State v. Chitwood

                                       305

   Argued and submitted January 20; decision of Court of Appeals reversed;
   judgment of circuit court reversed, and case remanded to circuit court for
                     further proceedings October 20, 2022


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
               NATHAN THOMAS CHITWOOD,
                    Petitioner on Review.
          (CC 15CR48036) (CA A165817) (SC S068655)
                                   

    Defendant was convicted on sexual abuse charges involving his then-
13-year-old stepdaughter. On appeal, defendant argued that the prosecutor, in
her rebuttal closing argument, made two highly improper statements, which, he
contended, deprived him of a fair trial. He had not objected to those statements,
but he argued on appeal that they were so prejudicial that the trial court judg-
ment should be overturned on plain error review. The Court of Appeals agreed
that the statements were improper, but it declined to conduct plain error review.
Held: The prosecutor’s statements—referring to a matter not in evidence and
misstating the state’s burden of proof—constituted plain error, and the court
exercises its discretion to correct that error.
    The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.



    On review from the Court of Appeals.*
   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.**
______________
    * On appeal from Douglas County Circuit Court, Francis Burge, Judge. 

, 

 (2021).
    ** Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case. DeHoog, J., did not participate in the consideration or deci-
sion of this case.
306                                     State v. Chitwood

  WALTERS, C. J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
  Garrett, J., dissented and filed an opinion, in which
Balmer, J., and Kistler, S. J., joined.
Cite as 

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        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 rebut-
tal closing argument. Defendant did not object to either of
those statements, but, on appeal, he argued that the pros-
ecutor’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, 

,

 (2021). We allowed defendant’s petition for
review and now hold that the prosecutor’s argument consti-
tuted plain error: The prosecutor’s statements were imper-
missible 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 unlaw-
fully 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 consis-
tently denied that the abuse had occurred.
308                                              State v. Chitwood

         The following facts provide context for defendant’s
present challenge to the prosecutor’s rebuttal closing argu-
ment. During voir dire, the prosecutor questioned a prospec-
tive juror, Strong, who ultimately was not seated. Strong
revealed that he had been accused, falsely, of sexually abus-
ing his daughter. According to Strong, the child was exam-
ined 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 defen-
   dant is proven guilty beyond a reasonable doubt. The bur-
   den 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 empha-
sized 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 clos-
ing argument:
      “I get to speak to you one last time because I have the bur-
   den 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
Cite as 

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   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 deter-
   mine 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 cura-
tive 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 prose-
cutorial 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 mis-
   leading 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, 

. The court noted, however, that
“defendant did not object[,] so we are in a plain error pos-
ture.” That, the court said, “means that we would have to be
310                                         State v. Chitwood

persuaded to exercise our discretion to correct the alleged
error, were we to conclude that it was plain.” 

          The court gave two reasons for declining to exer-
cise its discretion. It first stated, without elaboration, that
the record did not compel the conclusion that defendant had
been denied a fair trial. 

 And it then stated that the pos-
sibility that defense counsel had chosen, for strategic rea-
sons, not to seek a curative instruction or mistrial weighed
against correcting plain error. 

. The court said
that “there is a possibility that defendant made a strategic
choice not to request a mistrial[,] [insofar as the] prosecu-
tor’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.” 

 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 instruc-
tion addressing it right before the case went to the jury.” 

The court cited this court’s decisions in State v. Fults, 

, 

 (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 strate-
gic purpose that [a] defendant may have had in not objecting
to the trial court’s course of action.” 

         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 bene-
fitted 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 pros-
ecutor’s rebuttal closing argument or move for a mistrial.
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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 accor-
dance with this rule, provided that the appellate court may,
in its discretion, consider a plain error.”).

         The first step in a plain error analysis is to deter-
mine whether the claimed error is “plain,” which, in turn,
involves examining the following three factors: (1) whether
the claimed error is one of law; (2) whether the claimed error
is obvious and not reasonably in dispute; and (3) whether
the claimed error appears on the record. State v. Vanornum,

, 

 (2013). If those requirements
are satisfied, the second step is to decide whether to exer-
cise discretion to consider the error. “That discretion entails
making a prudential call that takes into account an array of
considerations, such as the competing interests of the par-
ties, the nature of the case, the gravity of the error, and the
ends of justice in the particular case.” 

.

         Here, defendant describes the error that he contends
is “plain” as an error by the trial court in failing to order
a mistrial or issue curative instructions. See, e.g., State v.
Fanus, 

, 

 (2003); State v. Simonsen,

, 

 (1999); State v. Montez, 

, 

 (1996) (all identifying issue as whether
trial court’s error in failing to act to address prosecutor’s
allegedly impermissible comments was plain error). If the
trial court had been asked to take those actions and denied
motions to do so, an appellate court would review such a
denial for abuse of discretion. State v. Davis, 

, 

 (2008); State v. Bowen, 

, 

 (2006) (both applying that standard). And
such a denial would not constitute an abuse of discretion
unless the effect of the prosecutor’s misconduct was to deny
a defendant a fair trial. Davis, 

. Generally, a
proper jury instruction is adequate to cure any presumed
prejudice from a prosecutor’s misconduct. 

 However, some
prosecutorial statements may be “so prejudicial that, as a
practical matter, the bell once rung, cannot be unrung by
312                                         State v. Chitwood

such an admonishment.” 

 (quoting State v. Jones, 

, 

 (1977) (internal quotation marks omit-
ted)). Ultimately, an appellate court is required to decide
“whether, under the circumstances as a whole, defendant
was denied the right to a fair trial, as a matter of law, by
the events that transpired at trial.” Davis, 

; see
also State v. Compton, 

, 

 (2002),
cert den, 

 (2002) (same).

         As noted, those principles apply when an appellate
court reviews a preserved challenge to a prosecutor’s
remarks and a court’s denial of a motion for mistrial. Here,
of course, defendant did not object to the prosecutor’s argu-
ment or make a motion for mistrial, and, accordingly, the
trial court did not make rulings subject to appellate review.
Nevertheless, appellate review is permitted, and reversal
may be warranted if “it is beyond dispute that the prose-
cutor’s comments were so prejudicial as to have denied
defendant a fair trial.” Montez, 

. Thus, in this
instance, the standard for our review of a preserved error
and for our review of a claim of plain error is identical. That
is, as in the context of a preserved error, it is not enough
for a defendant to show that a prosecutor’s comments were
improper; a defendant asserting plain error must demon-
strate 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 received a fair
trial. In that situation, we have described the denial of the
right to a fair trial as indicating “plain error.” 

