State v. Mayo

303 Or.App. 525

465 P.3d 267

STATE of Oregon, Plaintiff-Respondent,

v.Shane Devon MAYO, Defendant-Appellant.

A166225

Court of Appeals of Oregon.

Argued and submitted February 22, 2019.

April 15, 2020

Matthew Blythe, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Defendant appeals from a judgment of conviction for possession of methamphetamine, ORS 475.894. Defendant contends that the "trial court erred when it overruled defendant's objection to the prosecutor's statements during closing argument." More specifically, defendant argues, among other points, that certain statements made by the prosecutor during the prosecutor's rebuttal closing argument "impermissibly shifted the burden of proof onto defendant."¹ For the reasons that follow, we conclude that the trial court erred when it overruled defendant's objection, because the prosecutor's comments raised a "realistic possibility of confusing the jurors about the ultimate standard or burden of proof." State v. Totland , 296 Or. App. 527, 531, 438 P.3d 399, rev. den. , 365 Or. 502, 451 P.3d 988 (2019) (internal quotation marks omitted). We further conclude that that error was not harmless. Accordingly, we reverse and remand.

I. FACTS

Officer Haugen was on patrol when he saw defendant and a woman, Claros, get into a car. Claros was driving, and defendant was in the front passenger seat. Claros committed a traffic infraction and Haugen decided to stop the car. Before Haugen did so, he called a K-9 officer, Bastinelli, to assist him. Bastinelli's dog was trained to alert to the odor of drugs. Haugen then stopped the car that Claros was driving. Shortly thereafter, Bastinelli and another officer, Lutu, arrived at the traffic stop.

Haugen went to the driver's side door and explained to Claros the reason for the stop. Lutu went to the passenger side of the car and saw that defendant had a backpack sitting on the floorboard "between his legs, toward his feet." Both Claros and defendant informed the officers that the car was not theirs but belonged to a third party. Meanwhile, Bastinelli retrieved his dog from his patrol car and deployed the dog around the car that Claros had been driving. The dog alerted to the presence of drugs in the car. Lutu ordered defendant out of the car and searched the contents of the car, including defendant's backpack. Inside the front pocket of defendant's backpack, Lutu found a plastic bag containing a usable quantity of methamphetamine. Defendant was charged with one count of possession of methamphetamine, ORS 475.894.

Defendant was tried by a jury. Prior to voir dire , the trial court explained to the prospective jurors:

"Under our system of justice, the defendant is presumed innocent of any crime or wrongdoing unless and until the State proves the defendant's guilt beyond a reasonable doubt. Therefore, the burden is on the State to prove the defendant's guilt beyond a reasonable doubt."

After the jury was selected for defendant's trial, and during the trial court's preliminary instructions to the jury, the trial court explained to the jury:

"The fact that a criminal charge has been filed against the defendant is not evidence. The defendant is innocent of any crime unless and until the State proves the defendant's guilt beyond a reasonable doubt."

During defendant's trial, after the close of the state's case-in-chief, defendant presented his case, calling himself as a witness. Defendant testified that the backpack that was found in the car was his, but that the methamphetamine was not his, and that he did not know that there was methamphetamine in the backpack until Lutu removed it from the backpack. To support his theory of defense, defendant further testified that (1) the car belonged to defendant's friend, Gillenwater, (2) Gillenwater had given defendant a ride home from work "a day or two" before the day of the traffic stop, (3) defendant forgot his backpack in the "back hatchback" of the car, (4) defendant phoned Gillenwater on the day of the traffic stop, (5) defendant discovered that Gillenwater had loaned the car to Claros, (6) defendant arranged to meet Claros to recover his backpack and get a ride home, and, (7) at some point, prior to defendant entering the car, defendant's backpack had been moved out of the "back hatchback" where defendant had left it when Gillenwater had given him a ride home.

Defendant did not call Gillenwater, Claros, or any other witness to corroborate his testimony or otherwise support his theory of defense.

