STATE v. DEANGELO (2026)

Defendant appeals from a judgment of conviction for violating a court's stalking protective order (SPO), ORS 163.750. In his sole assignment of error, defendant argues that the trial court erred in overruling his objection to arguments made by the prosecutor during rebuttal closing argument.¹ At trial, defendant argued that he did not violate the SPO when he saw B at their workplace because B was not scheduled to work that day and he had texted his manager to ask if she was present.² During the state's rebuttal closing argument, the prosecutor mentioned the text messages, saying “[t]hey talked about a text, why wouldn't you produce a text?” Defendant objected, arguing that that comment improperly shifted the state's burden of proof, but the trial court allowed the prosecutor to proceed. We conclude that the trial court erred in overruling the objection because the prosecutor's argument improperly and unfairly suggested to the jury that defendant had the burden to produce the text messages and corroborate his account of what happened. Additionally, we conclude that the error was not harmless. Thus, we reverse and remand defendant's conviction.

STANDARD OF REVIEW

Generally, we review a trial court's decision to overrule an objection to closing arguments for abuse of discretion. State v. Starr, 337 Or App 682, 686, 564 P3d 933, rev. den., 374 Or 143 (2025). However, we review whether a prosecutor misstated the law during closing arguments for legal error. Id. If “an argument was improper, properly challenged, and likely to prejudice the jury unfairly, upon review, we must reverse.” State v. Totland, 296 Or App 527, 531, 438 P3d 399, rev. den., 365 Or 502 (2019) (internal quotation marks and brackets omitted). We state the facts consistently with that standard.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant did odd jobs for a bar and grill. A bartender at the same establishment, B, had an SPO against defendant. The owner of the bar and grill, Portune, was aware of the order and thus scheduled them to work at different times. Often, defendant would text Portune before going to the bar, and she would let him know if B was present.

One night, B was at the bar for a social event, rather than work. Portune testified that defendant had texted her to ask if B was there. After reviewing the security cameras, she texted back that B was not present. However, B was present. Defendant arrived through the back gate, close to where B was on the back patio. They made eye contact and defendant smiled at B. B left and called the nonemergency dispatch line to report a violation of the SPO.

At trial, defendant argued that he did not recklessly engage in conduct prohibited by the SPO as charged by the state because Portune told him that B was not at the bar. ORS 163.750(1)(b). On re-cross examination of Portune, the prosecutor asked if Portune could clarify when she had texted defendant that he could come over. Portune said she did not know exactly when she had texted, and she had not brought her cellphone with her to the courtroom. In rebuttal closing argument, the prosecution brought up Portune's testimony concerning the text messages:

“[PROSECUTOR]: There was no text. They talked about a text, why wouldn't you produce a text? Isn't that the easiest thing in the world to produce? It's not even like you have to produce a phone call. We have to show court—phone number—

“[DEFENSE COUNSEL]: Your Honor, objections, shifting burden.

“THE COURT: Go ahead, Counsel.

“[PROSECUTOR]: Texts are easy. I bet that each of you has a text in your phone right now. ‘I didn't see one.’ Even if there was one, I promise you there is nothing in that Court Order that allows him to be in her visual or physical presence so long as Ms. Portune says it's okay.”

Later in rebuttal, the prosecutor returned to the issue of the text messages without objection: “How do we know Defendant was reckless? Well, the Defense says—well, Ms. Portune, she texted him to say that it—it was okay to show up. Again, no text.”

When considering the objection out of the presence of the jury, the court noted that the prosecutor's argument was “certainly on the line of what was appropriate” but decided that it was a valid argument because it was questioning the credibility of the witness. The jury found defendant guilty of violating the SPO. Defendant appealed, arguing that the prosecutor's comments concerning the text messages improperly shifted the burden of proof.

