551 P.3d 995
Or. Ct. App.2024Background
- Defendant Theodore Settlemier II was convicted by a jury of one count each of fourth-degree assault and menacing, both constituting domestic violence.
- During rebuttal closing, the prosecutor told the jury, “for evil to triumph, good people—good men and women—do nothing. Don’t let evil triumph in this time. Find the defendant guilty.”
- Settlemier’s counsel did not object at trial to the prosecutor’s statement, nor did he request a mistrial or curative instruction.
- On appeal, Settlemier argued the prosecutor's remarks were so improper as to require reversal, asserting plain error.
- The trial court had previously instructed the jury properly on the state’s burden of proof, presumption of innocence, and the non-evidentiary status of arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor's "evil" comment in closing | Statements did not confuse or mislead jury | Remarks mischaracterized burden, appealed to emotion | Remarks improper, but not plain error |
| Basis in evidence for “evil” statement | Did not impact burden of proof; no prejudice | No factual basis in record; encouraged improper basis | Remarks had no basis, but curable by instruction |
| Need for mistrial or curative instruction | Court’s existing instructions were adequate | Error so prejudicial it warranted mistrial or instruction | Error was curable, not so prejudicial as to require new trial |
| Application of plain error review | Not legal error since curable by instruction | Constituted plain error regardless of preservation | No plain error; affirms conviction |
Key Cases Cited
- State v. Chitwood, 370 Or 305 (2022) (describes when improper prosecutor argument is so prejudicial it is plain error)
- State v. Montez, 324 Or 343 (1996) (discusses abuse of discretion standard for denying mistrial)
- State v. Jones, 279 Or 55 (1977) (improper statements so prejudicial they cannot be cured by instruction)