          In using that moniker, we have thought of the error
as attributable to the trial court—describing the error as
the trial court’s failure to step in and declare a mistrial.
See, e.g., Montez, 

. But another way to view the
error is as an error by the prosecutor in making remarks
that are so egregious that, if the defendant had made a
motion for mistrial, the trial court would have erred, as a
matter of law, in denying it. Understanding the error in that
way is consistent with the test for legal error—whether the
prosecutor’s comments were so prejudicial as to have denied
defendant a fair trial. Describing the claimed error that way
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properly focuses the inquiry without changing the substan-
tive standard that must be met to permit appellate review.1
        Again, to establish legal error, a defendant who
seeks review of an unpreserved challenge to prosecutorial
     1
       In adopting that focus, we align ourselves with the description of the error
used by the federal courts. The federal courts’ analysis appears uniformly to
focus exclusively on whether the prosecutor’s remarks were erroneous and unduly
prejudicial; whether the trial court should have intervened is not a factor in the
analysis. See, e.g., United States v. Young, 

, 

, 

(1985) (Court recognized that trial court should have intervened, but plain error
analysis centered on whether prosecutor’s remarks were erroneous and whether
they deprived the defendant of a fair trial); United States v. Roberts, 

(1st Cir 1997) (prosecutor plainly erred in commenting on defendant’s failure to
testify and in alluding to evidence not in the record during closing, and convic-
tion had to be vacated; trial court’s failure to intervene not discussed); United
States v. Elias, 

 (2d Cir 2002) (prosecutor’s comments were erroneous
but not so prejudicial as to warrant reversal; trial court’s failure to intervene
not discussed); United States v. Vargas, 583 F2d 380 (7th Cir 1978) (prosecutor’s
erroneous statement in closing constituted plain error and warranted reversal;
trial court’s failure to intervene not discussed); Government of the Virgin Islands
v. Mills, 

 (3d Cir 2016) (prosecutor’s improper statements in closing
were clearly erroneous, but court found that defendant’s substantial rights had
not been violated and therefore reversal was not warranted; trial court’s failure
to intervene not discussed); United States v. Mitchell, 

 (4th Cir
1993) (prosecutor’s statements in closing were improper because they encouraged
jury to convict for an impermissible reason and they “prejudicially affected the
defendant’s substantial rights,” requiring reversal; trial court’s failure to inter-
vene not discussed); United States v. Flores-Chapa, 

 (5th Cir 1995)
(prosecutor’s closing argument referring to excluded evidence was plain error
affecting substantial rights, requiring reversal; court found error should have
been “plain” to trial court, but analysis centered on whether the prosecutor’s
statement affected defendant’s substantial rights).
     Some states also focus their inquiry in that way. See, e.g., Collins v. State,

 (Ind 2012) (prosecutor’s closing argument in which the prosecutor
made disparaging comments about defense counsel and referred to a prior arrest
that was not in evidence was highly prejudicial and constituted fundamental
error requiring reversal; trial court’s failure to intervene not discussed); Knight
v. State, 672 So 2d 590, 591 (Fla 1996) (reversing conviction where “prosecutor’s
improper comments reach[ed] to the very heart of the case and [rose] to the level
of fundamental error obviating the need for multiple or contemporaneous objec-
tions”; trial court’s failure to intervene not discussed); State v. Betancourt, 

, 

 (2011) (court reversed because prosecutor’s comment
during closing stating that jury could infer defendant’s guilt from his invoca-
tion of his Fourth Amendment right to refuse to consent to search vehicle was
fundamental error and there was a reasonable possibility that the impermissi-
ble comments affected the outcome of the trial; trial court’s failure to intervene
not discussed); West v. State, 

 (Okla 1988) (prosecutorial misconduct
during closing argument, in which prosecutor indirectly referred to defendant as
a liar, used language that improperly played on societal alarm, and improperly
commented on defendant’s refusal to continue talking to police after they started
questioning him, which constituted fundamental error that went to foundation of
case, requiring reversal; trial court’s failure to intervene not discussed).
314                                             State v. Chitwood

statements must demonstrate that the statements were so
prejudicial that they deprived the defendant of a fair trial.
We proceed to that question, and, in doing so, we take a dif-
ferent approach than did the Court of Appeals. That court
began by considering whether the prosecutor’s statements
were permissible, found that they were not, and then, rather
than considering whether those improper statements consti-
tuted “plain error,” proceeded to the second step in the plain
error analysis and declined to exercise its discretion to con-
duct review. In following that path, the Court of Appeals did
not consider the factors used to determine whether unpre-
served error is “plain”; that is, (1) whether the claimed error
is one of law; (2) whether the claimed error is obvious and
not reasonably in dispute; and (3) whether the claimed error
appears on the record. We find it helpful to complete that
inquiry before we turn to the second, discretionary, step in
the analysis.

A.    The prosecutor’s argument was plainly impermissible.

        As discussed, defendant highlights two aspects of
the prosecutor’s closing argument as impermissible and cog-
nizable as plain error. The first is the prosecutor’s comment
referencing “Mr. Strong,” a prospective juror:
         “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.”

        The prosecutor’s discussion of her conversation with
the prospective juror during voir dire was impermissible in
two ways. First, in deciding a defendant’s guilt or innocence,
a jury may consider only facts properly received in evidence.
See Cler v. Providence Health System-Oregon, 

, 

 (2010) (trial counsel’s freedom to
comment on evidence in closing is not without limitations,
and “[o]ne such limitation is that counsel may not make
statements of facts outside the range of evidence”) (internal
quotation marks omitted); State v. Wederski, 

,
Cite as 

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 (1962) (reversing trial court ruling declining
to order mistrial based on prosecutor’s improper invitation
to jury to consider matters not in evidence). Second, a pros-
ecutor may not encourage the jury to decide the case on an
improper basis. See State Highway Commission v. Callahan,

, 

 (1966) (inflammatory argu-
ments encourage jury to decide case on improper basis and
are impermissible); Bratt v. Smith et al., 

, 

 (1946) (arguments appealing to “passion and prej-
udice” encourage jury to decide case on improper basis and
are impermissible).
          Here, the prosecutor violated both rules. She raised
the prospective juror’s recitation of what had happened in a
prior situation—facts not in evidence—and used those facts
to suggest an improper basis for reaching a conclusion—
that, because, in the prior instance, the victim’s accusations
had “washed out” at the forensic interview stage and that
had not happened here, the victim’s accusations in this case
should be taken as true. The prior situation and this case
were similar in that both involved child sexual abuse, and,
in both, professionals had conducted forensic interviews of
the children who had made accusations. But, the prosecu-
tor argued, the prospective juror’s accuser “washed out” at
the “forensic interview stage * * * because [the accusation]
was false.” In contrast, the prosecutor argued, “this [accusa-
tion] is not false.” That argument exceeded the bounds of the
permissible.
         The second aspect of the prosecutor’s argument that
defendant highlights is the prosecutor’s reference to the
trial court’s jury instruction regarding reasonable doubt:
“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.” As the United States Supreme Court has explained,
use of the phrase “moral certainty” in jury instructions
means the same thing as “beyond a reasonable doubt”:
   “[Historically,] moral certainty meant a state of subjective
   certitude about some event or occurrence. * * * Indeed, we
   have said that proof to a moral certainty is an equivalent
   phrase with beyond a reasonable doubt. * * * [And it does
316                                                       State v. Chitwood

    not mean] anything different today than it did in the 19th
    century.”2
Victor v. Nebraska, 

, 

, 

 (1994) (citations and internal quotation marks omit-
ted). In turn, the beyond-a-reasonable-doubt standard
“impress[es] upon the factfinder the need to reach a sub-
jective state of near certitude of the guilt of the accused.”

