No. 674 July 30, 2025 243
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER LEE SIMS,
Defendant-Appellant.
Columbia County Circuit Court
21CR28950; A182516
Denise E. Keppinger, Judge.
Submitted April 3, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna R. Johnson, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
KAMINS, J.
Affirmed.
244 State v. Sims
KAMINS, J.
Defendant appeals from a judgment of conviction
for harassment, ORS 166.065, and disorderly conduct, ORS
166.025, following a road rage incident in which he pushed
C, another driver, onto a highway. Defendant assigns two
errors on appeal: (1) that the trial court abused its discretion
in not granting a mistrial following the prosecutor’s comments in his opening statement; and (2) that the trial court
plainly erred by not intervening when the prosecutor made
statements that defendant contends impermissibly shifted
the burden of proof. We affirm.
C and his coworker, Z, were driving on a highway
when a truck, later identified as driven by defendant, “cut
[them] off.” Defendant lowered his speed to under 10 miles
per hour forcing Z, who was driving, to pull over to the side
of the highway. Defendant and C exited their vehicles, and
when C asked if defendant needed help, defendant called
them “stupid Mexicans.” Defendant continued to yell other
obscenities, and as C turned around to return to his vehicle, defendant pushed him into traffic. Another driver, an
elderly man, noticed that commotion and pulled over to the
side of the road to help C. Defendant began to argue with
that man as well and then pushed C again, causing him
to drop his phone. The man grabbed it and used it to call
911. Defendant then returned to his truck and drove away,
almost running over the man with his truck.
Oregon State Trooper Cowen received a call about
the incident and headed to that location. Cowen saw defendant’s vehicle, pulled him over, and explained that there
“was some sort of disturbance between him and another”
person. Soon thereafter, defendant was placed under arrest
and transported to the police station. During that ride to the
police station, defendant was confrontational with Cowen.
Ultimately, a jury found defendant guilty of harassment and
disorderly conduct for his actions toward C. On appeal, he
raises two assignments of error relating to the prosecutor’s
opening and closing statements, respectively.
Defendant first assigns error to the denial of his
motion for a mistrial after the prosecutor, during his opening
Cite as 342 Or App 243 (2025) 245
statement, commented on evidence that was later excluded.
In his opening statement, the prosecutor began to describe
defendant’s belligerent behavior post-arrest. Defense counsel
objected, and outside the presence of the jury, defense counsel
contended that the prosecutor was referencing that behavior
only “to inflame the jury [and] to cause prejudice towards”
defendant. The court overruled defense counsel’s objection,
but noted that, depending on how the testimony “unfold[s],”
defense counsel can “raise those objections again.” The prosecutor finished his opening statement explaining to the jury
that Cowen is expected to testify that defendant’s behavior
was “confrontational and tumultuous” following his arrest.
Defense counsel “re-raised” his objection regarding
Cowen’s “pending testimony,” arguing that the anticipated
testimony was unduly prejudicial. The trial court agreed and
“limit[ed]” Cowen’s testimony to exclude any “name calling
that occurred while” defendant was being arrested. The trial
court then offered to give a curative instruction. Defense
counsel, however, contended that a curative instruction “will
not be sufficient,” and moved for a mistrial, arguing “it’s too
late. I think that bell is rung.” The trial court denied defense
counsel’s motion for a mistrial, concluding that a curative
instruction would be sufficient to cure any prejudice. The
trial court planned to give a curative instruction following
closing arguments, and defense counsel did not raise any
concerns with the timing of that instruction. As promised,
the trial court gave a curative instruction following closing
arguments that explained, twice, that opening statements
were not a part of the evidentiary record. On appeal, defendant renews his argument that the prosecutor’s comments
were unduly prejudicial and also contends that the court’s
curative instruction was insufficient to remedy the harm.1
The denial “of a motion for a mistrial is reviewed for
abuse of discretion, and [we] will not reverse a conviction on
that basis unless the defendant was denied a fair trial.” State
v. Schumacher, 315 Or App 298, 301,
500 P3d 698 (2021). We
conclude that the trial court did not abuse its discretion. The
1
Defendant also argues that the prosecutor vouched for Cowen’s credibility
during that opening statement. However, because that argument is unpreserved
and defendant does not request plain error review, we do not address it. State v.
McIntire, 328 Or App 328, 335,
537 P3d 608 (2023), rev den,
327 Or 26 (2024).
246 State v. Sims
prosecutor did not emphasize Cowen’s “expected testimony
or its value in establishing defendant’s guilt.” State v. Davis,
345 Or 551, 588,
201 P3d 185 (2008). Rather, the prosecutor
described Cowen’s expected testimony in conjunction with C’s
and Z’s anticipated testimony and did not refer to the testimony again during trial. And the reference came during
opening statements which “pose less danger to a defendant’s
right to a fair trial than when inadmissible evidence is placed
before the jury during the trial.”
Id. at 587-88 (concluding
that the defendant was not denied a fair trial even though the
prosecutor stated during opening statements that a witness—
who never appeared or testified—was expected to testify that
the defendant confessed to murders). Finally, the trial court
provided a curative instruction at the conclusion of the trial,
informing the jury (twice) that opening statements are not
evidence, mitigating any prejudicial impact of the prosecutor’s statements. See State v. Martineau,
317 Or App 590, 594,
505 P3d 1094, rev den,
370 Or 197 (2022) (observing that “we
assume that the jurors follow the court’s instructions, unless
there is an overwhelming probability that they are unable
to do so” (internal quotation marks omitted)). Given those
circumstances, the trial court did not abuse its discretion in
denying a mistrial. Davis,
345 Or at 588.
In his second assignment of error, defendant contends that the prosecutor impermissibly shifted the state’s
burden of proof to defendant. He identifies the following two
statements during the prosecutor’s closing to support that
contention:
“[Prosecutor]: … I want to talk not more about the inconsistent parts but about the consistent parts. One thing was
very, very clear. And that is what [defendant] did that day.
