Submitted November 27, 2013
Washington County Circuit Court D115538M. Gayle Ann Nachtigal, Judge.
Peter Gartlan, Chief Defender, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Justice J. Rillera, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.
[265 Or.App. 619] HADLOCK, J.
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 ]."
At that point, defense counsel objected, contending that the ...