State v. Murphy

319 Or.App. 330

510 P.3d 269

STATE of Oregon, Plaintiff-Respondent,

v.Mark Timothy MURPHY, Defendant-Appellant.

A173010

Court of Appeals of Oregon.

Submitted January 24, 2022.

April 27, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Sercombe, Senior Judge.

AOYAGI, J.

Defendant was convicted of first-degree invasion of personal privacy, based on an incident involving his 15-year-old stepdaughter. On appeal, he contends that the trial court erred in failing to strike testimony by a Department of Human Services (DHS) caseworker that her investigation of the incident resulted in a determination of "founded for sexual abuse" against defendant. Defendant acknowledges that his claim of error is unpreserved, but he contends that the error is "plain," and he asks us to exercise our discretion to reverse on that basis. As explained below, we conclude that the trial court plainly erred in failing to strike the testimony as impermissible vouching, but we decline to exercise our discretion to correct the error, largely because there is little likelihood that it affected the court's guilty finding. Accordingly, we affirm.

FACTS

Defendant is D's stepfather. When D was 15 years old, an incident occurred in which defendant placed his cell phone in the downstairs bathroom of the family home, where D lived with her mother, siblings, and defendant. The phone was set to videorecord. The phone captured video of D getting undressed in preparation for a shower. A few days later, D's mother found the video in the trash folder on defendant's phone. She recorded a copy of the video with her own phone and took it to the police.

Defendant was indicted on one count of first-degree invasion of personal privacy, ORS 163.701, a Class C felony. As relevant here, that crime is committed when a person "knowingly makes or records a *** visual recording of another person in a state of nudity without the consent of the other person; and *** [a]t the time the visual recording is made or recorded the person being recorded is in a place and circumstances where the person has a reasonable expectation of personal privacy." Here, defendant was alleged to have "unlawfully, knowingly, and without the consent of [D]" made a video recording of D while she "was in a state of nudity and in a place and circumstances where [she] had a reasonable expectation of personal privacy."

Defendant waived a jury trial and proceeded with a bench trial. The only significant fact dispute at trial was whether defendant knowingly recorded D. According to D, after dinner, she announced that she was going to shower and asked if anyone needed to use the bathroom first, at which point defendant went into the bathroom, saying that he needed to put in his contacts. When D went into the bathroom to shower, she noticed defendant's backpack on the floor, with his phone in the front mesh pocket. For his part, defendant denied knowing that D was going to shower. He testified that he did not remember D saying anything about showering, but that his wife (D's mother) had said that she was going to shower, and that he put his phone in the bathroom to record his wife. According to defendant's wife, she had been planning to shower in the downstairs bathroom, but D "jumped in" before she got there. Defendant's wife further testified that it would not have been unprecedented for defendant to videorecord her (his wife) in the shower, with or without her permission, as he had done it before. Defendant testified that he soon realized that D was in the shower, rather than his wife; retrieved his phone as soon as D left the bathroom; and deleted the video without viewing it.

One of the witnesses at trial was Vaughn. Her testimony was brief. Vaughn testified that she is a DHS protective services caseworker, that she was called out to investigate a "sexual abuse allegation against [defendant]," that her "role was to assess for child abuse and neglect," that she interviewed the children and adults and "assessed the circumstances in the allegation," and that her investigation "resulted in a founded for sexual abuse against [defendant]," which was "related to the video recording of [D]."¹ The prosecutor then showed Vaughn six exhibits, which she authenticated as photos that she had taken of the bathroom and defendant's backpack. On cross-examination, Vaughn testified that she did not specifically ask D about grooming behavior by defendant but that she did "a full assessment including a non-leading child interview" and "did have significant concerns for grooming type or sexual abuse type behaviors regarding [D's] disclosures of telling the family she was going to be taking a shower and him entering immediately after to place the video device." Finally, Vaughn testified to D being "significantly impacted" by the incident, based on what D said in her interview.

