Defendant, who was convicted of two counts of harassment following a jury trial, asserts that the trial court erred when it overruled his objection to statements made by the prosecutor in closing argument. He contends that the prosecutor’s statements had the effect of impermissibly misleading the jury about the applicable burden of proof in the case. We affirm.
The facts are not in dispute. The state charged defendant with one count of fourth-degree assault, ORS 163.160, and two counts of harassment, ORS 166.065. The charges stemmed from allegations that defendant had punched the victim, his wife, on two separate occasions. At trial, the defense theory was that the victim had fabricated the allegations in order to obtain a restraining order against defendant that would allow her to pursue — unfettered by defendant’s presence — her romantic interest in another man, Dupree. Defendant did not call any witnesses or otherwise put on a case. In closing argument, his attorney attacked the credibility of both the victim and Dupree, whose testimony tended to corroborate the victim’s account. In a summation of the defense theory, defense counsel asked the jury, “And how did she get that Restraining Order? She had to get that Restraining Order by taking what was in reality a verbal argument, and transforming it into a crime.”
During rebuttal argument, the prosecutor stated:
“So, in a way, what you’re doing, really, is it’s much like a ‘he said/she said.’ We happened to have another person there, but it’s still the same way. You have to believe one story or the other. Two stories to choose from. And you have to decide which one actually makes sense. Which one do the puzzle pieces point go? [sic].”
(Emphasis added.)
At that point, defense counsel objected, contending that the prosecutor had — through
On appeal, defendant reiterates the points he made below, advancing a two-part argument for reversal. First, defendant argues that the prosecutor misstated the law during her rebuttal argument. Pointing to decisions from other jurisdictions, he maintains that the prosecutor’s statements about the parties’ competing “stories” impermissibly suggested that the jury could find defendant guilty based solely on a determination that the state’s witnesses were credible, as opposed to being able to convict only if the state proved beyond a reasonable doubt that defendant had committed the charged offenses. That argument presents a question that we review for legal error. See State v. Worth,
Second, defendant argues that he was prejudiced by the trial court’s failure to recognize the prosecutor’s misstatement of the law and sustain his objection to it. Specifically, defendant contends that the prosecutor’s statements “likely misled the jury,” resulting in an unfair trial. Accordingly, defendant concludes, we should reverse his convictions because the trial court’s “failure to recognize that the prosecutor misstated the law was harmful.” Our assessment of that argument is guided by a single question: “Is there little likelihood that the [asserted] error affected the verdict?” State v. Davis,
We start by addressing the propriety of the prosecutor’s rebuttal argument. “The law presumes every defendant upon trial charged with crime to be innocent, and it devolves upon the prosecution to prove by evidence to the satisfaction of the trial jury, beyond a reasonable doubt, that the defendant committed the crime charged * * State v. Rosasco,
In this case, the specific part of the prosecutor’s rebuttal argument to which defendant objected came close to crossing the line between permissible argument about the jury’s need to assess the witnesses’ credibility, in conjunction with assessing whether the state proved defendant’s guilt beyond a reasonable doubt, and incorrectly describing the jury’s task as choosing which of two versions of events the jury finds more believable (a description that omits the possibility,
First, the trial court repeatedly instructed the jury — at the beginning of the trial, at the conclusion of evidence, and at least four times in total — that the state had the burden to prove that defendant was guilty beyond a reasonable doubt.
Second, the context in which the prosecutor made the challenged statements is significant. Defendant does not contend that the prosecutor mischaracterized the law in any way during her initial closing argument. To the contrary, after discussing the evidence presented at trial, the prosecutor reiterated the state’s burden of proof, telling the jury that it was “going to be asked to look at all this evidence and make a decision about what you believe occurred, beyond a reasonable doubt.” The prosecutor made the challenged statements only later, in her rebuttal argument, after defense counsel suggested during her own closing argument that the victim was an “over-the-top exaggerator” whose claim that defendant assaulted her was motivated by her desire to get a restraining order that would give her freedom to pursue a relationship with Dupree. In our view, it is unlikely that the jury would have understood the prosecutor’s subsequent statements about the parties’ competing “stories” as anything other than advocacy about how the jury should assess the credibility of the witnesses, including the victim.
Put differently, defendant has shown neither that the jurors would have understood the prosecutor’s statements as suggesting that they could convict defendant even if they were not persuaded beyond a reasonable doubt of his guilt, nor an “overwhelming probability” that the jurors would have followed any such suggestion, disregarding the trial court’s repeated instructions about the state’s burden of proof. In short, we conclude that, even if the trial court erred in overruling defendant’s objection to the prosecutor’s statements, there is no likelihood that the error affected the jury’s verdict.
Affirmed.
Notes
For example, the trial court’s final instructions stated:
“The defendant is innocent unless and until the defendant is proven guilty beyond a reasonable doubt. The burden is on the State to prove the guilt of the defendant beyond a reasonable doubt.
“Reasonable doubt is doubt based on common sense and reason. Reasonable doubt means an honest uncertainty as to the guilt of the defendant. Reasonable doubt exists when, after careful and impartial consideration of all the evidence in the case, you are not convinced that the defendant is guilty.”