State v. Howard, 564 P.3d 494

Defendant John Alan Howard was convicted after a jury trial of first-degree rape, attempted first-degree rape, attempted first-degree sodomy, and first-degree sexual abuse for acts involving the complainant, K, at his home.
K alleged Howard raped and sodomized her while she was incapacitated after using methamphetamine together.
At trial, the State presented several witnesses, including K, her relative, law enforcement, and forensic experts. Howard and his son testified for the defense, denying all charges.
During closing, the prosecutor made statements implying the defendant needed to present evidence, prompting defense objections.
The trial court overruled the defense's objection regarding improper burden-shifting during closing argument.
Howard appealed, primarily contesting the prosecutor's closing arguments and the trial court's overruling of his objection.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor's closing argument: Burden-shifting	Comments were permissible responses to defense theories	Prosecutor impermissibly implied defendant bore burden of proof	Improper; statements likely confused jury re: burden of proof
Court's ruling on objection	Defendant failed to sufficiently preserve issue for all statements	Objection preserved re: full sequence of burden-shifting comments	Preservation adequate; reviewed all relevant statements
Harmless error	Any error was corrected by final jury instructions	Error undermined jury's understanding of burden of proof	Error not harmless; conviction reversed and remanded
Prosecutor comment on lack of defense evidence	Permissible under certain circumstances (affirmative defenses etc.)	Comments here improperly shifted focus to defendant's lack of evidence	Such comments inappropriate absent affirmative defense; reversible error

State v. Totland, 296 Or App 527 (Or. Ct. App. 2019) (reversing for burden-shifting prosecutorial comments likely to confuse on burden of proof)
State v. Mayo, 303 Or App 525 (Or. Ct. App. 2020) (prosecutorial comments and objections within closing arguments reviewed for prejudice and harm)
State v. Worth, 231 Or App 69 (Or. Ct. App. 2009) (clarifying limitations of standard jury instructions on presumption of innocence)
State v. Martinez, 335 Or App 103 (Or. Ct. App. 2024) (distinguishing permissible commentary from burden-shifting regarding defense evidence)
State v. Sperou, 365 Or 121 (Or. 2019) (scope of zealous advocacy in prosecutorial closing arguments)
State v. Rosenbohm, 237 Or App 646 (Or. Ct. App. 2010) (requiring reversal if improper argument was properly challenged and prejudicial)