636 May 21, 2025 No. 451
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DUSTIN CODY SMITH,
Defendant-Appellant.
Marion County Circuit Court
21CR47333; A180616
David E. Leith, Judge.
Argued and submitted October 15, 2024.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
HELLMAN, J.
Affirmed.
______________
* Lagesen, Chief Judge vice Mooney, Senior Judge
Cite as 340 Or App 636 (2025) 637
HELLMAN, J.
Defendant appeals an amended judgment of conviction for sexual abuse in the second degree, ORS 163.425,
harassment, ORS 166.065, and two counts of assault in
the fourth degree constituting domestic violence, ORS
163.160(3). On appeal, defendant raises 12 assignments of
error, all of which challenge statements that the prosecutor
made during closing and rebuttal arguments.1 He argues
that the statements denied his right to a fair trial and constituted plain error. As explained below, we conclude that it
is not beyond dispute that the prosecutor’s statements were
so prejudicial as to have denied defendant a fair trial. We
therefore affirm.
Defendant was convicted of the above crimes for
acts that he committed over a period of a of several months
against his then-girlfriend, V. V walked to a police station
and reported the abuse following an incident where defendant made violent threats against her and the couple’s child.
At trial, the state presented supporting evidence of the
assaults that included photographs of bruising on V’s body
and testimony from family members whom V had told about
the abuse. The state’s evidence related to the sexual assault
consisted only of V’s testimony.
Defendant’s defense theory at trial was that V was
not credible. He emphasized that V had not reported any
sexual assault when she first disclosed the abuse to law
enforcement and sought to show that V had fabricated the
allegations of abuse in an attempt to gain custody of their
child and profit financially.
On appeal, defendant makes arguments under
State v. Chitwood, 370 Or 305,
518 P3d 903 (2022), contending that the prosecutor made statements during closing and
rebuttal arguments that violated his right to a fair trial.
Portions of the closing argument that defendant challenges
include the prosecutor referencing a voir dire discussion,
the prosecutor asserting how sexual assaults are typically
1
Defendant also raised a thirteenth claim of error challenging the trial
court’s imposition of per diem fees. The trial court has since amended the judgment, and that issue is now moot.
638 State v. Smith
proven, and the prosecutor using a legal phrase in suggesting that V’s memory was reliable:
“I want to bring you back to a conversation that we had
during the jury selection process. When everybody was
here and I opened the floor and said, why, based on your
common sense and your life experiences, why would somebody who’s been in domestic violence situation, who has
been subjected to this violence at home, why would they not
report that. Okay, and recall some of your answers. Right, it
came from you, fear, is one of the first ones. Fear of repercussions. Fear of coming forward and not being believed.
Fear of finding yourself in a situation where you have to
come to Court. And talk about this deeply personal stuff
in front of strangers, right. Isolation. Don’t have anybody
to talk to. We talked about, you all talked about, financial
uh, and housing implications, right. … And we also talked
about uh, children. Are there children involved and what
does that look like? Everything that we talked about, everything that you all brought up about why somebody would
not want to discuss domestic violence. Not want to report
it, would rather just put their head down and bear it. And
maintain the status quo. All of that applies to [V].
“…
“Now for the assaults, there’s corroborating evidence, photographs, medical records, things like that. For the sexual assaults there’s not, there’s her testimony. As part of
these instructions, Judge Leith is going read to you, he will
[instruct] you that the testimony of any person that you
believe is enough to prove any fact in dispute, okay. I’ll, I’ll
say it again, the testimony of any person that you believe is
enough to prove any fact in dispute. What that means is if
you believe her, he’s guilty, and you can find him guilty, and
you should find him guilty. I will suggest to you that the
vast majority of sexual assaults have to be proven this way.
With testimony, especially late report sexual assaults, and
domestic violence sexual assaults, there is not a plethora of
evidence there. She did not go to the hospital and get a rape
kit. Most don’t. But her testimony is enough to prove any
fact in dispute.
“…
“Small little things that, that are burned into her memory
that she talked about. If anybody here has been through
Cite as 340 Or App 636 (2025) 639
prolonged trauma, I would expect that probably rings true.
That is [sic] probably sounds about right. Those little things
I would suggest in legal terms what we call those indicia of
reliability, okay. Little details that if you’re fabricating this,
you’re making this up, you’re not talking about that.”
Defendant also challenges statements that the
prosecutor made during rebuttal argument. The challenged
statements include saying it was “highly inappropriate” for
defense counsel to use the phrase “I think,” that defense
counsel’s argument about the victim’s motive was “ridiculous,” and stating that certain evidence was not seen by
the jury because it was “hearsay” and “not admissible.”
Defendant contends that the statements were improper and
denied him a fair trial. Specifically, defendant argues that
the statements urged the jury to rely on facts not in evidence, undermined the presumption of innocence, vouched
for the complainant, misstated the law, and denigrated
defense counsel. Because defendant did not object to the
statements at the time that they were made, he asks us to
review as plain error the trial court’s failure to sua sponte
grant a mistrial.
