724 May 29, 2025 No. 460
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
HART HOLDEN STONE,
Defendant-Appellant.
Clatsop County Circuit Court
22CR25622; A180667
Kirk C. Wintermute, Judge.
Argued and submitted December 19, 2024.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Powers, Presiding Judge, Pagán, Judge, and
Armstrong, Senior Judge.
POWERS, P. J.
Conviction for first-degree robbery reversed and
remanded for a new trial on the lesser-included offense of
attempted first-degree robbery; remanded for resentencing;
otherwise affirmed.
Cite as 340 Or App 724 (2025) 725
726 State v. Stone
POWERS, P. J.
Defendant challenges his conviction for first-degree
robbery, ORS 164.415, raising five assignments of error. The
first two assignments are directed at the sufficiency of the
evidence to enter a conviction for first-degree robbery. In
response, the state concedes that the evidence was legally
insufficient to convict defendant of first-degree robbery, but
it urges us to remand for entry of judgment for the lesser-included offense of attempted first-degree robbery. For the
reasons explained below, we accept the state’s concession
of error but disagree with the proposed remedy. Instead,
we remand for a new trial on the lesser-included offense
because the jury did not consider that offense and did not
necessarily find the elements to establish it.
In his remaining assignments of error, defendant
argues that all of his convictions should be reversed because
the trial court erred in denying his motion for a mistrial
after a witness commented on defendant’s right to remain
silent, and that the court plainly erred by not sua sponte
declaring a mistrial based on improper closing arguments.
As explained below, we conclude that the court acted within
its discretion in handling the witness’s comment and did not
plainly err by failing to declare a mistrial based on the prosecutor’s arguments. Accordingly, we reverse and remand for
a new trial on attempted first-degree robbery, remand for
resentencing, and otherwise affirm.
I. BACKGROUND
Defendant was charged with first-degree robbery
and several other crimes related to an incident at a convenience store in Seaside. At trial, the state presented the
following evidence to the jury. Defendant entered a convenience store wearing a black sweatshirt and facemask. He
approached the cash register, raised a knife from his side,
and told the store owner, L, to give him the money from the
register. Defendant was about arm’s length away from L,
and L responded by holding up a nearby folded step stool as if
he planned to throw it at defendant. Defendant, who did not
make contact with L, grabbed the tip jar and ran out of the
store. L chased after defendant, and a group of bystanders
Cite as 340 Or App 724 (2025) 727
joined the chase and tackled defendant. Ultimately, defendant was arrested by a nearby police officer, and the tip jar
was returned to the store owner.
Much of that evidence was presented through the
testimony of L, who was the state’s main witness at trial.
During redirect, the prosecutor asked L to stand up and
show the jury how defendant was holding the knife when he
demanded the money from the register. L responded:
“A little than this but still—I mean probably it was
up here like—it—it got from here to here. Even if it’s just
to scare somebody, still it’s not where—well, first of all, I
mean, we can—if that’s not accurate you’re more than welcome to tell your story too.”
Defendant immediately objected and explained that
he had a matter for the court. The jury was excused, and
defendant moved for a mistrial on the ground that the witness commented on defendant’s right to remain silent, irreparably harming defendant’s case. The trial court denied the
motion, ruling that it was an improper but off-hand comment that could be cured with a cautionary instruction later
on in the trial. When the jury returned, the state called its
next witness; the court did not give a cautionary instruction
at that time.
After the state rested its case, the parties discussed jury instructions. Initially, the state requested that
the trial court instruct the jury that, in order to convict for
first-degree robbery, it must find that defendant “use[ed] or
threaten[ed] the immediate use” of physical force. However,
the prosecutor was relying on a different version of the
indictment than had been filed with the court. The actual
indictment alleged use of force but not threatened use—
specifically, that defendant “did unlawfully and knowingly,
while in the course of committing or attempting to commit
theft, with the intent of compelling [L] to deliver property,
use physical force upon [L] and use a dangerous weapon.”
The court modified the state’s proposed instruction to track
the language of the indictment and require that defendant
knowingly “use[d] physical force upon” L.
