614 February 7, 2024 No. 80 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MARION AMADOR DOUGLAS, Defendant-Appellant.

Deschutes County Circuit Court 21CR13862; A177836 Walter Randolph Miller, Jr., Judge.

Submitted January 19, 2024.

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.

SHORR, P. J.

Reversed and remanded.

Nonprecedential Memo Op: 330 Or App 614 (2024) 615 SHORR, P. J.

Defendant appeals from a judgment of conviction for attempted second-degree murder, first-degree assault, and menacing.1 On appeal, he raises eight assignments of error in which he argues that the trial court should have sua sponte intervened to strike statements that the prose- cutor made during closing argument. Because we conclude that the trial court plainly erred by not sua sponte inter- vening regarding assignments of error three and four, we need not address the remaining assignments.2 We reverse and remand for a new trial.

In State v. Chitwood, the Supreme Court set out the steps for determining whether a prosecutor’s closing argu- ment amounts to reversible plain error. 370 Or 305, 518 P3d 903 (2022). First, the reviewing court considers the pros- ecutor’s closing argument to determine whether the argu- ment was improper. Id. at 314. Second, the court considers whether the statements were legally erroneous and so prej- udicial that they deprived the defendant of a fair trial such that the trial court should have sua sponte intervened—that is, whether the error is plain. Id. at 317. Third, we must determine whether to exercise our discretion to correct the error. Id. at 322.

Here, the prosecutor made the following remarks during closing argument.

“And there’s sometimes a—you know, a tendency to think, well, okay, so we didn’t hear about [CS’s] statement at the hospital. Like, we know he gave one ‘cause they said he gave one, but we don’t know what’s in it.

“For the Rules of Evidence that we all have to follow, here’s what I can tell you unequivocally: [Defense counsel] is an excellent and experienced lawyer. And if there were inconsistencies in that statement or something that he felt would benefit his client, you would’ve heard about it.

The jury returned guilty verdicts on additional charges that were disposed of in the judgment without convictions because they merged with other verdicts.

The court has concerns about several of the statements made by the prose- cutor in closing argument, but we ultimately only discuss the statements below that arise in connection with defendant’s third and fourth assignments of error.

616 State v. Douglas “You can’t speculate on things that aren’t in front of you. And then you also have to evaluate the evidence, as His Honor said, dispassionately, right, fairly.”

Defendant argues that those remarks were improper because they implied that the rules of evidence prevented the state from offering evidence that would have supported the state’s case, invited the jury to speculate about it, and implied that defendant had a burden to present evidence of his innocence.

We agree with defendant. The prosecutor’s refer- ence to a statement that was not admitted in evidence, and invitation to the jury to infer that the contents of that state- ment would not have benefitted defendant, were improper argument. Further, those remarks were so prejudicial that they deprived defendant of a fair trial. We exercise our dis- cretion to correct the error because it is grave—such argu- ments erode the protections of the rules of evidence and the presumption of innocence. Consequently, we reverse and remand for a new trial.

Reversed and remanded.