.
           In her rebuttal closing, the prosecutor told the jury:
        “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 deter-
    mine that [defendant] should not reside with an adolescent
    girl, that’s your moral certainty and I have proven my case
    beyond a reasonable doubt.”
That statement distorted the burden of proof by suggest-
ing, incorrectly, what the jury must find in order to convict
defendant. Rather than confirming to the jurors that they
must “reach a subjective state of near certitude of the guilt
of the accused,” Victor, 

, the prosecutor told the
jurors that they could find defendant guilty if they “deter-
mine[d] that defendant should not reside with an adoles-
cent girl.” In addition, by equating that determination with
“moral certainty,” the prosecutor urged the jurors to decide
     2
       The United States Supreme Court, in Victor v. Nebraska, 

,

, 

 (1994), did, however, recognize that the phrase
“moral certainty” is obscure and may confuse modern juries: “We are willing
to accept [the] premise that ‘moral certainty,’ standing alone, might not be rec-
ognized by modern jurors as a synonym for ‘proof beyond a reasonable doubt.’ ”
For that reason, some courts around the country have discouraged its use. See,
e.g., People v. Hewlett, 

, 

 (1987) (it is reversible
error to use the phrase “moral certainty”); Com. v. Bonds, 424 Mass 698, 703,

 (1997) (“We conclude that these instructions which equate
proof beyond a reasonable doubt with moral certainty, and then give no content
to the phrase ‘moral certainty’ except to compare it with the certainty required to
make important personal decisions cannot withstand constitutional scrutiny.”).
This court has also agreed that including the phrase “moral certainty” in the
instruction on reasonable doubt “is not particularly helpful to the jury.” State v.
Williams, 

, 

 (1992).
Cite as 

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the case on an improper basis; the comment appealed to the
jurors’ moral sensibility about an irrelevant circumstance
rather than their certainty about defendant’s guilt based on
the evidence presented. That comment was improper and
impermissible.
B.   The prosecutor’s impermissible argument was cognizable
     as plain error.
         As we have explained, however, that conclusion
does not end the inquiry. The prosecutor’s improper com-
ments are reviewable as “plain error” only if they constitute
legal error, and they rise to that level only if they are so
prejudicial that they deprived defendant of a fair trial. For
the following reasons, we conclude that, taken together, the
prosecutor’s comments meet that standard.
         First, the requirement that the state prove every
element of the offense beyond a reasonable doubt is funda-
mental to the American justice system. In re Winship, 

, 

, 

 (1970); Mahorney
v. Wallman, 917 F2d 469, 472 (10th Cir 1990) (describing the
reasonable doubt standard as a “constitutionally rooted * * *
basic right”); State v. Rosasco, 

, 

(1922) (“The presumption of innocence is not a mere form,
but a substantial part of the law.”). The beyond-a-reasonable-
doubt standard “provides concrete substance for the pre-
sumption of innocence * * * [and] lies at the foundation of the
administration of our criminal law.” Winship, 

(citation omitted). Because that standard is so fundamental,
a prosecutor’s misstatement of it can be so prejudicial that
plain error review and reversal are warranted. United States
v. Roberts, 

 (1st Cir 1997) (plain error jus-
tified reversal based, in part, on prosecutor’s misstatement
of the burden of proof); Floyd v. Meachum, 907 F2d 347, 355
(2d Cir 1990) (overturning state conviction because of prose-
cutorial misconduct that “in effect distort[ed] the burden of
proof by suggesting incorrectly what the jury must find in
order to reach a certain verdict”).
         Second, the timing of the prosecutor’s remark about
the burden of proof exacerbated the risk that it would be
prejudicial. The comment came at the end of the prosecu-
tor’s rebuttal closing argument. Thus, it was the last thing
318                                         State v. Chitwood

that the jury heard before beginning deliberations. And,
because it was the last thing the jury heard, its impact was
likely to have been significant, insofar as a defendant had
no opportunity to make a counter argument to the jury.
         Arguments made in rebuttal have the power of
recency in the minds of the jury. Research shows that peo-
ple tend to remember best, and be influenced most, by the
latest event in a sequence, making rebuttal the most per-
suasive aspect of closing arguments. See, e.g., Ryan Patrick
Alford, Catalyzing More Adequate Federal Habeas Review of
Summation Misconduct: Persuasion Theory and the Sixth
Amendment Right to an Unbiased Jury, 59 Okla L Rev
479, 513-15 (2006) (summarizing empirical psychological
research showing that tendency); United States v. Sanchez,

 (9th Cir 2011) (reversing conviction on
plain error review due to prosecutorial misconduct during
rebuttal closing argument, stating that, “[g]iven the timing,
the impact was likely to be significant, and the court did
not intervene”); United States v. Alcantara-Castillo, 

 (9th Cir 2015) (reversing conviction on plain error
review due to prosecutorial misconduct during rebuttal clos-
ing argument, reasoning that, “[b]ecause the government’s
rebuttal was the last thing the jury heard before beginning
its deliberations, the impact of the misconduct was likely to
be significant” (internal quotation marks omitted)); United
States v. Torres-Colón, 

 (1st Cir 2015) (“We
view problematic statements during rebuttal with particu-
lar scrutiny, because the government’s rebuttal argument
offers the last word before the jury begins deliberations.”);
United States v. Ayala-García, 

 (1st Cir 2009)
(reversing conviction on plain error review due to prosecu-
torial misconduct in rebuttal closing, stating, “the rebuttal
context increased the likelihood of prejudice because the
improper remarks were among the last words spoken to
the jury by the trial attorneys” (internal quotation marks
omitted)).
        Here, the prosecutor’s improper argument was the
final word on the meaning of reasonable doubt; the court
had instructed the jury on that topic earlier, before the clos-
ing arguments. Thus, the last thing that the jury heard—
from either the lawyers or the court—regarding the state’s
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burden of proof was the prosecutor’s incorrect and inappro-
priate statement: “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.”
         Such an infringement of a defendant’s fundamen-
tal rights cannot easily be corrected by curative instruction,
as two of this court’s prior decisions demonstrate. In Jones,
the state charged the defendant with rape. 

.
At trial, the prosecutor persisted in insinuating to the jury
that the defendant had committed rapes many times before,
even calling an officer who so testified. After the defendant
objected, the trial court instructed the jury “to disregard
the statement made by [the officer]. You are directed to
erase it from your mind and pay no attention to it.” 

. The trial court denied the defendant’s motion for a mis-
trial, but, on review, this court reversed, concluding that the
defendant had been denied a fair trial. We noted that the
prosecutor had to have known that there was no evidence in
the record that the defendant had prior convictions for rape,
reasoned that the case depended on the credibility of the
prosecuting witness and the defendant, and concluded that
the cautionary instruction could not unring the bell. 

.
         In State v. White, 

, 

(1987), the prosecutor remarked, in opening statement, that
the defendant had refused to testify in his codefendant’s
trial. Immediately thereafter, defense counsel moved for
a mistrial. The trial court concluded that the remark was
inappropriate but denied the motion on the ground that, at
that stage of the proceeding, “an indication to the jury that
whether or not [the defendant] chose to testify in a prior pro-
ceeding [was] not relevant[.]” 

