State v. Chitwood, CC 15CR48036 (SC S068655)

• Docket Number: CC 15CR48036 (SC S068655)
• Decision Date: 20 October 2022
• Citation: 370 Or. 305,518 P.3d 903
• Parties: STATE of Oregon, Respondent on Review, v. Nathan Thomas CHITWOOD, Petitioner on Review.
• Court: Oregon Supreme Court

370 Or. 305

518 P.3d 903

STATE of Oregon, Respondent on Review,

v.Nathan Thomas CHITWOOD, Petitioner on Review.

CC 15CR48036 (SC S068655)

Supreme Court of Oregon.

Argued and Submitted January 20, 2022.

October 20, 2022

Lindsey Burrows, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.

Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Kistler, Senior Judge, Justice pro tempore.^**

WALTERS, C.J.

In a 20-count indictment, defendant was accused of sexually abusing his then-13-year-old stepdaughter. A jury acquitted defendant of all but three counts. Defendant appealed his convictions, contending that the prosecutor had made two highly improper statements during the rebuttal closing argument. Defendant did not object to either of those statements, but, on appeal, he argued that the prosecutor's argument was so prejudicial that the trial court judgment should be overturned on plain error review. The Court of Appeals agreed that the prosecutor's statements were improper, but it declined to conduct plain error review. That court reasoned that the prosecutor's argument was not so prejudicial as to deny defendant a fair trial and that there was a possibility that defense counsel's failure to object was strategic. State v. Chitwood , 310 Or App 22, 483 P.3d 1157 (2021). We allowed defendant's petition for review and now hold that the prosecutor's argument constituted plain error: The prosecutor's statements were impermissible and, taken together, were so egregious that they deprived defendant of a fair trial. We exercise our discretion to review that error and reverse the decision of the Court of Appeals.

The following procedural facts are uncontested. Defendant's then-13-year-old stepdaughter reported that defendant had subjected her to various forms of sexual abuse over the course of a year. Defendant was charged with three counts of first-degree sexual abuse, five counts of second-degree sodomy, one count of second-degree sexual penetration, 10 counts of second-degree rape, and one count of unlawful delivery of marijuana to a minor. In charging each sexual offense the indictment begins with the same wording: "The defendant, on or between August 2, 2014, and August 2, 2015, in Douglas County, Oregon, did unlawfully and knowingly" engage in the charged conduct. The indictment does not allege facts differentiating the sexual offense counts from each other. At trial, the victim testified to multiple instances of sexual abuse. There was no physical evidence supporting the allegations, and defendant consistently denied that the abuse had occurred.

The following facts provide context for defendant's present challenge to the prosecutor's rebuttal closing argument. During voir dire , the prosecutor questioned a prospective juror, Strong, who ultimately was not seated. Strong revealed that he had been accused, falsely, of sexually abusing his daughter. According to Strong, the child was examined by a doctor, who determined that the allegation was false, and no charge was brought against Strong.

Prior to closing arguments, the trial court instructed the jury, concerning the burden of proof, as follows:

"The defendant is innocent unless and until the defendant is proven guilty beyond a reasonable doubt. The burden is on the state, and the state alone, to prove the guilt of the defendant beyond a reasonable doubt.

"Reasonable doubt is based on common sense and reason. Reasonable doubt is not an imaginary doubt. Reasonable doubt means an honest uncertainty as to the guilt of the defendant. You must return a verdict of not guilty if, after careful and impartial consideration of all the evidence in the case, you are not convinced to a moral certainty that the defendant is guilty."

The court did not define the phrase "moral certainty."

During her closing argument, the prosecutor emphasized that the case turned on credibility, and she asked the jury to find that defendant was not credible. In response, defense counsel highlighted inconsistencies in the child's allegations and pointed to the lack of specificity in the state's case. The prosecutor then made the following rebuttal closing argument:

"I get to speak to you one last time because I have the burden of proof and that's the reason I get to speak with you. ***

"The things that I want to cover with you is [sic ] do you remember Mr. Strong, our juror that said he was falsely accused and he described to you that his false accuser was washed out at the forensic interview stage? I don't know if you all remember that but he claimed he had been falsely accused of a sex crime and she washed out because it was false. And this is not false.

