State v. Lopez-Morales ( 2024 )

686 May 30, 2024 No. 341
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
NELSON ARAON LOPEZ-MORALES,
aka Nelson Aaron Lopez-Morales,
Defendant-Appellant.
Washington County Circuit Court
19CR69169; A178598
Ricardo J. Menchaca, Judge.
Submitted April 30, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 332 Or App 686 (2024) 687
688 State v. Lopez-Morales
ORTEGA, P. J.
A jury convicted defendant of first-degree sodomy
involving a child under 12 years of age, ORS 163.405 (Count 1),
and first-degree sexual abuse of the same child, ORS
163.427 (Count 2). In addition to imposing a prison sen-
tence, the trial court ordered defendant to pay $5,000 in
court-appointed attorney fees. On appeal, defendant assigns
six errors, challenging, for the first time, the trial court’s
failure to sua sponte strike testimony and its imposition of
court-appointed attorney fees, and he asks us to exercise our
plain-error discretion to review those issues. We conclude
that the trial court did not plainly err in not striking the
testimony or in imposing the fees. Accordingly, we affirm.
We begin with defendant’s first five assignments of
error, in which he argues in a combined argument that it
was plain error for the trial court not to strike testimony by
Hidalgo, a child forensic interviewer at CARES Northwest,
who interviewed B, the alleged victim. Each of those assign-
ments of error concerns responses by Hidalgo to questions
about whether various statements by B, then five years old,
were “concerning” to Hidalgo. Defendant argues that the
trial court should have sua sponte struck testimony that
Hidalgo was not concerned when: (1) B stated that she did
not know why she was being interviewed; (2) B stated that
she was kidding; (3) B was reluctant to discuss the abuse;
(4) B initially denied the abuse; and (5) B disclosed addi-
tional abuse for the first time at the interview. Defendant
argues that Hidalgo’s testimony constituted impermissible
comment on the credibility of a witness or, in other words,
improper vouching. We are not persuaded.
Hidalgo interviewed B about three weeks after
B’s initial disclosure of abuse. Hidalgo explained that she
begins her interviews with a “practice narrative,” that
involves describing the interview room and asking the child
how they got to the clinic, to help the interviewer assess
the child’s communication abilities. Defendant’s first assign-
ment of error pertains to the following exchange:
“[PROSECUTOR:] And when you first asked her why
she was there, did she immediately know why she was
there?
Cite as 332 Or App 686 (2024) 689
“[HIDALGO:] No.
“[PROSECUTOR:] Was that concerning to you?
“[HIDALGO:] No.
“[PROSECUTOR:] Why not?
“[HIDALGO:] That, one, because of her age. Right?
And, two, if nobody explains to a child her age why they’re
there, or even older, they may not know. They may just
think it’s a regular checkup.”
Defendant’s second assignment of error focuses on
Hidalgo’s statement that she was not concerned about B’s
statement that she was “just kidding.” That assignment is
based on the following exchange:
“[PROSECUTOR:] Okay. In [B]’s practice narrative,
she talked about there being traffic and you asked her what
traffic was.
“And then she talked about [how] the police came, but
everything was fine, and they went, and then she said,
‘Just kidding.’
“[HIDALGO:] Mm-hmm.
“[PROSECUTOR:] Was that concerning to you?
“[HIDALGO:] No.
“[PROSECUTOR:] Why not?
“[HIDALGO:] That’s very typical for a child her age
to say something happened and then, ‘Just kidding,’ right?
Like they’re learning what that means. What it means to
joke around and so wasn’t concerning to me at all.
“[PROSECUTOR:] Okay. Was it helpful for you to see
how she joked?
“[HIDALGO:] Yeah. Absolutely.
“[PROSECUTOR:] Later on when she talked about
things that happened to her, did she also say, ‘Just kidding’?
“[HIDALGO:] Later on, not during the practice narra-
tive, but other things? No, I don’t believe so.”
Defendant’s third and fourth assignments of error
are based on testimony about B’s reluctance to describe the
alleged abuse. The first exchange went as follows:
690 State v. Lopez-Morales
“[PROSECUTOR:] When you first started talking to
[B] about what she was doing there and when you brought
up [defendant], did she immediately want to talk about
that?
