State v. Lugo

268                      July 30, 2025                  No. 676

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  TILLA LORENA LUGO,
          aka Tilla L. Lugo, aka Tilla Lorina Lugo
                    Defendant-Appellant.
              Klamath County Circuit Court
                    20CR42906; A179310

   Marci Warner Adkisson, Judge.
   Submitted July 16, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   HELLMAN, J.
   Affirmed.
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        HELLMAN, J.
         Defendant appeals a judgment of conviction for
attempted first-degree murder, ORS 161.405, first-degree
assault, ORS 163.185, and unlawful use of a weapon, ORS
166.220. On appeal, she raises six assignments of error. In
her first two assignments of error, defendant challenges
statements that the prosecutor made during voir dire. In
her third assignment of error, she challenges a statement
that the prosecutor made during closing argument. In her
fourth and fifth assignments of error, defendant challenges
the denial of her mistrial motions. Finally, she assigns error
to the denial of her motion for a new trial. As explained
below, we conclude that even though the prosecutor made
improper statements during voir dire, those statements did
not deprive defendant of a fair trial. We further conclude
that the challenged statement in the state’s closing argument was not improper. Next, we conclude that the trial
court acted within its discretion when it denied defendant’s
mistrial motions. Finally, we decline to review defendant’s
argument concerning her motion for a new trial because
she did not base the motion on newly discovered evidence or
juror misconduct. Accordingly, we affirm.
         Because defendant’s assignments of error implicate
different standards of review, we address them separately
and state the relevant facts in each section.
                        VOIR DIRE
         In her first two assignments of error, defendant
makes arguments under State v. Chitwood, 

, 

 (2022), arguing the trial court plainly erred when
it “allowed the prosecutor” to make two statements “without
correction during voir dire.”
         We may review an unpreserved error when it is
“plain.” State v. Ortiz, 

, 

 (2024).
A “plain error” is “an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.” State
v. Vanornum, 

, 

 (2013). As relevant here, “to satisfy the plain-error requirement that the
alleged error be ‘one of law,’ a defendant must prove that
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the prosecutor’s comments were not just ‘improper,’ but ‘so
prejudicial as to have denied [the] defendant a fair trial.’ ”
State v. Perez, 

, 

 (2025) (quoting
Chitwood, 

).
       On appeal, defendant challenges the following
statements:
   “[THE PROSECUTOR]: And occasionally I get to talk to
   jurors after trials, and they say, ‘[W]ell, I think he did it,
   but the state just didn’t prove it.’ What’s that mean?
      “That means I didn’t get you beyond a reasonable doubt.
   That means that the—the prosecutor that was standing
   here on that day didn’t explain to you that reasonable doubt
   is as soon as you say I think he did it, that that’s guilty.
   Somehow, the tricky defense attorney was able to convince
   that juror—
      “…
       “But if you decide at the end, when it comes time to vote,
   that that person is guilty, then the verdict needs to be guilty,
   not, well, I think he did it, but I don’t think the state proved
   it. As soon as you say, ‘I think he did it,’ that satisfies beyond
   a reasonable doubt. And if you think that a person committed a crime, the verdict is guilty.”
(Emphases added.) In defendant’s view, those statements
“told the jury that the state does not have to prove that
the defendant committed the crime, the jury just needs to
believe that the defendant did it, regardless of the evidence
presented by the state.” (Emphasis in original.)
          We conclude that the prosecutor’s statements were
improper because they “distorted the burden of proof by suggesting, incorrectly, what the jury must find in order to convict
defendant.” Chitwood, 

; see also State v. Dumdei,

, 

, rev den, 

 (2025)
(“[T]he prosecutor’s statements during closing were improper
statements that prejudiced defendant by distorting the burden
of proof.”). However, we observe that the trial court’s general
instructions, which the court gave after the parties’ closing
arguments, provided that “[t]he burden is on the state and the
state alone to prove the guilt of … the defendant beyond a
reasonable doubt.” That general instruction “limited the risk
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of the misuse of the prosecutor’s incorrect statement.” State
v. Almekinders, 

, 

 (2025).
Therefore, we conclude that “an instruction clarifying the
correct burden of proof would have been sufficiently curative”
and that the statements here, which occurred during voir dire,
did not deprive defendant of a fair trial. Dumdei, 

; see also 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)). The
trial court did not plainly err.
                   CLOSING ARGUMENT
        In her third assignment of error, defendant argues
that the following statement from the state’s closing argument deprived her of a fair trial:
      “[THE PROSECUTOR]: Here’s the knife that was on
   the defendant. That’s the one that cut [the victim’s] neck
   open. Looks pretty simple and unassuming. That’s also
   not an ordinary pocketknife. That’s something more than
   just an ordinary pocketknife. An ordinary pocketknife will
   have a screwdriver, sometimes the corkscrews and stuff
   like that.
      “This, she wasn’t carrying to do—this was not being
   carried for the purposes of using it as an ordinary pocketknife. She carried this to use on people. And in this case, it
   was [the victim].”
(Emphasis added.) Defendant acknowledges that she did
not object to the statement and requests plain-error review.
As explained above, “to 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.”
Perez, 

 (internal quotation marks omitted).
           We conclude that, when viewed in context, the prosecutor’s statement was not obviously improper “because there
was more than one way that the jury could have understood”
it. 

