State v. Brand ( 2019 )

59
Argued and submitted April 24, 2018, reversed and remanded
December 4, 2019; petition for review denied March 26, 2020 (366 Or 259)
STATE OF OREGON,
Plaintiff-Respondent,
v.
AUSTIN CALLAHAN BRAND,
aka Austin Brand,
Defendant-Appellant.
Multnomah County Circuit Court
14CR28021; A162224
455 P3d 960
Defendant appeals a judgment of conviction for first-degree kidnapping,
coercion, fourth-degree assault, menacing, and recklessly endangering another
person. He argues that the trial court erred when it allowed a detective to tes-
tify that the alleged victim delayed reporting defendant’s conduct to authorities
due to her fear of further assaults by defendant, because it amounted to imper-
missible vouching. Defendant further argues that the error was not harmless.
Held: The trial court erred by allowing the testimony. The detective’s explanation
for the alleged victim’s delayed reporting constituted impermissible vouching.
Additionally, the error was not harmless.
Reversed and remanded.
John A. Wittmayer, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the
cause for appellant. Also on the opening brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services. Austin Callahan Brand filed the
supplemental and reply briefs pro se.
Jordan R. Silk, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
DEHOOG, P. J.
Reversed and remanded.
______________
* DeVore, P. J., vice Hadlock, J. pro tempore.
60 State v. Brand
DEHOOG, P. J.
Defendant appeals a judgment of conviction for
first-degree kidnapping, coercion, fourth-degree assault,
menacing, and recklessly endangering another person.1 In
his first assignment of error, defendant argues that the trial
court erroneously admitted impermissible vouching testi-
mony when it allowed a detective to testify that the alleged
victim’s delay in reporting defendant’s conduct to authorities
was due to her fear of further assaults by defendant. The
state’s initial response is that defendant failed to preserve
that argument. Specifically, the state contends that defen-
dant’s only objection at trial was to the detective’s testimony
regarding delayed reporting in general—which we previ-
ously have held to be admissible—and not to any other part
of the detective’s testimony, including his statement that the
victim in this case had delayed making a report because of
her fear of further assaults. The state further argues that,
even if that issue is preserved, the court did not err when
it admitted the challenged testimony, because, contrary to
defendant’s argument, it was not impermissible vouching.
For the reasons that follow, we conclude that defendant pre-
served the issue he raises in his first assignment of error;
we further conclude that the court erred in admitting the
detective’s explanation of the victim’s delayed reporting,
because that testimony constituted impermissible vouch-
ing. Because that error was not harmless, we reverse and
remand.2
1
Defendant was charged with first-degree rape (Count 1), ORS 163.375; four
counts of first-degree kidnapping (Counts 2 through 5), ORS 163.235; two counts
of coercion (Counts 6 and 7), ORS 163.275; attempted first-degree burglary
(Count 8), ORS 164.225 and ORS 161.405; two counts of fourth-degree assault
(Counts 9 and 10), ORS 163.160; strangulation (Count 11), ORS 163.187; menac-
ing (Count 12), ORS 163.190; recklessly endangering another person (Count 13),
ORS 163.195; and reckless driving (Count 14), ORS 811.140. The case was tried
to a jury. The court dismissed Counts 1, 2, and 4 on the state’s motion. The jury
found defendant guilty on Counts 5, 6, 9, 12, and 13. The jury found defendant not
guilty on Counts 3, 7, 8, 10, 11, and 14. Four of the jury’s five guilty verdicts were
nonunanimous.
