TOOKEY, P. J.
We affirmed without opinion defendants convictions after a jury trial of fourth-degree assault constituting domestic violence, two counts of strangulation constituting domestic violence, menacing constituting domestic violence, second-degree criminal mischief, and six counts of witness tampering. State v. Pierpoint, 317 Or App 666, 504 P3d 5, vacd and remd, 370 Or 602, 521 P3d 489 (2022). Defendant filed a petition with the Supreme Court, which allowed review and remanded the case to us for reconsideration in light of State v. Chitwood, 370 Or 305, 518 P3d 903 (2022). State v. Pierpoint, 370 Or 602, 521 P3d 489 (2022). We reconsider defendants assignments in light of Chitwood and reverse and remand defendants convictions.
Defendant was charged with the above-described offenses after the victim called 9-1-1 dispatch to report that defendant—her boyfriend—had beat her up. Deputy Vial testified at trial that when he arrived at the victims loca-tion, she was crying and distraught. He testified that the victim told him that she and defendant had been arguing and that, when she attempted to leave, defendant “broke out the front [car] window, grabbed ahold of her, strangled her, took her out of the car physically, strangled her, and then began to drag her back to the trailer.” Vial testified that the victim told him that while defendant was choking her, he stated, “Im going to fucking kill you.” The victim told Vial that she was then able to return to the car and drive away. Vial testified that he observed cuts and blood on the victims face, two finger marks on her throat, and scrapes and marks on her legs. The victim explained that the cuts on her face were from the broken car window, that other bruising and cuts were caused by defendant dragging her, and that the fingerprints on her throat had resulted from defendant choking her. Vial took pictures of her injuries that the state introduced into evidence. The victim told Vial that when defendant was choking her, she could not breathe and feared for her life. Vial testified that, at his request, the victim sent him additional photographs of her injuries and the damage to her vehicle. Those photos were in evidence.
Vial also testified that he interviewed defendant on the same day and that defendant acknowledged having argued with the victim and accidently breaking the car window but denied assaulting her. Vial placed defendant under arrest and took him into custody.
The record includes jail recordings of six telephone exchanges between the victim and defendant in which defendant urged her not to come to court, to invoke her right to remain silent, or to recant her pretrial statements concerning the incident.
At trial, the victim testified that she did not remember what she told to Vial and recanted her report of defendants alleged assault. She and a young friend who was present during the events testified that the victims injuries were accidental. The jury convicted defendant.
On appeal, among other assignments, defendant asserted plain error with respect to the trial courts failure to sua sponte declare a mistrial or to instruct the jury relating to misconduct by the prosecutor. Defendant contended that, during rebuttal closing argument, the prosecutor committed misconduct in the form of improper statements describing the role of the grand jury; speculating on why defendant did not testify; describing defendants witness tampering conduct as “weaponizing” his right to confront witnesses; arguing that acquittal would constitute an endorsement of defendants witness tampering; and telling the jury, “Dont send [defendant] back to [the victim].” The state responded that the prosecutors comments, viewed in context, were not misconduct or improper. We rejected defendants assignments and, as noted, affirmed defendants convictions without opinion.
The Supreme Court allowed defendants petition for review and has remanded the case to us for reconsideration in light of Chitwood. In Chitwood, the court had before it the question how to analyze as plain error an assignment relating to prosecutorial misconduct during rebuttal closing argument. The defendant in that case had been charged with sexually abusing his then-13-year-old stepdaughter. Id. at 307. During rebuttal closing argument, the prosecutor made several improper statements:
The prosecutor reminded the jury about a state-ment that had been made by a prospective juror that he had been falsely accused of a sex crime and that his accuser had “washed out because it was false. And this is not false[.]” The court explained that that comment was improper, because it encouraged the jury to decide the case on a basis other than the evidence in the record. 370 Or at 314-15.
In addition, the trial court in Chitwood had instructed the jury that, under the “beyond a reasonable doubt” standard of proof, it must reach 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.” In rebuttal argument, the prosecutor told the jury,
“Deep down in your core is your moral core and thats where youre 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 determine that [defendant] should not reside with an adolescent girl, thats your moral certainty and I have proven my case beyond a reasonable doubt.”
