State v. Jackson

166                    June 4, 2025             No. 515

  This is a nonprecedential memorandum opinion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.
                ADAM TRENT JACKSON,
                   Defendant-Appellant.
              Washington County Circuit Court
                   21CR56924; A181634

  Oscar Garcia, Judge.
  Submitted April 21, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Colm Moore, Assistant
Attorney General, filed the brief for respondent.
   Before Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)                             167

           HELLMAN, J.
         Defendant appeals an amended judgment of conviction for first-degree sodomy, ORS 163.405, first-degree
sexual abuse, ORS 163.427, and second-degree theft, ORS
164.045.1 On appeal, defendant makes arguments under
State v. Chitwood, 

, 

 (2022), contending that the prosecutor made statements in closing
and rebuttal argument that rise to the level of plain error
because they denied him a fair trial. We affirm.
         In closing, the prosecutor stated that defense counsel cross-examined the victim “aggressively,” that the victim “wasn’t allowed to finish her answer,” and that she was
“talked over.” The prosecutor also said it was “not fair” that,
when cross-examining the victim, defense counsel referred
to a single page of the sexual assault report that showed no
physical findings, when other pages of the report did document physical injuries.
         In rebuttal, the prosecutor said that defense counsel “made many attempts throughout the presentation and
questioning of witnesses to mislead witnesses and confuse you.” The prosecutor suggested that defendant had
only “offered a portion” of surveillance video into evidence
because “they were trying to hide” the truth.
         Defendant argues that the prosecutor’s statements
“improperly attacked defense counsel’s credibility and
implied that the defense was hiding or not presenting certain evidence,” which urged the jury to convict defendant
for reasons other than his guilt and undermined the state’s
burden of proof. Taken together, defendant contends that the
statements denied his right to a fair trial. Because he did
not object to them below, he asks us to review as plain error
the trial court’s failure to sua sponte grant a mistrial. See
Chitwood, 

 (in the context of an unpreserved
challenge to a prosecutor’s statements, “appellate review is
permitted, and reversal may be warranted if it is beyond
dispute that the prosecutor’s comments were so prejudicial

    1
      A jury convicted defendant of the listed convictions. Defendant was also
convicted by the court of strangulation, ORS 163.187(4), and second-degree theft,
ORS 164.045. Defendant challenges only the jury convictions on appeal.
168                                         State v. Jackson

as to have denied defendant a fair trial” (internal quotation
marks omitted)).
          Here, it is not obvious and beyond reasonable dispute that the prosecutor’s comments were improper. See
State v. Perez, 

, 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”).
         First, the prosecutor’s statements in closing argument were not personal attacks on defense counsel’s credibility and did not impermissibly urge the jury to convict
on an improper basis. See, e.g., State v. Roberts, 

, 224, ___P3d___ (2025) (explaining that “[p]ersonal
attacks on defense counsel” are improper because they “urge
a conviction based not on the evidence, but on the jury’s
emotional response to the defendant’s attorney and defense
case” (internal quotation marks omitted)). Instead, the statements sought to provide explanations for inconsistencies in
the victim’s testimony and lent support to the prosecutor’s
argument to the jury that the victim “was doing her best to
give all the details.”
         Second, the prosecutor’s rebuttal statements did
not undermine the state’s burden of proof. The statements
were in response to the defense’s focus on “a portion” of the
surveillance video “that they want you to watch” and contrasted that with the state’s presentation of the entire video
that the state offered so that the jury could “see everything
and view everything and make the decisions that you want.”
It was also in the context of reminding the jurors that the
“lawyers’ statements aren’t evidence.” When considered in
its entirety, the prosecutor’s argument urged the jury to
consider the whole evidentiary record, not just the portion
offered by the defense, and to conclude that the record as a
whole did not support defendant’s theory of the case.
        Finally, even if the statements were improper, they
do not meet the standard for plain-error review because
they could have been adequately addressed by a curative
Nonprecedential Memo Op: 

 (2025)         169

instruction. See State v. Durant, 

, 

 (2023) (explaining that “prosecutorial statements
that were improper but curable are not an appropriate subject of plain-error review, because, in such circumstances,
the defendant was not denied a fair trial” (emphasis in
original)).
        Affirmed.