During those same discussions, defendant requested
that the jury also be instructed on the lesser-included offense
728 State v. Stone
of attempted first-degree robbery. The state did not object,
and the parties debated how to instruct on the elements
of the inchoate crime. Ultimately, the jury was instructed
that “the charged crime of Robbery in the First Degree has
a lesser-included offense of … Attempted Robbery in the
First Degree,” and it received instructions on the crime of
attempt.
The trial court’s instructions also addressed a
defendant’s right not to testify. The court told the jury:
“A defendant has an absolute constitutional right not to
testify. Therefore, a defendant’s decision not to testify cannot be considered as an indication of guilt. It should not be
commented on or in any way considered by you in your deliberations. A defendant also has an absolute constitutional
right not to present any evidence. Therefore, a defendant’s
decision not to present any evidence cannot be considered
as an indication of guilt. It should not be commented on or
in any way considered by you in your deliberations.”
After the jury was instructed, the parties proceeded
to closing arguments. During the state’s closing, the prosecutor walked through the elements of the charged offenses
and argued that the state had proved them with direct and
circumstantial evidence. The direct evidence, the prosecutor
asserted, was the testimony of L who “was right there. He
told you exactly what went down.” The prosecutor concluded
by arguing, “So, uh, in essence, ladies and gentlemen, I’d ask
you to recall the testimony of [L], and as the Judge said, the
testimony of any one witness whom you believe is enough to
prove anything at issue and he was a perfectly believable
witness, I submit, and—and, uh, I would ask you to find the
defendant guilty of these charges.”
Defendant’s closing argument focused on the fact
that he had not actually used the knife and suggested that
even L had not believed that defendant intended to follow
through by using the knife. Defendant argued, “[W]ell then
why didn’t he use it there? I mean, thank God he didn’t use
it there, but why didn’t he use it there? Was he hesitant? Was
he really thinking through that this is what he was going
to do? That is why I submit to you that when you get into
the jury room and look at this the crime that probably most
Cite as 340 Or App 724 (2025) 729
fits is Attempted Robbery in the First Degree.” Defendant
again reiterated that even L did not perceive that defendant
intended to follow through and “what’s lacking there is that
there was really true intent to follow-through on that.”
In rebuttal, the prosecutor concluded his arguments
by referring to voir dire and an exchange that occurred with
a prospective juror, Juror 509, who had expressed the view
that he was “very jaded against the government and a lot of
the court systems in the higher municipalities are screwing
over the world,” that he could not be a fair juror because the
system was not “just and true,” and that the “main goal” of
the attorneys in the case is to win. The prosecutor stated:
“[Defense counsel has] done a good job for the defendant, uh, and, uh, he’s—he’s done his duty here and, uh,
if you see Mr.—Juror 509, I think that was the guy’s number, that was—the fellow back here, uh, just—just tell him
that the DA’s job is actually to seek justice and that’s what
I’m asking you to do is to seek justice. Seek justice for the
defendant, seek justice for the State of Oregon and to seek
justice for [L].”
The jury was then sent back to deliberate. During
that process, the jury asked for a definition of physical force,
which had not been included in the original jury instructions. The court then further instructed the jury that physical force is “[f]orce consisting in a physical act.”
The jury found defendant guilty of first-degree robbery, unlawful use of a weapon, and menacing. Defendant
filed a timely appeal and now advances five assignments of
error.
II. ANALYSIS
A. Sufficiency of Evidence to Prove First-Degree Robbery
In his first two assignments, defendant argues that
the trial court plainly erred by failing to sua sponte enter
a judgment of acquittal on the first-degree robbery charge
because the evidence was legally insufficient to establish
the elements of that offense, including defendant’s use of
force. The state agrees that the evidence was legally insufficient to show that defendant used physical force and that
the conviction for first-degree robbery should be reversed.
730 State v. Stone
Where the parties’ arguments diverge is the proper remedy
on appeal: The state proposes that we remand with instructions for the trial court to enter a conviction for attempted
first-degree robbery, a lesser-included offense. Defendant
requests that we remand for a new trial on attempted first-degree robbery.