ANALYSIS

Defendant assigns error to the trial court's overruling of his objection to the prosecutor's statements about the text messages. Defendant argues that this case is “functionally indistinguishable” from State v. Mayo, 303 Or App 525, 537-38, 465 P3d 267 (2020), where this court found a prosecutor's suggestions that the defendant failed to provide corroborating evidence about his ignorance of the presence of methamphetamine in his bag to be impermissible. Defendant notes that, as the defendant did in Mayo, he presented evidence that he did not have the culpable mental state for the charged crime. Id. at 527. Defendant argues that the prosecutor's comments suggested that defendant had the burden to produce other corroborating evidence, and thus impermissibly shifted the burden of proof. Additionally, defendant argues that while the comments about the texts concerned Portune's testimony, they were clearly directed at defendant as well. Defendant contends that when the prosecutor said “[t]hey talked about a text․” the prosecutor's use of the word “they” treated Portune and defendant as a unit and thus implicated the defense.

The state responds that the prosecutor's statements were permissible because they were relying on “evidence in the record to call into question the credibility of [Portune's] account of what occurred” rather than commenting on defendant's failure to produce evidence. Starr, 337 Or App at 688. The state argues that the comments focused on Portune's assertions that she did not have her cellphone with her, an item that most people always have on their person. It argues that when the prosecutor said it would be “easy” to “produce” a text, the prosecutor meant it would be easy for Portune to pull her phone out, except Portune claimed she left her phone at home. Alternatively, the state argues that Mayo and related cases are plainly wrong and should be overruled.

The law presumes that every defendant charged with a crime is innocent and requires the state to prove every element of the offense beyond a reasonable doubt. Mayo, 303 Or App at 530. “In arguing that the state has met its burden to prove all elements of a crime beyond a reasonable doubt, a prosecutor may attempt to persuade the jury that it should believe one version of the events and not another.” Totland, 296 Or App at 530-31 (internal quotation marks omitted). However, a prosecutor is prohibited from “inappropriately characteriz[ing] the jury's factfinding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard or burden of proof.” Id.

In accordance with those fundamental principles, the state is usually not allowed to comment on a defendant's failure to present evidence. State v. Irish, 340 Or App 341, 346, 571 P3d 195 (2025). A prosecutor may comment on a defendant's failure to present evidence in three circumstances: (1) when the defendant raises an affirmative defense, (2) when the defendant raises an issue on which the defendant bears the initial burden of production, but fails to present evidence, and (3) when a defendant points out that the state has failed to present certain evidence, so long as the state's response comports with the proper allocation of proof and the record establishes that the missing evidence is available to the defendant. State v. Spieler, 269 Or App 623, 642, 346 P3d 549 (2015). The state does not argue that any of those three circumstances were present.

We are not persuaded by the state's argument that the prosecutor was simply challenging Portune's credibility. We agree with defendant that the prosecutor's comments improperly implied that defendant had some burden to produce additional documentary evidence corroborating Portune's oral testimony that she texted with defendant. See State v. Strain, 374 Or 783, 799-800, 583 P3d 1002 (2026) (noting that defense counsel may have impermissibly suggested in closing argument that certain text messages did not exist but further concluding that the prosecutor then improperly shifted the burden of proof in rebuttal closing to defendant when it questioned why defendant had not cross-examined a witness to obtain additional evidence).³ The prosecutor did not rely on evidence in the record when she specifically questioned why no text messages were produced when it would have been “the easiest thing in the world to produce.” Cf. Starr, 337 Or App at 688 (holding that it was permissible for the prosecutor to state, while relying on an inventory report in the record showing that no Xanax was found in the defendant's car, that there was no evidence of Xanax despite the defendant's testimony to the contrary). The prosecutor's statements impermissibly shifted the burden of proof in a manner that raised the possibility of confusing the jury as to the applicable burden of proof. See Mayo, 303 Or App at 537 (impermissible for the prosecutor to suggest that the defendant had to produce evidence to prove that his version of events was true); See Irish, 340 Or App at 348 (impermissible for a prosecutor to question why the defendant did not establish how much Ativan he consumed or elicit expert testimony concerning Ativan's effects).

