State v. Burton, 571 P.3d 736

Defendant Jayson Burton was charged with second-degree sexual abuse and third-degree rape involving his girlfriend’s 14-year-old daughter.
Prior to arrest, law enforcement conducted a phone interview with defendant, during which he made no admissions; the state did not introduce evidence of this call at trial.
During trial, defense counsel attempted to highlight the lack of evidence regarding any interview or admissions by the defendant in closing arguments, and the state objected repeatedly.
The trial court sustained some objections, limiting defense argument about the absence of an interview, but allowed reference to the absence of admissions. The court also sua sponte instructed the jury not to speculate about whether any interview took place.
The jury convicted defendant; his appeal argued the trial court wrongly restricted closing argument and improperly commented on the evidence.
The Court of Appeals affirmed, and the Oregon Supreme Court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Limits on defense closing argument re: missing evidence	Court wrongly restricted defense’s ability to note gaps in evidence; missing evidence inference applies.	Argument was misleading, suggesting facts not in evidence; defense cannot create false inference.	Defense counsel cannot argue facts not in evidence or mislead jury; but can note absence of admissions.
Whether sustaining objection to fourth argument was error	Should have been allowed as it was a factually accurate summary of evidence.	Argument violated rules on referencing evidence not presented.	Trial court erred in sustaining objection but error was harmless.
Court's sua sponte jury instruction (“not important” if interviewed)	Instruction prejudiced defense; was part of restricting permitted inference.	Defendant failed to preserve objection to jury instruction.	Argument not preserved; appellate court declined to reach merits.

R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301 (discretion standard for trial court’s control of jury argument)
Cler v. Providence Health System-Oregon, 349 Or 481 (limits and freedom in closing arguments; missing witness/evidence inference)
State v. Oatney, 369 Or 555 (improper jury argument based on facts outside record)
State v. Banks, 367 Or 574 (counsel can comment on missing evidence as part of defense)
State v. Rogers, 330 Or 282 (discretion relates to trial court's choice among legally correct outcomes)
State v. Wederski, 230 Or 57 (counsel may not invite jury to speculate about missing evidence)