No. 87 February 11, 2026 91
This is a nonprecedential memorandum opinion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.
RONALD TERRY STEPHENS,
Defendant-Appellant.
Washington County Circuit Court
21CR61342; A181924
Andrew Erwin, Judge.
Submitted January 7, 2026.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Interim Deputy Attorney General, and Jordan R. Silk,
Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Affirmed.
92 State v. Stephens
JOYCE, J.
Defendant appeals a judgment of conviction for
first-degree murder with a firearm, attempted murder with
a firearm, first-degree burglary with a firearm, felon in
possession of a firearm, unlawful use of a weapon with a
firearm, and second-degree kidnapping with a firearm. On
appeal, he raises eight assignments of error. In his first two
assignments of error, he challenges the denial of his motion
for judgment of acquittal for the two attempted murder
charges. Because defendant did not preserve his claims of
error, we affirm. In his third through seventh assignments
of error, defendant contends that the trial court committed
plain error when it permitted the state to make particular
statements during rebuttal closing argument that defendant argues were improper. Because the statements at issue
could have been cured by a jury instruction, we reject those
claims of error. In his final assignment of error, he contends
that the trial court plainly erred when it instructed the jury
that the “testimony of any witness whom you believe is sufficient to prove any fact in dispute.” Defendant’s claim of error
is foreclosed by State v. Avalos-Lezama, 346 Or App 604, ___
P3d ___ (2026), and we therefore affirm.
Motion for judgment of acquittal: Defendant moved
for a judgment of acquittal on the two attempted murder
charges. He argued that a reasonable jury could not find
him guilty of those charges because such a finding would
only be “based on the testimony” of the two victims who,
in defendant’s view, did not provide credible testimony. In
the absence of physical evidence to support those charges,
defendant argued that he was entitled to a judgment of
acquittal. The state responded that credibility determinations about the victims’ testimony are questions for the jury.
The trial court agreed, concluding that defendant’s motion
rested on credibility determinations that were within the
jury’s “domain” and that it would be improper for the court
to make those credibility findings.
On appeal, defendant challenges that ruling in
his first two assignments of error. However, he raises a
new argument that the court erred in denying the motion
for judgment of acquittal because the state did not present
Nonprecedential Memo Op: 347 Or App 91 (2026) 93
sufficient evidence that defendant had the specific intent to
kill those two individuals. That argument offers a materially different basis for challenging the court’s ruling from
the one he raised below. As described, defendant’s argument
below focused exclusively on the credibility of the victims,
the state responded in kind, and the court denied his motion
on that basis. Since defendant did not raise the novel argument he currently raises on appeal before the trial court, we
conclude that defendant’s claim of error is unpreserved and,
because he does not ask us to review it for plain error, we
decline to do so. Cf. State v. Sanelle,
287 Or App 611, 619-23,
404 P3d 992 (2017), rev den,
362 Or 482 (2018) (concluding
that the issue was preserved for appellate review when the
trial court raised and ruled on it on its own, and the state
had a fair opportunity to respond).
Prosecutorial statements during rebuttal argument:
In his third through seventh assignments of error, defendant raises plain error challenges to statements that the
prosecutor made during closing arguments. As defendant
acknowledges, he is entitled to reversal only if he can show
that the prosecutor’s statements were “obviously improper”
and, if so, whether it is “beyond dispute that the prosecutor’s
comments were so prejudicial as to have denied defendant
a fair trial.” State v. Chitwood, 370 Or 305, 312, 314-15,
518
P3d 903 (2022) (internal quotation marks omitted). Framed
slightly differently, the statements, individually or collectively, must have been both obviously improper and incurable to meet that standard. State v. Perez,
373 Or 591, 606,
568 P3d 940 (2025).
The prosecutor’s statements that defendant maintains were improper include:
• The prosecutor’s references to the victim’s brother as
having lost his little sister and to the victim’s mother as
having lost her daughter by virtue of defendant’s “brazen crime” and his descriptions of defendant as someone
“who wants his and expects to get his way”;
• The prosecutor’s statements that defendant knew that
there were video cameras “all over the place,” and that
while the prosecutor did not know if defendant thought
he was “above the law” or that the police were “stupid,”
94 State v. Stephens
“for whatever reason” defendant chose to commit the act
in a “very, very brazen fashion”;
• The prosecutor’s description of the police investigation
as being “quite likely the best police investigation you’ll
ever hear about,” pointing to the level of detailed evidence that the police collected;
• The prosecutor’s arguments that the jury should “not
bu[y] what [defendant is] selling,” referring to defendant’s attempt to convince the jury that he was innocent
by taking one witness’s testimony and arguing that it
showed that another person committed the crime, and
that the witness’s testimony was “very, very credible”;
and
• The prosecutor’s descriptions of the case as being
“incredibly strong” and of the evidence as being “overwhelming,” and his statement that there was “no question it’s [defendant] that did this.”
Even assuming that those statements, either individually or collectively, were improper (a proposition on
which we express no opinion), they were curable and thus
did not deprive defendant of a fair trial. The trial court
could have generally instructed the jury to disregard any
impropriety and specifically directed the jury to disregard
the statements to which defendant now objects, e.g., that
the detailed evidence the state was able to collect due to
defendant’s brazenness carried the state’s burden of proving defendant’s guilt beyond a reasonable doubt. Indeed, the
challenged statements in this case are far less serious than
the egregious misstatements of constitutional principles
“fundamental to the American justice system” that have led
appellate courts in other cases to find a denial of a fair trial.
See, e.g., Chitwood, 370 Or at 314-17, 320-21.
Thus, there is no basis in this record for us to conclude that a jury instruction to disregard the challenged
statements “would not have been sufficiently curative to
assure the court … that the defendant received a fair
trial.” Id. at 312; see also State v. Washington,
355 Or 612,
660,
330 P3d 596, cert den,
574 US 1016 (2014) (“[A] proper
jury instruction is adequate to cure any presumed prejudice
from a prosecutor’s improper statement.”).
Nonprecedential Memo Op:
347 Or App 91 (2026) 95
Jury instruction: In his eighth assignment of error,
defendant assigns error to the court instructing the jury that
“[g]enerally, the testimony of any witness whom you believe
is sufficient to prove any fact in dispute.” Defendant did not
object to this instruction below and asks us to review it as
plain error. His argument is foreclosed by State v. Avalos-Lezama, 346 Or App 604, ___ P3d ___ (2026), decided after
the parties filed their briefs in this matter, in which we
rejected the same argument that defendant raises here and
concluded that the instruction correctly stated the law.
Affirmed.
