State v. Graham, 551 P.3d 998

Defendant Tia Marie Graham was convicted of felony fourth-degree assault and harassment after assaulting a woman who accidentally struck her family's dog with her car.
The prosecution argued that Graham's children witnessed the assault, elevating the fourth-degree assault from a misdemeanor to a felony under ORS 163.160(3).
There was no direct evidence the children saw the assault; the evidence was circumstantial, and the children did not testify.
On appeal, Graham raised two unpreserved claims of error related to the prosecutor's comments during closing arguments, arguing prosecutorial misconduct denied her a fair trial.
The appellate court reviewed the claims for plain error, as no objections were made during trial.
The court ultimately affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor’s comment in closing about defendant not “blacking out”	Prosecutor’s comments referenced defendant’s own statements to police	Claimed it referred to facts not in evidence and undermined rights	Not plainly improper; did not deprive fair trial
Prosecutor’s explanation for not calling children as witnesses	Explained it was to avoid re-traumatizing children unnecessarily	Prosecutor invited speculation and made improper emotional appeals	Not improper in context; no misconduct

State v. Wyatt, 331 Or 335 (Or. 2000) (sets out general rule on issue preservation for appeal)
State v. Vanornum, 354 Or 614 (Or. 2013) (defines standard for plain error review)
State v. Chitwood, 370 Or 305 (Or. 2022) (standard for reviewing prosecutorial misconduct for plain error)
State v. Gornick, 340 Or 160 (Or. 2006) (emphasizes plain error review is discretionary)
State v. Durant, 327 Or App 363 (Or. Ct. App. 2023) (plain error review in context of improper but curable statements)
State v. Babcock, 327 Or App 358 (Or. Ct. App. 2023) (jury instructions generally cure prosecutorial errors)