State v. Johnson

134                    July 23, 2025               No. 660

   This is a nonprecedential memorandum opinion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.
             ANTHONY LEE JOHNSON,
                 Defendant-Appellant.
            Washington County Circuit Court
                 21CR22956; A180548

  Beth L. Roberts, Judge.
  Submitted June 24, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)                               135

         JACQUOT, J.
         Defendant appeals a judgment of conviction for
two counts of menacing, ORS 163.190, and three counts
of harassment, ORS 166.065, for incidents involving altercations with his then-girlfriend. In eleven assignments of
error, he argues that the trial court erred when it ruled that
if defendant introduced certain evidence, it would open the
door for the state to introduce prior bad acts evidence; qualified a police officer as an expert witness; failed to order a
mistrial based on improper prosecutor comments during
closing and rebuttal; and imposed several special conditions
of probation without announcing them on the record. We
conclude that the trial court erred by failing to announce
the special probation conditions in open court at sentencing
and remand for resentencing. We otherwise affirm.
         In his first assignment of error, defendant argues
that the trial court erred when it ruled that if defendant
offered a portion of a text message conversation for the purpose of impeaching the victim, it would open the door for the
state to introduce evidence that had previously been ruled
inadmissible, including some evidence of prior bad acts. The
extent of that ruling is in dispute. Defendant argues that the
trial court ruled that all evidence it had previously excluded
would be admissible, but we do not understand that to be
the case. We understand the trial court’s ruling to be that it
would admit evidence needed by the state to establish “context” regarding the text messages. As defendant notes, what
that evidence would be is unclear, and it may have included
some prior bad acts. Without more specificity about what
evidence would have been admitted to establish “context,”
we cannot assess whether the trial court erred.1
        Regardless, even were there an error that led to
defendant deciding not to introduce the text messages,
any error was harmless. The trial court offered other ways
that defendant could use the inconsistencies in the victim’s
statements to attack her credibility. Indeed, it appears that
    1
      To the extent that the trial court ruled as it did because it would not admit
an incomplete conversation, that ruling was not necessarily error. Under OEC
106, “[w]hen part of a … conversation or writing is given in evidence by one
party, the whole on the same subject, where otherwise admissible, may at that
time be inquired into by the other.”
136                                           State v. Johnson

the jury did not find her credible, seeing as defendant was
acquitted of all charges that relied exclusively on her credibility, such as the witness tampering charge for which the
allegedly erroneously excluded evidence was relevant. He
was convicted only of those charges to which he had admitted to engaging in at least some of the alleged conduct.
Defendant was able to impeach the victim, and any potential error in the trial court’s ruling that defendant offering
the text messages would open the door to other evidence was
harmless.
          In his second assignment of error, defendant argues
that the police officer that testified regarding the “circle of
abuse” and counterintuitive victim behavior was not qualified to do so. We review whether a witness is qualified to testify as an expert for legal error. State v. Wagner, 

, 

, adh’d to as modified on recons, 

, 

 (2022), rev den, 

 (2023). We
conclude that “the trial court correctly determined that [the
officer] had sufficient training and experience to testify about
counterintuitive victim behavior and cycles of violence.” Id.
at 408. The officer had extensive experience and training in
domestic violence cases, and he did not provide any scientific
testimony. Given our decision in Wagner, the trial court did
not err in qualifying him as an expert witness.
         In his third assignment of error, defendant argues
that “[t]he trial court plainly erred when it failed to order a
mistrial when the prosecutor’s improper comments during
closing and rebuttal argument denied defendant a fair trial.”
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 mistrial, the trial
court would have erred, as a matter of law, in denying it.”
State v. Chitwood, 

, 

 (2022).
Nonprecedential Memo Op: 

 (2025)                 137

         Defendant identifies three statements made by the
prosecutor during closing and rebuttal that he argues were
improper. He argues that the statements were improper for
three reasons: “(1) they improperly shifted the burden to
defendant; (2) they urged the jury to decide the case on an
improper basis; and (3) they provided the prosecutor’s opinion on the credibility of defendant and his mother.”
         First, the prosecutor commented on defendant’s
mother’s testimony that defendant was with her when one of
the incidents was alleged to have occurred. The prosecutor
stated that defendant did not tell law enforcement that he
was not at the scene at the time of his first interview, the
day after the alleged incident:
     “He told Deputy Lowery … on January 10th that he
  had been at [the victim’s] house on January 9th, that she
  had spat on him and that he left because he doesn’t trust
  cops.
      “Fair enough. But then what he told you today was, ‘Oh,
  I actually—I wasn’t even there on the 9th. Instead I was at
  my mom’s house. And, you know, Deputy Lowery just—he
  got confused. He got it wrong, even though he has no reason
  to do that. I was at my mom’s house.’
      “The defendant did not tell Deputy Lowery about the
  earring. He did not tell Deputy Lowery about the necklace,
  did not tell Deputy Lowery that he wasn’t there. He didn’t
  tell him any of those things. Instead, he shows up here
  today, spins that yarn and has his mom get on the stand.
     “The best he could come up with was his mother, who
  says, ‘I remember him being there into the evening. And I
  remember it being 7 o’clock.’ Keep in mind this is January
  in Oregon, when it gets dark at like 4:00.
      “Into the evening in January is very different than into
  the evening in July, when it’s light ‘til 10:00. So, ladies and
  gentlemen, give her testimony the weight that you think it
  should deserve, [given] that she doesn’t want her baby boy
  to get in trouble.”
Defendant argues that the statement “the best he could
come up with was his mother” confused the burden of proof
and placed it upon defendant to produce “other, more credible witnesses.” We agree that the comment was improper
138                                           State v. Johnson