An error is plain when it is an error of law, the
legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose
among competing inferences. State v. Vanornum, 354 Or
614, 629,
317 P3d 889 (2013). To determine whether a prosecutor’s statements in closing argument amount to reversible
plain error, we consider first whether the statements were
obviously improper or impermissible, i.e., whether there is
no reasonable dispute that the statements encouraged the
jury to rely on facts not in evidence or that they undermined
defendant’s presumption of innocence. See State v. Perez,
373 Or 591, 606-07, __P3d___ (2025) (explaining that the
“preliminary question” in determining whether a prosecutor’s challenged statements rise to the level of plain error is
whether the defendant has demonstrated that it is “obvious
and beyond reasonable dispute that the prosecutor’s comments were improper”).
We address the challenged statements in reverse
order and conclude that the prosecutor’s statements in
640 State v. Smith
rebuttal were not obviously improper. The prosecutor’s contention that it was “highly inappropriate” for defense counsel to use the phrase “I think” and that defense counsel’s
argument about the victim’s motive was “ridiculous” were
not personal attacks on defense counsel. Rather, they were
directed at the arguments that defense counsel made and
were stated in the context of reminding the jury that “what
the attorneys say is not evidence” and urging the jury to
“listen to the [jury] instructions.” Further, the prosecutor’s statement that certain evidence was not seen by the
jury because it was “hearsay” and “not admissible” was in
response to specific evidence raised by defense counsel in his
closing. The prosecutor accurately stated that the specific
evidence was not admitted into evidence and, although the
court had not ruled it to be hearsay, the focus of the prosecutor’s argument was to encourage the jury not to consider
defense counsel’s argument. Importantly, the prosecutor did
not suggest that the unadmitted evidence would have benefited the state’s case.
Moving to defendant’s challenges to the statements
made in closing argument, we are not persuaded that the
prosecutor’s argument in closing as to the reliability of V’s
testimony was obviously improper. The prosecutor’s statement regarding V’s memory was grounded in the testimony
that the jury heard. See State v. Slay, 331 Or App 398, 404,
545 P3d 768, rev den,
372 Or 560 (2024) (“Advocacy, whether
it be in the criminal or civil context, 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.”). The prosecutor listed various
details that V recalled and testified to and suggested that
those details made it unlikely that V was lying, and we are
not persuaded that the prosecutor’s use of a legal phrase
made the statement obviously improper.
We do agree, however, that the prosecutor’s statements about voir dire and how other sexual assaults are
proven were obviously improper. Of particular concern are
the prosecutor’s assertions that “the vast majority of sexual assaults” are proven using the same evidence that the
state presented in this case, and that V’s response to being
Cite as 340 Or App 636 (2025) 641
sexually assaulted was like that of “[m]ost” victims. The
state presented no evidence about how other sexual assault
cases are prosecuted, or any evidence as to whether most
sexual assault victims go to a hospital. The statements suggested that the state had background knowledge of such
facts that supported its case, but which it had never presented. That suggestion eroded the protections of the rules
of evidence and the presumption of innocence.
The statements about voir dire and reasons for disclosure that were not included in V’s testimony were also
improper. In her own testimony, V provided various reasons
why she did not initially disclose the sexual assault, including “shame,” “guilt,” and because she was not comfortable
discussing it, and the prosecutor appropriately referred to
those reasons in closing argument. However, the prosecutor
also improperly referred to reasons that he himself raised
to the prospective jurors during voir dire, suggested that
those reasons came from the jurors, and argued that those
reasons all “applie[d] to V.” That portion of the closing argument improperly relied on facts that were not in evidence to
bolster V’s credibility.
Having concluded that the prosecutor made improper
statements, we must consider whether the improper statements meet the standard for plain-error review. To meet
that standard, defendant must demonstrate that the statements “were ‘so prejudicial that an instruction to disregard
them would not have been sufficiently curative to assure the
court, in its consideration of all the circumstances, that [he]
received a fair trial.’ ” Perez, 373 Or at 606 (quoting Chitwood,
370 Or at 312). Where a defendant makes that showing, the
denial of the right to a fair trial indicates “plain error.” Id.
at 607. Finally, we consider whether to exercise discretion to
correct the error. Chitwood,
370 Or at 322.
Having considered the improper statements, we
are not persuaded that they rise to the level of plain error.
That is, we are not persuaded that the “only appropriate or
available remedy” to the trial court was to declare a mistrial. State v. Smith, 334 Or App 89, 95,
554 P3d 817 (2024).
Had defense counsel immediately objected when the prosecutor discussed voir dire or suggested how the “majority of
642 State v. Smith
sexual assaults” are proven, the court would have had the
opportunity to strike the statements and remind the jury to
rely only on the testimony and evidence presented during
the trial. See State v. Dumdei,
337 Or App 246, 254-55,
562
P3d 634 (2025) (explaining that “we understand the ‘curative instructions’ contemplated in the current plain error
analysis to refer to instructions given immediately following
the prosecutor’s improper statements which directly address
the misconduct”).
Further, both improper statements were made
during closing argument. An objection by defendant would
have not only provided the court with an opportunity to
strike the statements or provide a curative instruction, but
also have given defense counsel the opportunity to address
them in his own closing argument. See Chitwood, 370 Or at
317-18 (explaining that improper statements made during
rebuttal argument are the most prejudicial because they do
not leave the defendant an opportunity to make a counter
argument). Here, defense counsel could have reiterated the
court’s curative instruction and made counter arguments,
such as suggesting that the reason behind the improper
statement was the prosecutor’s own recognition of the weakness of the state’s evidence and burden of proof. Accordingly,
defendant has not established plain error, and we need not
consider whether to exercise discretion to correct any error.
Affirmed.