A motion for a judgment of acquittal tests the sufficiency of the evidence. See State v. Modrzejewski, 311 Or
App 739, 741-42,
490 P3d 172 (2021) (explaining that our
task in reviewing a motion for a judgment of acquittal is
to “determine whether any rational trier of fact, accepting
reasonable inferences and making reasonable credibility
choices, could have found the essential elements of the crime
beyond a reasonable doubt” (internal quotation marks omitted)). The elements of first-degree robbery are set forth in
ORS 164.415(1), which provides that a person commits that
offense “if the person violates ORS 164.395 and the person:
(a) Is armed with a deadly weapon; (b) Uses or attempts to
use a dangerous weapon; or (c) Causes or attempts to cause
serious physical injury to any person.” ORS 164.395, in turn,
provides:
“(1) A person commits the crime of robbery in the third
degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS
164.135 the person uses or threatens the immediate use of
physical force upon another person with the intent of:
“(a) Preventing or overcoming resistance to the taking
of the property or to retention thereof immediately after
the taking; or
“(b) Compelling the owner of such property or another
person to deliver the property or to engage in other conduct
which might aid in the commission of the theft or unauthorized use of a vehicle.”
As noted above, the charging instrument in this
case did not allege that defendant threatened the immediate use of physical force, which is one way of violating ORS
164.395; rather, it alleged that defendant did “use physical force.” As the state correctly concedes, the evidence did
not support that theory. It is not enough, as the trial court
defined physical force, that there be a physical act using
Cite as 340 Or App 724 (2025) 731
force. Rather, as we explained in State v. Johnson,
215 Or
App 1, 5,
168 P3d 312, rev den,
343 Or 366 (2007), the “force
must be used on the victim.” Because there is no evidence
that defendant actually made contact with L—that is, no
force was used on the victim—defendant was entitled to a
judgment of acquittal on the offense of first-degree robbery
as it was charged. We, therefore, accept the state’s concession of error and agree that, under the circumstances, it is
appropriate to exercise our discretion to correct it in light of
the gravity of the error. See, e.g., State v. Reynolds,
250 Or
App 516, 522,
280 P3d 1046, rev den,
352 Or 666 (2012) (similarly concluding that it was appropriate to exercise discretion to correct a plain error where the evidence was legally
insufficient to support the conviction).
That conclusion brings us to the parties’ point of
disagreement, which is the appropriate remedy. We have
authority to remand for entry of a conviction for a lesser-included offense under Article VII (Amended), section 3, of
the Oregon Constitution, which provides that a reviewing
court shall direct the entry of judgment where it “shall be
of [the] opinion that it can determine what judgment should
have been entered in the court below.” However, as we previously observed in Modrzejewski, 311 Or App at 743, the “precise scope of our authority under this provision is not clear.”
The parties’ dispute in this case reflects that lack of clarity:
They agree that the court has authority to direct entry of
judgment for lesser-included offenses and that there must
at least be legally sufficient evidence in the record to support a conviction on that lesser-included offense. See State
v. Hubbell,
371 Or 340, 361,
537 P3d 503 (2023) (observing
that entry of a conviction on a lesser-included offense “raises
two distinct questions: (1) whether the evidence is sufficient
to support a conviction for the inchoate crime of attempted
delivery, and (2) if so, whether this court should direct that
the conviction be entered, as opposed to remanding for the
[factfinder] to consider in the first instance whether to convict
[the] defendant of that crime”). The parties also agree that
there is legally sufficient evidence in the record for a factfinder to find defendant guilty of a lesser-included offense.
But that is where their agreement ends. As for whether the
court should direct the conviction to be entered, they argue
732 State v. Stone
for different legal standards, cite entirely different cases,
and offer fundamentally different understandings of how
we should approach that question.
To provide context for their competing arguments,
we start with the law governing the crime of attempt before
turning back to Article VII (Amended), section 3.
ORS 161.405(1) provides that “[a] person is guilty of an
attempt to commit a crime when the person intentionally
engages in conduct which constitutes a substantial step
toward commission of the crime.” The crime of attempt can
be broken into two elements: (1) intentional conduct that (2)
constitutes a substantial step toward the commission of the
crime. Hubbell, 371 Or at 361-62. The “intentional conduct”
element requires that the person “act[ ] with a conscious
objective to cause the result or to engage in the conduct so
described.” ORS 161.085(7). The “substantial step” element
requires that the person’s conduct “advance[ ] the criminal
purpose charged” and “provide[ ] verification of the existence
of that purpose.” Hubbell,
371 Or at 362.
Under that definition, an attempt to commit a crime
requires a jury to find intentional conduct—a conscious
objective—regardless of whether the crime being attempted
would itself require a conscious objective. See generally
ORS 161.095(1) (providing that the minimal requirement
for criminal liability is the performance of conduct which
includes a voluntary act or the omission to perform an act
which the person is capable of performing); ORS 161.085
(describing the different accompanying mental states for
material elements of offenses).
