STATE v. REED (2026)

Defendant appeals a judgment of conviction for one count of fourth-degree assault constituting domestic violence, ORS 163.160, ORS 132.586, and one count of strangulation constituting domestic violence, ORS 163.187, ORS 132.586. Defendant asserts six assignments of error, arguing that the trial court erred by (1) not instructing the jury on harassment as a lesser included offense of assault in the fourth degree constituting domestic violence, (2) not instructing the jury on harassment as a lesser included offense of strangulation constituting domestic violence, (3) allowing prosecutorial misconduct during closing argument,¹ (4) failing to merge the verdict of fourth-degree assault constituting domestic violence into the verdict of strangulation constituting domestic violence, and (5) imposing per diem fees not announced at sentencing. We conclude that the trial court did not err by failing to instruct the jury on harassment as a lesser-included offense of either fourth-degree assault constituting domestic violence or strangulation constituting domestic violence and conclude that the statements defendant claims were prosecutorial misconduct were not plainly erroneous and therefore affirm on the first four assignments of error. The state concedes error on the issue of merger, which we accept as well taken, and because we remand for resentencing on that issue, we do not need to reach the issue of the per diem fees. Thus, we remand for merger and resentencing but otherwise affirm.

I. BACKGROUND

The state's charges against defendant arose from an incident during which, according to M, defendant shouted insults at M, struck her in the head, and strangled her until she started losing consciousness. Two days later, M described the incident to Officer Hermann, who observed and collected photographic evidence of M's injuries, including bruising on her throat and a knot on her head.

The state charged defendant with one count of strangulation constituting domestic violence (Count 1) and one count of fourth-degree assault constituting domestic violence (Count 2). At trial, defendant requested that the court instruct the jury that harassment was a lesser-included offense for each count. The trial court denied defendant's requests.

During the closing argument, the state argued to the jury that,

“You have testimony from [M], and you have testimony from Officer Hermann, and as you were instructed, the testimony of any witness, if believed, i[s] sufficient to prove any fact in question. Now, there were two people in that hotel room. [Defendant], [M]. [M] told you exactly what happened, and when you consider what [M] says, you then have to look at the physical evidence.”

Defendant did not object to that statement.

The jury found defendant guilty of both counts. The trial court entered a separate conviction on each count, which defendant did not object to. At sentencing, the court did not announce that it was requiring defendant to pay any per diem fees as a part of his sentence, but the term was nevertheless included in the judgment. Defendant timely appealed.

II. ANALYSIS

A. Harassment as a Lesser-Included Offense

In his first two assignments of error, defendant argues that the court should have instructed the jury that it could find defendant guilty of harassment as a lesser-included offense of each count. He acknowledges that harassment is not usually a lesser-included offense of fourth-degree assault or strangulation but argues that the addition of the domestic violence element onto the two counts subsumes the elements of harassment, making it a lesser-included offense. As explained below, we disagree.

1. Preservation

The state argues that defendant did not preserve this issue because he only argued to the trial court that harassment was a lesser-included offense of fourth-degree assault and strangulation, and now on appeal argues that harassment is a lesser-included offense of fourth-degree assault constituting domestic violence and strangulation constituting domestic violence. While ideally a party preserves an issue for appeal by “articulating an issue, stating a source of law, and advancing an argument,” the Supreme Court has acknowledged that advancing a particular legal argument is the least necessary component of preservation, while identifying the source is more important and raising the issue at trial is typically essential. State v. Skotland, 372 Or 319, 327, 549 P3d 534 (2024) (citing State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988)). Here, defendant raised the issue by requesting that the court instruct the jury that harassment was a lesser-included offense of both counts he was charged with. While the nature of his argument has shifted, defendant clearly identified the substance of the rule he was relying on below—that a lesser-included offense “which is necessarily included in that [offense] with which the defendant is charged in the accusatory instrument.” ORS 136.465. Thus, we conclude the argument was adequately preserved and turn to the merits.

2. Analysis

“We review the trial court's refusal to instruct the jury on a lesser-included offense for errors of law.” State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev. den., 332 Or 559 (2001). One crime is a lesser-included offense of another if: “(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument.” Id.

ORS 166.065(1)(a) defines harassment as “intentionally: (a) [h]arass[ing] or annoy[ing] another person by subjecting such other person to offensive physical contact.” Fourth-degree assault, as relevant here, is intentionally, knowingly, or recklessly causing another physical injury. ORS 163.160(1)(a). Strangulation is “knowingly imped[ing] the normal breathing or circulation of the blood of another person by: (a) Applying pressure on the throat, neck or chest of the other person; or (b) Blocking the nose or mouth of the other person.” ORS 163.187(1).