. The trial court then
instructed the jury that the defendant’s refusal to testify
was “not relevant” and not “probative of the evidence in this
case.” 

.
         On review, this court concluded that that cura-
tive instruction was insufficient, reasoning that it is well-
established that a prosecutor is prohibited from drawing
the jury’s attention to the defendant’s exercise of the right
320                                         State v. Chitwood

to remain silent. We explained that the admission of such
evidence is “ ‘usually reversible error * * * if it is done in a
context whereupon inferences prejudicial to the defendant
are likely to be drawn by the jury.’ ” 

 at 341-42 (quoting
State v. Smallwood, 

, 

 (1977)).
And, in view of that “presumably harmful effect,” we drew
the conclusion that the trial judge had been required to do
something more than instruct the jury that defendant’s
refusal to testify in his codefendant’s trial was irrelevant.
White, 

. We said that “the misconduct [in
White] was at least as serious as that involved in [Jones],”
and we held that the defendant was entitled to a new trial.

.
         In this case, the prosecutor told the jurors that they
could convict defendant if they were convinced, not that he
had committed the charged crimes, but that, in the future,
he should not live with an adolescent girl. The jurors’ feel-
ings about whether defendant should reside with an adoles-
cent girl were not at issue in the case, and those feelings cer-
tainly had nothing to do with whether the state had proved
defendant’s guilt beyond a reasonable doubt or to a “moral
certainty.” “[P]rosecutors may not urge jurors to convict a
criminal defendant in order to protect community values,
preserve civil order, or deter future lawbreaking. The evil
lurking in such prosecutorial appeals is that the defendant
will be convicted for reasons wholly irrelevant to his own
guilt or innocence.” Sanchez, 

 (internal quo-
tation marks and citations omitted). The bell of misdirec-
tion that the prosecutor rang in this case, directing the jury
away from the facts toward emotion and risk of error, was
an infringement of defendant’s fundamental rights and was
a bell that was as difficult to unring as were the bells of
misconduct at issue in White and Jones.
         Third, the prosecutor compounded the error by
referring to other irrelevant matters that were not in evi-
dence when she raised the issue of a prospective juror’s prior
experience and suggested that the jury could consider what
happened there to decide that, in this case, the victim was
telling the truth. The prosecutor’s blatant and repeated
argument that it was up to the jurors to decide defendant’s
fate based on their own beliefs and experiences would
Cite as 

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have made it nearly impossible for the trial court to cor-
rect course and ensure that defendant received a fair trial.
Although, strictly speaking, the prosecutor did not raise
facts that the jury had not previously heard, she framed
that information in a new way, giving the jury permission
to ignore defendant’s fundamental right to proof beyond a
reasonable doubt—a right that is every bit as fundamental
and long-standing as the right to remain silent. The court
did not provide a cautionary instruction, but, even if it had,
we conclude that any such instruction would not have been
sufficient to cure the prejudice inherent in the prosecutor’s
improper remarks.
          Fourth, and finally, the case was close. See
Alcantara-Castillo, 

 (“That the government
felt the need to engage in * * * improper tactics only enforces
just how close the credibility contest was, further demon-
strating that [the prosecutor’s misconduct] was highly prej-
udicial.”). Defendant was charged with 20 criminal offenses,
19 of them sexual offenses. The indictment did not specify
a particular instance of criminal conduct charged in each
count. Each of the sexual abuse, sodomy, and rape counts
were indistinguishable from one another and each count
alleged that the criminal conduct occurred at some point
during a one-year period. There was no physical evidence
supporting any of the charges against defendant. Rather,
the case came down to a credibility contest between defen-
dant and the victim, and the jury acquitted defendant of 17
of the 20 counts charged in the indictment.
         Given all of those factors, we conclude that, taken
together, the prosecutor’s comments—her misstatement of
the reasonable doubt standard and her improper reference
to the prospective juror—were so prejudicial as to have
denied defendant a fair trial and that plain error review
is permitted: The error was one of law because the state-
ments were so prejudicial that, if defendant had objected
and moved for a mistrial, the trial court would have com-
mitted legal error had it denied the motion. The error also
is obvious and not reasonably in dispute, and it appears on
the record. Therefore, there is a legal basis for our review of
the claimed error, and we proceed to the second step in the
plain error analysis.
322                                          State v. Chitwood

C. We will exercise our discretion to correct the error.
         As discussed, the decision at step two of the plain
error analysis requires an exercise of discretion, and, gener-
ally, consideration of factors such as “the competing interests
of the parties, the nature of the case, the gravity of the error,
and the ends of justice in the particular case.” Vanornum,

. However, before we undertake that analysis,
a preliminary matter requires our attention: this court’s
role on review.
         In this case, as we have noted, the Court of Appeals
considered the prosecutor’s comments to be improper, but it
declined to determine whether those comments constituted
“plain error.” Instead, the court indicted that it would not
exercise its discretion to conduct review even if it had deter-
mined that the error were plain, reasoning, in part, that
the record did not compel the conclusion that defendant was
denied a fair trial. Although the Court of Appeals relied on
that conclusion at the second, rather than at the first, step
in the analysis, the conclusion it reached, and on which it
relied, was one of law. For the reasons we have given, that
conclusion also was erroneous. The record compels a conclu-
sion that defendant was not afforded a fair trial.
         Given that error, we could send this case back to the
Court of Appeals, as we did in Vanornum, to recognize the
error it identified as “plain error” and then to decide anew
whether to exercise its discretion to correct it. However, such
a remand is not always required. ORAP 5.45(1) gives “the
appellate court” discretion to consider a plain error, and, in
the circumstances here presented, we consider it appropri-
ate that we undertake that analysis.
         Looking to the factors articulated in Vanornum, the
one that most obviously calls for our exercise of discretion
is the “gravity of the error”—here, an error so grave that it
denied defendant a fair trial. The reasoning that supports
our finding of plain error also urges our intervention to cor-
rect it.
        The state suggests, however, that the “competing
interests of the parties” militates against a decision to cor-
rect the error. That is, the state argues that the Court of
Cite as 

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Appeals correctly concluded that there was “a possibility
that defendant made a strategic choice” not to request a
mistrial or a curative instruction. Chitwood, 

. In such a case, it would be unfair to the state were we to
exercise our discretion to correct the error.
          As noted, the Court of Appeals relied on this court’s
decision in Fults, 

, where this court held that
the possibility that the defendant had made a strategic
choice not to object weighed against correcting plain error.
The Court of Appeals concluded that there was such a possi-
bility in this case:
       “Here, there is a possibility that defendant made a
   strategic choice not to request a mistrial. 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.
       “As for a curative instruction, there is a possibility that
   defendant made a strategic choice not to request one so as
   not to highlight the prosecutor’s argument with an instruc-
   tion addressing it right before the case went to the jury.”
Chitwood, 

. For those reasons, the court
declined to exercise its discretion to correct the errors.
         Fults, however, is inapposite. In Fults, the defendant
was convicted of multiple criminal offenses and sentenced
to a 36-month term of probation. On appeal, the defendant
asserted that the trial court’s failure during sentencing to
make findings supporting a departure sentence from 24
months to 36 months on one of the counts was plain error.

