State v. Morehead, 477 P.3d 462

Deputies responded to a call about suspected drug activity at a bus stop, spoke with Morehead, obtained consent to search her duffle, and found a meth pipe and three small baggies of methamphetamine inside a cigarette pack. Morehead was charged with unlawful possession of methamphetamine.
At pretrial hearing the court limited testimony: deputies could say they responded to a 911 report of suspected drug activity at the bus stop, but the bus driver (and the content of any civilian report) would not be called.
At trial deputies described responding to a report of "suspected/possible drug activity" and that the person matched a described woman; no witness testified that anyone reported seeing someone "smoking meth."
In defense closing counsel argued police acted on assumptions about Morehead (e.g., because she was homeless). In rebuttal the prosecutor said police had responded to a report that "Someone was smoking meth at the bus stop," defense objected as facts not in evidence, and the court overruled.
Defense moved for a mistrial after deliberations began; the court denied the motion and Morehead was convicted. On appeal she challenged the overruling of her objection (and the denial of mistrial) as error.
The Court of Appeals held the prosecutor’s rebuttal impermissibly referred to a material fact not in evidence, the trial court abused its discretion by overruling the objection, and the error was not harmless; the conviction was reversed and the case remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion in overruling objection to prosecutor’s rebuttal remark that police had received a report that someone was "smoking meth" at the bus stop.	The remark was a brief, contextual response to defense assertions about "assumptions," not a factual assertion; the word "meth" was a minor deviation and harmless.	The prosecutor stated a fact not in evidence that directly bore on the central issue (knowledge of the drugs), so overruling the objection was an abuse of discretion and prejudicial.	Court: The remark referred to a material fact not in evidence; overruling the objection was an abuse of discretion and not harmless. Reversed and remanded.
Whether the court erred in denying defendant’s mistrial motion based on same rebuttal remark.	Denial was proper because the remark was not prejudicial and was contextual rebuttal.	Denial compounded the error because the improper factual assertion was central and prejudicial.	Court did not decide the mistrial claim separately because reversal/remand on the objection claim provided the same relief.

Cler v. Providence Health System–Oregon, 349 Or 481 (Or. 2010) (closing argument may draw inferences from evidence but may not state facts outside the record)
State v. Davis, 336 Or 19 (Or. 2003) (harmless-error standard: affirm when there is little likelihood the error affected the verdict)
State v. Stull, 296 Or App 435 (Or. Ct. App. 2019) (trial-court discretion reviewed for abuse; overruling founded objection to out-of-record facts generally an abuse)
State v. Totland, 296 Or App 527 (Or. Ct. App. 2019) (same standard of review for objections to closing arguments)
State v. Mayo, 303 Or App 525 (Or. Ct. App. 2020) (overruling objection can lead jury to infer matters were proven)