in that it suggested that defendant had a burden to call
other witnesses. See State v. Dumdei, 

,

, rev den, 

 (2025) (“It is improper for
a prosecutor to comment on a defendant’s failure to present evidence at trial because such comments may reasonably cause the factfinder to misapprehend and misallocate
the burden of proof.” (Internal quotation marks omitted.)).
However, the statement was not egregious such that a curative instruction reminding the jury that defendant holds no
burden of proof would have been insufficient, and it would
not have been an abuse of discretion for the trial court to
deny a motion for a mistrial based upon the statements.
         He also argues that the statement that defendant
was “spin[ning] that yarn” improperly commented on his
credibility. In context, the jury would have understood the
prosecutor to be arguing about the credibility of the evidence
as related to defendant’s theory of the case. The prosecutor
grounded the statement regarding defendant’s testimony in
evidence in the record, namely that defendant had already
told a deputy that he was at the victim’s house on the day in
question. That was a permissible comment on his credibility. See State v. Slay, 

, 

,
rev den, 

 (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. … [T]he prosecutor did not offer a personal
opinion of [the defendant]; instead, [the prosecutor] permissibly argued for why [the defendant’s] credibility should be
questioned given the evidentiary record.”).
        Second, the prosecutor commented on the reason
that the victim’s statements were inconsistent:
      “And that, ladies and gentlemen, is why, again, the
   explanation that [the victim] went through a traumatic
   event on January 9th, which, again, is uncontradicted,
   with the exception of the defendant’s mother trying to say
   that he was with her that day, even though he told Deputy
   Lowery he was at the house with [the victim].”
Defendant argues that the prosecutor’s reference to the
victim’s testimony as “uncontradicted” shifted the burden
Nonprecedential Memo Op: 

 (2025)              139

of proof to defendant to produce witnesses other than his
mother. However, a proper curative instruction would have
cured any potential impropriety, had defendant objected.
        Third, defendant argues that the prosecutor suggested that defense counsel had done something improper
while questioning the victim on inconsistent statements she
had made:
      “Did [defendant] have the opportunity to tell him everything that happened? He did. And what [defendant] chose
   to tell him was ‘She spit food on me, and I left.’ And the
   defense wants to harangue [the victim] for saying something happened, telling another officer she doesn’t remember a knife and then saying something happened.
       “Ladies and gentlemen, [defendant] is even more inconsistent, where he says nothing happened and then he says,
   ‘well, what she said happened did happen in part, but it
   was only because I was responding what she did to me,
   which I never told anyone else.’
      “That’s a demonstration of inconsistency. And the difficulty there is that her inconsistency is entirely explained
   by the traumatic event she experienced[.]”
Defendant focuses on the prosecutor’s use of the word
“harangue” and argues that the comment urged the jury
to draw a negative inference from his exercising his right
to confront the victim, and that it disparaged defense counsel. However, when viewed in context, the jury would have
understood the prosecutor to be rebutting the defense argument that the victim was not credible due to her inconsistent
statements and commenting on how the inconsistencies in
defendant’s statements are greater than the inconsistencies
in the victim’s, rather than as an attack on defense counsel personally or defendant’s right to confront his accuser.
Absent legitimate grounds to object to counsel’s method,
prosecutors should avoid using language such as “harangue”
when describing defense questioning of a witness, but the
statement, in context, did not deny defendant a fair trial.
        We also reject defendant’s contention that the statements, taken together, deprived him of a fair trial. Each
of the statements, to the extent that they were improper,
could have been cured with a curative instruction and, even
140                                        State v. Johnson

collectively, were not so egregious as to deny defendant a
fair trial.
         Finally, in his fourth through eleventh assignments
of error, defendant argues that the trial court erred when
it imposed certain special conditions of probation without
announcing those conditions in open court and used the
shorthand term of “domestic violence package.” The state
concedes that under our decision in State v. Priester, 

, 

, rev den, 

 (2023), the
trial court erred. We accept that concession and remand for
resentencing.
        Remanded for resentencing; otherwise affirmed.