, 

, 

(2024), we explained,
   “Remarks concerning evidence that a defendant has or has
   not presented can sometimes fall on either side of a thin
   line. On one side, 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. On the other side of that
   thin line, it is impermissible for a prosecutor to argue 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.”
         Applying that approach here, the prosecutor’s initial statement that no Xanax was found in defendant’s
car was based on the evidence and therefore a permissible
argument. However, the prosecutor crossed the line when he
688                                                         State v. Starr

suggested that defendant had a burden to present corroborating evidence. To clarify the distinction, we address each
of those arguments in some detail.
          During trial, defendant testified that he “kept a couple of Xanax” in the console of his car, and that he took one
of the pills after he stopped driving. Blackburn testified in
rebuttal that he did not find a prescription bottle for Xanax
in the car. In addition, the impound report, which defendant
introduced as an exhibit, did not list Xanax as an item found
in the car. Based on that evidence, it was permissible for the
prosecutor to argue that no Xanax was found. By doing so, the
prosecutor relied on evidence in the record to call into question the credibility of defendant’s account of what occurred.
See State v. Slay, 

, 

, rev den,

 (2024) (“Advocacy … would be nearly impossible
if attorneys were not able to comment on a witness’s credibility, provided that their argument is grounded in the evidence
in the record.”); see also Cler v. Providence Health System-Oregon, 

, 

 (2010) (explaining
that, in closing arguments to the jury, counsel have a large
degree of freedom to comment on the evidence and urge the
jury to draw legitimate inferences from the evidence).
         However, the prosecutor crossed the line separating
permissible from impermissible argument when he stated
that defendant “never actually presented a bottle or even a
prescription tape of Xanax.” That argument suggested that
defendant had the burden to corroborate his claim with further evidence that he took a Xanax pill and drank a beer after
he stopped driving. The comment was improper because it
raised a “realistic possibility of confusing the jurors about
the ultimate standard or burden of proof.” Totland, 

. Defendants are presumed innocent, and they
have no burden to present evidence. Of course, when defendants choose to testify, then prosecutors can comment on
their testimony, including any damaging testimony elicited
on cross-examination.2 But, by choosing to testify, defen-
    2
      For example, on cross-examination, the prosecutor effectively drew attention to the inconsistency between defendant’s testimony that he took a Xanax
after he stopped driving, and Blackburn’s testimony that, before administering
FSTs, he asked defendant whether he had taken any medications and defendant
responded that he had not.
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 (2025)                             689

dants do not lose or waive the presumption of innocence. See
State v. Rosasco, 

, 

 (1922) (“The
presumption of innocence is not a mere form, but a substantial part of the law, that remains with the defendant from
the beginning of the trial until a verdict is found.”). As a
result, prosecutors cannot argue that defendants must corroborate their testimony. That argument “could erroneously
lead the jury to believe that the defendant carried the burden of introducing evidence to prove his or her innocence.”
State v. Mayo, 

, 

 (2020); see
also State v. Brannan, 

, 

 (2024)
(explaining that, in Mayo, the prosecutor’s argument was
improper because it implied that “the defendant should have
presented corroborating evidence—beyond the defendant’s
own testimony—to support his theory of the case” (emphasis in original)). Further, as we discuss later, the prosecutor
was not merely referring to or commenting upon defendant’s
testimony about providing health records but improperly
suggesting that defendant had a burden to produce evidence, namely the bottle of Xanax or the prescription for it.
         The state argues that Brannan stands for the proposition that “[p]rosecutors are free to comment on … [a]
defendants’ failure to produce evidence to support their
factual theory of defense[.]” Brannan does not support that
claim. In Brannan, the prosecutor argued that the defendant had “ ‘to convince [the jury] with evidence.’ ” 

. We determined that the prosecutor’s argument did
not amount to plain error because the jury may have understood it as an argument about how the jury should assess
the defendant’s theory of the case in light of the evidence
presented at trial. 

          In addition, in Brannan, which was another case in
which the defendant argued that the state failed to prove
that he drove while intoxicated, the defendant did not testify about how he became impaired after he stopped driving;
instead, he argued that the state failed to prove that he was
the driver. 

. Given that argument, it was permissible for the prosecutor to point out that the evidence did not
support the defense theory because there was circumstantial evidence that the defendant was the driver. Similarly,
690                                                         State v. Starr

here, it was permissible for the prosecutor to argue that the
evidence did not support defendant’s theory of the case—
Xanax “was never actually found.” But it was not permissible to argue that defendant failed to corroborate his testimony—“The [d]efense never actually presented a bottle or even
a prescription tape of Xanax.” The second argument undermined the presumption of innocence; the first argument did
not.
         The state argues that defendant’s reference on cross-examination to his “health records” was an offer to produce
corroborating evidence that entitled the prosecutor to argue
that defendant failed to do so. However, read in context, it
was the prosecutor during cross-examination who raised the
issue of defendant’s prescription for Xanax, not defendant,
and defendant was simply attempting to explain, perhaps
ineffectively, why he told the officer he hadn’t taken any
medications. In any event, given the importance of the presumption of innocence, it is simply too risky to allow prosecutors to argue that defendants must corroborate their testimony as opposed to, for example, pointing out inconsistencies
between the other evidence and a defendant’s testimony or
explaining why the evidence does not support a defendant’s
theory of the case. See Skotland II, 