. This court held that plain error review was
inappropriate, because “the record permit[ted] the conclu-
sion that [the] defendant’s failure to object was a conscious
choice.” 

. We observed that the error complained
of was technical, insofar as the trial court had already
imposed an undisputedly permissible 36-month probation
term on another count. Additionally, we noted that the
defendant had expressed a desire to be released on proba-
tion as soon as possible and the trial court had reluctantly
agreed. And we said that, under those circumstances, the
defendant might reasonably have feared that an objection to
324                                            State v. Chitwood

the departure sentence would “break the deal” and the best
tactic would be to remain silent. Thus, we concluded, “there
[was] a significant possibility that [the] defendant’s failure
to object was in fact a strategic choice.” 

 (emphasis in orig-
inal). As we later described that decision, we emphasized
the defendant’s “ ‘apparent encouragement of the judge’s
choice.’ ” State v. Serrano, 

, 

(2014) (quoting Fults, 

).
          Thus, Fults stands for the proposition that, when
the record shows that a defendant invited or encouraged a
trial court’s decision, the defendant may not take advan-
tage of the failure to object to that decision. Since Fults, this
court has proceeded accordingly. In Serrano, the defendant
had challenged on review the trial court’s answers to cer-
tain questions from the jury. This court concluded that plain
error review was not appropriate because the court had con-
sulted the parties before crafting the answer and the par-
ties, including the defendant, had agreed with the answer
given. 

. Likewise, in State v. Steen, 

,

 (2009), the defendant had assigned as plain
error the admission of hearsay evidence. This court declined
plain error review because
   “the record before us discloses not only that defendant failed
   to object to testimonial hearsay when it was presented,
   but also that defense counsel stipulated to the procedure
   that the state and the trial court followed. In this case, the
   record does not present an opportunity for us to address the
   role that silence plays in reviewability, because defendant’s
   trial strategy registers on the record fortissimo.”

; see also State ex rel Juv. Dept. v. S. P., 

, 

 (2009) (court declined to review as plain
error alleged deprivation of youth’s right to confront a wit-
ness where the youth made an explicit decision to stipulate
to the witness’s unavailability at trial; youth “may not seek
refuge from that deliberate choice on appeal”).
         In the foregoing cases, the alleged errors were
the trial courts’, and this court concluded that the record
showed that the defendant had encouraged or even sought
the court’s ruling. In this case, the state similarly views the
error as error by the trial court in failing to act, sua sponte,
Cite as 

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to declare a mistrial or issue curative instructions. The state
argues that defendant may have wished to avoid drawing
attention to the prosecutor’s statements and may not have
wanted the trial court to act, and he therefore encouraged or
benefitted from the trial court’s failure.
         There are several problems with that argument.
First, although the record may permit an inference that
defendant had reason to remain silent, the record does not
demonstrate that, as in the cases discussed above, defen-
dant invited or encouraged a particular trial court ruling.
Here, the prosecutor’s improper remarks did not call for a
trial court ruling. The prosecutor did not make the remarks
in arguing a legal point or in response to something that
defense counsel stated. Rather, the prosecutor’s remarks
were unexpected, and there can be no legitimate argument
that defendant encouraged or invited them.
        Second, even if defendant may have benefited by
remaining silent and failing to object to the prosecutor’s
remarks, that advantage, if any, occurred at the instigation
of the prosecutor. Objecting during closing arguments is
fraught with risk:
   “Defense counsel may be concerned about maintaining
   good relationships with prosecutors, which can be import-
   ant for her ability to advocate successfully for future clients.
   Additionally, counsel may be concerned about irritating the
   judge or jury by interrupting opposing counsel, which can
   heighten jurors’ general tendencies to favor prosecutors
   over defense counsel. More specifically, defense counsel may
   be concerned about the jury’s likely reaction if her objection
   is overruled. A trial court decision to overrule an objection
   to improper prosecutorial misconduct may actually encour-
   age the jury to rely on those comments, although appellate
   courts rarely recognize that type of prejudice. Additionally,
   courts and some commentators overstate the value of a
   trial court’s decision to sustain an objection to prosecu-
   torial trial misconduct. In fact, the misconduct may still
   prejudice the defendant: The defense attorney’s complaint,
   even if sustained by the court, may have exactly the oppo-
   site effect from the one intended. It may call attention to
   the prosecutor’s improper remarks and reemphasize them
   in the jurors’ minds.”
326                                                       State v. Chitwood

Mary Nicol Bowman, Mitigating Foul Blows, 49 Ga L Rev
309, 357-58 (2015) (footnote and internal quotation marks
omitted). A defense lawyer’s concern about drawing further
attention to objectionable information is legitimate and sup-
ported by empirical evidence. See Shari S. Diamond et al.,
The “Kettleful of Law” in Real Jury Deliberations: Successes,
Failures, and Next Steps, 106 NW U L Rev 1537, 1592 (2012)
(discussing and citing an empirical study on the effect of
an overruled objection). Here, the prosecutor’s inclusion of
improper statements in her rebuttal closing argument put
defense counsel, through no fault of his own, in the unten-
able position of either objecting and risking calling further
attention to the matter and incurring other adverse conse-
quences or deciding not to object and potentially losing the
right to make an argument based on the prosecutor’s mis-
conduct on appeal.
         Moreover, we must remember that, just as defense
counsel “may well have had a sense of how the trial was
going and may have wanted it to go forward to the jury,”
Chitwood, 

, the prosecutor also may have
had a sense of how the trial was going and may have thought
it was worth the risk of a mistrial to make the arguments
that she did. The state argues that “[g]ranting plain-error
review where it is inferable that a defendant omitted an
objection for strategic gain incentivizes such gamesmanship
in other cases.” But that argument ignores the fact that,
here, defendant did not initiate the “game.” Indeed, pre-
cluding plain error review here could encourage prosecutors
to make improper remarks in rebuttal argument in future
cases.3
        Given the prosecutor’s role in creating the predica-
ment, and, given that the record does not show that defen-
dant encouraged or invited the prosecutor’s conduct, we do
     3
       A prosecutor with a weak case has “incentives under the current system to
[engage in] misconduct * * *, as the risk of an appellate court ordering a new trial
is less significant than the risk of an acquittal at trial.” Bowman, Mitigating Foul
Blows, 49 Ga L Rev at 316. When a court finds error but fails to correct it, the
court risks “tacitly inform[ing] prosecutors that they can weigh the commission
of evidentiary or procedural violations not against a legal or ethical standard of
appropriate conduct, but rather, against an increasingly accurate prediction that
the appellate courts will ignore the misconduct.” Bennett L. Gershman, The New
Prosecutors, 53 U Pitt L Rev 393, 425 (1992).
Cite as 

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not consider the benefit that defendant may have obtained
by failing to object to that conduct to be unfair or a basis
for refusing to conduct plain error review. It is not just the
appellate court’s responsibility to ensure that a defendant
receives a fair trial—it is also the prosecutor’s. In Jones, 

