State v. Allen ( 2024 )

No. 41 January 24, 2024 335
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRITTANY MARIE ALLEN,
Defendant-Appellant.
Tillamook County Circuit Court
20CR41647; A177905
Mari Garric Trevino, Judge.
Submitted December 22, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, 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, Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
336 State v. Allen
EGAN, J.
In this criminal case, defendant appeals her con-
viction for possession of methamphetamine. ORS 475.894.
Defendant presents four assignments of error, arguing that
the trial court plainly erred in failing to, sua sponte, strike
or instruct the jury to disregard vouching evidence admit-
ted during the investigating officer’s testimony and strike
prosecutorial vouching during closing arguments.1 For the
reasons that follow, we affirm.
FACTS
In July 2020, Tillamook Police Detective Barnett
and Tillamook Sheriff’s Detective Ross surveilled a home
as part of a narcotics investigation. The detectives observed
defendant drive away from the home, and they followed
her. After defendant failed to signal a turn, the detectives
stopped her. During that stop, the detectives asked to search
defendant’s belongings, and she consented. The detectives
found a plastic bag containing methamphetamine inside
a small black bag that was inside defendant’s purse. They
also found a pipe used for ingesting methamphetamine
and a straw that can be used as packaging for controlled
substances.
Defendant said that the drugs were not hers, that
she did not know how they got into her purse, and that
she had been “clean.” Detectives Mirandized defendant
and began discussing the methamphetamine with her.
Defendant immediately denied that she owned the drugs or
knew about them. Ross told defendant that “right now you
are filling me full of shit. And I’m not believing really the
1
In her opening brief, defendant challenges two special probation condi-
tions: one condition restricts alcohol possession and use and the other condition
restricts entry to bars, taverns, and similar establishments. Although defendant
requested bench probation at sentencing, defendant did not object to those spe-
cial conditions during the sentencing proceeding. In addition, none of her assign-
ments of error relate to the special probation conditions, her brief makes no argu-
ments explaining the basis for that challenge, and she makes no arguments for
plain error review of those conditions. Because the claim was not properly pre-
sented to this court, we decline to review the special conditions. See ORAP 5.45
(“No matter claimed as error will be considered on appeal unless the claimed
error was preserved in the lower court and is assigned as error in the opening
brief in accordance with this rule, provided that the appellate court may consider
an error of law apparent on the face of the record.”).
Nonprecedential Memo Op: 330 Or App 335 (2024) 337
* * * whole line of crap that you are telling me.” When Ross
asked defendant where she got “the dope at,” defendant said,
“I don’t,” to which Ross interjected, “You can try to play the
game that you didn’t know it was in there. But that’s bull-
shit. I know that’s complete bullshit.” Shortly afterwards,
defendant said that she “got it from him.”
During defendant’s trial, the state played for the
jury Ross’s body camera video of defendant’s interaction
with the detectives. Defendant did not object to the admis-
sion of that evidence.
During closing argument, defense counsel told the
jury:
“[R]e-watch the video very carefully. At [no] point in the
video does she actually admit to knowing about the meth-
amphetamine in her bag. She says it’s not hers immediately.
And she is very persistent, no matter how much Detective
Ross doesn’t believe her and continues to call her a liar.”
Defendant argued that the evidence showed that it was pos-
sible that the methamphetamine had been placed in defen-
dant’s bag by someone else. Defendant also argued that, in
failing to investigate whether someone else at the house had
placed the methamphetamine in her purse, the detectives
had failed to conduct a thorough investigation:
“[The detectives] have made up their mind. They ask to
search [defendant’s] bag as soon as possible. And no matter
how many explanations [defendant] gives, [the detectives]
refuse to give her even the slightest bit of benefit of the
doubt. They don’t listen to her at all.
“They were so determined by what they thought was the
truth, they just went on it. They didn’t have the benefit of
hindsight then and there. But you all do.”
In response, the prosecutor argued in rebuttal that “the
police didn’t listen to [defendant] when she said she didn’t
know anything about it. A real common-sense reason. She
was lying and they knew it.”
The jury found defendant guilty of unlawful posses-
sion of methamphetamine, and defendant now appeals.
338 State v. Allen
DISCUSSION
In her first three assignments of error, defendant
contends that the trial court plainly erred by admitting into
evidence three instances of “vouching” from Ross’s body
camera video, particularly Ross’s statements that (1) defen-
dant was “filling [him] full of shit,” (2) he did not “believe
[defendant’s] whole line of crap,” and (3) defendant’s denial
that she knew about the methamphetamine in her purse
was “complete bullshit.” In her fourth assignment of error,
defendant argues that the trial court committed plain error
when it “allow[ed]” the prosecutor to argue that “the police
didn’t listen to [defendant] when she said she didn’t know
anything about it. A real common-sense reason. She was
lying and they knew it.” Defendant acknowledges that she
did not preserve her objections, but she contends that it
was plain error to admit the challenged statements and not
strike the argument, and she urges us to exercise our dis-
cretion to correct the error.
“Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 331 Or 335,
341, 15 P3d 22 (2000) (citation omitted). We may exercise
our discretion to review an unpreserved claim of error as
plain error if the asserted error (1) is one of law, (2) is “obvi-
ous, not reasonably in dispute,” and (3) “appears on the face
of the record,” so that we need not “go outside the record to
identify the error or choose between competing inferences,
and the facts constituting the error are irrefutable.” State v.
Reyes-Camarena, 330 Or 431, 435, 7 P3d 522 (2000) (citation
and internal quotation marks omitted).
Defendant’s First Three Assignments of Error. A
witness may not “vouch” for the credibility of another wit-
ness by expressing a personal opinion as to that witness’s
credibility. State v. Sperou, 365 Or 121, 128, 442 P3d 581
(2019) (citation omitted). Whether a statement constitutes
vouching depends on the context in which it arose and the
context in which it was offered at trial. Id. (citation omitted).
Ultimately, “[w]hether a witness’s statement constitutes
impermissible vouching is a legal question.” Id. (citation
omitted). The rule against vouching applies to out-of-court
statements that are admitted at trial, but an out-of-court
Nonprecedential Memo Op: 330 Or App 335 (2024) 339
statement is “subject to the categorical prohibition against
vouching evidence only if the statement is offered for the
truth of the credibility opinion that it expresses.” State v.
Chandler, 360 Or 323, 334, 380 P3d 932 (2016) (emphasis
added). If the statement is offered for another purpose, such
“as context for the responses that those statements elicited
from [the] defendant,” then the statement does not consti-
tute vouching and is not “categorically inadmissible.” Id. at
334-35; see also State v. Peterson, 291 Or App 573, 578, 422
P3d 421, rev den, 363 Or 815 (2018) (holding that the trial
court did not plainly err by failing to, sua sponte, strike an
out-of-court statement, because the statement “provided
relevant context for the victim’s emotional reaction to the
question of why it took her so long to report the abuse, and
was part of a larger statement that may have been intended
to console the victim so [the investigator] could elicit more
information”).
In this case, there was no indication that the state
offered the detective’s statements and the video for their
truth. It is not “obvious,” from the context in which they
were made, that Ross’s statements were “true vouching.”
They could have been admitted to help show why the detec-
tives took or did not take certain actions, as context for
Ross’s conversation with defendant, to explain defendant’s
demeanor during the interaction, or as “part of a larger
statement that may have been intended to * * * elicit more
information.” Peterson, 291 Or App at 578.
Defendant argues that the record shows that the
statements were offered for their truth, because the prose-
cutor referenced them during rebuttal arguments. But there
is no plain error when we are required to “choose between
competing inferences about whether defendant made a
conscious decision not to object.” State v. Vage, 278 Or App
771, 777, 379 P3d 645, rev den, 360 Or 697 (2016). Here, a
competing inference exists that defendant did not object to
Ross’s statements because she believed they would help her
defense. Indeed, in closing, defendant argued that the state-
ments proved that the detectives had conducted an inade-
quate investigation. In light of those competing inferences,
plain error review is not appropriate.
340 State v. Allen
Defendant’s Fourth Assignment of Error. A prosecu-
tor’s improper statements during closing arguments can be
reviewed as plain error. State v. Chitwood, 370 Or 305, 314-15,
518 P3d 903 (2022). “[A] prosecutor’s misconduct constitutes
‘legal error’ in the context of plain error review if it would have
been an abuse of discretion for the trial court to deny a motion
for a mistrial had a motion for mistrial been made.” State v.
Montgomery, 327 Or App 655, 661, 536 P3d 627 (2023) (citing
State v. Pierpoint, 325 Or App 298, 528 P3d 1199 (2023)).
At trial, lawyers are “prohibited from giving their
personal opinions on the credibility of witnesses.” Sperou,
365 Or at 129 (citation omitted). “[A]lthough a prosecu-
tor’s comments regarding witness credibility may present
problems similar to those underlying the evidentiary rule
against ‘vouching’ testimony, it is also true that prosecu-
tors, as advocates for the state’s cause, have wide latitude to
make arguments from the evidence[.]” Id. at 130 (emphasis
in original).
Defendant argues that the prosecutor shared a
personal opinion on defendant’s credibility when he argued
during rebuttal that defendant “was lying and [the detec-
tives] knew it.” Viewed in context, that statement was a
reference to the evidence at trial, rather than the prosecu-
tor’s own opinion as to defendant’s credibility. See Heroff v.
Coursey, 280 Or App 177, 194, 380 P3d 1032 (2016) (“[I]t is
permissible for a prosecutor to argue that the jury should
infer that a witness is credible based on the evidence in
the record, so long as the prosecutor does not vouch for the
witness by interjecting his or her personal opinion of the
witness’s credibility.”). The prosecutor’s statement was in
response to defendant’s assertions that the detectives had
“made up their mind” and did not “give [defendant] even the
slightest bit of benefit of the doubt.” Thus, the prosecutor’s
and defense counsel’s arguments were made with reference
to the body camera video. We conclude that the prosecutor’s
arguments, when read in context, were a reference to evi-
dence at trial and not an expression of the prosecutor’s own
opinion as to defendant’s credibility. Thus, the error is not
“obvious,” and plain error review is not appropriate.
Affirmed.