“[HIDALGO:] No.
“[PROSECUTOR:] Was that concerning to you?
“[HIDALGO:] No.
“[PROSECUTOR:] Why?
“[HIDALGO:] Children can often be reluctant about
the reason why they’re at CARES.”
Shortly thereafter, there was also testimony about
B’s statement that “nothing happened.”
“[PROSECUTOR:] Okay. When you talked to [B] about
her family versus when you talked to her about [defendant],
did her—did you observe her behavior change?
“[HIDALGO:] Absolutely.
“[PROSECUTOR:] What did you observe?
“[HIDALGO:] Yeah. She got very serious.
“[PROSECUTOR:] Okay. Did she initially say nothing
happened?
“[HIDALGO:] She did initially say, ‘Nope.’
“[PROSECUTOR:] Okay.
“[HIDALGO:] Nothing happened, yeah.
“[PROSECUTOR:] Was that concerning to you?
“[HIDALGO:] No.
“[PROSECUTOR:] Why?
“[HIDALGO:] Again, children can be reluctant. They
might question, is this an okay place to talk about this? So
not concerning.”
Defendant’s fifth assignment of error concerns tes-
timony about new disclosures of abuse that B made during
the CARES interview:
“[PROSECUTOR:] So in this situation, [B] talked
about what had happened on the same day that it happened?
Cite as 332 Or App 686 (2024) 691
She told her sister the same day that it happened. But when
she came in to talk with you, she also talked about some
other things that had happened in the past.
“In your training and experience, was it concerning to
you that the first time anyone had heard about this was in
a CARES interview talking to you? About the putting his
penis in her belly button.
“[HIDALGO:] No.
“[PROSECUTOR:] Why?
“[HIDALGO:] That’s common.
“[PROSECUTOR:] Why?
“[HIDALGO:] Yeah. For a variety of different reasons.
So oftentimes the most recent incident is what comes to a
child’s mind. It doesn’t even occur to them to talk about any
previous incidents. And so that can be one of the reasons.
“[PROSECUTOR:] A child [B]’s age, if somebody is
doing something like putting a penis on their belly button,
is it—would it be typical that a child would immediately
recognize that as wrong?
“[HIDALGO:] Would it be typical that they would
immediate—no. It would not be typical.
“[PROSECUTOR:] Why?
“[HIDALGO:] They don’t know that it’s necessarily
wrong. Right? They don’t have any point of reference. It’s
not—especially if it’s somebody that’s a trusted individual,
right? They might not necessarily question that.”
Defendant did not object to that testimony, so he
requests plain-error review. 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 with-
out our having to choose among competing inferences. State
v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a
matter of discretion whether we will correct a plain error.
State v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006). Given
defendant’s failure to object at trial, “the pertinent question
is whether the trial court plainly erred by not interrupting
[the challenged testimony] sua sponte.” State v. Corkill, 262
Or App 543, 551, 325 P3d 796, rev den, 355 Or 751 (2014).
692 State v. Lopez-Morales
“[I]n Oregon a witness, expert or otherwise, may
not give an opinion on whether he believes a witness is tell-
ing the truth.” State v. Middleton, 294 Or 427, 438, 657 P2d
1215 (1983); see also State v. Keller, 315 Or 273, 285, 844
P2d 195 (1993) (“Once again, we repeat that a witness may
not testify about the credibility of another witness.”). A trial
court commits plain error by failing to exclude evidence sua
sponte when there is “true vouching,” which involves one wit-
ness testifying that “he or she believes that another witness
is or is not credible, which a party offers to bolster or under-
mine the veracity of that other witness.” Corkill, 262 Or App
at 552 (internal quotation marks omitted). In such cases, the
trial court must intervene sua sponte because the testimony
creates “a risk that jurors would rely on witnesses’ opinions
about the credibility of an alleged victim to avoid their inde-
pendent obligation to determine whether the complainant’s
allegations were truthful.” Id. at 552-53.