, this court stated:
   “While it is expected that a prosecuting attorney will be
   zealous in his efforts to convict a defendant believed by him
   to be guilty of a crime, it must also be remembered that the
   prosecuting attorney, as a representative of the state, owes
   a primary duty to see that all criminal defendants receive
   a fair trial.”
In a similar vein, the United States Supreme Court admon-
ished that the prosecutor
   “ ‘is [a] representative not of an ordinary party to a con-
   troversy, but of a sovereignty whose obligation to govern
   impartially is as compelling as its obligation to govern at
   all; and whose interest, therefore, in a criminal prosecu-
   tion is not that it shall win a case, but that justice shall be
   done. As such, he is in a peculiar and very definite sense
   the servant of the law, the twofold aim of which is that guilt
   shall not escape or innocence suffer. He may prosecute with
   earnestness and vigor—indeed, he should do so. But, while
   he may strike hard blows, he is not at liberty to strike foul
   ones. It is as much his duty to refrain from improper meth-
   ods calculated to produce a wrongful conviction as it is to
   use every legitimate means to bring about a just one.’ ”
Viereck v. United States, 

, 

, 

 (1943) (quoting Berger v. United States, 

, 

, 

 (1935)).
          In deciding to exercise our discretion to correct
what we have found to be plain error, we disagree with the
dissent’s contention that our ruling today places a defendant
who timely objects to a prosecutor’s improper remarks and
asks for a curative instruction or mistrial in a worse position
than a defendant who remains silent and claims plain error
on appeal. It is true that a lawyer who, for example, asks
for and receives a curative instruction must live with the
result, even if this court, on plain error review, ultimately
would have concluded that a curative instruction was insuf-
ficient to protect the defendant’s right to a fair trial. But we
328                                                       State v. Chitwood

do not think that that means that defendants who remain
silent are better off than defendants who speak up, or that
defense counsel has an incentive to refrain from making a
meritorious objection. The lawyer’s duty is to zealously pro-
tect the client’s interests. If a lawyer believes that a prose-
cutor’s remarks are so prejudicial as to deprive the client of
a fair trial, we do not think that our decision here will deter
the lawyer from making a timely objection. We agree that
trial courts are in the best position to assess the effect that
a prosecutor’s remarks may have. Therefore, lawyers will be
well advised to seek a favorable, immediate, ruling from the
trial court, rather than take the risk that, years later, an
appellate court will find, on a cold record, that the defendant
was denied a fair trial.4
         Relatedly, we think that the dissent overstates the
risk that we will be rewarding silence in cases that present
“closer questions, where reasonable lawyers and judges may
differ in real time as to whether or to what degree a prose-
cutor’s conduct crossed the line.” 370 Or at 336 (Garrett, J.,
dissenting). A defendant who fails to preserve an error at
trial will only prevail on appeal if an appellate court con-
cludes that the defendant was denied a fair trial. That is an
exceedingly high bar. Where it is a “close question” whether
a prosecutor crossed the line, it is doubtful that reasonable
lawyers will forego making timely objections in the trial
court, hoping for success on appeal. In such cases, the like-
lihood of prevailing on appeal is much slimmer, and counsel
are even more likely to advocate for immediate corrective
rulings.
        In this case, we conclude that the prosecutor’s
rebuttal closing argument deprived defendant of the right
     4
       We also do not agree with the dissent that our ruling today poses a dilemma
for the trial court concerning how to respond to improper prosecutorial comments
when a defendant does not object. The dissent states that, in that situation,
“[t]rial judges who intervene sua sponte risk making ‘corrections’ that defendants
do not want, subjecting courts to criticism or even reversal on appeal; judges
who do not do so risk having verdicts thrown out on plain-error grounds.” 370 Or
at 332-33 (Garrett, J., dissenting). Those, however, are not the only two options
available to the trial court. A third course of action eliminates the dilemma that
the dissent highlights: The trial court could send the jury out, call the parties to
the bench, point out the improper comment, and ask for the parties’ positions.
That approach could resolve the matter and eliminate the potential for plain
error review.
Cite as 

 (2022)                                 329

to a fair trial and constituted “plain error.” We also conclude
that “the ends of justice” require that we exercise our discre-
tion to correct the error and reverse defendant’s convictions.
        The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
        GARRETT, J., dissenting.
         Those in the best position to assess the impact of
the prosecutor’s comments in closing argument were the
people in the courtroom at the time. See State v. Farrar, 

, 

 (1990) (affirming denial of motion
for mistrial, reasoning that the trial judge was “in the best
position to assess the impact of the district attorney’s com-
ment on the jury”); see also State v. Pratt, 

,

, cert den, 

 (1993) (affirming denial
of motion for mistrial based on improper witness testimony,
noting that the trial judge “was present throughout the
entire trial and * * * heard the inadvertent testimony in its
full context”).
         Defendant did not object to the prosecutor’s state-
ments. The majority’s analysis is driven by the view that
those comments were so egregious that defendant was
deprived of a fair trial, and that defendant’s counsel was put
to a Hobson’s choice in which he feared that calling further
attention to the improper comments might be even worse
than remaining silent. Another possibility, however, is that
defendant’s counsel perceived that the prosecutor had made
a transparent attempt to salvage a weak case, that the jury
would see through it, and that it was to defendant’s advan-
tage to leave things alone. That tactical choice could have
been informed by the sorts of observations that are available
to trial practitioners but not, unfortunately, to an appellate
court reviewing a cold record, such as the manner in which
the prosecutor’s comments were delivered (not just the words
that were used), the visible reactions of jurors (including
body language), and the “full context” of the trial. Pratt, 

. In short, defendant’s counsel could have believed
that the prosecutor’s comments had been ineffective or had
even backfired—a belief arguably borne out by the fact that
defendant was ultimately acquitted on 17 of 20 counts.
330                                                    State v. Chitwood

         Even putting the possibility of tactical choice aside,
the content of the prosecutor’s comments does not compel
the conclusion that defendant was deprived of a fair trial.
Those comments probably could have been adequately
addressed through a curative instruction—had defendant
wanted one. This case is not like the two cases cited by the
majority for the proposition that “the bell once rung, cannot
be unrung.” 370 Or at 311-12; id. at 319-20 (discussing State
v. White, 

, 

 (1987), and State v. Jones,

, 

 (1977)). In both of those cases, the
prosecutor introduced new and extremely prejudicial infor-
mation from outside the record; this court concluded both
times that the jury could not be expected to “unhear” the
damning information it had just received. See White, 

 (concluding that a curative instruction was
insufficient where the prosecutor informed the jury that
the defendant had declined to testify in the prior trial of a
codefendant, thus improperly drawing the jury’s attention
to the defendant’s exercise of his constitutional right); Jones,

