State v. Doran

1

325 Or.App. 220

STATE OF OREGON, Plaintiff-Respondent, v. ALEX MILES DORAN, Defendant-Appellant.

A176883

Court of Appeals of Oregon

April 5, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted January 17, 2023

Polk County Circuit Court 20CR60162; Monte S. Campbell, Judge.

Jason E. Thompson argued the cause for appellant. Also on the brief was Thompson Law, LLC.

Patricia G. Rincon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagan, Judge.

Affirmed.

PAGAN, J.

In this criminal appeal, defendant contests his convictions for unlawful use of a weapon, ORS 166.220; coercion, ORS 163.275; and menacing, ORS 163.190. Each of those offenses constituted domestic violence. Defendant raises four assignments of error. In his first assignment, defendant contends that the trial court plainly erred by failing to, sua sponte, instruct the jury with a uniform vouching instruction. In his second assignment, defendant contends that the trial court plainly erred by failing to, sua sponte, declare a mistrial or give a curative instruction for the state's closing arguments. Defendant also raises two assignments of error related to sentencing; however, those assignments are moot because the trial court amended the judgment to correct the errors while this appeal has been pending. As we conclude the trial court did not plainly err in either of the other assignments, we affirm.

We provide a brief recitation of the relevant factual and procedural background. Defendant was romantically involved with R. After an argument, defendant took a gun case out of R's bedroom nightstand and threatened to commit suicide. Defendant took a pistol out of the gun case and, while holding the gun at his side, told R that she was not allowed to leave and that she could not call 9-1-1.

At trial, a police officer testified on re-direct examination that

"[R] appeared to have a-in my opinion-pretty good recollection of events and was working hard to recall things accurately. Because we would go through the interview and then she would stop and she'd go back and say, wait a minute, this is-this also happened and stuff.

"And so that's why I did bullet points, because if-if I did the-if for-for information chronologically because if I wrote the interview like it played out it would have kind of been kind of jump around and it would have been like, very difficult. It would be at times the subject matter would-would change briefly because she would remember something and so we'd go back to that.

"And so we went through the interview and then I clarified everything with her and got it chronological and that's what we have here. But she-she appeared to be working very hard to recall things chronologically and accurately."

On appeal, defendant assigns error to the trial court's failure to sua sponte instruct the jury according to Uniform Criminal Jury Instruction 1006A-an instruction aimed at alleged vouching testimony.^[1] Defendant acknowledges that that assignment is unpreserved but argues that the error is plain and that we should exercise our discretion to correct it.

For an unpreserved assignment of error to be plain,

"the error must be one of law; *** it must be apparent, i.e., the point must be obvious, not reasonably in dispute; and * * * it must appear on the face of the record, i.e., the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable."

Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991) (internal quotation marks omitted). The claimed error is one of law. State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990) (jury instructions reviewed for errors of law). However, even in the context of review for legal error, it was neither obvious that the officer's testimony constituted impermissible vouching, nor obvious that the trial court was obligated to give the uniform vouching instruction without a request from either party.

"Vouching refers to the expression of one's personal opinion about the credibility of a witness." State v. Sperou, 365 Or. 121, 128, 442 P.3d 581 (2019). Witnesses may not give vouching testimony, because such testimony invades the province of the jury as "sole arbiter of witness credibility." Id. The rule against vouching prohibits a witness from making a direct comment, or one that is tantamount to a direct comment, on another witness's credibility. State v. Murphy, 319 Or.App. 330, 335, 510 P.3d 269 (2022).

One hurdle defendant faces in this appeal is establishing whether it could be plain error for a trial court to fail to sua sponte include a jury instruction that addresses vouching. When we are called on to address an unpreserved claim of error regarding vouching, "our first task is to assess the challenged testimony to determine whether the witness unambiguously vouched, may or may not have vouched (ambiguous), or unambiguously did not vouch." Id. When a witness unambiguously vouches for another witness, we have held that a trial court must strike that testimony. State v. Corkill, 262 Or.App. 543, 552-53, 325 P.3d 796, rev den, 355 Or. 751 (2014). It is thus plain error for a trial court not to take that specific remedial action when unambiguous vouching testimony occurs. Id.