Harassment is not generally a lesser-included offense of either fourth-degree assault or strangulation because it requires proof that a defendant acted with an intentional mental state (to harass or annoy) while fourth-degree assault and strangulation require the state to prove a defendant acted with a reckless, knowing, or intentional mental state and a knowing or intentional mental state, respectively. See State v. Hendricks, 273 Or App 1, 14-15, 359 P3d 294 (2015), rev. den., 358 Or 794 (2016) (holding that “a crime that requires proof of a knowing mental state cannot be the ‘lesser-included’ of a crime with a reckless mental state” because the “knowing mental state elementally requires different proof than is required to prove recklessness”).

However, defendant argues that harassment is a lesser-included offense when the state alleges that the charged offenses of fourth-degree assault and strangulation constitute domestic violence. ORS 132.586(2) allows the state, when charging a crime, to choose to plead the crime with the additional element of domestic violence, which the state then must prove at trial. “Domestic violence” is defined as “abuse between family and household members,” ORS 135.230(3),² and abuse is further defined, in relevant part, as “[a]ttempting to cause or intentionally, knowingly or recklessly causing physical injury,” ORS 135.230(1)(a). As we pointed out in State v. Renard, 319 Or App 282, 286, 509 P3d 760, rev. den., 370 Or 212 (2022), that definition of “abuse” is functionally identical to the language defining fourth-degree assault (other than the fact that the definition of abuse also includes attempted conduct).

Defendant argues that the state's proof that he knowingly or intentionally caused M physical injury, as necessary to prove that the fourth-degree assault ³ and strangulation constituted domestic violence, necessarily also proved that his conduct intended to harass or annoy her.⁴ We recently addressed a similar argument in State v. Crowley, 343 Or App 357, 361-62, 577 P3d 1233, rev. den., 374 Or 616 (2025), in which the defendant argued that the offense of menacing constituting domestic violence merged with strangulation constituting domestic violence. We disagreed, reasoning that while the domestic-violence element attached to both charges required proof that the defendant recklessly, knowingly, or intentionally caused physical injury or placed the victim in fear of serious physical injury, “only the menacing charge required proof that defendant intentionally placed the victim in fear of imminent serious physical injury.” Id. at 362-63 (emphasis in original). Thus, we concluded that the menacing count did not merge into the strangulation count because the state could prove the domestic-violence element of strangulation through the lower standard of reckless conduct. Id. at 363. The same principle leads us to conclude that harassment, which requires proof that defendant acted intentionally, is not a lesser-included offense of either of the charged offenses as pleaded here.

The court did not err in declining to instruct the jury on harassment.

B. Prosecutorial Misconduct in Closing Argument

Defendant next argues that the trial court plainly erred by permitting the prosecutor to improperly draw attention to defendant's choice not to testify in his own defense. We conclude that it was not “obvious and beyond reasonable dispute” that the prosecutor's statement was improper. State v. Perez, 373 Or 591, 599, 568 P3d 940 (2025)

“Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). We may, however, correct a “plain” error. ORAP 5.45(1). “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.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889, 897 (2013). In the context of a prosecutor's statements in closing argument, to rise to the level of plain error, it must be “beyond dispute” that the statements “were so prejudicial as to have denied defendant a fair trial.” State v. Chitwood, 370 Or 305, 312, 518 P3d 903 (2022) (internal quotation marks omitted). Under that standard, the Supreme Court has explained that if there was more than one way that the jury could have understood the prosecutor's comments, and not all of interpretations were impermissible, we cannot conclude that those statements were plainly improper. Perez, 373 Or at 607. In other words, it is not enough for a defendant to merely show that some jurors could have understood the prosecutor's statements as an improper comment on a defendant's exercise of their constitutional rights. Id.

Here, defendant argues that the prosecutor implicitly and improperly drew attention to defendant's decision not to testify during closing argument by stating,

“That brings us to the actual argument I have in this case, Ladies and Gentlemen. You have testimony from [M], and you have testimony from Officer Hermann, and as you were instructed, the testimony of any witness, if believed, [is] sufficient to prove any fact in question. Now, there were two people in that hotel room. [Defendant], [M]. [M] told you exactly what happened, and when you consider what [M] says, you then have to look at the physical evidence.”

(Emphasis added.) Defendant reasons that, by pointing out that there were two people in the hotel room, defendant and M, and then immediately telling the jury that M had testified, the prosecutor implicitly argued to the jury that defendant should or would have testified if M was not telling the truth.

We conclude that the prosecutor's statements were not obviously improper because the jury could have reasonably interpreted the prosecutor's statements as an argument that the jury should believe [M] because she was present in the room and physical evidence corroborated her account of events. That interpretation is reasonable in light of the context of the claimed improper statement, which was a logical step bridging the state's argument that the jury could rely on just one witness's testimony, if credible, to prove a contested fact and that the jury should find M credible because she was one of the people present when the incident took place and physical evidence backed up her story. The jury therefore could have reasonably interpreted the challenged statement as a link in the logical chain of the prosecutor's credibility argument rather than an indirect comment on defendant's choice not to testify.

