State v. Federico, 336 Or. App. 489

Defendant, a former high school teacher, was convicted of various sex offenses related to a sexual relationship with a 17-year-old student (J).
The defendant appealed the convictions, focusing on three alleged errors made during trial.
The first error challenged was the denial of a motion for mistrial after the prosecutor referenced a suppressed search warrant in front of the jury.
The trial court denied the mistrial, finding the reference non-prejudicial and issuing a jury instruction to disregard the comment.
The defendant also challenged comments made by the prosecutor during rebuttal closing argument, claiming these distorted the burden of proof and made improper emotional appeals.
Defendant sought plain error review on unpreserved objections to the prosecutor’s closing argument.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of mistrial after reference to search warrant	Reference was isolated and non-prejudicial; jury was told to disregard.	Reference to the warrant was prejudicial, implying misconduct by defendant.	No abuse of discretion; instruction sufficient.
Prosecutor's comment allegedly disparaged defense counsel	Comment only addressed accuracy of one statement, not counsel’s integrity.	Comment was an improper attack on defense counsel.	No error; comment did not cross line into prejudicial attack.
Adequacy of curative instruction	Instruction specifically told jury what to disregard.	Instruction was too vague to remedy prejudice.	Instruction was adequate and within discretion.
Prosecutor distorted burden of proof in closing argument	Comments argued reasonable inferences from evidence, not burden shift.	Comments suggested jury must justify a not-guilty vote, shifting burden.	No plain error; comments not so prejudicial as to deny fair trial.

State v. Schumacher, 315 Or App 298 (standard for mistrial; only reversed if fair trial denied)
State v. Hunt, 297 Or App 597 (reference to constitutional rights not prejudicial if isolated/incidental)
State v. Brunnemer, 287 Or App 182 (improper for prosecutor to personally attack defense counsel)
State v. Knight, 343 Or 469 (prejudice from evidence attacking defense counsel’s character)
State v. Durant, 327 Or App 363 (standard for plain error review of prosecutor’s comments in closing)
State v. Settlemier, 333 Or App 179 (prosecutor’s emotionally loaded language did not shift burden of proof)