The Supreme Court explained that that argument was improper in two respects: It told the jurors that they could find the defendant guilty if they “determine[d] that defendant should not reside with an adolescent girl,” which was not consonant with the elements of the offense that the state was required to prove. It also told the jury that “moral certainty” meant that the jury should decide the case based on “the jurors’ moral sensibility about an irrelevant circum-stance rather than their certainty about defendants guilt based on the evidence presented.” Id. at 317.
As in this case, the defendant in Chitwood had not sought a mistrial or requested a curative instruction to remedy the improper statements, and the trial court did not sua sponte grant a mistrial or correct the statements. The defendant was convicted and sought reversal based on plain error.
On appeal, the defendant asserted that he had been denied a fair trial because of the prosecutors improper comments and contended that the trial court should have sua sponte granted a mistrial. Although no “error” had been committed by the trial court, the Supreme Court explained that prosecutorial misconduct could be remedied as plain error if it had resulted in the denial of a fair trial. The court provided a survey of its case law relating to review for plain error when the asserted unpreserved “error” was committed by the prosecutor. Even in the absence of preservation, the court explained, appellate review is permitted, and reversal may be warranted, if “it is beyond dispute that the prosecutors comments were so prejudicial as to have denied defendant a fair trial.” Id. at 312 (citing State v. Montez, 324 Or 343, 347, 356, 927 P2d 64 (1996)). The court explained, citing State v. Davis, 345 Or 551, 582-83, 201 P3d 185 (2008) (quoting State v. Jones, 279 Or 55, 62, 566 P2d 867 (1977) (internal quotation marks omitted)), that, although, generally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutors misconduct, some prosecutorial statements are “so prejudicial that, as a practical matter, the bell once rung, cannot be unrung by such an admonishment.” Chitwood, 370 Or at 311. In that instance, the court said, an instruction is not sufficient to ensure a fair trial, and the court must grant a mistrial; the failure to grant a motion for mistrial would constitute an abuse of discretion. Id. The appellate courts ultimate responsibility, the court explained, is 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.” Id. at 312 (citing Davis, 345 Or at 583).
The court explained in Chitwood that, in the plain error context relating to a prosecutors improper statements during rebuttal closing argument, the defendants burden to show error in failing to grant a mistrial is the same as when the error is preserved: The defendant must show not only that the prosecutors comments were improper or impermissible, but that the prosecutors 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, the court explained, the denial of the right to a fair trial indicates “plain error.” Chitwood, 370 Or at 312.
In determining whether plain error occurred, the court explained, the court must first determine whether the asserted unpreserved error is “plain.” The error is “plain” when (1) it is one of law; (2) it is obvious and not reasonably in dispute; and (3) it appears on the record. Id. at 314. We proceed with that analysis here.
It is undisputed that the claimed errors here appear on the record, satisfying the third plain-error prong. We must then determine under the second plain-error prong whether the prosecutors statements were obviously improper or impermissible, i.e., whether it was obvious or not reasonably disputed that the prosecutors statements allowed the jury to consider facts that had not been received into evidence, or otherwise encouraged the jury to decide the case on an improper basis. Chitwood, 370 Or at 314-17; see also State v. Brunnemer, 287 Or App 182, 187-88, 401 P3d 1226 (2017) (describing as prosecutorial misconduct appealing to the jurors’ “prejudices, fears, or notions of popular sentiment by presenting to them inadmissible evidence; or urging them to make inferences not based on the evidence; or to disregard the evidence altogether and base their determination on wholly irrelevant factors.” (quoting State v. James Edward Smith, 4 Or App 261, 264, 478 P2d 417 (1970)).
In several assignments, defendant challenges statements made during the prosecutors rebuttal argument that he contends urged the jury to decide the case on improper bases. We have considered each of the prosecutors statements identified by defendants assignments of error and the contexts in which they were made. Two of them we can readily identify as obviously improper, and we discuss them below.