By statute, though, an attempt crime is treated as
a lesser-included offense of the charged offense, regardless
of whether the mental state requirements are the same for
the charged offense and an attempt to commit that crime.
See ORS 136.465 (“In all cases, the defendant may be found
guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in
the accusatory instrument or of an attempt to commit such
crime.”); ORS 136.460(1) (“Upon a charge for a crime consisting of different degrees, the jury may find the defendant not
Cite as 340 Or App 724 (2025) 733
guilty of the degree charged in the accusatory instrument
and guilty of any degree inferior thereto or of an attempt
to commit the crime or any such inferior degree thereof.”).
If the jury is asked to consider the charged offense and the
attempted crime in the alternative, the jury first considers
the charged offense, and then “[o]nly if the jury finds the
defendant not guilty of the charged offense may the jury
consider a lesser included offense.” ORS 136.460(2).
Here, the jury was instructed consistently with
those requirements, and the verdict form provided that if the
jury could not reach a verdict on robbery in the first degree,
then it may consider the lesser-included offense of attempted
first-degree robbery. The jury, however, never reached the
question on the verdict form regarding the lesser-included
offense of attempt, because it found defendant guilty of
the completed offense. In defendant’s view, that is significant because the two crimes had different mental states:
Whereas the completed crime was charged with a “knowingly” mental state in this case, the lesser-included offense
required the jury to find an intentional mental state—i.e.,
that defendant actually intended to use physical force.
The state, on the other hand, argues that the jury
necessarily found defendant guilty of an attempt crime—
including that defendant engaged in intentional conduct—
when it convicted him of the completed offense. In support
of that argument, the state cites State v. Lopez, 151 Or App
138, 142,
949 P2d 1237 (1997), rev den,
326 Or 465 (1998),
a case in which we remanded for entry of conviction for an
attempted version of the charged crime because the jury had
“necessarily determined that [the] defendant had the requisite intent” when it convicted him of the completed offense.
From that case and others in which we remanded for entry
of a conviction on a lesser-included offense, the state contends that a conviction on the completed offense means, as a
matter of law, that the jury convicted on the lesser-included
offense. See State v. Madison,
303 Or App 737, 742,
466 P3d
92 (2020) (reversing and remanding for entry of judgment
convicting the defendant of two counts of attempted promoting prostitution where the evidence was legally insufficient
to establish the completed offense of promoting prostitution
734 State v. Stone
because the prostitution enterprise was part of a sting operation and not an actual enterprise). In the state’s view, that
same rule should apply even where the conviction for the
completed offense was erroneous, as it was in this case.
We acknowledge that our case law has not been especially clear when we will remand for entry of a judgment on the
lesser-included offense of attempt. We take this opportunity to
clarify that the standard is not satisfied simply because the
evidence is sufficient to establish the lesser-included offense.
To be sure, that is a necessary predicate to the question of
whether a court should direct the entry of judgment—we
would not do so unless there is evidence to support it.
Rather, if the evidence is sufficient to support a
finding of the lesser-included offense—and we agree with
the parties’ positions that it is here—only then do we consider whether we should remand for the entry of judgment
of conviction for the lesser-included offense. In answering
that question, we are mindful of the jury’s role in finding
the elements of a crime in the first instance, and we remand
for the entry of a judgment of conviction on a lesser-included
attempted offense only if we can say that the factfinder
would “necessarily have found [the] defendant guilty” of the
lesser-included inchoate offense. State v. Raygosa, 320 Or
App 77, 83,
512 P3d 824, rev den,
370 Or 455 (2022) (citing
State v. Burgess,
240 Or App 641, 654,
251 P3d 765 (2011),
aff’d,
352 Or 499,
287 P3d 1093 (2012) (declining to affirm
a conviction on an alternative theory of liability where, “[a]
lthough there was arguably sufficient evidence from which
the jury could have made that determination, it did not do
so either expressly or by necessary implication in rendering
its verdict”)); see also State v. Wesley,
326 Or App 500, 510,
533 P3d 786, rev den,
371 Or 511 (2023) (explaining that
“we must limit our exercise of our power under Article VII
(Amended), section 3, to instances where the factfinder necessarily found the elements of the lesser-included offense
at issue”). Importantly, contrary to the state’s contention, a
conviction for a completed offense does not mean, as a matter of law, that the jury necessarily found the elements of
the attempt crime, which can have a different mental state
from the completed offense.