Defendant nevertheless argues that it is obvious and not reasonably in dispute that the prosecutor's statement was improper, likening his case to State v. Ashbaugh, 330 Or App 680, 544 P3d 414, rev. den., 372 Or 588 (2024). But Ashbaugh is distinguishable. There, we concluded that the prosecutorial misconduct was plain error because the prosecutor, in closing rebuttal, argued that the defendant's explanation at trial for his conduct did not match the explanation he gave at the time of the incident, and then stated, “If that were me—you know how frustrated you would be to be falsely accused of theft? Instead, he sits there, doesn't say anything.” Id. at 685. We concluded that that statement was not a permissible impeachment argument that the jury should not consider the defendant credible because his accounts of the incident were inconsistent, but that the prosecutor had directly argued to the jury that someone who was falsely accused would not have stayed silent when they were issued a criminal citation. Compare id. at 686-87 with State v. Moore, 352 Or App 15, 33-34, ––– P3d –––– (2026) (“Prosecutors are not limited to commenting on direct inconsistencies between what a defendant told the police and what the defendant says at trial. Information included in one version of the story but not the other is also a kind of inconsistency.” (Emphasis in original.)).

While that case predated Perez and thus did not frame its holding in the same terms, its holding is still consistent with the principles articulated in Perez: There was no other reasonable way for the jury to interpret the statement at issue except as the prosecutor arguing that the defendant's choice to not speak to the police was evidence of his guilt. See Ashbaugh, 330 Or App at 686-87. The same is not true of the prosecutor's statement in this case, where, as explained above, there was more than one way for the jury to understand the challenged statement, not all of which were improper.

We therefore conclude that the trial court did not plainly err.

C. Failure to Merge Counts 1 and 2

The state concedes that the trial court plainly erred by not merging the two guilty verdicts. We have held in prior cases that failure to merge the verdicts for the two offenses at issue here was plain error and therefore accept the state's concession. See, e.g., State v. Miles, 330 Or App 1, 6, 542 P3d 900, rev. den., 372 Or 437 (2024) (“[T]he charge of strangulation constituting domestic violence subsumed the charge of assault in the fourth degree constituting domestic violence, and the guilty verdicts on these two offenses must merge.”). We exercise our discretion to correct the plain error because the ends of justice weigh in favor of the correction. See id.; State v. Valladares-Juarez, 219 Or App 561, 564-65,184 P3d 1131 (2008) (exercising discretion to correct a merger error because the negative consequences of having an additional conviction on defendant's criminal record outweighed the burden of resentencing on the court). We therefore reverse and remand for entry of a single conviction of strangulation constituting domestic violence and for resentencing.

D. Imposition of Per Diem Fees

Because we are remanding for resentencing and the court will have a new opportunity to address per diem fees, we do not reach the issue here. See State v. Dennis, 303 Or App 595, 598, 464 P3d 518 (2020) (declining to address the parties’ arguments as to two fees imposed on the defendant that were not announced in open court, given that defendant was being resentenced anyway).

III. CONCLUSION

We conclude that the trial court did not err when it refused to instruct the jury that harassment was a lesser-included offense of either fourth-degree assault constituting domestic violence or strangulation constituting domestic violence. We also conclude that the trial court did not plainly err by failing to declare a mistrial in response to the prosecutor's statements in closing because they were not obviously improper. We accept the state's concessions that the trial court erred in failing to merge the verdicts for fourth-degree assault constituting domestic violence into strangulation constituting domestic violence and do not reach the issue of the imposed per diem fees.

Convictions on Counts 1 and 2 reversed and remanded for entry of a single conviction for strangulation constituting domestic violence; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   Defendant assigns error to those statements in two ways, challenging both the prosecutor's actions in making the statements and the court's action in permitting the state to make those statements. We address the two assignments together.

2.   ORS 135.230(1)(a) was recently amended by Or. Laws. 2026, ch. 77, § 2. Because the amendments are not relevant to our analysis, we cite to the current version of the statute.

3.   While the statute for fourth-degree assault includes a reckless mental state, the state pleaded in the information that defendant “did unlawfully and knowingly cause physical injury to [M]. * * * The State further alleges that this conduct constituted domestic violence.”

4.   We note that, given the definition of “abuse”—including “intentionally, knowingly or recklessly causing physical injury,” ORS 135.230(1)(a)—the statutory language does not require the state to prove that a defendant intentionally caused physical injury; it is also permitted to prove that the defendant caused physical injury knowingly or recklessly.

PAGÁN, J.