; see also State v. Putnam, 

, 

 (2025) (“[W]e review statements made by a party
272                                               State v. Lugo

during argument in context, not in a vacuum.” (Internal quotation marks omitted.)) On cross-examination, the sergeant
who found the knife in defendant’s purse testified that he
did not see any blood on the knife and that he did not know
if police sent it to a forensic lab. Thus, the jury could have
understood the prosecutor’s statement—which occurred in
the context of addressing defendant’s first-degree assault
charge—to argue that the knife that the sergeant had recovered was, in fact, the knife that defendant had used to commit the crime and that it was a “dangerous weapon” within
the statutory definition of that crime. We therefore disagree
with defendant’s argument that the statement “constitute[d]
an appeal to the jurors’ outrage and fear” and we conclude
that “it is unlikely that the jury would have understood that
argument in a manner that would make it … an appeal to
decide the case on emotions rather than evidence.” State v.
Adair, 

, ___ P3d ___ (2025).
          Moreover, “even if the statement[ ] [was] improper,
[it is] in the realm of statements that could have been adequately addressed by striking or a curative instruction.
It follows that defendant has not established plain error.”
Durant, 

; see also Perez, 

 (“[T]
o be an error of law, the effect of the prosecutor’s improper
argument must have been to deny the defendant a fair trial,
which required a defendant to 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.”).
                    MISTRIAL MOTIONS
         In her fourth and fifth assignments of error, defendant makes a combined argument and contends that the
trial court abused its discretion when it denied both of her
mistrial motions.
         “We review the trial court’s denial of the motion for
a mistrial for an abuse of discretion. A trial court abuses its
discretion in denying a motion for a mistrial if the effect is to
deny the defendant a fair trial.” State v. Reed, 

, ___ P3d ___ (2025) (internal quotation marks omitted).
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         On appeal, defendant argues that she was deprived
of a fair trial because the state “injected” into its opening
statement and the victim’s examination statements that
defendant said she had two knives in her purse.1 Defendant
contends that the statements prejudiced her because “the
knife that was admitted as evidence at trial may not have
been the knife that [the victim] was cut with.” We address
the denial of each mistrial motion in turn.
         Defendant made her first mistrial motion after the
state’s opening statement and argued that the following
statement deprived her of a fair trial:
       “[THE PROSECUTOR]: [Defendant is] taken into
    custody. She’s searched. She’s found in possession of a
    knife. She actually states that she was in possession of two
    knives, but they only found one on her.”
In denying the motion, the trial court explained that it
understood that defendant did not “dispute that there was
a knife recovered,” that the “knife is going to be put in evidence,” and that it did not think that the statement was
“prejudicial to the point that [defendant] cannot get a fair
trial.”
        Considering “the circumstances as a whole,” we conclude that the trial court did not abuse its discretion when it
denied that motion. State v. Davis, 

, 

 (2008). Notably, prior to opening statements, the trial
court instructed the jury:
       “[E]vidence consists of testimony of witnesses and
    exhibits that are admitted into evidence. Testimony is
    what a witness, who is sworn or affirmed to answer questions truthfully, says while being examined as a witness.”
The court further instructed:
       “After we come back from lunch, we will hear the opening statements in which the lawyers will outline the evidence as they expect it to be.


    1
      In her opening brief, defendant argues that the “information that defendant said she had two knives in her purse was injected into the trial three times.”
However, defendant acknowledges that defense counsel elicited testimony from
the victim about that “information” on one of those three occasions.
274                                                              State v. Lugo

       “After the opening statements, the evidence will be presented. At the conclusion of the evidence, the lawyers will
    make their closing arguments to you.”
We assume that the jurors “followed [those] instructions,
absent an overwhelming probability that they would be
unable to do so.” State v. Terry, 

, 

(2001), cert den, 

 (2002) (internal quotation marks
omitted). In addition, “opening statements pose less danger
to a defendant’s right to a fair trial than when inadmissible
evidence is placed before the jury during trial because the
jury will ordinarily be able to limit its consideration to the
evidence introduced during the trial.” Davis, 

-
88 (internal quotation marks omitted).
         Further, even though the court stated that it would
be “happy to give” a curative instruction at defendant’s
request, defendant did not request one. Defense counsel later
explained that he declined to request a curative instruction
because he thought it would have been “strategically stupid”
to do so. However, defense counsel’s decision “does not mean
that a mistrial was necessary or that an instruction would
have been ineffective.” Reed, 

 (explaining
that “a curative instruction is generally adequate to remedy any prejudice from a prosecutor’s statements”). The trial
court did not abuse its discretion when it denied defendant’s
first motion for a mistrial.
         We further conclude that the trial court did not abuse
its discretion when it denied defendant’s second motion for a
mistrial. Defendant based that motion on the victim’s testimony that defendant “said she had two knives.”2 In support
of that motion, defense counsel explained that the victim’s
testimony was “exceedingly important” and that he “tried
to fix” that testimony on cross-examination with “lawyering.” In denying the motion, the trial court made extensive
findings and determined that the statement was “not so