On the other hand, if a witness's testimony may or may not have been vouching, failing to strike the testimony does not constitute plain error. Murphy, 319 Or.App. at 335-36. The lack of objection in such instances prevents clarification of the testimony, and therefore, generally presents a reasonable dispute as to whether the witness impermissibly vouched. State v. Harrison, 267 Or.App. 571, 576-77, 340 P.3d 777 (2014), rev den, 357 Or. 164 (2015).

Whether a statement constitutes vouching depends on the context in which it arose and the context of how it was offered at trial. See Sperou, 365 Or at 128 ("[C]ertain statements might be vouching in some contexts but not others."). In this case, the police officer's testimony was made during re-direct examination after defendant had questioned the officer about the tendency for some victims of crimes to exhibit a "hyperfocus" that can impact a witness's ability to perceive or recall factual events. The state started re-direct examination by asking "Did [R] appear to be hyperfocused as [defendant] was just talking about?" The particular testimony that defendant highlighted as vouching followed.

We understand defendant's cross-examination to be focused on whether R could accurately perceive and remember the facts due to variables like stress and where her attention was focused. See OEC 602 (witness may not testify to a matter without personal knowledge of that matter); see also State v. Lawsonl/James, 352 Or. 724, 744-46, 291 P.3d 673 (2012) (explaining variables that impact a witness's ability to perceive and recall facts such as identity). In the context of this trial, the jury may well have understood the challenged testimony as relating to the officer's impression of R's ability to perceive and recall the events giving rise to this case in response to defendant's cross examination about a witness's ability to recall under emotional stress, not as a comment about whether the officer believed R was being truthful.^[2] See State v. Cuevas, 263 Or.App. 94, 105, 326 P.3d 1242 (2014), affd, 358 Or. 117, 361 P.3d 581 (2015) (analyzing context of challenged statement in light of what jury would have understood from the statement).

Thus, in the context of the trial and how the particular testimony arose, it did not constitute unambiguous vouching that the trial court was required to address sua sponte. It follows that, because the testimony was ambiguous, the legal point is not obvious and is reasonably in dispute, and therefore, any error in failing to sua sponte correct it is not plain. Harrison, 267 Or.App. at 577 (reasonable dispute as to impermissible vouching prevented conclusion of plain error).

Likewise because the challenged testimony was not obvious vouching, it is not patent that the trial court was required to give the uniform vouching instruction without a request from either party. To begin, we have never held that a trial court plainly errs for failing to sua sponte include Uniform Criminal Jury Instruction 1006A in the final jury instructions. This is also not a case where the trial court failed to instruct on an element of a crime or a defense properly raised. See, e.g., State v. Gore, 280 Or.App. 624, 627, 380 P.3d 1120 (2016) (failure to give defense of property instruction was plain error); State v. Gray, 261 Or.App. 121,130, 322 P.3d 1094 (2014) (failure to instruct jury on culpable mental state was plain error). In this case, although the evidence could support the uniform vouching instruction if defendant had requested it, because the testimony was susceptible to being understood either as vouching or as explaining R's ability to perceive and recall facts in light of the stressful situation, it is not obvious that the trial court was required to give the instruction sua sponte. See, e.g., State v. Leers, 316 Or.App. 762, 770, 502 P.3d 1130, rev den, 369 Or. 733 (2022) (defendant entitled to instruction if correct statement of law and supported by evidence to support giving it); but see State v. Pauley, 211 Or.App. 674, 683,156 P.3d 128 (2007), rev den, 345 Or. 318 (2008) (failure to give jury concurrence instruction not plain error because legal point raised...