State v. Carmello ( 2024 )

No. 709 October 9, 2024 373
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARLOS CARMELLO,
aka Carlos Alejandro Carmello,
Defendant-Appellant.
Multnomah County Circuit Court
19CR26932; A179482 (Control), A179501
Steffan Alexander, Judge.
Argued and submitted September 12, 2024.
Brian Conry argued the cause and filed the briefs for
appellant.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
TOOKEY, P. J.
Affirmed.
374 State v. Carmello
TOOKEY, P. J.
In this criminal case, defendant appeals from con-
victions, after a bench trial, of three counts of sexual abuse
in the first degree, seven counts of rape in the first degree,
one count of unlawful penetration in the second degree,
and one count of sodomy in the first degree.1 In a single
assignment of error, defendant contends that the trial court
plainly erred in failing to sua sponte prevent the prosecutor
and witnesses from vouching for defendant’s stepdaughter,
C, by using the words “disclose” or “disclosure” in referring
to C’s allegations and reports of sexual abuse. We conclude
that there was no plain error by the trial court in failing to
sua sponte exclude the challenged statements.
At defendant’s trial, the prosecutor and witnesses
used the words “disclosed” or “disclosure” multiple times to
refer to C’s reports of sexual abuse. For example, the prose-
cutor used the term “disclosure” in the opening statement,
in questioning C, detectives, C’s therapist, a CARES inter-
viewer, and C’s mother, and in closing argument. The wit-
nesses also used the terms “disclose” and “disclosures” in
their testimony discussing C’s reports of the sexual abuse.
Defendant’s counsel did not object to any of those references
and in fact used the terms as well in the opening statement
and in cross-examination of the state’s witnesses. The trial
court also used the terms “disclosure” and “disclose” in an
evidentiary ruling and in its speaking verdict. On appeal,
defendant now asserts that those words implied an opin-
ion as to the truthfulness of C’s reports and therefore con-
stituted improper vouching; thus, defendant contends, the
trial court committed plain error in failing to prevent the
witnesses and attorneys from using the terms.
The state responds that both parties and the court
used the terms “disclose” and “disclosure” in a neutral sense,
as a synonym for “report,” “allegation,” or “complaint,” and
not to suggest that C was telling the truth, and that there
was no vouching and no error, let alone plain error.
An error is plain if it is one of law that appears on
the face of the record and is obvious or not reasonably in dis-
pute. Ailes v. Portland Meadows, Inc., 312 Or 376, 381, 823
1
The court acquitted defendant on 13 counts.
Cite as 335 Or App 373 (2024) 375
P2d 956 (1991). Here, as explained below, we conclude that
there was no plain error.
Vouching is the expression of opinion about the cred-
ibility of a witness. State v. Sperou, 365 Or 121, 128, 442 P3d
581 (2019). Vouching by a witness or a party’s attorney during
a trial is prohibited, because determining the credibility of
a witness is the province of the factfinder. Id. (the “vouch-
ing rule” is a judicially created rule of evidence designed to
“serve[ ] the policy goals of ensuring that the jury remains
the sole arbiter of witness credibility and that the jury’s role
in assessing witness credibility is not usurped by another
witness’s opinion testimony.”). Thus, vouching evidence is
not admissible at trial. State v. Black, 364 Or 579, 591, 437
P3d 1121 (2019) (vouching evidence is categorically excluded).
Whether a statement constitutes impermissible vouching is a
legal question for the court. Black, 364 Or at 591.
Vouching does not always consist of a direct state-
ment regarding a witness’s credibility; it can consist of sub-
tler statements that convey the speaker’s view of the person’s
credibility. See, e.g., Sperou, 365 Or at 128 (rule of exclusion
applies both to direct comments as to a witness’s credibility
and to other statements, whether made in or out of court,
that are “tantamount” to comments on the veracity of a wit-
ness); State v. Milbradt, 305 Or 621, 630, 756 P2d 620 (1988)
(witness’s opinion “that a person is not deceptive, could not
lie without being tripped up, and would not betray a friend”
is “tantamount” to a direct comment on another witness’s
credibility). Thus, the context in which the statement was
made is important in determining whether it constitutes a
comment on credibility.
In another sexual abuse case, State v. Solano, 332
Or App 646, 649, 551 P3d 938, rev allowed, 372 Or 763 (2024),
we recently addressed whether witnesses’ use of the term
“disclosure” constituted vouching. The issue in that case
was preserved. We said in Solano that the term “disclosure”
does not necessarily express that the disclosed information
is true or false.2 Rather, we concluded, the term suggests
2
We noted the definition of the term in Webster’s Third New Int’l Dictionary
645 (unabridged ed 2002) (defining “disclose” as “to expose to view” or “to make
known” or “open up to general knowledge”).
376 State v. Carmello
that the information was not previously shared. Id. (“The
term itself does not express that the disclosed information is
necessarily true or false. Rather, it suggests that the infor-
mation was not previously shared.”). Thus, we reasoned, a
witness who uses the term “disclosure” does not necessarily
vouch for the credibility of a person who makes a “disclo-
sure” that they have been abused; rather, it depends on the
context in which the term is used. Id. at 648. Although we
said in Solano that we did not “foreclose the possibility that
the term “disclosure” may, in some instances, constitute
improper vouching,” Id. at 655 n 6, we held that, based on
the record in that case, the witnesses’ use of term “disclo-
sure” did not constitute vouching. Id. at 655.
Here, we are in a plain error posture, so the inquiry
is a bit different: The question is whether it obvious and not
reasonably in dispute that the terms “disclose” and “disclo-
sure,” as used at trial by the witnesses, the lawyers, and
the court, constituted impermissible vouching. We have
reviewed the record; the terms “disclose” and “disclosure”
were indeed used frequently by the various persons involved
in the trial, include the court. We conclude, however, based
on our review, that it is not obvious that, in the contexts in
which the terms were used, the terms “disclose” or “disclo-
sure” conveyed an opinion on the credibility of C’s testimony.
Rather, the record supports a conclusion that the terms were
used by those individuals as synonyms for “report,” “com-
plaint,” or “allegation,” without any implication as to their
truth. We therefore conclude that there was no plain error.
Affirmed.