2
In 11 additional assignments of error, defendant contends that the trial
court plainly erred in failing to strike, sua sponte, three statements from another
investigating officer that amounted to impermissible vouching, in failing to give
a jury instruction requiring concurrence as to a particular occurrence of the coer-
cion charge, in failing to instruct the jury that first-degree kidnapping required
that the alleged victim’s confinement had occurred in a place where she would
not likely be found, in instructing the jury that it could reach a nonunanimous
Cite as 301 Or App 59 (2019) 61
The pertinent facts are largely procedural and
undisputed. However, to provide context to the parties’ legal
dispute, we first set out portions of the testimony from defen-
dant’s trial. The alleged victim, S, testified that defendant
had previously been her boyfriend and that the two of them
had shared an intimate relationship. At the time of defen-
dant’s alleged offenses, S was a recovering heroin addict
engaged in methadone treatment and lived with a friend
from that program. According to S, defendant came to see
her at the apartment that she shared with that friend. They
spoke in defendant’s car, where he asked her to move out of
her apartment and move in with him so that the two of them
could be together again. Preferring to focus on her recov-
ery, S refused defendant’s request. Defendant responded by
first strangling S, and then driving off with her still in his
car. As defendant drove, he threatened to crash the car and
kill them both; he eventually did drive into a telephone pole,
but neither of them was injured. Defendant then took S to a
rural barn and, over the next four days, forced her to have
sex with him and told her that he intended to keep her at
the barn to ensure her withdrawal from methadone. Despite
those stated intentions, defendant drove S to and from
various places, including her workplace and a methadone
clinic, all the while repeatedly threatening her with harm.
S acknowledged that, during the course of the incident, she
had been able to speak with family and friends and had told
them that everything was fine. S also acknowledged that
she had had multiple opportunities to call the police for help
or even escape, but that she did not attempt to do either of
those things over the course of the four days until she went
home from the methadone clinic with her roommate. In fact,
it was only her roommate who ultimately called the police,
in response to defendant repeatedly kicking and banging on
the apartment door, demanding to see S.
Detective Turnage, who took part in the investi-
gation of defendant’s alleged conduct and interviewed S
verdict, in publishing a verdict form that allowed the jury to reach a nonunan-
imous verdict, and in accepting four nonunanimous verdicts. Because a new
record is likely to be produced on remand, we need not consider his additional
assignments of error. Defendant also filed a pro se supplemental brief asserting
two additional assignments of error. We reject those assignments of error without
discussion.
62 State v. Brand
multiple times, also testified at trial. Turnage described
his extensive training and experience investigating domes-
tic violence cases and testified that such cases often involve
what is known as delayed reporting.3 Shortly thereafter, the
prosecutor asked, “we had a situation here with a delayed
report; is that right?” Defense counsel interjected, stat-
ing, “Judge, I have a matter for the Court.” The trial court
directed the jurors to return to the jury room, and defense
counsel argued outside their presence that the state had not
laid a sufficient foundation to permit Turnage’s testimony.
Counsel specifically argued that Turnage did not have the
“medical or psychological training to discuss these matters.”
Defense counsel also argued that Turnage’s anticipated
testimony regarding delayed reporting would involve both
speculation and impermissible vouching.
“[DEFENDANT]: Judge, beyond speculation, it then
turns into a form of witness vouching; that it’s saying there
are these acts that you took, and I’m telling the jury, it’s
okay to do that because that means you’re still a victim.
And that’s just always an improper line of testimony, to say
that—you know, basically, he can’t say I believe this per-
son. That’s essentially what they’re doing. We have these
acts in front of us. I have this training and experience, and
I’m telling the jury, through my continuation in this testi-
mony, that if he doesn’t outright say I believe it, he’s at least
implying that by acting on it and accepting it. And he will
say this is common in the domestic violence arena, which is
then witness vouching.
“* * * * *
“THE COURT: * * * So what we ought to do is this, we
bring the jury back in, [the prosecutor can] do whatever
* * * with [Turnage] on his qualifications, feel free to make
your objection, and I’ll rule on it.
“[DEFENDANT]: And then, Judge, if I’m not success-
ful, I want to make sure that I am—that objection is ongo-
ing for—
“THE COURT: That’s—make your record however
you want to, but I understand your position.
3
We have described “delayed reporting” as a phenomenon in which victims of
either sexual abuse or domestic abuse do not report such abuse immediately for
various reasons. State v. Althof, 273 Or App 342, 345, 359 P3d 399 (2015), rev den,
358 Or 550 (2016).
Cite as 301 Or App 59 (2019) 63
“[DEFENDANT]: If—
“THE COURT: I don’t think you have to object to
every, single question.
“[DEFENDANT]: No, but if they change topics a little
bit, I might say, ‘I renew the objection.’
“THE COURT: All right. Do what you think you need
to do.”
