State v. Fant

• Docket Number: A178896
• Decision Date: 28 December 2023
• Citation: 329 Or.App. 802
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. WESLEY FANT, Defendant-Appellant.
• Court: Oregon Court of Appeals

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329 Or.App. 802

STATE OF OREGON, Plaintiff-Respondent,
v.
WESLEY FANT, Defendant-Appellant.

No. A178896

Court of Appeals of Oregon

December 28, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted November 13, 2023.

Multnomah County Circuit Court 20CR65390; Steffan Alexander, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Hadlock, Judge pro tempore

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[329 Or.App. 803] AOYAGI, P. J.

Defendant was convicted of unlawful possession of a firearm, ORS 166.250(1). On appeal, in three assignments of error, he contends that the trial court plainly erred by failing to intervene sua sponte, despite the lack of an objection by defense counsel, when the prosecutor made statements during rebuttal closing that, in defendant's view, "denigrated defense counsel and contained the prosecutor's personal opinions," thus denying defendant a fair trial.^[1]Specifically, in response to defense counsel's argument in closing that the issue before the jury was "nuanced" and involved a "a confusing law that invites hairsplitting," the prosecutor described the evidence, stated that it was the "[defense's job to confuse things and complicate things, and he's right, I am gonna tell you that this is a fairly straightforward case, in my opinion," then asked the jury to "follow the law and the instructions by the judge and find the defendant guilty."

Under State v. Chitwood, 370 Or. 305, 518 P3d 903 (2022), a trial court is obligated to intervene sua sponte during a prosecutor's closing argument and declare a mistrial, notwithstanding the lack of any objection by the defendant, only when it is "beyond dispute that the prosecutor's comments were so prejudicial as to have denied defendant a fair trial." 370 Or at 312 (internal quotation marks omitted). Further, "a defendant asserting plain error must demonstrate that the prosecutor's comments were so prejudicial that an instruction to disregard them would not have been sufficiently curative to assure the court, in its consideration of all the circumstances, that the defendant...