Cite as
340 Or App 724 (2025) 735
Here, though, we are mindful of another important consideration, which is dispositive in this case: The jury
appears to have been operating under an incorrect understanding of the primary offense when it made its findings.
As explained earlier, the case went to the jury on a theory
of use of physical force that was not supported by the evidence, the jury was given an instruction that did not require
use of force on the victim, and the jury found defendant
guilty notwithstanding the lack of any evidence that such
force was used on L—all of which suggests that the jury did
not understand what was required in order to commit the
charged offense of first-degree robbery.
For that reason alone, we will not direct the entry
of judgment for attempted first-degree robbery in this case.
Even if we could say on this record that the jury necessarily found that defendant had a conscious objective to commit
first-degree robbery,1 we cannot be confident that the jury
made its findings with a correct understanding of what constitutes that crime and, specifically, use of physical force.
Without that confidence, we are not “of [the] opinion that [we]
can determine what judgment should have been entered in
the court below,” Or Const, Art VII (Amended), § 3, because
we do not know what verdict the jury would have rendered
had it actually reached the lesser-included offense and considered it with a correct understanding of the law. Accordingly,
we reject the state’s proposed remedy and instead remand for
a new trial on the charge of attempted first-degree robbery.
B. Failure to Declare a Mistrial
In defendant’s remaining assignments of error,
he argues that he is entitled to a new trial on all counts
because the court should have granted his motion for a mistrial or declared sua sponte a mistrial at different points in
the trial. As explained below, we reject those arguments and
therefore affirm the judgment as to his remaining convictions for unlawful use of a weapon and menacing.
1
That question is itself complicated by the different mental states between
the charged offense and the attempt crime. As in Modrzejewski, we “leave for
another day whether remanding with instructions to enter a crime for an attempt
is ever possible after a jury finds a defendant guilty for a crime that was pleaded
with a knowing mental state.” 311 Or App at 744 n 4.
736 State v. Stone
1. Witness comment on defendant’s right to remain
silent
In defendant’s third assignment, he argues that
the court erred in its handling of his objection to L’s statement that defendant was “welcome to tell your story too.”
According to defendant, L’s statement was an improper comment on his right to remain silent that could only be remedied by a contemporaneous instruction to the jury; and,
having failed to give an instruction immediately after the
statement was made, the court was required to grant his
motion for a mistrial.
We review the denial of a motion for mistrial for
an abuse of discretion, and such a denial does not constitute an abuse of discretion unless the effect was to deny a
defendant a fair trial. See State v. Woodall, 259 Or App 67,
74,
313 P3d 298 (2013), rev den,
354 Or 735 (2014) (observing
that a motion for mistrial is reviewed for abuse of discretion,
which is a “daunting standard of review that gives the trial
court’s decision great deference”); State v. Chitwood,
370 Or
305, 311,
518 P3d 903 (2022) (noting that the denial of a
mistrial motion “would not constitute an abuse of discretion
unless the effect of the prosecutor’s misconduct was to deny
a defendant a fair trial”). We have explained that a “prosecutor’s or a witness’s reference to the defendant having exercised a constitutional right—like the right to remain silent
or to obtain counsel—may prejudice the defendant’s ability
to have a fair trial if it raises the impermissible inference
that the defendant did so because” he, she, or they were
guilty. State v. Hunt,
297 Or App 597, 600-01,
442 P3d 232
(2019). If a witness’s reference raises an impermissible inference that the defendant invoked the right to remain silent
because the defendant was guilty, the question is whether
that prejudicial effect may be cured by an appropriate jury
instruction—i.e., “whether the purportedly curative instruction was sufficient to unring the bell.”