After hearing all of the evidence, the trial court found defendant guilty of first-degree invasion of personal privacy and entered a judgment of conviction.

ANALYSIS

On appeal, defendant raises a single assignment of error. He contends that the trial court plainly erred by failing to strike Vaughn's testimony that her investigation resulted in a "founded for sexual abuse" determination against defendant. Defendant argues that that testimony constituted impermissible vouching for D's credibility. He acknowledges that his claim of error is unpreserved, and he requests plain-error review. In response, the state argues that Vaughn's testimony did not constitute vouching; that the court therefore did not plainly err by failing to strike it; and that, in any event, we should not exercise our discretion to correct any plain error, because defendant "had a tactical reason not to object" and because the court's speaking verdict made clear that it decided the case based on its own credibility assessments of the witnesses’ in-court testimony.

"Generally, an issue not preserved in the trial court will not be considered on appeal." State v. Wyatt , 331 Or. 335, 341, 15 P.3d 22 (2000). However, we have discretion to consider "a plain error." ORAP 5.45(1). An error is "plain" when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013). Whether an error is "plain" is an issue of law. State v. Gornick , 340 Or. 160, 167, 130 P.3d 780 (2006). If the trial court plainly erred, it is a matter of discretion whether we will correct it. Id .

We begin with the issue of whether the challenged testimony constituted impermissible vouching. "Vouching" refers to the expression of one's personal opinion about the credibility of a witness. See State v. Chandler , 360 Or. 323, 330-31, 380 P.3d 932 (2016) (discussing history of the "judicially created rule" against vouching). Because credibility determinations are the exclusive province of the factfinder, witnesses are prohibited from expressing a view on whether another witness is "telling the truth." State v. Middleton , 294 Or. 427, 438, 657 P.2d 1215 (1983). "[T]he 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. Black , 364 Or. 579, 585, 437 P.3d 1121 (2019). "[T]estimony that constitutes vouching is categorically inadmissible." Id. at 587, 437 P.3d 1121. "Whether proffered testimony constitutes impermissible vouching is measured by whether it conveys one witness's opinion of the truthfulness of another witness, or, instead, provides information that permits the jury to make that determination." Id . at 587-88, 437 P.3d 1121. Ultimately, "[w]hether a witness's statement constitutes impermissible vouching is a legal question." State v. Sperou , 365 Or. 121, 128, 442 P.3d 581 (2019).

When faced with 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. If a witness unambiguously vouched, it is plain error not to have stricken the testimony, even absent an objection. See State v. Corkill , 262 Or. App. 543, 552-53, 325 P.3d 796, rev. den. , 355 Or. 751, 331 P.3d 1010 (2014) (listing cases holding that it was plain error not to exclude "true ‘vouching’ evidence, that is, one witness's testimony that he or she believes that another witness is or is not credible, which a party offers to bolster or undermine the veracity of that other witness").

Conversely, if a witness's testimony was ambiguous—such that the witness may or may not have been vouching—there is no plain error in not having stricken the testimony sua sponte , in part because the lack of objection prevented clarification of the testimony. See, e.g. , State v. Harrison , 267 Or. App. 571, 577, 340 P.3d 777 (2014), rev. den. , 357 Or. 164, 351 P.3d 52 (2015) (where there was "a reasonable dispute as to whether [the witness] impermissibly vouched for" the alleged child victim, "the trial court did not plainly err by not sua sponte striking the disputed testimony"); State v. Wilson , 266 Or. App. 481, 495, 337 P.3d 990 (2014), rev. den. , 356 Or. 837, 346 P.3d 496 (2015) (where the witness "was not clearly vouching for L's credibility in accusing defendant of sexual abuse, *** the trial court did not plainly err in failing to strike the testimony sua sponte "). And, if the witness unambiguously did not vouch, obviously there is no error, plain or otherwise, in not striking the...