Background
Angel Deangelo performed odd jobs for a bar and grill where B, who had obtained a stalking protective order against him, worked as a bartender. The owner, Portune, generally scheduled them at different times, and Deangelo often texted her before visiting to ask whether B was present.
On the night at issue, B attended a social event at the bar even though she was not working. Portune testified that Deangelo asked by text whether B was there and that she replied, after checking security cameras, that B was not present. Deangelo arrived, encountered B, and was later charged with recklessly violating the protective order.
Deangelo argued at trial that he lacked the required reckless mental state because Portune had told him B was absent. During rebuttal, the prosecutor repeatedly emphasized that no text had been produced and asked why the defense would not produce something so easy to obtain. The trial court allowed the argument, and the jury found Deangelo guilty.
The Court’s Holding
The Oregon Court of Appeals held that the prosecutor improperly suggested that Deangelo bore the burden of producing the text messages to corroborate Portune’s testimony. The argument went beyond a permissible challenge to witness credibility and risked confusing the jury about the state’s obligation to prove every element of the offense beyond a reasonable doubt.
The court declined the state’s request to overrule State v. Mayo, concluding that the state had not shown that precedent was plainly wrong. It also determined that the trial court erred by overruling Deangelo’s burden-shifting objection and allowing the prosecutor to continue.
The error was not harmless because the texts concerned Deangelo’s principal defense that he lacked the required reckless mental state. The argument occurred during rebuttal, and the trial court’s response—“Go ahead, Counsel”—accentuated its potential effect on the jury. The court therefore reversed the conviction and remanded the case.
Key Takeaways
- A prosecutor generally may not suggest that a criminal defendant must produce evidence corroborating the defense’s account.
- Calling attention to the absence of easily obtainable evidence may improperly shift the burden of proof when none of the recognized exceptions permits comment on the defendant’s failure to produce evidence.
- A burden-shifting argument is especially prejudicial when it attacks a central defense concerning the culpable mental state required for conviction.
Why It Matters
The decision reinforces that the state retains the burden of proving every element of a criminal charge beyond a reasonable doubt. Although prosecutors may challenge a witness’s credibility and urge jurors to prefer the state’s version of events, they may not imply that the defendant must supply documentary proof that the defense’s version is true.
It also highlights the heightened risk of prejudice when an improper argument is made during rebuttal and the trial court allows it to continue in the jury’s presence.