State v. Arena, 560 P.3d 757

Defendant Cesar Diaz Arena was convicted in Multnomah County, Oregon, of multiple sexual offenses based largely on allegations by his stepdaughter, C, which she later recanted and denied at trial.
The defense argued that the alleged abuse could not have occurred undetected, given the open bedroom door and presence of other family members, some of whom testified for the defense.
During closing arguments, the prosecutor criticized the defense's reliance on potentially biased witnesses and suggested that more impartial witnesses were not called for a particular reason.
Defendant did not object contemporaneously but argued on appeal the prosecutor’s comments amounted to impermissible burden-shifting, warranting reversal.
The appellate court conducted plain-error review due to the lack of an objection at trial, examining whether the prosecutor’s remarks denied Arena a fair trial.
The Court of Appeals majority reversed and remanded for a new trial, finding the prosecutor’s burden-shifting comments deprived Arena of a fair trial, over a dissent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were the prosecutor’s closing remarks impermissible burden-shifting?	Comments were justified in light of the defense's theory and called witnesses.	Remarks wrongly implied defendant had a duty to call witnesses; shifted burden of proof.	Prosecutor’s remarks constituted impermissible burden-shifting.
Was the error so egregious it was plain error requiring reversal?	Any error was curable with a jury instruction; therefore, not plain error.	Comments were so prejudicial that they deprived defendant of a fair trial.	Error was so prejudicial and entwined with burden of proof that reversal was warranted.

State v. Chitwood, 370 Or 305 (Or. 2022) (plain-error review and curability of prosecutor’s misstatements on burden of proof)
State v. Montez, 324 Or 343 (Or. 1996) (reversal required if prosecutor’s comments denied a fair trial)
State v. Mayo, 303 Or App 525 (Or. Ct. App. 2020) (limits on permissible prosecutorial comment regarding a defendant’s failure to present evidence)
State v. Serrano, 355 Or 172 (Or. 2014) (jury presumed to follow instructions unless overwhelming probability to the contrary)