 (concluding that a curative instruction was
insufficient in a prosecution for rape where the prosecutor
elicited unsubstantiated testimony that the defendant had
committed rape “many times before”).
         Here, in contrast, although the prosecutor’s refer-
ence to her dialogue with prospective juror Strong during
voir dire was outside the bounds of proper argument, it intro-
duced no new information that the jurors had not previously
heard. The suggestion that jurors should ask themselves
whether defendant should “reside with an adolescent girl”
was wrong and inflammatory, certainly. But the majority
gives no reason to think that jurors of ordinary intelligence
would not have responded appropriately to an instruction
from an authority figure—the trial judge—telling the jury
that the prosecutor had overstepped. Our system rests on
the assumption that jurors are capable of that and more.1
    1
      The majority emphasizes that the prosecutor’s remarks occurred during
rebuttal and were thus among the “last words” the jury heard. 370 Or at 317-19.
But that argument cuts both ways. If defendant had objected and the trial court
had given a curative instruction, the last words that the jury would have heard
would have been the trial judge’s admonishment that the prosecutor’s improper
comments should be disregarded. That could have been a powerful force in defen-
dant’s favor.
Cite as 

 (2022)                                   331

See State v. Terry, 

, 

 (2001) (“Jurors
are assumed to have followed their instructions, absent an
overwhelming probability that they would be unable to do
so.” (Emphasis added; internal citation and quotation marks
omitted.)). I do not see an “overwhelming probability” here
that the jurors were so awed by the prosecutor’s attempt at
rhetorical flourish that they could not have followed instruc-
tions to decide the case based on the evidence.
         For all of those reasons, the Court of Appeals rea-
sonably decided that the record did not compel the conclu-
sion that defendant was deprived of a fair trial, and that,
even assuming that a plain error occurred in this case, it
was not one that the court would exercise its discretion to
correct.
         In charting a different course, the majority adopts
a novel conception of “error,” reasoning that the reversible
error here was committed by the prosecutor. 370 Or at 312-
13. That formulation is without precedent in our case law, at
least to my knowledge. Under the Oregon Rules of Appellate
Procedure, appellate courts review actions and omissions by
lower tribunals, not parties. ORAP 5.45(3) (“Each assign-
ment of error must identify precisely the legal, procedural,
factual, or other ruling that is being challenged.” (Emphasis
added.)). “Error” is committed by the only participant in the
trial process that has the capacity to rule: the court. A party
does not “err” by, for example, introducing hearsay evidence;
the trial court errs by admitting it over an objection. A party
does not “err” by requesting a jury instruction that mis-
states the law; the trial court errs by giving it.
         Here, the prosecutor did not “err” by saying things
to which defendant could have objected; if error occurred, it
could only have been by the trial court in not taking reme-
dial action. Both parties recognize as much in the way that
they have framed the issues, and we should frame them the
same way: whether the trial court plainly erred in failing to
either (1) give a curative instruction to the jury sua sponte,
or (2) order a mistrial sua sponte. That is, we should ask
whether the trial court’s failure to take those steps meets
the criteria for plain-error review, i.e., an “error of law” that
is “obvious and not reasonably in dispute” and is “apparent
332                                        State v. Chitwood

on the record.” State v. Vanornum, 

, 

 (2013); see State v. Montez, 

, 

(1996) (“[T]he prosecutor’s comments were not so prejudicial
that the trial court’s failure to grant a mistrial sua sponte,
on the basis of those comments, amounts to an ‘error of law
apparent on the face of the record.’ ” (Emphasis added.)).

         The distinction is not merely semantic. Focusing
on whether the “prosecutor” erred obscures the plain-error
analysis by diverting attention from what the trial court
was supposed to do in the face of objectionable comments to
which defendant did not object. The majority explains that
characterizing the error here as prosecutorial is “consistent
with the test for legal error,” reasoning that “a defendant
who seeks review of an unpreserved challenge to prosecu-
torial statements must demonstrate that the statements
were so prejudicial that they deprived the defendant of a
fair trial.” 370 Or at 312, 313-14. That of course is the same
showing that we would require of a defendant who preserved
the challenge by timely seeking a mistrial: that the prose-
cutor’s statements were so prejudicial that the trial court
erred in denying the defendant’s timely motion. Indeed, the
majority states that, “in this instance, the standard for our
review of a preserved error and for our review of a claim of
plain error is identical.” 370 Or at 312.

         But those standards are not the same, because the
question whether the prosecutor’s statements would have
required a trial court response if defendant had requested
one is altogether different from the question whether the
trial court was required to respond where defendant made
no such request. Describing the error in this case as “prose-
cutorial” allows the majority to avoid saying expressly that
the trial court did anything wrong. But whether this result
is couched in terms of trial court error or not, trial judges
understand that the burden is on them to get things right
to avoid reversal on appeal, and today’s decision presents
them with a dilemma. How should they respond to improper
prosecutorial comments when a defendant does not object,
and when circumstances suggest to the trial judge that
defendant might have made a conscious choice? Trial judges
who intervene sua sponte risk making “corrections” that
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defendants do not want, subjecting courts to criticism or
even reversal on appeal; judges who do not do so risk having
verdicts thrown out on plain-error grounds.

         The majority’s analysis creates a further oddity, in
that defendant fares better on review by virtue of having
remained completely silent than he would have if he had
timely objected to the prosecutor’s comments and requested
a curative instruction. That paradox flows from the major-
ity’s treatment of State v. Fults, 

, 

(2007).

         In Fults, we explained that discretion to correct plain
error is appropriately not exercised when “the record permits
the conclusion that [the] defendant’s failure to object was a
conscious choice.” 

. The majority does not dis-
pute that defendant reasonably could have made a conscious
choice here, but it attempts to clear that hurdle by arguing
that Fults applies only where a defendant “invited or encour-
aged a trial court’s decision,” whereas, in this case, “the record
does not demonstrate” that “defendant invited or encouraged
a particular trial court ruling.” 370 Or at 324, 325.

          Fults does not support that interpretation. Fults,
rather, expressly separated the question of whether the defen-
dant had invited or encouraged the ruling from the question
of whether the defendant could have made a strategic choice
not to object, concluding that the latter could have occurred
even though the former had not. Fults, 

. In
Fults, the defendant responded to the trial court’s imposi-
tion of a three-year probation term, although the sentencing
guidelines only provided for a two-year probation term, by
stating “[w]e have no objection to that, whatsoever.” 

. On appeal, the defendant argued that the trial court
plainly erred in sentencing him to a probation term that
exceeded the presumptive probation term for his offense.

. The state responded that the defendant had
invited the error and that the error, in any event, was not
plain. 

. The Court of Appeals held that declining to
object was not the same as “inviting” the error because the
defendant had not “actively sought” the sentence, and that
the error was plain. State v. Fults, 

,
334                                                       State v. Chitwood

 (2006), rev’d, 

, 

 (2007).
That court then concluded, without further explanation,
“nor is there any indication that defendant’s failure to object
constituted a strategic choice for which defendant now seeks
to shift the blame.” Id. at 154.
        On review, this court held that the Court of Appeals
had conflated the question of invited error with that of
whether the defendant had “possibly” made a strategic
choice:
    “Although we do not question the court’s conclusion that
    defendant did not engage in conduct that constitutes
    invited error, we do think the record permits the conclusion
    that defendant’s failure to object was a conscious choice:
    This defendant desired a sentence that would lead to his
    release on probation as soon as possible. The trial judge,
    although restive, was willing to give him that. Moreover,
    the court had already decided to impose an indisputably
    permissible 36-month probation term for one of defendant’s
    other offenses. Under those circumstances, defense coun-
    sel easily could have feared that a technical objection to
    the extra 12 months of probation on [one] conviction would
    ‘break the deal,’ and that the best tactic for his client was to
    remain silent. In other words, the Court of Appeals’ state-
    ment to the contrary notwithstanding, there is a signifi-
    cant possibility that defendant’s failure to object was in fact
    a strategic choice.”
Fults, 

 (citing State v. Gornick, 

, 

 (2006) (emphases in original)). We went
on to explain that, even assuming the existence of a plain
error, the Court of Appeals should have considered the pos-
sibility that the defendant had made a strategic choice at
the second step of the analysis. 