In his second assignment, defendant challenges as improper the prosecutors mention of the grand jury process during rebuttal closing argument. During closing argument, in explaining his view of the jury as factfinder, defendant first described how the investigating police officer makes a decision to write a citation or to refer a case to the district attorney and then described the grand-jury process:
“[DEFENSE COUNSEL:] It starts with [the police officer], all right. He has a role. His role is to get some report.
He goes out and collects evidence, does some investigation work, and if he draws a conclusion that theres probable cause that a crime may have occurred, may have occurred—his role is not to determine that a crime did occur. His role is to determine whether there is reason to believe that a crime might have occurred, and if thats sufficient to meet the standards of law enforcement, then he writes up a citation or a charging document and either takes the person into custody, formally charging them or cites them to come to court later. And the case goes elsewhere. It goes to the district attorneys office in a case like this to make a formal charging decision. The power shifts from law enforcement to the district attorneys office.
“And then one of the systems that we have that protects justice is that *** the district attorney doesnt have absolute power, even with regard to charging [defendants]. They have to first go through a grand jury process and get it passed on by a grand jury to agree that theres, again, reason to believe that a crime may have occurred. At that point, a grand jury returns this thing called an indictment. Thats the actual charging instrument that alleges that my client did these things that [the prosecutor], on behalf of the State, is arguing that he did. And we present evidence.
“And now the power goes to you folks, and youre the ones who have to decide. Its not up to me. Its not up to [the prosecutor]. Its not even up to the judge because this is a jury trial.
“* * * * *
“And so we have this thing called reasonable doubt. Its a high standard, much higher, much, much higher than that probable cause standard, and thats the standard that you folks have to apply. The State brought this case on—initially on probable cause, and they presented evidence to try to persuade you that its actually much higher than that; that somehow—somehow theyve proven that my client is guilty beyond a reasonable doubt.”
(Emphasis added.)
In rebuttal, the prosecutor attempted to clarify defense counsels explanation. The prosecutor explained that the police first make a decision whether to charge based on probable cause, and that the grand jury must then determine whether the uncontroverted evidence presented to it would establish the offense beyond a reasonable doubt:
“[PROSECUTOR]: The case goes to the grand jury. [Defense counsel] says its a probable cause standard. Its actually a different standard. Jurors, as yourself, they determine whether, based upon the evidence presented, uncontroverted[,] that there is beyond a reasonable doubt evidence. So just to clear that up for you all. Its not like this is the first—you know, this is the first time, you know. This has definitely been looked at multiple times. But it is before you now. You are the sole trier of this case.”
The prosecutors comment was obviously improper, because it implied to the jury that a grand jury had previously determined defendants guilt beyond a reasonable doubt, which was incorrect. State v. Reinke, 354 Or 98, 121, 309 P3d 1059 (2013); State v. Walley, 1 Or App 189, 190, 460 P2d 370 (1969) (the grand jury function is to determine the existence of probable cause). The impression that the prosecutor sought to convey was that a jury had previously determined that defendant was guilty beyond a reasonable doubt, which was contrary to the presumption of innocence to which a defendant is constitutionally entitled. See State v. Soprych, 318 Or 306, 507 P3d 276 (2022) (“Prosecutorial statements that distort the presumption of innocence can necessitate a mistrial.”).
1
In his third assignment of error, defendant challenges the prosecutors feigned speculation concerning the reasons for defendants decision not to testify, which we conclude was obviously improper. We address that comment.
In his closing argument, defense counsel suggested to the jury that the evidence favorable to defendant made it unnecessary for him to testify:
“But reality is, well, [the victim] testified under oath that [defendant] is not guilty, okay. *** [The victims friend] came in, and he testified under oath that my client is not guilty. Okay. [Defendant] didnt take the stand. He didnt really need to. Did he?”
The prosecutor objected. The court overruled the objection but ruled that the prosecutor would be permitted to respond, because defendant had “opened the door.”