(distinguishing between using evidence to attack credibility
and requiring defendants to corroborate their testimony).3
We further observe that this case arises in the posture of a
preserved error in which defendant specifically objected to
the prosecutor’s comment that defendant failed to provide
evidence of the Xanax bottle. The trial court was given the
opportunity to make clear that defendant had no burden to
present such evidence. The court erred when it did not do so.
         Next, we consider whether the trial court’s error in
failing to strike the prosecutor’s comment was harmless.
Purrier, 

. Under Article VII (Amended),
section 3, of the Oregon Constitution, we must affirm despite
error if there is “little likelihood that the particular error
affected the verdict[.]” State v. Davis, 

, 

      In Mayo, 

, and State v. Spieler, 

, 641-
42, 

 (2015), we addressed circumstances when a prosecutor may comment on a defendant’s failure to present evidence, but those circumstances are
not relevant here.
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 (2025)                                 691

1111 (2003). We do not review a prosecutor’s arguments in a
vacuum, but rather, we review the arguments in context to
determine whether they would have misled the jury about
the state’s burden to prove the defendant guilty beyond a
reasonable doubt. Purrier, 

.
         Considering the prosecutor’s comment in context,
it was not harmless. We recognize that if defendant took a
Xanax and drank a can of beer after he stopped driving, then
that does not rule out the possibility that he was also intoxicated before he stopped driving. We also recognize that there
was circumstantial evidence that defendant drove while
intoxicated, including the evidence that his vehicle traveled
a substantial distance off the road before coming to a stop,
and when the deputy approached the vehicle, the lights were
on, the engine was running, and defendant was slumped
unconscious in the driver’s seat. Nevertheless, our harmlesserror analysis concerns “the possible influence of the error
on the verdict rendered, not whether this court, sitting as a
factfinder, would regard the evidence of guilt as substantial
and compelling.” Davis, 

. Here, the prosecutor’s
comment created a risk that the jurors convicted defendant
not because they were convinced beyond a reasonable doubt
that he drove while impaired, but instead because defendant failed to corroborate his claim that he became impaired
after he stopped driving. We cannot say that “the particular
issue to which the error pertains ha[d] no relationship to the
jury’s determination of its verdict.” 

 In other words, there
is some likelihood that the error affected the verdict.
         In addition, by overruling defendant’s request to
strike the prosecutor’s improper argument, the trial court
accentuated the error. “The overruling of that objection
gave the jury reason to think that the prosecutor’s statement was, in fact, a correct statement of the law.” State v.
Worth, 

, 

 (2009), rev den, 

 (2010); see also State v. Newburn, 

,

 (1946) (noting that overruling an objection to an
improper argument can accentuate the error). As a result,
   “there was at least the potential for the jury to be confused
   about the presumption of innocence. We conclude that,
   although the prejudice from the prosecutor’s misstatement[ ]
692                                               State v. Starr

   … could have been remedied by a curative instruction,
   the fact remains that it was not, because the court did not
   perceive any error or prejudice to remedy.”
Worth, 

.
         “We must reverse when it is clear that an argument
was improper, properly challenged and likely to prejudice
the jury unfairly.” State v. Rosenbohm, 

, 

 (2010) (internal quotation marks omitted).
Here, the prosecutor’s comment was improper, it was appropriate for defendant to move to strike it, and the trial court’s
failure to do so could have led the jury to convict defendant
based on his failure to corroborate his testimony that he
became impaired after he stopped driving. We therefore
reverse defendant’s DUII conviction and remand for further
proceedings.
         Having resolved that issue, we briefly address
defendant’s first assignment of error. Defendant argues that
the trial court erred in denying his motion to suppress evidence. We conclude that the trial court did not err because
the deputy’s use of a flashlight to observe what would have
been plainly visible during daylight did not constitute a
search under the state or federal constitutions. See State v.
Faulkner, 

, 

, rev den, 

 (1990) (stating that use of a flashlight “to see what was
otherwise in plain view did not significantly impair [the]
defendant’s freedom from scrutiny and was, therefore, not
a search”); see also State v. Peek, 

,

, rev den, 

 (2021) (officer’s use of a
flashlight to see a gun in defendant’s jacket that would have
been visible in daylight did not amount to a search); see also
Texas v. Brown, 

, 

, 

 (1983) (use of a flashlight to illuminate the interior of a car did not constitute a search triggering Fourth
Amendment protection).
         We are not persuaded by defendant’s argument that
cases like Faulkner and Peek should be overruled as plainly
wrong, and we cannot overrule decisions of the United States
Supreme Court. State v. Moyle, 

, 

(1985). In any event, we also conclude the deputy’s limited
entry into defendant’s vehicle to use his flashlight to rouse
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defendant was justified by the emergency aid exception to
the warrant requirement. State v. Martin, 

, 

 (1993); State v. Wood, 

, 

 (2006). Thus, the trial court did not
err in denying defendant’s motion to suppress, and we reject
defendant’s first assignment of error.
        Reversed and remanded.