No. 798 September 4, 2025 301
This is a nonprecedential memorandum opinion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.
FELIPE DE JESUS JEFFERSON,
aka Felipe Jesus Jefferson,
Defendant-Appellant.
Curry County Circuit Court
22CR58531, 23CR26684; A182185 (Control), A182195
Cynthia Lynnae Beaman, Judge.
Submitted on June 24, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
JACQUOT, J.
Vacated and remanded for entry of judgment of conviction on Count 6 omitting “constituting domestic violence”;
otherwise affirmed.
302 State v. Jefferson
JACQUOT, J.
In this consolidated criminal appeal,1 defendant
was convicted of violent crimes and several other offenses
following a jury trial. He raises three assignments of error.
In his first and second assignments of error, defendant
argues that the trial court erred when it allowed the prosecutor to refer to defendant’s head injury as “uncorroborated”
during closing argument and when it allowed the prosecutor
to give a definition of “conscious objective” during closing
argument. In his third assignment of error, he argues that
the trial court erred when it incorrectly entered a conviction
for strangulation constituting domestic violence instead of
strangulation for Count 6. We vacate and remand for entry
of a judgment of conviction on Count 6 that omits the reference to domestic violence, and we otherwise affirm.
Defendant was involved in a single vehicle car crash,
during which he sustained multiple injuries. Law enforcement responded to a call about a person waking down the
road covered in blood and found defendant. Defendant had
several visible injuries, including cuts on his forearm and
back, but no obvious head injuries other than a few scratches
on his face.
At the hospital, defendant was given stitches and
a shot for a cut on his forearm. Defendant testified at trial
that he received stitches, anesthesia and four other shots.
After several hours, defendant was released from the hospital, booked into jail, and subsequently released. Defendant’s
sister picked him up from jail. At around the same time that
defendant was released from jail, officers found defendant’s
truck on its side in a drop-off with the air bags deployed and
a hole through the windshield.
The acts relevant to the conviction at issue in this
appeal began after defendant was picked up from jail by
his sister. At trial, the state produced evidence showing
that when defendant and his sister arrived at their apartment, while still in her parked vehicle, defendant attacked
his sister and repeatedly assaulted her until she escaped.
1
Defendant only seeks relief in Case No. 22CR58531; he does not seek relief in
Case No. 23CR26684. The judgment in Case No. 23CR26684 is therefore affirmed.
Nonprecedential Memo Op: 343 Or App 301 (2025) 303
Defendant’s sister sustained substantial injuries from the
assault as well as short term memory loss.
At trial, defendant testified that he sustained a
head injury when he crashed his truck and that he received
several other injuries while he was breaking out of it. He
stated that after the hospital visit on the way to the apartment, he lost consciousness and has no memory of assaulting his sister. Defendant’s theory of the case was that his
mental state was affected by his head injury and the medical treatment he received earlier in the day. Defendant was
found guilty by a jury on all counts.2 On appeal, he raises
three assignments of error.
In his first and second assignments of error, defendant, for the first time on appeal, challenges two statements
made by the prosecutor during closing argument. In his view,
both statements improperly undercut his theory of the case.
In the first challenged statement, the prosecutor
stated that defendant had an “uncorroborated head injury”:
“[PROSECUTOR]: The question (unintelligible) is did
he have intent to kill unless he got in a car wreck several
hours before and claims an uncorroborated head injury? If
someone wrecks a car and several hours later kills someone, (inaudible) is the same. It doesn’t say in these instructions anywhere unless he got in a car wreck or unless he
doesn’t remember.”
(Emphasis added.) In the second challenged statement, the
prosecutor offered that a particular definition of “conscious
objective” should be applied to determine defendant’s requisite mental culpability:
“[PROSECUTOR]: So what is intentional behavior?
You’ve heard a lot about this. Did he act with a conscious
objective to kill his sister? Did he act with a conscious
objective to cause her serious physical injury? Well, there’s
2
A jury found defendant guilty of attempted second-degree murder constituting domestic violence, ORS 163.115; ORS 161.405 (Count 1), first-degree assault
constituting domestic violence, ORS 163.185 (Count 2), second-degree assault
constituting domestic violence, ORS 163.175 (Count 3), third-degree assault constituting domestic violence, ORS 163.165 (Count 4), unlawful use of a weapon,
ORS 166.220 (Count 5), strangulation, ORS 163.187 (Count 6), resisting arrest,
ORS 162.315 (Counts 7 and 8), and aggravated harassment, ORS 166.070 (Count
9). Counts 3, 4, and 5 were merged into Count 2 in the judgment of conviction.