Id. at 605 (quoting
State v. White,
303 Or 333, 342,
736 P2d 552 (1987); internal
quotation marks omitted).
In this case, we disagree with defendant’s contention that the trial court’s only permissible responses to L’s
statement were to immediately give a curative instruction
Cite as 340 Or App 724 (2025) 737
or declare a mistrial. L’s reference to defendant testifying
was an unprompted, fleeting reference made by a lay witness. The court’s choice to rely on cautionary instructions at
the end of the trial regarding defendant’s “absolute constitutional right not to testify” and “absolute right not to present any evidence,” rather than drawing more attention to L’s
comment with a contemporaneous curative instruction, was
a permissible one given the nature of the passing reference
in the context of the trial as a whole. Thus, the court did not
err by denying defendant’s motion for a mistrial.
2. Improper closing argument
In defendant’s final two assignments, he argues
that he was denied the right to a fair trial as a result of
the prosecutor vouching for L by arguing that he was “a
perfectly believable witness, I submit,” and by referring in
rebuttal to Juror 509 and the prosecutor’s job to “seek justice,” which were facts not in evidence and encouraged the
jury to decide the case on an improper basis. Defendant did
not object on those grounds below and asks us to reverse on
the basis of plain error.
For a defendant to prevail on an unpreserved challenge to a prosecutor’s statements during closing argument,
it must be “beyond dispute that the prosecutor’s comments
were so prejudicial as to have denied defendant a fair trial.”
Chitwood, 370 Or at 312 (internal quotation marks omitted);
see also State v. Perez,
373 Or 591, 605, ___ P3d ___ (2025)
(explaining that Chitwood “adhere[s] to the requirement
that a plain error be an error of law” and that, for prosecutorial misconduct to satisfy that standard, a defendant must
establish that “the trial court’s only lawful option—had the
defendant objected—would have been to declare a mistrial,
because no curative instruction would have been effective”).
That is, “a defendant asserting plain error must demonstrate that the prosecutor’s comments 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 the defendant received a fair
trial.” Chitwood,
370 Or at 312. “[P]rosecutorial statements
that were improper but curable are not an appropriate subject of plain-error review, because, in such circumstances,
738 State v. Stone
the defendant was not denied a fair trial.” State v. Durant,
327 Or App 363, 365,
535 P3d 808 (2023) (emphasis omitted).
Any prejudice from the prosecutor’s statements in
closing and rebuttal did not rise to the level that it could not
have been cured if defendant had objected. To the extent
that the prosecutor conveyed a personal belief that L was
credible, an objection would have allowed the prosecutor
to clarify that he was asking the jury to rely on the evidence presented at trial to assess L’s credibility, or the trial
court could have provided a curative instruction to the same
effect. See State v. Bonczkowski, 337 Or App 701, 711-12,
564
P3d 481 (2025) (concluding that those options would have
cured any prejudice from a prosecutor’s statements that she
believed the victim’s report of the defendant’s assault).
The prosecutor’s rebuttal likewise did not result in
the type of prejudice that could not be cured with an appropriate curative instruction. The prosecutor argued that
defense counsel had done a “good job for the defendant” and
“done his duty here,” and that if the jury were to see Juror
509, tell him “that the DA’s job is actually to seek justice
and that’s what I’m asking you to do is to seek justice. Seek
justice for the defendant, seek justice for the State of Oregon
and to seek justice for [L].” According to defendant, those
statements relied on facts not in evidence and communicated
that the prosecutor had a higher duty than defense counsel
as the one seeking justice. That line of argument, although
improper, is not the type of error that could not have been
adequately addressed had defendant objected. See Perez,
373 Or at 618, 620 (Bushong, J., concurring) (observing
that the reason a court is conducting a trial in a particular
case is rarely, if ever, relevant, and that prosecutors should
resist the temptation to “level the playing field”); Durant,
327 Or App at 365 (concluding that prosecutor’s statements,
although improper, were curable and did not deprive the
defendant of a fair trial). Accordingly, we reject defendant’s
final two assignments of error.
Conviction for first-degree robbery reversed and
remanded for a new trial on the lesser-included offense of
attempted first-degree robbery; remanded for resentencing;
otherwise affirmed.
