State v. Nollen

164                   October 8, 2025               No. 889

   This is a nonprecedential memorandum opinion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.
               MARK DOUGLAS NOLLEN,
                   aka Mark D. Nollen,
                  Defendant-Appellant.
                Coos County Circuit Court
                  23CR29814; A183525

   Matthew P. Muenchrath, Judge.
   Submitted August 20, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joel C. Duran, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
    Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
  Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
   HELLMAN, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2025)                165

         HELLMAN, J.
         Defendant appeals a judgment of conviction for
second-degree criminal mischief, ORS 164.354, second-degree theft, ORS 164.045, and unlawful cutting and transport of special forest products, ORS 164.813. On appeal,
defendant raises two assignments of error, arguing that the
trial court erred when it “overruled defendant’s objection to
the prosecutor’s improper rebuttal closing argument” and
by imposing attorney fees “without sufficient evidence that
defendant had the ability to pay them.” We affirm.
         At trial, a state trooper testified that he reported
to a forest in Coos County at about 4:00 a.m. and heard
the sound of chainsaws. After following those sounds, he
encountered defendant and a companion. A sergeant, who
had received a report that individuals had been cutting
down trees without permits, testified that he also responded
and found defendant’s truck parked on a dead-end road. He
saw “a section of a tree that was downed with a chainsaw”
“[o]n the right side of the truck and trailer” and a chainsaw in the back of the truck. He further testified that neither defendant nor his companion had permits to cut trees.
After the jury found defendant guilty of the aforementioned
offenses, this appeal followed.
         Closing argument. In his first assignment of error,
defendant argues that the trial court erred when it overruled his objection to the state’s rebuttal closing argument.
Specifically, defendant argues that the prosecutor’s following statements were improper:
   “[A] lot of times in my experience when defendants have
   facts that aren’t going too well for them they blame the cops
   … [u]sing a smoke screen to hide the cold hard facts.”
Defendant contends that the statements were improper
because they referred to “facts not in evidence to attack the
defense and to vouch for the state’s witnesses.” The state
responds that defendant did not preserve his challenge to
the “smoke screen” portion of the prosecutor’s statement.
         We need not decide whether defendant preserved
that argument because, “even if defendant’s objection sufficiently preserved his argument, we are not persuaded that
166                                            State v. Nollen

the court abused its discretion in overruling defendant’s
objection.” State v. Zurita, 

, 

, rev den, 

 (2025); see also State v. Mayo, 

, 

 (2020) (applying abuse of discretion standard to the trial court’s decision to overrule an
objection to closing arguments).
         Here, defendant had suggested in his closing argument that law enforcement had conducted an imprecise
and possibly compromised investigation. Thus, when viewed
in context, the prosecutor’s rebuttal argument was not
improper because it responded to defendant’s closing argument and referred the jury to the evidence presented at
trial. To be sure, “[i]t is improper for counsel to interject
his personal appraisal of the witnesses’ credibility in a way
which would suggest to the jury that the appraisal is based
upon counsel’s own knowledge of facts not introduced into
evidence.” Ramirez v. Pedro, 

, 608, 

, rev den, 

 (2024) (internal quotation marks
omitted). However, the prosecutor’s passing statements here
did not rise to that level. When considered in the context
of the entire rebuttal argument and the jury instructions,
the statements did not deprive defendant of a fair trial. See
Zurita, 

 (holding that the trial court did
not abuse its discretion in overruling an objection to the
prosecutor’s closing argument when considering the argument in context of the voir dire questions, trial evidence, and
jury instructions). The trial court did not abuse its discretion in overruling defendant’s objection.
        Attorney fees. In his second assignment of error,
defendant argues that the trial court plainly erred in imposing $150 in “court-appointed attorney fees without sufficient
evidence that defendant had the ability to pay them.”
         We may review an unpreserved error when it is
“plain.” 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 [us] to choose among competing inferences.” 

 If we conclude that “a claimed error was
[plain] error,” we must “determine whether to exercise [our]
discretion to review the error.” 

.
Nonprecedential Memo Op: 

 (2025)                 167

        We conclude that any error is not “plain.” A trial
court may include “a money award that requires a convicted
defendant to pay a reasonable attorney fee for [appointed]
counsel.” ORS 161.665(2). “A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly
rate authorized by the [Oregon Public Defense Commission]
under ORS 151.216.” 

         At sentencing, the following exchange occurred:
       “THE COURT: I’ll sentence you to, as a part of this
   probation I’ll sentence you to 30 days in jail with no credit
   for time served. Pay attorney’s fees in the amount of how
   much, [defense counsel]?
      “[DEFENSE COUNSEL]:          About five hours.
      “THE COURT: Okay. I’m just gonna order $150
   towards attorney fees.”
The trial court also declined to impose any other fines and
fees other than the agreed-upon restitution.
         Because the record is susceptible to an inference
that defendant made a strategic choice not to object to the
$150 in court-appointed attorney fees when his attorney
spent five hours on his case, we conclude that any error is
not plain. State v. Drinkwater, 

, 

(2009), rev den, 

 (2010) (“[I]f this court is required
to choose from among competing inferences as to possible
strategic reasons for a defendant’s failure to object to a trial
court’s ruling, we cannot say that the error is ‘plain’ on the
face of the record.”). The trial court did not plainly err.
         Affirmed.