304 State v. Jefferson
two parts of that, okay? And there’s no statutory definition
for conscious objective. There’s no statutory definition. They
have ordinary meaning, common use, okay?
Was he conscious? He’s conscious. He’s up, moving around,
dragging her around, punching her. He’s clearly conscious in
the videos. Was it his objective to kill her? He tells her that
that’s his objective. So that’s all that the State has to prove.
There’s no more.”
(Emphasis added.)
This court has discretion whether to review unpreserved arguments for plain error. State v. Vanornum, 354
Or 614, 630,
317 P3d 889 (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.”
Id.
at 629. For unpreserved challenges to prosecutorial statements, plain error review is permitted if “the prosecutor’s
comments were so prejudicial as to have denied defendant 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,
370 Or 305, 312,
518
P3d 903 (2022) (internal quotation marks omitted). Further,
it must be proved that the prosecutorial statements were
not just “improper,” but that they were “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.” State v. Perez,
373 Or 591, 605,
568 P3d 940 (2025) (quoting Chitwood,
370
Or at 312) (internal quotation marks omitted).
Relying on State v. Mayo, 303 Or App 525, 537-38,
465 P3d 267 (2020), defendant first argues that the prosecutor’s statement about his “uncorroborated head injury”
improperly shifted the burden of proof and suggested that
defendant’s testimony be discredited because he did not
offer evidence to support the injury or mental state at trial.3 The state, relying on State v. Skotland,
337 Or App 368,
371-72,
562 P3d 1118 (2025), responds that the prosecutor’s
3
Defendant relies on Mayo to illustrate how prosecutorial statements in that
case share a similar nature to the prosecutorial statements here. Mayo, 303 Or
App at 537-38. However, Mayo is distinguishable because unlike this case, the
comments in Mayo were analyzed in a preserved posture.
Id. at 526, 529.
Nonprecedential Memo Op:
343 Or App 301 (2025) 305
statement was a singular, passing comment that provided
a fair criticism of defendant’s testimony and reminded the
jury of the evidence that was presented at trial.
“[A] prosecutor should never argue or suggest to
the jury that the defendant has the burden of proving anything, except when the law places the burden of proving an
affirmative defense on the defendant” because “[s]uch a comment undermines the presumption of innocence provided by
our constitution.” Perez, 373 Or at 619 (Bushong, J., concurring). Here, the prosecutor’s statement was not obviously
improper—meaning that although some jurors could have
understood the statement to distort the burden of proof,
the statement did not obviously shift the burden of proof.
See Perez,
373 Or at 607 (stating that for plain error review,
“it is not enough if, in hindsight, we might agree that some
jurors could have understood … that the challenged comments somehow distorted the burden of proof or placed the
state on equal footing with defendant in the jury’s eyes”);
Skotland,
337 Or App at 370-71 (determining that the prosecutor’s statement was not obviously improper in that it could
be understood as questioning the credibility of the defendant’s testimony rather than suggesting that the defendant
needed to produce corroborating evidence).
Second, defendant argues that that the prosecutor’s statements about “conscious objective” misstated the
law and mislead the jury to believe that since defendant
was conscious, defined by the prosecutor to mean awake
and moving, he had the objective intent to kill or harm his
sister. See State v. Worth, 231 Or App 69, 76,
218 P3d 166
(2009), rev den,
347 Or 718 (2010) (concluding that a prosecutor cannot misstate the law). He then turns to State v.
Gaines,
346 Or 160, 171-72,
206 P3d 1042 (2009) to establish
the framework for how a statute is interpreted and applies
the Gaines framework to argue that the prosecutor’s statements about “conscious objective” were inconsistent with the
text and context of its definition in ORS 161.085(7).4 He concludes his argument by pointing out that the misstatement
4
ORS 161.085(7) states, “ ‘Intentionally’ or ‘with intent,’ when used with
respect to a result or to conduct described by a statute defining an offense, means
that a person acts with a conscious objective to cause the result or to engage in the
conduct so described.” (Emphasis added.)