The prosecutor responded in rebuttal by seeking to defeat any implication that defendant did not need to testify because the states case was weak:
“There is nothing to take from [defendant] not testifying. We have a Fifth Amendment right not to incriminate ourselves, Fifth Amendment right if you dont want to, if youre accused, to take the stand, you know. You dont have to subject yourself to cross examination from the State, right.
“Youre not to take from it, well, he didnt testify, so the States case must be weak. Because necessarily, not that Im going to make that argument, I could say, he didnt want to face me. He didnt want to be confronted with the pictures. He didnt want to be confronted with his voice on jail [calls]. He didnt want to be subject to cross-examination. Im not making that argument because it shouldnt be made. Theres nothing to take from him not testifying. Its his right. Were going to respect it. But none of this, well, he didnt really have to testify, did he?”
(Emphasis added.) On appeal, defendant asserts that the italicized argument was an improper comment on defendants decision not to testify.
Both the Oregon Constitution and the United States Constitution preclude a prosecutor from drawing the jurys attention to a defendants exercise of the right to remain silent. State v. White, 303 Or 333, 340-41, 736 P2d 552 (1987). As the state acknowledges, it is not appropriate for the prosecutor to call attention to or comment on a defendants decision not to testify. State v. Larson, 325 Or 15, 22-23, 933 P2d 958 (1997). But when a defendant opens the door by first referencing the defendants decision not to testify, the prosecution may respond. However, that ability to respond does not allow the prosecutor to argue that the defendant is guilty because he invoked the right to remain silent; rather, the response must be limited to evidence or argument that rebuts the impression created by the defendant. Reineke, 266 Or App at 308-09. The question whether the prosecutors statements constituted an improper comment on defendants right to remain silent, so as to satisfy the second plain-error prong, is a question of law that we review for legal error. Id. at 307.
The state contends that the statements were not improper, because defense counsel opened the door on the topic of defendant not testifying, which, as the trial court concluded, allowed the state to respond. The trial court was correct that defense counsels opening of the door allowed the state to counter the implication that the evidence favored defendant or that the states case was weak. The state could have countered that implication by pointing to the strength of the states case. The state certainly did that. But defense counsels comments did not authorize further commenting by the prosecutor on defendants decision not to testify or free-form speculation as to other reasons why defendant might have chosen not to testify. The prosecutors statements were too clever; by describing what he could not argue, the prosecutor indirectly invited the jury to consider reasons why defendant may have decided not to testify. The prosecutors statements—“Im not making that argument because it shouldnt be made. Theres nothing to take from him not testifying. Its his right. Were going to respect it.”—did not remedy the impropriety. See State v. Banks, 367 Or 574, 481 P3d 1275 (2020) (A suggestion that the state has more evidence that it can present is an “open invitation for the jury to speculate,” [State v. Wederski, 230 Or 57, 61, 368 P2d 393 (1962)], and making such a suggestion and then telling the jury not to speculate is, at best, inconsistent.”) Those statements were obviously improper, thus satisfying the second plain-error prong.
The remaining question, which relates to the first plain-error prong, is whether the improper prosecutorial conduct constituted “legal error” in the sense required for plain error review. In Chitwood, the Supreme Court explained that, in the unique context of plain error review of a prosecutors improper statements, statements are “legal error,” so as to constitute plain error, if they 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. 370 Or at 312. See State v. Flores, 31 Or App 187, 190, 570 P2d 94 (1977) (When faced with improper remarks to a jury, a trial court must determine whether the remarks have a likelihood of prejudicing the defendants right to a fair trial if the trial continues, or if curative instructions may ameliorate whatever prejudice resulted from the improper conduct.). In other words, the misconduct constitutes “legal error” if it would have been an abuse of discretion for the trial court to deny a motion for a mistrial had one been made. In addressing that issue in Chitwood and concluding that the comments constituted “legal error,” the court cited the collective effect of the prosecutors incorrect char-acterization of the burden of proof, the influential timing of the prosecutors misstatement at the end of rebuttal, the prosecutors suggestion to the jurors that they could decide the defendants guilt based on emotional factors that were not elements of the offense, and the closeness of the case. Id. at 317-21. The court concluded: “The error was one of law because the statements were so prejudicial that, if defendant had objected and moved for a mistrial, the trial court would have committed legal error had it denied the motion.” Id. at 321.