          Thus, where the record suggests a “significant possi-
bility” that a trial court’s action or inaction was the result of
a party’s strategic choice not to object, that counsels against
the exercise of discretion to correct an asserted plain error.2
    2
      The case that Fults cited, Gornick, indicated that no plain error even exists
in that circumstance. In Gornick, this court reviewed a record that involved a
defendant who “sat by quietly” and made no objections to a trial court’s finding of
aggravating facts. 340 Or at 169. Because the record supported multiple compet-
ing inferences as to whether the defendant made a strategic choice, counsel was
ineffective, or the trial court had erred, we concluded that the trial court’s error
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Contrary to the majority’s view, Fults made it clear that
such an inference was permissible even where the party
“remain[ed] silent.” 

         Under the majority’s interpretation of Fults, how-
ever, plain-error correction is appropriate where a defendant
remains silent regarding the asserted error but inappropri-
ate where the record affirmatively indicates that the defen-
dant made a strategic choice. That will lead to incongruous
results.
         Suppose that, here, immediately after the prosecutor
made her comments, defendant had objected and the trial
judge had called counsel to the bench to discuss options,
including whether defendant intended to seek a mistrial.
Suppose that defendant had said no and requested a curative
instruction, and then, on appeal, made the same plain-error
argument for a new trial that he makes here. As I under-
stand the majority’s reasoning, the court in that instance
would not exercise its discretion to correct the error because
the record would reflect that defendant made a choice.
Defendant’s counsel, by timely asserting his client’s rights,
would have left defendant in a worse position on appeal than
if he had said nothing. Moreover, if the majority is correct
that the prosecutor’s comments were so egregious that no
curative instruction would have made a difference, it is odd
that the availability of plain-error correction should turn on
whether defendant requested one.
         The foregoing reasons illustrate why the correction
of unpreserved error is supposed to be “made with utmost
caution.” Ailes v. Portland Meadows, Inc., 

,

 (1991). It has destabilizing consequences for trial
courts, and it unsettles the reasonable expectations of liti-
gants, who assume that they are in control of the issues that
the court will resolve. In the atypical cases where prosecutors
flagrantly break the rules, those systemic consequences may

was not “appearing on the face of the record.” Id. at 169-70 (internal quotation
marks omitted). Our subsequent cases have left unresolved the question whether
a party’s strategic choice not to object is relevant to the existence of plain error,
or relevant only to the discretionary choice to correct such an error, or both. For
purposes of this dissent, I assume that it is relevant only at the second step, the
exercise of discretion.
336                                                        State v. Chitwood

seem attenuated. But most cases will present closer ques-
tions, where reasonable lawyers and judges may differ in
real time as to whether or to what degree a prosecutor’s con-
duct crossed the line. Today’s decision will contribute more
uncertainty as to how they should respond.
         In addition to my disagreement with the way that
the majority characterizes the nature of the “error” in this
case, I also question the majority’s decision to displace the
Court of Appeals’ exercise of discretion with this court’s own.
          Plain-error review is a two-step process in which
the court determines, first, whether plain error occurred,
and, second, whether to exercise its discretion to correct the
error. Ailes, 

. The Court of Appeals chose
not to exercise that discretion in this case, noting that
the record does not compel the conclusion that defendant
was deprived of a fair trial and that defense counsel could
have been speculating on a favorable verdict. The majority
reaches a different conclusion as to the existence of plain
error. It does not follow, however, that the Court of Appeals
“erred” at step two of the analysis, when it declined to exer-
cise its Ailes discretion.
          The concept of “speculating on the verdict” is one
that this court has previously cited as a basis for denying
untimely requests for relief. In State v. Marsh, 

, 

 (1971), this court held that, even though
the trial court should not have given a supplemental jury
instruction, it would not reach the defendant’s plain-error
claim that the instruction warranted a mistrial. See 

 at
430 n 29 (listing examples of cases where defense counsel
made a tactical decision not to object). The court noted that
the defendant’s attorney was “able and experienced” and
“may well have deliberately withheld exceptions to the terms
of those instructions under the strategy that the defendant
might obtain complete acquittal as a result of such instruc-
tions.” 

.3

     3
       On a different but related point, we have specifically cautioned that requests
for a mistrial based on a prosecutor’s statements or questions must be timely and
prompt—i.e., before further trial developments. See, e.g., State v. Walton, 

, 

 (1991), overruled in part on other grounds by State v.
Davis, 

, 

 (2003) (concluding that a motion for mistrial
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         The majority does not deny that the tactic of spec-
ulating on the verdict is a real one, but it rejects that as a
basis for denying plain-error relief in this case. At the same
time, the majority does not say that the Court of Appeals
abused its discretion in concluding that the possibility of
strategic choice was a basis for denying plain-error relief.
Nothing in today’s decision prevents the Court of Appeals,
in future cases, from inferring that a party could have made
a strategic choice not to object and, for that reason, declin-
ing to correct the error.
          By simply choosing a different exercise of discretion
here than what the Court of Appeals chose, the majority’s
approach is in tension, if not plainly inconsistent, with what
this court did in Vanornum, 

. There, we noted that
“the Court of Appeals is the error-correcting tribunal to which
claims of error and plain error may be presented as a matter of
right.” 

 We reasoned that “[t]he nature of discretion is that
it is best exercised by the entity principally charged with its
exercise. In this instance, that is the Court of Appeals.” 

 We
ultimately concluded that the correct disposition in that case,
where we concluded that the error was “plain,” was to remand
the case to the Court of Appeals to decide whether to exercise
its discretion to review the error. 

         The approach articulated in Vanornum is jurispru-
dentially sound. The Court of Appeals is the tribunal in
Oregon with principal responsibility for correcting error. It
annually decides many cases in which litigants assert plain
error; this court decides very few. The Court of Appeals is in
a superior position, therefore, to consider such questions as
whether the exercise of Ailes discretion in a particular case
is consistent with how that discretion has been exercised in
other cases. Such questions are meaningful if the correction
of plain error is to be perceived by the bench and bar as—
and if it is to be—anything other than ad hoc. Accordingly,
assuming that the majority were correct in concluding that
the error here was plain, the better disposition would be to
remand to the Court of Appeals to consider, in light of this
court’s analysis, whether to exercise discretion to correct it.

based on prosecutor’s improper question was untimely where it was not asserted
until after additional witnesses had testified).
338                                           State v. Chitwood

           I respectfully dissent.
           Balmer, J., and Kistler, S. J., join in this dissenting
opinion.