State v. Doran ( 2023 )

220
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted January 17, affirmed April 5, petition for review denied
June 29, 2023 (371 Or 284)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALEX MILES DORAN,
Defendant-Appellant.
Polk County Circuit Court
20CR60162; A176883
Monte S. Campbell, Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Thompson Law, LLC.
Patricia G. Rincon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 220 (2023) 221
PAGÁN, J.
In this criminal appeal, defendant contests his con-
victions for unlawful use of a weapon, ORS 166.220; coercion,
ORS 163.275; and menacing, ORS 163.190. Each of those
offenses constituted domestic violence. Defendant raises
four assignments of error. In his first assignment, defendant
contends that the trial court plainly erred by failing to, sua
sponte, instruct the jury with a uniform vouching instruc-
tion. In his second assignment, defendant contends that the
trial court plainly erred by failing to, sua sponte, declare a
mistrial or give a curative instruction for the state’s closing
arguments. Defendant also raises two assignments of error
related to sentencing; however, those assignments are moot
because the trial court amended the judgment to correct
the errors while this appeal has been pending. As we con-
clude the trial court did not plainly err in either of the other
assignments, we affirm.
We provide a brief recitation of the relevant factual
and procedural background. Defendant was romantically
involved with R. After an argument, defendant took a gun
case out of R’s bedroom nightstand and threatened to com-
mit suicide. Defendant took a pistol out of the gun case and,
while holding the gun at his side, told R that she was not
allowed to leave and that she could not call 9-1-1.
At trial, a police officer testified on redirect exam-
ination that
“[R] appeared to have a—in my opinion—pretty good
recollection of events and was working hard to recall things
accurately. Because we would go through the interview and
then she would stop and she’d go back and say, wait a min-
ute, this is—this also happened and stuff.
“And so that’s why I did bullet points, because if—if I
did the—if for—for information chronologically, because
if I wrote the interview like it played out it would have
kind of been kind of jump around and it would have been,
like, very difficult. It would be at times the subject matter
would—would change briefly because she would remember
something and so we’d go back to that.
“And so we went through the interview and then I clari-
fied everything with her and got it chronological and that’s
222 State v. Doran
what we have here. But she—she appeared to be working
very hard to recall things chronologically and accurately.”
On appeal, defendant assigns error to the trial
court’s failure to sua sponte instruct the jury according to
Uniform Criminal Jury Instruction 1006A—an instruction
aimed at alleged vouching testimony.1 Defendant acknowl-
edges that that assignment is unpreserved but argues that
the error is plain and that we should exercise our discretion
to correct it.
For an unpreserved assignment of error to be plain,
“the error must be one of law; * * * it must be apparent, i.e.,
the point must be obvious, not reasonably in dispute; and
* * * it must appear on the face of the record, i.e., the review-
ing court must not need to go outside the record to identify
the error or choose between competing inferences, and the
facts constituting the error must be irrefutable.”
Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d
956 (1991) (internal quotation marks omitted). The claimed
error is one of law. State v. Brown, 310 Or 347, 355, 800 P2d
259 (1990) (jury instructions reviewed for errors of law).
However, even in the context of review for legal error, it
was neither obvious that the officer’s testimony constituted
impermissible vouching, nor obvious that the trial court was
obligated to give the uniform vouching instruction without a
request from either party.
“Vouching refers to the expression of one’s personal
opinion about the credibility of a witness.” State v. Sperou,
365 Or 121, 128, 442 P3d 581 (2019). Witnesses may not
give vouching testimony, because such testimony invades
the province of the jury as “sole arbiter of witness credibil-
ity.” Id. The rule against vouching prohibits a witness from
1
Uniform Criminal Jury Instruction 1006A states:
“It is for you and you alone to decide whether to believe a witness’s tes-
timony. Witnesses are not permitted to give opinions on whether another
witness is, or was, being truthful in any given statement. Despite the court’s
efforts to prevent such testimony, a witness’s testimony occasionally can be
interpreted as an opinion on another witness’s truthfulness in regards to a
particular statement. If that occurs, you should not give any weight to the
witness’s opinion about the credibility of that statement. You are the sole
arbiters of the facts in this case and thus must disregard any other witness’s
opinion about the credibility of any account of the underlying events.”
Nonprecedential Memo Op: 325 Or App 220 (2023) 223
making a direct comment, or one that is tantamount to a
direct comment, on another witness’s credibility. State v.
Murphy, 319 Or App 330, 335, 510 P3d 269 (2022).
One hurdle defendant faces in this appeal is estab-
lishing whether it could be plain error for a trial court to
fail to sua sponte include a jury instruction that addresses
vouching. When we are called on to address 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.” Id. When
a witness unambiguously vouches for another witness, we
have held that a trial court must strike that testimony. State
v. Corkill, 262 Or App 543, 552-53, 325 P3d 796, rev den,
355 Or 751 (2014). It is thus plain error for a trial court not
to take that specific remedial action when unambiguous
vouching testimony occurs. Id.On the other hand, if a witness’s testimony may or
may not have been vouching, failing to strike the testimony
does not constitute plain error. Murphy, 319 Or App at 335-
36. The lack of objection in such instances prevents clarifi-
cation of the testimony, and therefore, generally presents a
reasonable dispute as to whether the witness impermissibly
vouched. State v. Harrison, 267 Or App 571, 576-77, 340 P3d
777 (2014), rev den, 357 Or 164 (2015).
