State v. Babcock, 535 P.3d 345

Defendant Ralph Babcock was convicted of DUI (ORS 813.010(4)) and appealed only one issue: the prosecutor’s rebuttal closing remarks.
In rebuttal the prosecutor said, among other things, “I say he’s guilty,” and argued that just because a case is tried does not mean there is a big issue to find; everyone has a right to a trial.
Babcock did not object at trial and therefore seeks plain-error review on appeal.
Oregon’s plain-error framework (ORAP 5.45(1) and related case law) requires that the legal error be obvious and that the prosecutor’s comments be so prejudicial that an instruction could not cure the harm.
Applying State v. Chitwood and related precedents, the court held the remarks were not beyond dispute so prejudicial that the trial court had to intervene sua sponte; an instruction could have cured any prejudice.
The appellate court affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prosecutor’s statement “I say he’s guilty” required sua sponte intervention/plain-error relief	The remark was a statement of the State’s position on the evidence, not improper personal vouching	The remark expressed the prosecutor’s personal opinion of guilt and was improper	No plain error; context shows it was the State’s position, not impermissible vouching
Whether referencing that cases are tried because of the right to a trial ("just because we’re here…") implied only guilty people go to trial and required sua sponte intervention/plain-error relief	The comment argued the case was straightforward and not a hidden issue; any prejudice would be curable by instruction	The comment degraded presumption of innocence and invited a negative inference from exercising the right to trial	No plain error; not beyond dispute that jury would draw the negative inference and any prejudice was curable by instruction

State v. Chitwood, 370 Or 305, 518 P.3d 903 (2022) (plain-error in prosecutorial-misconduct context requires that comments be so prejudicial that an instruction could not cure the defendant’s loss of a fair trial)
State v. Vanornum, 354 Or 614, 317 P.3d 889 (2013) (defines when an unpreserved error is "plain")
State v. Gornick, 340 Or 160, 130 P.3d 780 (2006) (correction of plain error is discretionary)
State v. Wyatt, 331 Or 335, 15 P.3d 22 (2000) (issues not preserved at trial generally will not be reviewed on appeal)
State v. Davis, 345 Or 551, 201 P.3d 185 (2008) (proper jury instructions generally cure presumed prejudice from prosecutor misconduct)
State v. Soprych, 318 Or App 306, 507 P.3d 276 (2022) (comments that invite a negative inference from exercising constitutional rights can prejudice the presumption of innocence)
Heroff v. Coursey, 280 Or App 177, 380 P.3d 1032 (2016) (prosecutor may argue that evidence shows guilt but must not vouch personally for witness credibility or express personal belief in guilt)
State v. Durant, 327 Or App 363, 535 P.3d 808 (2023) (improper but curable prosecutorial statements are not proper subjects of plain-error relief)