State v. Villar, 404 P.3d 1095

Defendant was convicted by a jury of second-degree criminal trespass, resisting arrest, and interfering with a peace officer after a bathhouse incident that culminated in his being tased and arrested.
After arrest, Sergeant Baxter, called to investigate the tasing, asked defendant (in handcuffs and post-treatment) for his version of events; defendant responded that he had "nothing to say."
At trial, Baxter testified over objection that defendant said he had "nothing to say," and the prosecutor later used that fact in closing to argue the jury should discredit defendant’s testimony.
Defendant argued on appeal the in-custody statement was an unequivocal invocation of his right against self-incrimination under Article I, § 12 of the Oregon Constitution and the Fifth Amendment, and that evidence of that invocation was inadmissible under State v. Smallwood.
The state conceded the statement was an unequivocal invocation and inadmissible but argued the general objection failed to preserve the issue and, alternatively, that the error was harmless.
The court held the objection was preserved, the admission was erroneous, and the error was not harmless because the prosecutor relied on the silence to impeach defendant’s testimony; the conviction was reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of evidence that defendant said "I have nothing to say" while in custody	Evidence of defendant’s silence was admissible and not disputed as a constitutional invocation	The statement was an unequivocal invocation of the right to remain silent; such evidence is inadmissible under Smallwood	Admission was erroneous — evidence of invocation of the right to remain silent is generally inadmissible
Preservation of objection to the testimony	General "objection" was insufficient to preserve the specific constitutional claim	The record made the basis of the objection apparent; preservation satisfied	Preserved: context made the ground of objection apparent to the trial court
Harmless-error analysis	Any error was harmless; conviction should stand	Admission was prejudicial because prosecutor argued jury should reject defendant’s story based on that silence	Not harmless: reasonable likelihood that jury drew prejudicial inference urged by prosecutor; reversal required
Need to reach other assigned errors (fees)	State implied they could be considered	Defendant raised fee-related errors	Court did not reach those issues because reversal and remand may render them moot

State v. Avila-Nava, 356 Or. 600, 341 P.3d 714 (Or. 2014) (unequivocal invocation of right to remain silent)
State v. Smallwood, 277 Or. 503, 561 P.2d 600 (Or. 1977) (evidence of defendant’s invocation of right to remain silent ordinarily inadmissible at trial)
State v. Ragland, 210 Or. App. 182, 149 P.3d 1254 (Or. Ct. App. 2006) (discussing bar on admission of a defendant’s post-arrest silence)
Williamson v. Southern Pacific Transp. Co., 284 Or. 11, 584 P.2d 753 (Or. 1978) (general objection may preserve issue if ground is apparent from context)
Johnson v. Myrick, 285 Or. App. 395, 396 P.3d 285 (Or. Ct. App. 2017) (clarifying OEC preservation principles)
State v. House, 282 Or. App. 371, 385 P.3d 1099 (Or. Ct. App. 2016) (harmless-error framework for admission of silence evidence)
State v. Davis, 336 Or. 19, 77 P.3d 1111 (Or. 2003) (standard that reversal is required unless there is little likelihood the error affected the verdict)