Here, the claimed errors are not plain because it is
not obvious or beyond dispute that Hidalgo’s testimony consti-
tuted true vouching. In response to questions about whether
various statements by B during the CARES interview were
concerning to her, Hidalgo explained that it was common or
typical for children that age or in that setting to make such
statements. Hidalgo did not directly express her own opin-
ion that B’s allegations of abuse were credible, and the jurors
could have understood Hidalgo’s testimony as providing infor-
mation to help them draw their own conclusions about B’s
credibility. Thus, it is not obvious or beyond reasonable dis-
pute that the jurors would have understood Hidalgo as vouch-
ing for the child’s credibility. See Middleton, 294 Or at 432-
34 (testimony regarding the typical response of a rape victim
was not impermissible vouching); see also State v. Brand, 301
Or App 59, 67, 455 P3d 960 (2019), rev den, 366 Or 259 (2020)
(“experts may provide general testimony about the behavior of
victims”); State v. Black, 364 Or 579, 590, 437 P3d 1121 (2019)
(witnesses do not engage in vouching when they provide jurors
with information that the jurors could use to form their own
opinions about the truthfulness of other witnesses).
In arguing otherwise, defendant relies primarily on
State v. Preuitt, 255 Or App 215, 223, 296 P3d 648, rev den,
Cite as 332 Or App 686 (2024) 693
353 Or 868 (2013), in which we held that a therapist’s tes-
timony constituted impermissible vouching. In Preuitt, the
therapist testified that she had no “concerns or red flags”
that the allegations of abuse were a story that the child had
adopted from somewhere else, and the therapist observed
that the child did not “seem particularly suggestible.” Id. at
218-19. We concluded that the therapist “testified regarding
her own conclusions regarding [the child]’s veracity.” Id. at
223 (emphasis in original).
By contrast, here, the challenged testimony did
not amount to an opinion by Hidalgo that B’s allegations
of abuse were credible. The fact that B did not know the
purpose of the CARES interview does not suggest any obvi-
ous opinion about B’s credibility or suggestibility. B’s state-
ment that she was “just kidding” was innocuous because it
occurred during the practice narrative, and if B was “just
kidding” about everything being fine, then that hurts rather
than helps defendant’s argument. Regarding B’s third and
fourth statements, it was reasonable for Hidalgo to explain
to the jury why a child might be initially reluctant to
describe abuse. Similarly, Hidalgo’s explanations for why
a child might disclose additional instances of abuse for the
first time at a CARES interview were helpful background
information. In our view, Hidalgo provided general descrip-
tions about how children react in such circumstances, and
it is not obvious or beyond reasonable dispute that Hidalgo
was offering her own opinion regarding the credibility of B’s
allegations of sexual abuse.
For the same reason, the claimed errors concern-
ing Hidalgo’s testimony are not apparent on the face of the
record without our having to choose among competing infer-
ences. Gornick, 340 Or at 169-70. When the expert does not
“directly express[ ] an opinion on the truth of the victim’s
testimony,” then that testimony is not inadmissible, even if
the expert’s testimony makes it more likely that the jury
will believe the victim. Middleton, 294 Or at 435. Here,
Hidalgo’s explanations of B’s statements may have made it
more likely that the jury would believe B’s allegations, but it
is not apparent on the face of the record that the trial court
erred in failing to strike those explanations, and it is not
694 State v. Lopez-Morales
apparent that the jurors would have understood Hidalgo to
be expressing an opinion regarding the truth of B’s allega-
tions of abuse.
Even if we were to conclude that the trial court
plainly erred by failing to sua sponte strike that testimony,
we would not exercise our discretion to correct it because
“if defendant had raised a timely objection, the state * * *
could have chosen to [proceed without] the testimony and
avoid the issue.” State v. Cox, 337 Or 477, 500, 98 P3d 1103
(2004), cert den, 546 US 830 (2005). B testified at trial that
defendant stuck “his private part in [her] mouth,” and that
he put “his private part on [her] stomach,” and we discern
no reason why the jury was not in a position to draw their
own conclusions regarding the credibility of B’s testimony at
trial. We therefore reject defendant’s first five assignments
of error.