     2
       Defense counsel did not object to the victim’s testimony and later crossexamined the victim about that testimony. Outside the jury’s presence, defendant
stated, “just—for the record, your honor, this is a mistrial.” After a colloquy with
the court, defense counsel stated, “I guess we can just proceed,” that he “will
table [the] motion for the moment,” and that he “can just renew it … at the end
of the trial.” After the jury began to deliberate, the trial court heard the parties’
arguments concerning the second mistrial motion.
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prejudicial in this case because of the totality of the evidence.” Specifically, the trial court stated that it had “never
seen more direct evidence” and explained:
   “[T]he evidence that I saw and the evidence that came in on
   the record is clear that—that your client had a knife, that
   she put it in her bag, that that person then followed her and
   watched her on video to the restaurant where the police
   seized the bag, and they found a knife in the bag.
      “So if there was another knife and she somehow discarded it, I didn’t see that on the video. So there was either
   not two knives or—or that was the knife. I don’t know. But
   the circumstantial evidence—it’s actually even not circumstantial evidence. It’s direct evidence. It’s a videotape of
   your client.”
         We have reviewed the record and conclude that it
contains ample support for the trial court’s findings. At trial,
the victim testified that defendant had cut his throat with
a knife, and the trial court admitted into evidence a photo
of a “large laceration” across the victim’s throat as well as
photos of the victim’s bloody clothes and shoes. In addition,
a bystander testified that he saw the victim backing away
from defendant and that he heard the victim yell, “[Y]ou
stabbed me.” The bystander recorded most of the incident
on his camera, and the trial court admitted that recording
into evidence. As the trial court found, the recording showed
defendant holding a knife. One of the arresting officers testified that he found a knife in defendant’s purse, and the
trial court admitted into evidence that knife as well as photographs of the knife and the purse.
        Seeking a different result, defendant summarily
argues that the “information” prejudiced her because “the
knife that was admitted as evidence at trial may not have
been the knife that [the victim] was cut with” and because
she “raised some question about whether the knife that
the state submitted was used to cut [the victim].” We reject
those arguments. In addition to the ample evidence that
defendant had used a knife to harm the victim, defendant
did not dispute that she had done so. Rather, defendant
stated during closing argument, “I think we all agree that
[defendant] reached out and got him.” Defendant further
276                                            State v. Lugo

argued that she “pull[ed] out a knife” because she was “getting ready to be attacked” and that if “[defendant] wanted
[the victim] dead, he—he would have been dead.” Moreover,
the state did not mention the victim’s testimony its closing
argument or rebuttal argument. Considering the foregoing
record as a whole, including the “overwhelming” “weight of
the other evidence against defendant,” State v. Kendrick, 

, 

 (1977), rev den, 

(1978), we conclude that the “information” did not deprive
defendant of a fair trial. See State v. Hunt, 

, 

 (2019) (“For a trial to be fair, the verdict
must be based on the evidence.” (Internal quotation marks
omitted.)). The trial court did not abuse its discretion when
it denied defendant’s second mistrial motion.
              MOTION FOR A NEW TRIAL
          In her sixth assignment of error, defendant challenges the denial of her motion captioned “Motion in Arrest
of Judgment and Request for a New Trial.” In that motion,
defendant argued that the knife that the trial court admitted into evidence lacked “fingerprints, DNA, or blood, linking [it] to either the defendant or the complaining witness”
and that “the statements regarding the two knives” prejudiced her. The trial court denied the motion, determining
that defendant did not point to any “new evidence in regard
to the motion” and that the statements concerning two
knives did not prejudice her.
         We decline to consider defendant’s arguments on
appeal. “[T]he only claims on which a motion in arrest of
judgment can be based are an absence of authority by the
grand jury or the charging instrument’s failure to state facts
constituting a crime.” State v. Bockorny, 

, 

 (1993), rev den, 

 (1994) (declining to consider arguments concerning a motion in arrest
of judgment that were unrelated to the grand jury’s “legal
authority” or the language of the indictment). In turn, the
“denial of a motion for a new trial made after entry of judgment is not reviewable on appeal unless it is based on newly
discovered evidence or evidence of juror misconduct.” State
v. Grey, 

, 

 (2001), rev den,

 (2002) (declining to review a motion for a new
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trial that was not “based on newly discovered evidence or
evidence of juror misconduct”).
        Because the “claims that defendant raised in her
motion and that she argues on appeal … have nothing to
do with the legal authority of the grand jury that indicted
her or the language of the charges set forth in the indictment,” and do not allege newly discovered evidence or juror
misconduct, we decline to review them. Bockorny, 

; see also State v. Tooley, 

, 

, rev den, 

 (2014) (“Defendant’s motion for
a new trial was not based on jury misconduct or newly discovered evidence, as required for reviewability.”).
        Affirmed.