During the state's closing argument, the prosecutor explained to the jury that

"defendant is charged with Unlawful Possession of Methamphetamine, and what the State has to prove to you is that the defendant knowingly possessed methamphetamine."

Additionally, during the state's closing argument, the prosecutor stated:

"You have the defendant's version of what happened that day. Who do you believe? Do you believe that he left the backpack overnight in the car and somehow, magically, the next day somebody put in a baggie of a usable quantity of methamphetamine? Why would somebody do that? Why would somebody leave drugs?

"And we all—you can use your common sense and reason. People buy drugs. People want to buy drugs in the street. They're not going to give them to somebody else or leave them in somebody else's backpack. There's no question that, on that day, defendant possessed methamphetamine. It was his drugs. He had the physical possession. It was in his property."

During defendant's closing argument, defendant argued that he was not guilty because he did not know that the methamphetamine was in his backpack.

During the state's rebuttal argument, the prosecutor made the comments that defendant contends were improper:

"[PROSECUTOR]: And why, again, would somebody pick up another bag that doesn't belong to them, and the only thing they put in there is a useable quantity of methamphetamine? This isn't somebody discarding garbage, something very small. This is somebody actually putting a baggie that is consistent with personal use. And it is put in such a pocket, in such a place where it is easily accessible, where it is easily found. It's not put in the main compartment where there's a lot of items that could be placed, that could be lost.

"And use your common sense and reason. Once again, there is no evidence that he actually did leave the backpack overnight. There is no evidence from his friend, [Gillenwater], that, ‘Yeah,’ you know, ‘I remember him using this.’

"[DEFENSE COUNSEL]: Objection. Improper commenting on burdens. And misstatement of evidence—

"THE COURT: The objection—the objection is overruled."

Immediately after defendant's objection was overruled, the prosecutor continued:

"We didn't hear from [Claros]. The only person who's telling you this story about this backpack being left overnight somewhere where things are planted is the defendant in this case."

Defendant did not renew his objection following the prosecutor's statement concerning Claros.

After the prosecution's rebuttal argument, the trial court provided final instructions to the jury, which included the following instruction:

"[T]o establish the crime of Unlawful Possession of Methamphetamine, the State must prove beyond a reasonable doubt the following elements: The act occurred on or about August 4th, 2016, and [defendant] knowingly possessed methamphetamine."

Defendant was ultimately convicted of one count of unlawful possession of methamphetamine.

II. ANALYSIS

As noted above, on appeal, defendant argues that the "trial court erred when it overruled defendant's objection to the prosecutor's statements during closing argument." Defendant contends the prosecutor's statements during the state's rebuttal argument concerning his failure to call Gillenwater and Claros to corroborate his testimony "effectively shifted the burden of proof" because they "implied that defendant had an affirmative burden to call witnesses to support his testimony that he left the backpack in Gillenwater's car and was unaware that there were drugs inside."

The state, for its part, argues the prosecutor's statements were not improper because a "prosecutor may comment on a deficiency in the defendant's evidence—other than the failure of a defendant to testify—when the defense raises a matter on which it bears a burden of production," which, in the state's view, defendant did here with respect to his defense, viz. , that he had left his backpack in Gillenwater's car a day or two before the traffic stop and he did not know the methamphetamine was in his backpack.²

"We review a trial court's decision to overrule an objection to closing arguments for abuse of discretion." Totland , 296 Or. App. at 531, 438 P.3d 399. "A trial court's discretion is not unbounded." Id. (internal quotation marks omitted). If "an argument was improper, properly challenged, and likely to prejudice the jury unfairly, upon review, we must reverse." Id. (internal quotation marks and brackets omitted). In conducting our review, "we view statements made by a party during argument in context, not in a vacuum." Id.

As we have previously observed, "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 in the indictment." Id. at 530, 438 P.3d 399 (internal quotation marks omitted). Under ORS 136.415, "[a] defendant in a criminal action is presumed to be innocent until the contrary is proved. In case of a reasonable doubt whether the guilt of ...