"I want to talk to you about moral certainty because that's the threshold. Deep down in your core is your moral core and that's where you're deciding this case from. Moral certainty. And if, after considering all the evidence, and again, I encourage you to listen to and look at everything that you see here today. Based on the evidence presented to you, without bias or sympathy for anyone, if you determine that [defendant] should not reside with an adolescent girl, that's your moral certainty and I have proven my case beyond a reasonable doubt."

Defendant did not object to that argument, ask for a curative instruction, or move for a mistrial. Nor did the trial court offer a curative instruction or declare a mistrial.

After the prosecutor concluded her rebuttal closing argument, the trial court gave additional jury instructions explaining the verdict form, but it did not reinstruct the jury on the substantive legal standards or the elements of the offenses. Defendant was convicted of one count of first-degree sexual abuse, one count of second-degree sodomy, and one count of second-degree rape.

Defendant appealed his convictions to the Court of Appeals, arguing, as relevant here, that the prosecutor's rebuttal closing argument, quoted above, amounted to prosecutorial misconduct and that the trial court had plainly erred in failing to issue a curative instruction or declare a mistrial.

The Court of Appeals agreed that the prosecutor's argument was impermissible in both respects identified by defendant:

"It is not permissible to base closing argument on extra-record evidence. *** And the prosecutor's assertion that she had proved her case beyond a reasonable doubt if the jury felt that defendant should not live with an adolescent girl is not an accurate statement of the law and risked misleading the jury into thinking it could convict based on its comfort level with defendant living with an adolescent girl. That appeal was, in effect, an impermissible plea to the jury to decide the case based on how the evidence made it feel about defendant, instead of deciding it based on a determination that it was persuaded by the evidence that defendant had committed the charged crimes."

Chitwood , 310 Or App at 27, 483 P.3d 1157. The court noted, however, that "defendant did not object[,] so we are in a plain error posture." That, the court said, "means that we would have to be persuaded to exercise our discretion to correct the alleged error, were we to conclude that it was plain." Id.

The court gave two reasons for declining to exercise its discretion. It first stated, without elaboration, that the record did not compel the conclusion that defendant had been denied a fair trial. Id . And it then stated that the possibility that defense counsel had chosen, for strategic reasons, not to seek a curative instruction or mistrial weighed against correcting plain error. Id . at 28, 483 P.3d 1157. The court said that "there is a possibility that defendant made a strategic choice not to request a mistrial[,] [insofar as the] prosecutor's remarks occurred in rebuttal, at the very end of trial, a point at which defendant may well have had a sense of how the trial was going and may have wanted it to go forward to the jury, rather than end in a mistrial." Id . Similarly, the court said, it was possible that defense counsel had made a strategic choice not to request a curative instruction "so as not to highlight the prosecutor's argument with an instruction addressing it right before the case went to the jury." Id . The court cited this court's decisions in State v. Fults , 343 Or. 515, 520, 523, 173 P.3d 822 (2007), for the proposition that "the possibility that [the] defendant made a strategic choice not to object" weighs against correcting plain error and that appellate courts should "take into consideration any strategic purpose that [a] defendant may have had in not objecting to the trial court's course of action." Id.

On review, defendant agrees with the Court of Appeals that the prosecutor's rebuttal closing argument was impermissible, but he argues that that court erred in declining to conduct plain error review. Defendant contends that he neither invited the prosecutor's remarks nor benefitted from them and asks this court to conclude that the prosecutor's argument was so egregious that it denied him a fair trial. Defendant asks that we exercise our discretion and reverse the judgment of conviction.

I. ANALYSIS

We begin our analysis with the obvious obstacle to our review—the fact that defendant did not object to the prosecutor's rebuttal closing argument or move for a mistrial.

Because of that, defendant is entitled to review only if we find "plain error" and are willing to consider it. ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may, in its discretion, consider a plain error.").

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