306 State v. Jefferson
of law gave an inaccurate description of requisite mental
culpability, which made it easier for the state to meet their
burden of proof, undermined defendant’s theory of defense,
and decided the outcome for Counts 1 and 2 and affected
the outcome for Counts 5, 7, and 8. The state responds that
“conscious objective” does not mean anything other than
what it says, and that the prosecutor conveyed exactly that
meaning to the jury. It relies on State v. Serrano, 355 Or
172, 182,
324 P3d 1274 (2014), cert den,
576 US 1037 (2015),
to argue that because defendant did not cite relevant case
law providing a clear definition of “conscious objective,” his
argument does not constitute plain error, in that any error,
if it did exist, was not obvious and not reasonably in dispute.
“[A] prosecutor should never attempt to usurp the
role of the trial judge by attempting to instruct the jury
on the law,” and “it is never permissible for a prosecutor to
argue to the jury that the law is anything other than what
is contained in the jury instructions.” Perez, 373 Or at 618
(Bushong, J., concurring). We acknowledge that there is not
a statutory definition for “conscious objective” and that the
jury was not given an instruction that defined the word.
The definition offered by the prosecutor likely misstated
or distorted the law and could have confused the jurors
about defendant’s requisite mental culpability. See State v.
Pedersen,
242 Or App 305, 318,
255 P3d 556, rev den,
351
Or 254 (2011) (determining that for attempted aggravated
murder, “[t]he instruction directs that when an intentional
offense is defined by a ‘result’ or ‘conduct,’ a person must act
‘with a conscious objective to cause the result or to engage
in the conduct so described’ ”); see also State v. Durst,
248 Or
App 689, 696-97,
73 P3d 370 (2012) (explaining that even if
the jury confused conduct and result elements that the jury’s
understanding of what the state needed to prove would not
have been affected because, “it would have understood, from
the definition of ‘intentionally,’ that defendant had to ‘act
with a conscious objective … to’ ‘place another person, [the
victim], in fear of imminent serious physical injury’ ” (ellipsis and brackets in Durst)).
Nevertheless, the prosecutor’s statement was not
so prejudicial that a curative instruction would not have
Nonprecedential Memo Op: 343 Or App 301 (2025) 307
remedied the error if defendant had objected. See State v.
Buck,
338 Or App 314, 330-31,
566 P3d 682, rev den,
374 Or
143 (2025) (holding that prosecutor’s brief misstatement of
the law during closing rebuttal argument was curable had
an objection been raised). Therefore, although the prosecutor’s definition of “conscious objective” was likely improper, if
defendant had objected at trial, a curative instruction could
have corrected any error.
In his third assignment of error, defendant challenges the entry of a conviction for strangulation constituting domestic violence and argues that the domestic violence
element was erroneously added to the judgment. “We review
sentencing decisions for legal error.” State v. Tison, 292 Or
App 369, 372,
424 P3d 823, rev den,
363 Or 744 (2018).
Defendant was charged with strangulation constituting domestic violence. At trial, the prosecutor withdrew
the domestic violence element, but the judgment included
a conviction of strangulation constituting domestic violence
for Count 6.
The state concedes that the addition of the “constituting domestic violence” element for Count 6 in the judgment was error. We accept the state’s concession and note
that preservation is excused because the error appeared for
the first time in the judgment. State v. Baccaro, 300 Or App
131, 134 n 2,
452 P3d 1022 (2019); see State v. Selmer,
231
Or App 31, 34-35,
217 P3d 1092 (2009), rev den,
347 Or 608
(2010) (holding that the rules of preservation do not apply
when the court issues an order or judgment containing the
complained-of error, because there is no practical way for
the party to raise such an issue and thus, the judgment
should be vacated and remanded for corrected entry). The
state does argue, however, that the addition of “constituting
domestic violence” in the judgment of conviction as to Count
6 is an “inconsequential typographical error” that does not
“entitle[ ] … defendant to employ the appellate process to
have this court reverse the judgment and order the correction.” (Emphasis omitted.) Suffice it to say, we disagree that
the addition of “constituting domestic violence” in a judgment of conviction is an “inconsequential typographical
error” that does not entitle defendant to appellate relief. See
308 State v. Jefferson
also State v. James Franklin Neighbors,
283 Or App 488, 489,
388 P3d 1250 (2017) (concluding that the judgment should
be remanded for corrected entry because a clerical error
occurred when “constituting domestic violence” was added to
an offense when the record reflected that the domestic violence allegation would not be pursued). We therefore vacate
and remand for entry of a corrected judgment for Count 6,
but otherwise we affirm.
Vacated and remanded for entry of judgment of conviction on Count 6 omitting “constituting domestic violence”;
otherwise affirmed.
