STATE v. GROFF (2026)

Defendant appeals a judgment of conviction entered after a jury trial for second-degree assault with a firearm, ORS 163.175, third-degree assault with a firearm, ORS 163.165, and unlawful use of a weapon with a firearm, ORS 166.620. He also appeals a supplemental judgment imposing restitution. His appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or 434, 814 P2d 1069 (1991). The brief does not contain a Section B. See ORAP 5.90(1)(b). We affirm.

Defendant was charged with the above referenced offenses after he fired bullets through his front door, which resulted in injury to two police officers.

On defense counsel's motion and following an evaluation, the court determined that defendant was unfit to proceed and committed him to the Oregon State Hospital. The court later determined that defendant's capacity had been restored, and he was fit to proceed.

Defendant proceeded to a jury trial and raised a defense of self-defense. The jury unanimously convicted defendant of the above referenced offenses. The trial court sentenced defendant to, among other sentences, 70 months’ incarceration pursuant to ORS 137.700 followed by 36 months’ post-prison supervision. The trial court also imposed restitution in the amount of $38,944.36 after that amount was sought by the state and defendant did not object to its imposition.

Having reviewed the record, including the trial court file, the transcript of the hearings and the jury trial, and the Balfour brief, we have identified no arguably meritorious issues. In reaching that conclusion, we note that the record reflects that in rebuttal closing argument, the prosecutor made an argument that was obviously improper, particularly when viewed through the lens of the Supreme Court's recent decision in State v. Federico, 375 Or 473, ––– P3d –––– (2026). The prosecutor argued:

“This is the kind of thing that gives gun owners a bad name, and I'm asking you as a jury to push back against that error to make sure that we hold these people responsible in our society and say enough of those who do the lawful and correct thing, the vast overwhelming majority of us out there. And hold these aberrations accountable for their actions. Thank you.”

That argument encouraged the jury to convict defendant to hold irresponsible gun owners, collectively, accountable (“these aberrations” and “hold these people responsible in our society”) and to send a message (“say enough”) because defendant's conduct “gives gun owners a bad name.” Sending a message, though, is not a permissible basis for convicting a criminal defendant. Cf. id. at 493 (“The purpose of a criminal trial, and of the rules of evidence and procedure that govern it, is to ensure that twelve jurors may as dispassionately as possible render a verdict based on the facts properly presented to them.”). That prosecutorial misstep does not give rise to an arguably meritorious issue for appeal, though, because defendant did not object to it and because, on this record, there is no arguably meritorious basis for contending that the prosecutor's argument could not be redressed by a curative instruction informing the jury that it could not convict based on a general desire to protect the reputational interests of gun owners but must, instead, base its determination on the evidence presented and the court's instructions. See State v. Perez, 373 Or 591, 606, 568 P3d 940 (2025) (where defendant has not objected to obviously improper argument by prosecutor, improper argument is grounds for reversal only if “the comments rendered the defendant's trial unfair, * * * which[ ] requires the defendant to show that any curative instruction by the trial court would not be effective”); Federico, 375 Or at 488 (discussing factors relevant to the assessment whether an improper argument is curable with an instruction).

Affirmed.

LAGESEN, C. J.