State v. Stull, 438 P.3d 471

Defendant disrupted a Portland City Council meeting, was restrained by officers, allegedly struck and kicked officers, and damaged a patrol car.
Defendant represented himself at trial and testified; he also behaved disruptively in the courtroom while not on the witness stand.
The prosecutor repeatedly referenced defendant’s courtroom behavior in closing argument, urging the jury to treat that conduct as probative of guilt.
Defense objected once during closing; the trial court overruled and did not strike the prosecutor’s remarks or give a curative instruction.
Jury convicted on attempted assault on a public safety officer, resisting arrest, and second-degree criminal mischief; defendant appealed arguing closing comments relied on facts not in evidence.
The Oregon Court of Appeals held the prosecutor’s references to the defendant’s out-of-courtroom courtroom behavior were not evidence, the trial court abused its discretion by permitting them, and the error was not harmless—reversing and remanding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor may comment on defendant’s courtroom behavior (when not testifying) in closing	Such comments are permissible advocacy and do not assert facts beyond the jury’s shared observations	Comments invited the jury to consider facts not in evidence; courtroom behavior off the stand is not evidence	Court: such comments relied on facts not in evidence; trial court abused discretion by allowing them
Whether a single objection preserved the issue	State conceded the single contemporaneous objection was adequate	Defendant argued the single objection preserved the issue and further objections would be futile	Court: objection preserved the issue for appeal
Whether uniform jury instruction that arguments are not evidence cures improper remarks	State relied on general admonition and other jurisdictions allowing such comments	Defendant: admonition does not cure argument that alters the perceived evidentiary record	Court: admonition inadequate where prosecutor repeatedly invited jury to treat non-evidence as evidence
Whether the error was harmless	State argued little likelihood remarks affected verdict	Defendant argued repeated improper comments likely affected jury’s verdict	Court: error was not harmless; reversed and remanded

State v. Cler, 349 Or. 481 (2010) (closing argument can shape jury’s view; arguments that convey facts not in record are particularly problematic)
United States v. Schuler, 813 F.2d 978 (9th Cir. 1987) (prosecutor’s reference to nontestifying defendant’s courtroom demeanor violated conviction based on evidence only)
United States v. Pearson, 746 F.2d 787 (11th Cir. 1984) (comments on defendant’s off-stand behavior during closing were reversible error)
United States v. Wright, 489 F.2d 1181 (D.C. Cir. 1973) (prosecutor may not circumvent rules on character evidence by commenting on courtroom behavior)
State v. Cox, 272 Or. App. 390 (2015) (reversible error where closing argument relied on facts not in evidence for character purposes)
State v. Guzek, 358 Or. 251 (2015) (allocution and out-of-record statements are not trial evidence)
State v. Logston, 270 Or. App. 296 (2015) (futility exception to further objections after an adverse ruling)