After the jury returned to the courtroom, the prosecutor
continued with Turnage’s direct examination. In an effort
to lay an appropriate foundation, the prosecutor asked
Turnage additional questions about his training and experi-
ence regarding domestic violence, after which the following
exchange occurred:
“[PROSECUTOR]: Those are all of the foundation
questions that I have. * * *
“[DEFENDANT]: So at this time I would renew my
objection—
“THE COURT: Overruled.
“[DEFENDANT]: —as we discussed.”
The prosecutor next asked Turnage about delayed
reporting in general. In response, Turnage explained in some
detail what a delayed report is and why delayed reporting
is commonly observed in domestic violence cases. Following
that general testimony, the prosecutor asked Turnage about
S’s behavior in particular.
“[PROSECUTOR]: Okay. [S’s] behavior in this case,
can you explain her behavior?
“[DEFENDANT]: Judge, I’m going to renew my
objection.
“THE COURT: Overruled.
“[TURNAGE]: With respect to what?
“[PROSECUTOR]: With respect to why she didn’t go
to police immediately upon having a—having an opportu-
nity to report?
“[TURNAGE]: Sure. [S], in this case * * * had some
opportunity to get away, escape, leave, go, run, call, talk to
64 State v. Brand
the police, do what have you * * *. There were those oppor-
tunities that were afforded to her and she chose not to do
those. When I spoke to [S] it became clear to me [that] the
reason she chose not to do those was under fear, fear of con-
tinued assaults against herself. * * *”
(Emphasis added.)
We first consider the threshold issue of whether
defendant preserved his first assignment of error. As a gen-
eral rule, we will not consider claims of error that were not
raised in the trial court. State v. Wyatt, 331 Or 335, 341, 15
P3d 22 (2000); ORAP 5.45(1). To preserve an issue, “a party
must provide the trial court with an explanation of his or
her objection that is specific enough to ensure that the court
can identify its alleged error with enough clarity to permit
it to consider and correct the error immediately.” Wyatt, 331
Or at 343.
Here, we disagree with the state’s contention that
defendant’s objections failed to preserve his argument that
Turnage’s testimony constituted impermissible vouching.
The state correctly observes that “[w]hen a party objects to
evidence as a whole and the trial court rules that the evi-
dence is admissible, the reviewing court will affirm the trial
court’s ruling when any part of the evidence is admissible.”
State v. Collins, 256 Or App 332, 347, 300 P3d 238 (2013).
And, as the state also notes, evidence regarding the phenom-
enon of delayed reporting is, as a general matter, admissi-
ble to explain why an alleged victim may have waited some
length of time after an alleged assault to report that conduct
to someone else. State v. White, 252 Or App 718, 723, 288 P3d
985 (2012). We reject, however, the state’s assertion that,
because defendant erroneously sought to exclude Turnage’s
testimony regarding delayed reporting in general, he failed
to preserve his specific argument that the trial court should
have excluded Turnage’s specific statement that, in his
view, S delayed reporting out of fear. Although it is true that
defendant initially objected, on foundation and speculation
grounds, to Turnage’s delayed reporting testimony as a
whole, defendant further argued that this type of testimony
often leads to impermissible witness vouching. The state did
not respond directly to defendant’s vouching argument, and
the trial court overruled defendant’s objection. The court
Cite as 301 Or App 59 (2019) 65
expressly noted that it understood defendant’s position. It
further indicated that defendant could have a continuing
objection and would not have to renew his objection on a
question-by-question basis. Nonetheless, defendant spe-
cifically renewed his objection when the prosecutor asked
Turnage about delayed reporting as it related to S’s behav-
ior in this case.
Under those circumstances, we conclude that defen-
dant’s vouching argument is preserved for appeal. The pri-
mary purposes of the preservation rule are to allow the
trial court to consider a contention and correct any error,
to allow the opposing party an opportunity to respond to a
contention, and to foster a full development of the record.
Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008).
Here, those underlying policies were served by defendant’s
multiple and ongoing objections, which informed the trial
court of the specific aspects of Turnage’s testimony that he
found objectionable, and alerted the court that impermis-
sible vouching would likely occur as Turnage continued to
testify. See State v. Parkins, 346 Or 333, 341, 211 P3d 262
(2009) (stating that preservation turns on whether, “given
the particular record of a case, the court concludes that the
policies underlying the [preservation] rule have been suf-
ficiently served”). Thus, even though Turnage’s testimony
regarding the phenomenon of delayed reporting in general
was admissible, defendant preserved his specific challenge
to those aspects of Turnage’s testimony that he contends
constituted impermissible vouching.
