State v. Sargent ( 2024 )

656 July 3, 2024 No. 476
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHANON SARGENT,
Defendant-Appellant.
Josephine County Circuit Court
22CR20571; A179079
Pat Wolke, Judge. (Judgment)
Robert S. Bain, Judge. (Supplemental Judgment)
Submitted May 14, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 333 Or App 656 (2024) 657
KAMINS, J.
Defendant was convicted of aggravated identity
theft, ORS 165.803, aggravated first-degree theft, ORS
164.057, first-degree forgery, ORS 165.013, and unlawful
use of a vehicle, ORS 164.135, after cashing approximately
$13,000 in forged checks from a single victim. On appeal,
she assigns error to the trial court’s denial of her requested
jury instruction on lesser-included offenses and also raises a
plain error challenge to a comment made by the prosecutor
during closing arguments. Because any error relating to the
requested instruction was harmless and the prosecutor’s
comment did not amount to plain error, we affirm.
In her combined first and second assignments of
error, defendant argues that the trial court erred in declin-
ing to instruct the jury on the lesser-included offenses to
aggravated identity theft (identity theft) and aggravated
first-degree theft (first-degree theft). As relevant here, the
difference between the aggravated and non-aggravated
offenses is the amount taken—the aggravated offenses
require proof that the amount equals or exceeds $10,000.
Defendant argues that the jury could have found that some
of the checks were authorized, bringing the amount taken
below the $10,000 threshold.
We need not determine whether the trial court’s
denial of defendant’s jury instruction request was erroneous,
because any error was harmless. To determine whether an
error is harmless, we ask: “Is there little likelihood that the
particular error affected the verdict?” State v. Davis, 336 Or
19, 32, 77 P3d 1111 (2003). In making that determination
in the context of a court’s refusal to issue a requested jury
instruction, we must “consider[ ] the instructions as a whole
and in the context of the evidence and record at trial, includ-
ing the parties’ theories of the case with respect to the vari-
ous charges and defenses at trial.” State v. Payne, 366 Or 588,
609, 468 P3d 445 (2020) (internal quotation marks omitted).
Here, the parties’ theories of the case took an “all
or nothing” approach that would not support a jury find-
ing that only a portion of the checks were unauthorized.
The state produced evidence to establish that the victim
658 State v. Sargent
had never met defendant and never authorized her to write
or cash any of the checks, which totaled over $13,000.
Defendant’s theory, conversely, was that she worked for the
victim as a caretaker, and that the victim had sent her the
checks and authorized her to cash all of them. Defendant
relied entirely on her statements to the police denying all
wrongdoing, none of which would enable a jury to find that
the victim had granted defendant authorization to write
and cash some but not all of the checks—in an amount less
than $10,000. Because no evidence existed to allow a jury
to find defendant guilty of the lesser offenses but not the
greater offenses, there is “little likelihood” that the trial
court’s refusal to issue the lesser-included offense instruc-
tion “affected the verdict.” Davis, 336 Or at 32.
In her third assignment of error, defendant argues
that the trial court plainly erred by allowing the prosecutor
to argue that it was “atrocious” that “they’re revictimizing”
the victim. To determine whether an unpreserved error is
“plain,” we consider “(1) whether the claimed error is one of
law; (2) whether the claimed error is obvious and not reason-
ably in dispute; and (3) whether the claimed error appears
on the record.” State v. Chitwood, 370 Or 305, 313-14, 518
P3d 903 (2022). In the context of a prosecutor’s purportedly
improper statement made during closing argument to which
the defendant did not object, 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.” Id. at
312 (internal quotation marks omitted).
Defendant argues that the prosecutor’s statement
during rebuttal was improper, because it (1) appealed to the
jury’s sympathy for the victim; (2) referenced her right to a
jury trial; and (3) vouched for the victim’s credibility. The
state responds that, in context, the statement did not refer
to defendant taking her case to trial but rather referred to
defendant’s disparaging comments about the victim—that
the victim was a “perverted old man” with dementia who
abused drugs and alcohol.
As to defendant’s first two points, it is not “obvious”
on this record that the prosecutor appealed to the jury’s
Nonprecedential Memo Op: 333 Or App 656 (2024) 659
sympathies or improperly referenced defendant’s exercise
of her right to a jury trial as opposed to the denigrating
comments she made about the victim. Because the claimed
error is not obvious or beyond dispute, the error, if any, is not
plain. Chitwood, 370 Or at 313-14.
Defendant’s final argument is that the prosecutor’s
use of the term “revictimizing” constituted impermissible
vouching, because the word “victim” improperly injected the
prosecutor’s personal opinion regarding a witness’s credibil-
ity. See State v. Sperou, 365 Or 121, 133-36, 442 P3d 581
(2019) (holding that, where the existence of a crime was in
dispute, the state’s use of the word “victim” amounted to
impermissible vouching). Here, because the existence of a
crime was in dispute, the use of the term “revictimizing”
is problematic. However, given that the prosecutor’s com-
ment was only a small portion of the argument, a curative
instruction could have sufficed to correct the error and thus
defendant was not denied a fair trial. Chitwood, 370 Or at
312. Specifically, the court could have instructed the jury to
disregard the prosecutor’s comment touching on the victim’s
credibility and to decide the case based only on its own eval-
uation of the evidence. See State v. Montgomery, 327 Or App
655, 661-62, 536 P3d 627 (2023) (explaining that, if the
defendant’s counsel had objected to the first improper pros-
ecutorial statement, a curative “instruction would have pre-
vented the jury from relying on the prosecutor’s comments
as vouching for [the victim] and would have been sufficiently
curative of the prosecutor’s misconduct to prevent an unfair
trial”).
Affirmed.