The state alternatively urges us to overrule Mayo. But the state has not met its significant burden to show that Mayo is “plainly wrong,” which is “a rigorous standard grounded in presumptive fidelity to stare decisis.” State v. Civil, 283 Or App 395, 406, 388 P3d 1185 (2017). Indeed, the state has not even demonstrated that Mayo is wrong, much less plainly so. Although the state contends that Mayo is inconsistent with Oregon Supreme Court precedent, that court has recently rejected that argument See Strain, 374 Or at 793 (rejecting the argument that cases such as Mayo and Spieler have created rules concerning when a prosecutor may comment on a defendant's failure to present evidence that are inconsistent with Supreme Court case law).

Finally, we consider whether the prosecutor's improper argument was likely to prejudice the jury unfairly and whether the trial court's error in failing to strike the prosecutor's comment was harmless. Starr, 337 Or App at 692. Under Article VII (Amended), section 3, of the Oregon Constitution, we must affirm despite error if there is “little likelihood that the particular error affected the verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). This court's “harmless-error analysis concerns ‘the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling.’ ” Starr, 337 Or App at 691 (quoting Davis, 336 Or at 32).

Here, the prosector's rebuttal closing argument was likely to prejudice the jury unfairly and the trial court's error in not addressing the improper argument was not harmless. As discussed above, the prosecutor's argument improperly suggested that defendant bore the burden of proof. It is a “fundamental and longstanding” right of a defendant that the state, and not the defendant, must prove every element of a crime beyond a reasonable doubt. State v. Federico, 375 Or 473, 492, ––– P3d –––– (2026) (citing State v. Chitwood, 370 Or 305, 321, 518 P3d 903 (2022)). The prosecutor's improper argument stood that fundamental right on its head and prejudiced defendant before the jury. Further, the prosecutor's comments concerned a key argument in the defense's case, rather than an “incidental or collateral matter.” See Spieler, 269 Or App at 645 (noting that the prosecutor's improper comments affecting a critical element of the defense's case weighed in favor of finding the error prejudicial). One of defendant's primary defenses is that he did not have the reckless mental state required to be found guilty of violating the SPO. He argued that he went to the bar only after Portune texted him that B was not there—and the prosecutor's improper statements directly called that argument into question.

Additionally, the trial court did not sustain the objection in front of the jury and instead said “[g]o ahead, counsel,” exacerbating the harmfulness of the error. See Starr, 337 Or App at 691 (noting that a trial court overruling a defendant's request to strike an improper argument accentuated the error). Finally, improper statements made during rebuttal “have the power of recency in the minds of the jury,” and thus are more likely to be persuasive. Chitwood, 370 Or at 318. Thus, the prosecutor's mischaracterization of the burden, and the fact that the court allowed the prosecutor to continue with the argument, may have mislead the jury as to the correct burden of proof.

In sum, “[w]e must reverse when it is clear that an argument was improper, properly challenged and likely to prejudice the jury unfairly.” State v. Rosenbohm, 237 Or App 646, 649, 241 P3d 344 (2010) (internal quotation marks omitted). Here, the prosecutor's comment was improper, it was appropriate for defendant to object on the grounds of burden shifting, the argument prejudiced the jury unfairly, and the trial court's error in failing to sustain the objection was not harmless.

Reversed and remanded.

FOOTNOTES

1.   The trial court did not explicitly overrule the objection, instead saying “[g]o ahead, Counsel” when the defense objected. However, it is clear from the court's later statement referring to their response to the objection as a “ruling” that that statement functioned as an overruling of the defense objection.

2.   To be convicted of violating a court's stalking protective order, it must be proven that the defendant, after being served with the order, “engaged intentionally, knowingly or recklessly in conduct prohibited by the order.” ORS 163.750 (1)(a), (b). The state in this case charged defendant with “recklessly” engaging in conduct prohibited by the order.

3.   We need not decide here whether the prosecutor's comment in rebuttal closing that “there was no text,” standing alone, would be improper. The prosecutor went beyond that and argued that the defense had the burden to produce such a text because it would have been easy to do so. That comment clearly and improperly shifted the burden of proof to defendant.

SHORR, P. J.