We turn to the merits of defendant’s vouching
argument. Defendant argues that the trial court erred by
admitting detective Turnage’s testimony that S’s failure
to promptly report defendant’s conduct resulted from the
phenomenon of delayed reporting commonly observed in
domestic violence cases. Specifically, defendant argues that
Turnage’s statement, that “it became clear to me [that] the
reason she chose not to [promptly report defendant to police]
was under fear, fear of continued assaults against herself,”
was impermissible vouching testimony because it “necessar-
ily was based on his assessment of [S’s] credibility.” In sup-
port of that argument, defendant contends that this case is
controlled by State v. McCarthy, 251 Or App 231, 235-36, 283
66 State v. Brand
P3d 391 (2012), in which we held that it was impermissible
vouching for a nurse practitioner to testify that a child sex-
ual abuse victim’s delayed disclosure had been the result of
“fear.” The state responds that the court did not err in allow-
ing the challenged portion of Turnage’s testimony, because,
unlike the nurse practitioner’s testimony in McCarthy,
Turnage’s “application of general delayed reporting princi-
ples to the specific facts of this case was not tantamount
to stating that the victim was telling the truth.” The state
further contends that defendant’s reliance on McCarthy is
misplaced in any event because, in the state’s view, our opin-
ion in that case is “clearly erroneous.”
We review whether a trial court admitted impermis-
sible vouching evidence for legal error. State v. Criswell, 282
Or App 146, 156, 386 P3d 58 (2016). “[A] witness, expert or
otherwise, may not give an opinion on whether [the witness]
believes [that another] witness is telling the truth.” State v.
Middleton, 294 Or 427, 438, 657 P2d 1215 (1983). Prohibited
opinions may be express or implied; thus, the “vouching rule
is a judicially created rule of evidence” that “prohibits a wit-
ness from making a direct comment, or one that is tanta-
mount to a direct comment, on another witness’s credibility.”
State v. Black, 364 Or 579, 585, 437 P3d 1121 (2019); see
id. at 587 (noting that “testimony that constitutes vouch-
ing is categorically inadmissible”). The Supreme Court has
acknowledged that
“it is not always easy to draw the line between an inad-
missible statement that is tantamount to a direct comment
on the credibility of a witness and an admissible state-
ment that is relevant for a different reason but that tends
to show that a witness is telling the truth. That is so, at
least in part, because much evidence, especially expert tes-
timony, will tend to show that another witness either is or
is not telling the truth.”
Id. at 586 (internal quotation marks and citations omitted).
“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; see also State v. Remme, 173
Or App 546, 562, 23 P3d 374 (2001) (to be permissible, the
Cite as 301 Or App 59 (2019) 67
witness’s testimony “must assist, not supplant, the jury’s
assessment of credibility”); State v. Milbradt, 305 Or 621,
629, 756 P2d 620 (1988) (“The assessment of credibility is for
the trier of fact[.]”). Therefore, it is not impermissible vouch-
ing for an expert to provide testimony that “does no more
than provide jurors with useful, nonconclusive informa-
tion from which inferences as to credibility may be drawn.”
Remme, 173 Or App at 562 (emphasis in original).
We have held that experts may provide general tes-
timony about the behavior of victims. See State v. Perry, 347
Or 110, 112, 218 P3d 95 (2009) (evidence that some children
who have been abused may delay disclosing abuse is admis-
sible to disprove a claim that delay in reporting demon-
strates that no abuse has occurred). More precisely, as rele-
vant here, “expert testimony regarding the phenomenon of
delayed reporting” is admissible “ ‘to help explain why the
complainant may have delayed reporting the abuse and to
counter a possible inference by the jury that the delay is
indicative of fabrication.’ ” State v. Sundberg, 268 Or App 577,
582-83, 342 P3d 1090, rev den, 357 Or 325 (2015) (quoting
White, 252 Or App at 723). Therefore, Turnage’s testimony
regarding the general phenomenon of delayed reporting was
admissible, and defendant does not challenge that aspect of
the trial court’s ruling. Here, however, the specific issue is
whether Turnage’s testimony—that “[w]hen [he] spoke to [S]
it became clear to [him that] the reason she chose not to
do those was under fear, fear of continued assaults against
herself”—exceeded its permissible bounds, i.e., to explain
what the cause of the delayed report in this case may
have been and to enable the jurors to decide for themselves
whether, in fact, S’s behavior was due to that phenomenon.