We have reviewed the record here and conclude that the two instances of prosecutorial misconduct—the misdescription of the grand jury standard of proof and the comments relating to defendants decision not to testify, both highly improper—when considered together, were so prejudicial that they could not have been cured by an instruction. In Chitwood, the prosecutors misstatement of the burden of proof “was the final word on the meaning of reasonable doubt.” 370 Or at 318. Here, as in Chitwood, the prosecutors improper comments also occurred during rebuttal.
In Chitwood, the prosecutors remarks encouraged the jury to decide the case on an improper basis—if it “determine[d] that defendant should not reside with an adolescent girl,” which was not an element of the offense. The prosecutor in Chitwood also implied that the jury could consider evidence that was not in the record—the prospective jurors description of charges that had been fabricated against him. Here, the prosecutors comments about defendants decision not to testify invited the jury to speculate that defendant chose not to testify because he did not want to be confronted with evidence of his guilt. See State v. Schumacher, 315 Or App 298, 301, 500 P3d 698 (2021) (“Reference to a defendants exercise of a constitutional right jeopardizes the right to a fair trial if the jury was likely to infer that the defendant had exercised the right because he believed that he was guilty of the charged offense.”).
Finally, in Chitwood, the court noted that the case was a “close” one—there was no physical evidence against the defendant, and “the case came down to a credibility contest between defendant and the victim.” Id. at 321. That factor, considered in light of all of the improper statements, led the court to conclude that the prosecutors comments were so prejudicial as to have denied defendant a fair trial.
Here, unlike in Chitwood, the case was not close or a simple credibility contest. Although the victim recanted her statements to Vial and also testified that she had felt no pressure from defendant not to testify, the record includes Vials testimony describing the victims statements at the time of his response to her call, as well as the physical evidence of the assault, strangulation, menacing, and second-degree criminal mischief charges. Additionally, the record includes recordings of defendants phone conversations with the victim in support of the witness tampering charges.
But while there was evidence in support of defendants guilt, there was also evidence in support of his contention that the victim had fabricated her report to Vial. The fact that there was evidence in support of conviction does not outweigh the potential adverse effect of the prosecutors improper statements relating to the presumption of innocence and defendants decision not to testify. In the context in which the comments were made, they asked the jury to consider improper criteria in weighing the evidence and could not have been remedied by a curative instruction telling the jury to disregard them. Cf. Davis, 345 Or at 582-83 (Generally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutors misconduct.). As in Chitwood, the combination of prosecutorial misstatements would have been hard for the jury to disregard, even with a curative instruction. 370 Or at 311-12. Viewing the record as a whole, we conclude that the improper conduct was so prejudicial that, if defendant had objected and moved for a mistrial, the trial court would have abused its discretion in denying the motion. We conclude, therefore, that the prosecutors misconduct constituted “legal error” under the first plain-error prong that we may review as plain error.
2
As in Chitwood, 370 Or at 322, here, given the gravity of the errors, we exercise our discretion to correct them. We therefore reverse defendants convictions.
Reversed and remanded.
FOOTNOTES
1
. If, as the state argues, the prosecutors intention was merely to correct a misimpression conveyed by defense counsel, the assumption underlying that intention was erroneous. Additionally, if the prosecutor believed that defense counsels description introduced irrelevant facts for the jurys consideration, the appropriate response was an objection to the argument, not a resort to “self-help” based on more facts not in evidence. See Cler v. Providence Health System-Oregon, 349 Or 481, 490, 245 P3d 642 (2010) (holding that lawyers reference to informa-tion outside the evidentiary record was improper under OEC 103(3) and required reversal).
2
. In view of our conclusion, we need not address defendants remaining assignments.
TOOKEY, P. J.