State v. Strain, 548 P.3d 169

Keonta Jarmel Strain was convicted by a jury of second-degree sexual abuse, based primarily on accusations and testimony from the alleged victim, H, and her friend.
Strain's main defense was that the sexual interactions with H were consensual.
The case hinged significantly on the credibility of witnesses and the narratives presented during trial.
During closing and rebuttal arguments, the prosecutor repeatedly referenced Strain’s failure to cross-examine key witnesses (the victim and her friend).
Strain objected, arguing these comments improperly shifted the burden of proof to the defense; the trial court overruled the objection and allowed the arguments.
Strain appealed, arguing the prosecutor’s statements were improper and that the error was not harmless given the centrality of credibility issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prosecutor's comments on the defendant’s failure to cross-examine witnesses improperly shifted the burden of proof	Prosecutor’s comments were valid responses to defense arguments about missing evidence	Comments implied defendant bore a burden to disprove the state's case, violating burden of proof standards	Court found prosecutor’s statements were improper and constituted burden-shifting
Whether the error was harmless	Any error did not affect substantial rights or the outcome, thus harmless	The error went to the heart of the defense (credibility), likely affected the verdict	The error was not harmless; new trial required
Preservation of error for appeal	Defendant did not preserve one argument because the prosecutor’s comments addressed different witnesses	Objecting would have been futile as court had just overruled a similar objection; thus, argument is preserved	Futility exception applied; defendant’s arguments preserved for review

State v. George, 337 Or 329 (Or. 2004) (futility exception to preservation requirement)
State v. Mayo, 303 Or App 525 (Or. Ct. App. 2020) (impermissible for prosecutor to shift burden to defendant to produce exculpatory evidence)
State v. Spieler, 269 Or App 623 (Or. Ct. App. 2015) (outlines when prosecutor can comment on absence of evidence)
State v. Schneider, 328 Or App 697 (Or. Ct. App. 2023) (harmful prosecutorial misstatements not harmless if affecting main defense theory)