For the reasons that follow, we conclude that Turnage’s tes-
timony did exceed those bounds.
We agree with defendant that our decision in
McCarthy is particularly instructive here. In McCarthy, the
complainant disclosed in the course of a child-abuse assess-
ment that the defendant had sexually abused her years
earlier. 251 Or App at 232. The pediatric nurse practitioner
who had interviewed the complainant testified at trial. Id.The nurse practitioner first testified about delayed disclo-
sures and the effects that various “grooming” behaviors by
68 State v. Brand
would-be abusers can have on children generally. Id. at 233.
The same witness then testified that the complainant
“delayed her disclosure because of fear. She was told not
to tell because she would tear the family apart, and so she
was—entered into the secrecy, that fear. She was afraid
she wouldn’t be believed because of that as time went on.
And so that is an aspect of grooming, yes.”
Id. We held that testimony to be impermissible vouching
because it “invited the jury to defer to the expert’s testi-
mony that this particular complainant had been groomed by
[the] defendant, out of fear and concern for her family, not to
report the crimes.” Id. at 236.
In our analysis in McCarthy, we distinguished the
Supreme Court’s decision in Perry. We noted that, in Perry,
the court held that evidence that some children who have
been abused delay disclosing is admissible in a prosecu-
tion for sex crimes when offered to disprove a claim that
such delay indicates that the alleged abuse did not occur.
Id. Perry, however, “did not involve expert testimony that
applied general principles related to the phenomenon of
delayed reporting in child sex abuse cases to the specifics
of the instant case.” Id. In McCarthy, on the other hand, the
state’s witness did apply the general phenomenon to the spe-
cific facts of the case, thereby inviting the jury to defer to
her credibility assessment; that is, “she was telling the jury
that she believed the complainant’s report of abuse and, by
extension, that the jury should believe it, too.” Id.As noted, the state argues that McCarthy is “clearly
erroneous” and should not guide our decision here, because
that decision is difficult to reconcile with other cases in
which we and the Supreme Court “have repeatedly held
that expert testimony permissibly may apply general prin-
ciples like delayed reporting to specific facts of the case.” 4
4
Although the state describes McCarthy as “clearly erroneous,” it does not
suggest that McCarthy should be overruled under our rigorous “plainly wrong”
standard. See State v. Civil, 283 Or App 395, 417, 388 P3d 1185 (2017) (“[D]ue
regard for stare decisis and our predecessors’ collegial commitment demands
that ‘plainly wrong’ be a rigorous standard, satisfied only in exceptional circum-
stances.”). See also Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011)
(“[W]e begin with the assumption that issues considered in our prior cases are
correctly decided, and the party seeking to change a precedent must assume
Cite as 301 Or App 59 (2019) 69
In support of that assertion, the state cites three decisions:
Middleton, 294 Or at 433; State v. Swinney, 269 Or App 548,
559, 345 P3d 509, rev den, 357 Or 743 (2015); and State v.
Beauvais, 357 Or 524, 354 P3d 680 (2015). Having again
reviewed those decisions, we conclude that none of them
stands for the proposition that the state advances.
In Middleton, the Supreme Court permitted expert
testimony about the “typical response of a rape victim”
and whether the victim’s behavior “was consistent” with
that “typical behavior.” 294 Or at 432-33 (emphasis added).
Similarly, in Swinney, we held that it was permissible for a
police detective to testify about “grooming behavior gener-
ally and his opinion that defendant’s behavior as described
by the victim was consistent with grooming behavior,”
because it provided the jury with context for its own eval-
uation of the victim’s testimony without itself commenting
on her credibility. 269 Or App at 549, 559 (emphasis added).