We move to defendant’s sixth assignment of error,
seeking plain-error review of the trial court’s imposition of
$5,000 in court-appointed attorney fees. After sentencing
defendant to 300 months in prison, the trial court stated:
“My understanding is [defendant] posted [$]50,000 in
order to remain out of custody pending trial.
“My guess is the family could use that money back. And
so[,] I’m simply going to take [$]5,000 for attorney fees.
“That’s a pittance of what is owed. I thought [defense
counsel] did a great job, but we’re in an attorney crisis right
now with defense counsel, so it makes sense to take at least
[$]5,000 to apply towards attorney fees.
“I will waive the rest of the fees. And the [$]45,000
minus the administrative costs the County takes will go
back to the person who posted it.
“If [defendant] posted it, I would ask that the
money go back to his family. Because I think the family,
knowing the case as I know, is going to struggle going for-
ward with the length of the sentence for the provider in this
case.
“So, [$]45,000 will go back to the person that posted it.
“And if not[,] the person that posted it, it should go back
to the family would be my strong, strong recommendation.”
Cite as 332 Or App 686 (2024) 695
Defendant’s attorney responded:
“The only thing that I would add, is there any informa-
tion—I know that he wants—I don’t know who posted the
bail, but I know—I think they put it on his books[,] and he
posted it. He does want it to go back to his wife.
“Correct?”
Defendant replied, “My wife. Yes.”
The trial court stated that it would include defen-
dant’s wife’s name on the judgment. The judgment required
defendant to pay $5,000 in attorney fees with any remain-
ing money “posted for bail * * * to be returned to” defendant’s
wife.
Defendant did not object to the imposition of attor-
ney fees during sentencing, and he asks for plain-error
review. Before imposing a financial obligation for court-
appointed attorney fees, the trial court must determine the
defendant’s ability to pay. See ORS 151.505(3) (“The court
may not require a person to pay costs under this section
unless the person is or may be able to pay the costs.”); see
also ORS 161.665(4) (“The court may not sentence a defen-
dant to pay costs under this section unless the defendant is
or may be able to pay them.”). “It is the state that bears the
burden of proving that a defendant is or may be able to pay
attorney fees.” State v. Geddeda, 313 Or App 440, 444, 493
P3d 1112 (2021).
Here, the error, if any, is not obvious because the
trial court relied on the fact that defendant posted a $50,000
security, defendant’s attorney stated that defendant posted
it, and the official receipt for the security identified defen-
dant as the payor.
When a third party posts the security, then we do
not presume that the funds belong to the defendant such
that they can be used to pay court-appointed attorney fees
or to determine a defendant’s ability to pay. State v. Morales,
367 Or 222, 231-32, 476 P3d 954 (2020); see also State v.
Deanda, 331 Or App 217, 221-23, 545 P3d 1256 (2024) (it
was a plain error to impose attorney fees where there were
no findings regarding the defendant’s ability to pay the fees
696 State v. Lopez-Morales
apart from the availability of a security deposit posted by
the defendant’s father).
But here the record indicates that defendant posted
the security, not a third party.
“[O]n review for plain error * * *, defendant’s security deposit
appears to provide sufficient evidence to support the trial
court’s imposition of court-appointed attorney fees, even if
a trial court, when properly presented with questions in
the first instance as to how defendant acquired the funds
for a security deposit, might reach a different result.”
State v. Casas, 295 Or App 519, 520-21, 433 P3d 785 (2018).
Thus, it is not obvious or beyond reasonable dispute that the
trial court erred by relying on the $50,000 security deposit
posted by defendant to impose court-appointed attorney
fees. The error, if any, was not plain.
Furthermore, even if there had been a plain error, we
would not exercise our discretion to correct it. During defen-
dant’s trial, there was testimony that defendant owned a con-
struction company with two or three employees. Defendant
may have chosen not to object to the trial court’s imposition
of attorney fees to make sure that most of the funds were
transferred back to his wife and family. We therefore reject
defendant’s sixth assignment of error.
Affirmed.