State v. Clarke, 451 P.3d 1022

Clarke was tried for driving under the influence of intoxicants (ORS 813.010(4)) and convicted by a jury.
The arresting officer was DRE-trained but had not performed a DRE evaluation of Clarke at arrest; the officer was allowed to give a lay opinion that Clarke was under the influence of marijuana but not an expert opinion.
Clarke emphasized in cross‑examination and closing that the officer, despite DRE training, could not offer an expert opinion because no DRE evaluation was done.
The trial court warned Clarke at sidebar that his closing risked mischaracterizing the evidence; Clarke apologized in court for exceeding permissible argument but continued the line of argument in closing.
The court sustained the State’s objection to part of Clarke’s closing, told the jury the argument mischaracterized the evidence, and added that the officer might have observed other signs of impairment that could support a lay opinion.
On appeal Clarke raised three errors (sustaining the objection to closing argument; the court’s commenting that the argument mischaracterized the evidence; the court’s instruction about other observable signs); the Court of Appeals affirmed, finding lack of preservation and no plain error warranting relief.

Issue	State's Argument	Clarke's Argument	Held
Whether sustaining the State’s objection to Clarke’s closing mischaracterized evidence was error	Objection was proper; Clarke’s closing did mischaracterize the record	Ruling prevented meaningful closing and was erroneous	Not preserved: Clarke had admitted argument went too far and did not request relief; court did not reach plain error because Clarke did not seek it
Whether the court’s comment to the jury that Clarke’s argument “mischaracterize[d] the evidence” was improper judicial comment under ORCP 59 E	Comment merely sustained the objection and addressed argument form, not the evidence	Comment was an improper, prejudicial judicial statement on the evidence	Not preserved; not plain error — court’s comment addressed counsel’s argument, not substantive evidence, and not obviously erroneous
Whether the court’s statement that the officer “perhaps observe[d] other signs” impermissibly commented on the evidence	Statement clarified that absence of a DRE evaluation did not preclude other lay observations; not improper	Statement plainly identified evidentiary support for intoxication and impermissibly vouched for State	Not preserved; even if possibly plain error, appellate court declined to correct because Clarke had actively pursued the challenged argument that prompted the remark

Ailes v. Portland Meadows, 312 Or. 376 (1991) (defines plain‑error review and "apparent"/"obvious" error standard)
State v. Hayward, 327 Or. 397 (1998) (jury instruction impermissibly comments on evidence when it tells jury how specific evidence relates to legal issue)
State v. Naudain, 254 Or. App. 1 (2012) (instruction can be an impermissible comment when jury would understand it to explain how specific evidence relates to an issue)
State v. Mains, 295 Or. 640 (1983) (judicial intervention before a jury should be rare; cautions on judicial conduct)
Maney v. Angelozzi, 285 Or. App. 596 (2017) (trial court has broad discretion to control proceedings; admonishment of counsel may be appropriate)
State v. Rogers, 330 Or. 282 (2000) (recognizes broad judicial discretion to manage trials)
State v. Fernaays, 263 Or. App. 407 (2014) (discretion to decline correction of plain error when defendant played active role in causing the error)
State v. Wirfs, 250 Or. App. 269 (2012) (preservation discussion when opposing party objects and court rules)
State v. Ardizzone, 270 Or. App. 666 (2015) (appellate court ordinarily will not reach plain error unless appellant explains why it applies)