And, in Beauvais, the Supreme Court held that it was per-
missible for an interviewer to testify that she had asked the
child victim whether anyone told her what to say during
the interview and that the victim had provided a negative
response. 357 Or at 547-48. That, the court reasoned, was
because the testimony merely presented a basis for the jury
to determine for itself whether the victim had been coached
in that manner. Id.Each of the foregoing cases involved testimony that
was potentially helpful to the jury in making its own credi-
bility determination, but that did not tell the jury, expressly
or implicitly, that the testifying witness believed the victim’s
account of the defendant’s alleged conduct. Unlike the chal-
lenged testimony in McCarthy, the witness in each of those
cases left unconnected the final dot in the picture that the
state sought to draw; as a result, it remained up to the jury to
make that connection—if it so chose—by assessing the com-
plainant’s credibility for itself, rather than simply deferring
responsibility for affirmatively persuading us that we should abandon that prec-
edent.” (Internal quotation marks omitted.)). Here the state merely asserts that
our decision in McCarthy is clearly erroneous and supplies no basis for reversal
in this case. Given the absence of any principled argument by the state that we
should overrule McCarthy, we continue to rely on our decision in that case to the
extent it applies here.
70 State v. Brand
to the opinion of the state’s witness. By contrast, here, as in
McCarthy, the challenged statement exceeded the bounds of
permissible testimony and crossed over into impermissible
vouching because it did more than assist the jury’s credibil-
ity determination—it supplanted it. Specifically, Turnage’s
testimony conveyed his conclusion—that the alleged victim
delayed reporting defendant’s conduct because she feared
further assaults by him—which, in turn, signaled to the
jury Turnage’s belief that S’s account of events was truth-
ful. See Black, 364 Or at 589 (“Such statements signal the
expert’s belief that another witness is telling the truth, and
they invade the jury’s role as the sole arbiter of witness
credibility.”).
The state contends that there is no meaningful
distinction between, on the one hand, testimony from an
expert that an alleged victim’s behavior is consistent with
that of a victim of abuse and, on the other hand, testimony
directly connecting general principles with which the expert
is familiar to the specific facts of a case. The state reasons
that “all delayed reporting evidence puts before the jury
the factual assumption that the victim did not fabricate
her allegations and * * * the jury is unlikely to perceive a
significant difference between opinion testimony that ‘the
victim delayed reporting out of fear of further assaults’ and
opinion testimony that ‘the victim’s delay in reporting was
consistent with that of a domestic violence victim who delays
reporting out of fear of further assaults.’ ” Although we, like
the Supreme Court, recognize that the line between per-
missible context and impermissible vouching may be a fine
one, it nonetheless exists, as the above case law illustrates.
The state has provided us with no persuasive reason to
deviate from that precedent. Accordingly, we conclude that
Turnage’s statement that S’s delayed reporting of defen-
dant’s conduct out of fear constituted impermissible vouching
and that, therefore, the trial court erred in admitting that
testimony.
We turn to whether the trial court’s error in admit-
ting that evidence requires reversal. We may not reverse
the trial court’s judgment if the error had “little likelihood
of affecting the verdict.” State v. Henley, 363 Or 284, 307,
422 P3d 217 (2018). Defendant argues that the error in
Cite as 301 Or App 59 (2019) 71
admitting Turnage’s statement was not harmless, because
the victim’s credibility was a central aspect of defendant’s
case and the trial was extremely close, as evidenced by the
numerous acquittals and nonunanimous guilty verdicts. See
301 Or App at 60 n 1. The state responds that the error was
harmless because Turnage’s statement was qualitatively
similar to other admitted evidence that defendant does not
challenge. We agree with defendant that the error was not
harmless.
“In making a determination of harmlessness, the
court does not ask whether the evidence of guilt is substan-
tial or compelling, but rather whether the trial court’s error
was likely to have influenced the verdict.” Henley, 363 Or
at 307. We have observed that, where a trial is essentially
a credibility match between the defendant and an alleged
victim, “evidence commenting on the credibility of either [is]
likely to be harmful.” State v. Lowell, 249 Or App 364, 370,
277 P3d 588, rev den, 352 Or 378 (2012). There is little doubt
that S’s credibility played an important role in this case. S
testified that defendant committed multiple crimes against
her over a period of days, during which she had had various
opportunities to flee from defendant or otherwise seek help,
but chose not to do so. We further note that, where a jury
verdict is nonunanimous, evidentiary error is more likely to
have been harmful. See, e.g., State v. Logston, 270 Or App
296, 307, 347 P3d 352 (2015) (determining that an error is
not harmless where credibility was key, defendant made no
admission, and the jury was not unanimous). This was a
close trial, in that the jury acquitted defendant on multiple
charges and found him guilty by a nonunanimous verdict on
others.
