Defendant appeals from his convictions, after a jury trial, of eight counts of sexual abuse in the first degree, ORS 163.427, and one count of rape in the third degree, ORS 163.355. He asserts that the prosecutor made improper statements during rebuttal closing argument that constituted improper burden shifting, and that the trial court therefore erred in overruling defense counsels objections to the argument and in denying his request for a curative instruction. We conclude that the trial court abused its discretion in overruling defendants objections, see State v. Totland, 296 Or App 527, 531, 438 P.3d 399, rev. den, 365 Or. 502, 451 P.3d 988 (2019) (describing abuse of discretion standard of review), and that the abuse of discretion resulted in the denial of a fair trial. We therefore reverse and remand defendants convictions.
The charges arise out of alleged sexual contact over a period of four years between defendant and the daughter of his mothers partner, beginning when the victim was approximately seven years old and defendant was approximately 13 years old. Defendant made many statements to investigators that could be characterized as admissions or confessions.
Defendants theory at trial was that his confessions were false, the result of defendants mere acquiescence to leading statements made by the investigating detective, and that there were reasons other than guilt to explain why someone accused of a crime might be tempted to so acquiesce. In closing argument, in urging the jury to reject defendants confessions, defense counsel argued:
“You get to bring your common sense and reason into the deliberation room and you know that false confessions happen. You know that people cop to things that they didnt do. People have their reasons.”
In rebuttal, the prosecutor responded that a false confession is “not something thats so common, so pervasive in our culture that its just a thing that everybody knows about.” The prosecutor then argued,
“What evidence, what evidence in this case is there that this is a false or that false confessions is a thing at all?”
Defense counsel objected, but the trial court overruled the objection. The prosecutor continued:
“So, I anticipated that. Heres the thing. I want to be crystal clear. It is one hundred percent my burden to prove my case beyond a reasonable doubt. Right? Those nine crimes that the defendant is charged with, I have to prove them. A hundred percent. Now, if the defense wants to sell you on a false confession, wheres the evidence of that? Did you hear from—”
Defense counsel again objected, but the trial court again overruled the objection. The prosecutor continued:
“Did you hear from an expert? A psychologist? Did you hear from anybody at all? Was there ever, from this witness stand, a single peep on the topic of false confessions? No. There is zero evidence. Zero evidence in this case for you to come to that conclusion. And when the defendant—defense counsel says, ‘You know it happens,’ I would say, no, you dont. No, you dont. And if thats something that he wanted you to consider, he would have had to give you some evidence on it and there is nothing.”
(Emphasis added.)
After the jury retired to deliberate, defense counsel renewed his objection:
“I objected during three points during the rebuttal closing argument to Counsels comments regarding the defense not presenting evidence regarding a false confession. Which is burden-shifting. It also improperly invites the jury to draw inferences from evidence not entered against the * * * defense. And so * * * my motion would be for those comments to be stricken from the record, for the jury to be instructed to disregard them and for further curative instructions to be issued to the jury.”
The court again overruled the objection and denied defendants request for a curative instruction.
On appeal, defendant assigns error to the trial courts overruling of his objections to the prosecutors rebuttal argument, which he asserts was improper. We readily conclude that the italicized statement was improper, because it led the jury to believe that it was defendants burden to put on evidence that his confession was false before the jury could consider that issue. It was for the jury to weigh the credibility of defendants confessions, but defendant had no burden to put on evidence of their falsity. By suggesting that defendant was required to present evidence to show that his confessions were false, the prosecutor distorted the burden of proof. The courts generic instructions did not cure the misrepresentation. See State v. Mayo, 303 Or App 525, 538, 465 P.3d 267 (2020) (explaining that “the courts generic instructions, while clarifying that the state bore the ultimate burden of proof, failed to specifically inform the jury that defendant need not present witnesses to corroborate his testimony to create a reasonable doubt as to whether he had knowledge of the drugs in his backpack”).
We conclude, further, that the trial court abused its discretion in overruling defendants objection and should have taken corrective action. See State v. Chitwood, 370 Or. 305, 311-12, 518 P.3d 903 (2022) (describing abuse of discretion standard on review of trial courts ruling in response to objection to improper prosecutorial argument); see also Mayo, 303 Or App at 530, 465 P.3d 267 (a trial courts overruling of an objection to improper prosecutorial argument is reviewed for an abuse of discretion).
We cannot say that the trial courts abuse of discretion was harmless. See State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003) (Under Article VII (Amended), section 3, of the Oregon Constitution, we must affirm despite error if there is “little likelihood that the particular error affected the verdict[.]”). Without a corrective instruction, the prosecutors misstatement of the burden of proof as to the credibility of defendants confessions denied defendant a fair trial. See Chitwood, 370 Or. at 311, 518 P.3d 903 (under abuse of discretion standard of review, question is whether the trial courts ruling in response to objection to improper prosecutorial argument denied the defendant a fair trial). Thus, we conclude that the error was not harmless, reverse defendants convictions, and remand for further proceedings. In light of our conclusion, we do not address defendants remaining assignments of error.
Reversed and remanded.
KAMINS, J.