No. 415 May 7, 2025 409
This is a nonprecedential memorandum opinion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.
NIELS CHRISTIAN WILLIAMS,
Defendant-Appellant.
Washington County Circuit Court
23CR01530; A182555
Brandon M. Thompson, Judge.
Submitted April 3, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla Edmondson, Deputy Public Defender,
Oregon Public Defense Commission, 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
Jacquot, Judge.
JACQUOT, J.
Affirmed.
410 State v. Williams
JACQUOT, J.
Defendant appeals from a judgment of conviction,
following a jury trial, for driving while under the influence
of intoxicants (DUII) and attempted first-degree criminal
trespass. Defendant raises seven assignments of error. In
his first, he contends that the prosecutor improperly made
statements about facts not in evidence during closing argument. In assignments of error two through seven, defendant
argues that the trial court erroneously imposed a number
of special conditions of probation. For the reasons provided
below, we affirm.
Defendant’s first assignment of error is unpreserved,
and he requests plain error review. We have discretion
whether to review unpreserved arguments for plain error.
State v. Vanornum, 354 Or 614, 630, 317 P3d 889 (2013).
“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.”
Id. at 629. “[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. Chitwood,
370 Or 305, 312-
314, 518 P3d 903 (2022). A prosecutorial comment—even if
improper or impermissible—does not constitute plain error
unless the comment was “so prejudicial that an instruction
to disregard [it] would not have been sufficient[ ]” to ensure
that the defendant received a fair trial. State v. Pierpoint,
325 Or App 298, 303, 528 P3d 1199 (2023). We review “statements made by a party during argument in context, not in a
vacuum.” State v. Mayo,
303 Or App 525, 465 P3d 267 (2020)
(internal quotation marks and citation omitted).
During closing argument, the prosecutor referred
to a key state’s witness:
“[Witness] didn’t want to be here today. He’s actually heading back to work right now. He had no motivation to come
up here and lie to all.
“…
Nonprecedential Memo Op: 340 Or App 409 (2025) 411
“Does [witness], the partygoer, does he have any motive to
lie to you? Does he have any motive to come in here, take
time off work, testify for the first time ever in his life in
front of you all, and he doesn’t even know this individual?
“[Witness] had to be here because, quite frankly, our office
made him be here. He has no motive to lie.”
(Emphases added.)
Defendant challenges the italicized portions as containing impermissible facts not in evidence. The statements
about the witness taking time off from work and not wanting to testify are not supported by evidence in the record,
and they were therefore improper. See State v. Morehead,
307 Or App 442, 449, 477 P3d 462 (2020) (explaining that it
is impermissible to reference facts outside of evidence); see
also State v. Banks,
367 Or 574, 582, 481 P3d 1275 (2021)
(stating that a defendant has a “right to a verdict based
solely on the evidence presented at trial”).
We conclude, however, that, when reviewed for plain
error, it is not appropriate to reverse based on the comments
challenged by defendant. That is because the comments
were not so prejudicial as to result in an unfair trial—
had defendant objected, the trial court could have stricken
improper remarks made by the prosecutor or provided one
or more curative instructions. State v. Perez, 373 Or 591,
606, ___ P3d ___ (2025) (on plain error review, it is not sufficient for a defendant to show the prosecutor’s comments
were improper, “rather, the defendant must show that the
comments rendered the defendant’s trial unfair”); see State
v. Martinez,
335 Or App 103, 107, 557 P3d 556 (2024) (“As we
explained in State v. Durant,
327 Or App 363, 365, 535 P3d
808 (2023), ‘prosecutorial statements that were improper
but curable are not an appropriate subject of plain-error
review, because, in such circumstance, the defendant was
not denied a fair trial.’ ” (Emphasis in Durant.)). Similarly,
had defendant timely moved for a mistrial based on the
challenged statements, it would not have been an abuse of
discretion for the trial judge to deny the motion.
Id.
In his second through seventh assignments of error,
defendant argues that the trial court erred when it imposed
412 State v. Williams
several special conditions of probation. At sentencing, the
trial court announced that defendant would be subject to
an “alcohol package,” but did not orally announce the conditions of that package. Defendant’s argument seems to rely
on a mistaken premise. Defendant argues he was provided a
sheet of paper during sentencing, which defendant contends
did not include the “alcohol package.” Defendant was invited
to review the document with counsel and initial it. The
record reflects that the document does list all of the “alcohol package” special conditions challenged by defendant and
that defendant initialed it. Thus, the trial court did not err.
See State v. Priester, 325 Or App 574, 581-83, 530 P3d 118,
rev den,
371 Or 332 (2023) (use of a shorthand phrase to
announce conditions of probation is permissible, provided
that it is apparent in the record that all parties had the
same understanding of the shorthand phrase and that it
included the conditions ultimately stated in the judgment).
Affirmed.
