State v. Jones

84                        June 4, 2025            No. 492

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   KENNETH EMILE JONES,
                      Defendant-Appellant.
                 Clackamas County Circuit Court
                      23CR32054; A182927

     Kathie F. Steele, Judge.
     Submitted May 15, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
     JACQUOT, J.
     Affirmed.
Cite as 

 (2025)                                 85

        JACQUOT, J.
        Defendant appeals from a judgment of conviction
following a jury trial, for first-degree theft, ORS 164.055.
In two assignments of error, he contends that the trial court
erred by allowing the prosecutor to argue during closing
and rebuttal arguments that the jury should “hold [defendant] accountable.” Defendant’s claims of error are unpreserved. After consideration of the record and the parties’
arguments, we determine that the challenged prosecutor’s
comments were not improper, and we affirm.
         We have discretion whether to review unpreserved
arguments for plain error. State v. Vanornum, 

, 

 (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.” 

.
          “[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, 

, 

(2022). “[T]o satisfy the plain-error requirement that the
alleged error be ‘one of law,’ a defendant must prove that
the prosecutor’s comments were not just ‘improper,’ but ‘so
prejudicial as to have denied [the] defendant a fair trial.’ ”
State v. Perez, 

, 605, ___ P3d ___ (2025) (quoting Chitwood, 

 (brackets in Perez)). “In other
words, the prosecutor’s comments must have been so prejudicial that an instruction by the trial court to the jury to
disregard the comments ‘would not have been sufficiently
curative’ to ensure that the defendant received a fair trial.”
Perez, 373 Or at 605 (quoting Chitwood, 

); see
also State v. Pierpoint, 

, 

(2023) (even if improper, a prosecutorial comment does not
constitute plain error unless it was “so prejudicial that an
instruction to disregard [it] would not have been sufficient[ ]”
to ensure that the defendant received a fair trial). We review
“statements made by a party during argument in context,
86                                              State v. Jones

not in a vacuum.” State v. Mayo, 

, 

 (2020).
         In his first assignment of error, defendant contends
that reversal is required, because during closing argument, the prosecutor stated, “I ask you to hold [defendant]
accountable and find him guilty of theft in the first degree.”
In his second assignment of error, he challenges the prosecutor’s reprisal during rebuttal, “Again, I’d ask you to hold
the defendant accountable and find him guilty.” Defendant
argues that those remarks by the prosecutor deprived defendant of a fair trial because the prosecutor “urged the jury
to find defendant guilty based on emotion rather than the
evidence presented at trial.”
          The state responds that the challenged remarks
“ask[ed] the jury to perform its duty to return a verdict
based on the evidence.” Alternatively, the state argues that
it is not obvious and beyond reasonable dispute, Chitwood,

, that the challenged remarks were improper.
          It was not improper for the prosecutor to ask the
jury to hold defendant accountable and find him guilty. Cf.
Perez, 373 Or at 617-20 (Bushong, J., concurring) (describing
a number of arguments that are improper for a prosecutor to
make). Asking the jury to hold defendant accountable does
not, by itself, suggest a “negative inference” against defendant. Cf. State v. Soprych, 

, 

(2022) (“A prosecutor’s reference to or comment on a defendant’s invocation of a constitutional right, such as the right
to counsel, the right to remain silent, or the right to a trial,
may prejudice a defendant’s ability to have a fair trial if the
jury is likely to draw a negative inference from the exercise
of that right.”). Defendant does not point to any other aspects
of the prosecutor’s arguments, or the state’s prosecution of
the case as a whole, that would support a determination
that in asking the jury to hold defendant accountable, the
prosecutor was inviting or encouraging the jury to decide
the case based on emotion, morality, or bias.
        Affirmed.