The state does not dispute that those factors gen-
erally would weigh in favor of the conclusion that the trial
court’s error in allowing Turnage’s testimony was not harm-
less. The state contends, however, that here the error was
harmless because the court allowed a different witness—
Officer Hardy—to testify, over an objection by defendant,
that S’s failure to report was typical for a victim of domestic
violence, and defendant does not assign error to that ruling
on appeal. The state reasons that, because Hardy’s testimony
was not qualitatively different from Turnage’s erroneously
72 State v. Brand
admitted testimony, there is little likelihood that the error
harmed defendant.
Hardy testified during the state’s case-in-chief that
he had responded on the day of defendant’s arrest and had
participated in the ensuing investigation. Like Turnage,
Hardy discussed his training and experience as a police
officer dealing with domestic violence cases. The prosecutor
asked Hardy to compare S’s behavior in this case to the typ-
ical behavior of a victim of domestic violence.
“[PROSECUTOR]: * * * [I]n your interaction with [S],
was her behavior typical of a victim of domestic violence?
“* * * * *
“[HARDY]: It was.
“* * * * *
“[PROSECUTOR]: Okay. And in what way?
“[HARDY]: You’re dealing with things like security,
children, finances, places to stay, however many years of a
relationship, how many times have they said—the offender
has said that they’re going to get better, not do it again, and
for a victim to—of domestic violence, a lot of times, to come
out from that, they feel that they’re [sic] safety net is gone.
And they also feel like, in many cases, ‘I’m responsible for
the actions of the offender.’
“* * * * *
“[PROSECUTOR]: In your experience and training,
do victims of domestic violence delay reporting?
“[HARDY]: Yes.
“[PROSECUTOR]: And does that—would you say that
happens frequently or infrequently?
“[HARDY]: Frequently.
“* * * * *
“[PROSECUTOR]: Okay. And why does that happen?
“* * * * *
“[HARDY]: For the reasons why I had stated earlier.
As there’s a break in the relationship, and they realize, ‘I
can move forward and I don’t want to be abused anymore,’
Cite as 301 Or App 59 (2019) 73
more of the truth of what they have gone through, they
build the strength to report it.”
As the state points out, the “erroneous admission
of evidence that is ‘merely cumulative’ of other admitted
evidence and not ‘qualitatively different’ than other admit-
ted evidence is generally harmless.” State v. Blaylock, 267
Or App 455, 472, 341 P3d 758 (2014), rev den, 357 Or 299(2015) (quoting State v. Davis, 336 Or 19, 34, 77 P3d 1111
(2003)). Here, however, we disagree with the state’s con-
tention that Turnage’s testimony was not qualitatively
different from Hardy’s. Hardy discussed the concerns and
thought processes of domestic violence victims generally,
and stated that they frequently delay reporting incidents of
domestic violence. Hardy also confirmed that the behavior
of the alleged victim in this case was “typical” for a victim
of domestic violence. We see little if any distinction between
Hardy’s testimony, here, that S’s behavior was “typical” of
a domestic violence victim, and the testimony that we have
held to be permissible in other cases, that an alleged vic-
tim’s behavior was “consistent” with that of an actual vic-
tim. See, e.g., Middleton, 294 Or at 438 (testimony describ-
ing the reaction of a typical child victim of familial sexual
abuse and showing that the victim reacted in such a typical
manner was not impermissible vouching). As in those cases,
Hardy’s testimony merely provided the jury with informa-
tion that it might find helpful in making its own credibility
determination; unlike Turnage, he did not make that deter-
mination for the jury. As a result, Turnage’s testimony was
qualitatively different from Hardy’s and, we conclude, not
harmless.
Reversed and remanded.