Nobody seemed to disagree about that. There may be some
little disagreements about when he was standing here versus there. But nobody presented information that said I saw
what happened and nobody shoved anyone, for example, or
nobody said this phrase or did this thing. What happened
was consistent.”
“…
“[Prosecutor]: [C] goes to intervene and gets pushed
towards traffic again a second time. At this point people
start calling the police. And [defendant] speeds off. And he
Cite as 342 Or App 243 (2025) 247
speeds off in a way that [C] is put into great fear that he’s
gonna hit this old man that pulled over.
“Those facts, nothing has been presented today to dispute
those facts. And that’s okay. It’s my job to prove what happened that day. Yes. And evidence has been presented today
that has been very consistent about those series of events.”
(Emphases added.)
Defendant argues that those emphasized comments
from the prosecutor “suggested that defendant had the burden to produce evidence to dispute the state’s theory of the
case.” Defendant did not raise that argument below, but
requests plain error review.
The “preliminary question” in a plain error analysis
challenging a prosecutor’s alleged improper comments is
“whether defendant has shown that” those prosecutorial
comments are obviously “ ‘improper.’ ” State v. Perez, 373 Or
591, 606,
568 P3d 940 (2025) (quoting State v. Chitwood,
370
Or 305, 313,
518 P3d 903 (2022)). An affirmative answer
“trigger[s] the central inquiry established in Chitwood:
whether the improper 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 circumstances, that the defendant received a fair trial.’ ”
Id. (quoting Chitwood,
373 Or at 312).
The prosecutor’s comments were not improper
at all, let alone obviously so. Over the course of the trial,
defense counsel pointed to inconsistencies between C’s testimony and his initial statements to police officers on the day
of the incident. The prosecutor attempted to mitigate those
inconsistencies during closing argument by pointing out
that the legally significant facts were undisputed—that is,
that regardless of any inconsistencies in witness testimony,
testimony as to those key facts was consistent. It is within
that context that the prosecutor made the two statements
that defendant identifies as improper.
The first prosecutorial statement that defendant
points to—“nobody presented information that said I saw
what happened and nobody shoved anyone, for example, or
nobody said this phrase or did this thing”—was, in fact, not
248 State v. Sims
improper because the prosecutor derived that argument
from evidence in the record. The prosecutor introduced that
statement by observing that he wanted “to talk not more
about the inconsistent parts but about the consistent parts,”
meaning he was describing testimony that was unrefuted.
Following that statement, the prosecutor explained how the
evidence—mainly Z’s and Cowen’s testimony—was “consistent” with C’s testimony.
Similarly, the second comment that defendant identifies as improper—“[t]hose facts, nothing has been presented today to dispute those facts”—was also grounded in
the evidentiary record and responsive to defendant’s arguments. That comment too came up in the context of the prosecutor discussing the lack of inconsistencies in the record.
As noted, prior to that comment, the prosecutor argued that
the evidence adduced over the course of the trial was consistent as to the key facts: C was pushed towards traffic, defendant sped off, and while speeding away, defendant almost
hit another individual. The prosecutor immediately followed
that statement up with a clarification to ensure that his
argument would not be interpreted to shift the burden of
proof but rather to describe the consistent portions of the
evidentiary record: “It’s my job to prove what happened that
day. Yes. And evidence has been presented today that has
been very consistent about those series of events.”
Because the prosecutor’s statements were based on
the evidence in the record, they were not improper. See State
v. Martinez, 335 Or App 103, 105-06,
557 P3d 556 (2024)
(explaining that it is “proper” for a prosecutor explain “to
the jury the state’s view of the evidence and explain[ ] why
the evidence should lead the jurors to conclude that the state
has proved its case against defendant”); State v. Slay,
331 Or
App 398, 403-04,
545 P3d 768, rev den,
372 Or 560 (2024)
(recognizing that it is proper for attorneys to craft arguments that are “grounded in the evidence in the record”).
Indeed, the prosecutor did precisely what is expected
of an advocate: persuade the jury that it should believe the
state’s theory of the case by responding to defendant’s theory of the case with argument derived from the evidence
in the record. State v. Purrier, 265 Or App 618, 621, 336
Cite as
342 Or App 243 (2025)
249
P3d 574 (2014) (explaining that “the state permissibly may
attempt to persuade the jury that it should believe one version of events and not another”). See State v. Worsham,
373
Or 739, 744, ___, P3d ___ (2025) (recognizing that during
closing argument an attorney “may reasonably employ timeworn techniques of persuasion and rhetoric” to argue their
case); Perez,
373 Or at 617 (Bushong, J., concurring) (observing that “it is always appropriate for a prosecutor to argue
from the evidence that the state has met its burden, and
to explain why”); Cler v. Providence Health System-Oregon,
349 Or 481, 487,
245 P3d 642 (2010) (explaining that “in
presenting closing arguments to the jury, counsel have a
large degree of freedom to comment on the evidence submitted and urge the jury to draw any all legitimate inferences
from that evidence” (internal quotation marks omitted)).
Although prosecutors must be careful to avoid any suggestion that defendant bears a burden of production, they may
comment on what evidence is and is not in the evidentiary
record to support their theory of the case. Because the prosecutor’s comments were not obviously improper, any error is
not plain.
Affirmed.