Whether a statement constitutes vouching depends
on the context in which it arose and the context of how it
was offered at trial. See Sperou, 365 Or at 128 (“[C]ertain
statements might be vouching in some contexts but not oth-
ers.”). In this case, the police officer’s testimony was made
during redirect examination after defendant had questioned
the officer about the tendency for some victims of crimes to
exhibit a “hyperfocus” that can impact a witness’s ability to
perceive or recall factual events. The state started redirect
examination by asking “Did [R] appear to be hyperfocused
as [defendant] was just talking about?” The particular testi-
mony that defendant highlighted as vouching followed.
We understand defendant’s cross-examination to be
focused on whether R could accurately perceive and remem-
ber the facts due to variables like stress and where her
224 State v. Doran
attention was focused. See OEC 602 (witness may not tes-
tify to a matter without personal knowledge of that mat-
ter); see also State v. Lawson/James, 352 Or 724, 744-46, 291
P3d 673 (2012) (explaining variables that impact a witness’s
ability to perceive and recall facts such as identity). In the
context of this trial, the jury may well have understood the
challenged testimony as relating to the officer’s impression
of R’s ability to perceive and recall the events giving rise to
this case in response to defendant’s cross examination about
a witness’s ability to recall under emotional stress, not as
a comment about whether the officer believed R was being
truthful.2 See State v. Cuevas, 263 Or App 94, 105, 326 P3d
1242 (2014), aff’d, 358 Or 117, 361 P3d 581 (2015) (analyzing
context of challenged statement in light of what jury would
have understood from the statement).
Thus, in the context of the trial and how the par-
ticular testimony arose, it did not constitute unambiguous
vouching that the trial court was required to address sua
sponte. It follows that, because the testimony was ambigu-
ous, the legal point is not obvious and is reasonably in dis-
pute, and therefore, any error in failing to sua sponte correct
it is not plain. Harrison, 267 Or App at 577 (reasonable dis-
pute as to impermissible vouching prevented conclusion of
plain error).
Likewise, because the challenged testimony was
not obvious vouching, it is not patent that the trial court was
required to give the uniform vouching instruction without a
request from either party. To begin, we have never held that
a trial court plainly errs for failing to sua sponte include
Uniform Criminal Jury Instruction 1006A in the final jury
instructions. This is also not a case where the trial court
failed to instruct on an element of a crime or a defense prop-
erly raised. See, e.g., State v. Gore, 280 Or App 624, 627, 380
P3d 1120 (2016) (failure to give defense of property instruc-
tion was plain error); State v. Gray, 261 Or App 121, 130, 322
P3d 1094 (2014) (failure to instruct jury on culpable mental
2
We also note that the police officer testified that R appeared to recall events
“chronologically and accurately.” While time order and accuracy are generally
considered components of truthfulness, if read precisely, the officer did not
opine on R’s truthfulness. Accuracy and truthfulness, though related, are not
equivalent.
Nonprecedential Memo Op: 325 Or App 220 (2023) 225
state was plain error). In this case, although the evidence
could support the uniform vouching instruction if defendant
had requested it, because the testimony was susceptible to
being understood either as vouching or as explaining R’s
ability to perceive and recall facts in light of the stressful
situation, it is not obvious that the trial court was required
to give the instruction sua sponte. See, e.g., State v. Leers,
316 Or App 762, 770, 502 P3d 1130, rev den, 369 Or 733(2022) (defendant entitled to instruction if correct statement
of law and supported by evidence to support giving it); but
see State v. Pauley, 211 Or App 674, 683, 156 P3d 128 (2007),
rev den, 345 Or 318 (2008) (failure to give jury concurrence
instruction not plain error because legal point raised was
not obvious).
In defendant’s second assignment of error, he argues
that the trial court plainly erred by not declaring, sua sponte,
a mistrial or providing a curative instruction following cer-
tain comments from the state during closing arguments.
Defendant acknowledges this assignment is not preserved,
but requests plain-error review.
On plain-error review, the question for us reduces
to whether the state’s remarks were “so prejudicial that the
only legally acceptable alternative was to grant a mistrial
sua sponte, and that the trial court therefore committed
plain error in not granting a mistrial sua sponte.”3 State v.
Cam, 255 Or App 1, 13, 296 P3d 578, adh’d to as modified
on recons, 256 Or App 146, 300 P3d 208, rev den, 354 Or
148 (2013). “[R]eversal may be warranted if it is beyond dis-
pute that the prosecutor’s comments were so prejudicial as
to have denied defendant a fair trial.” State v. Chitwood, 370
Or 305, 312, 518 P3d 903 (2022).
During closing arguments, the state made two con-
tentions that defendant argues are so prejudicial that he
was deprived of a “constitutionally fair trial as the due pro-
cess clause of the United States Constitution requires.” The
3
That question is a distillation of our review for abuse of discretion in refus-
ing a mistrial or issuing curative instruction, see State v. Davis, 345 Or 551, 582-
53, 201 P3d 185 (2008), and plain-error review, where the claimed error must be
“obvious and not reasonably in dispute.” See State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013).
226 State v. Doran
first comment, during closing argument was “we need to
hold him responsible and we need to find him guilty[.]” The
second comment was during rebuttal, in which the state
commented, “we need to hold [defendant] responsible” and
“[w]e need to find him guilty on all three counts.” Defendant
highlights the state’s use of the word “we” during those
arguments and likens use of that word to “impermissible
link-in-the-chain-of-law-enforcement arguments.”
We are not persuaded. Although that kind of argu-
ment is certainly undesirable—precisely because it can con-
fuse the role of the jury with the role of the prosecution—
we cannot say that in consideration of the entirety of the
state’s summation and rebuttal arguments, the use of the
word “we” had the effect of denying defendant a fair trial.
This is not the sort of case where the state’s arguments mis-
stated the applicable law, shifted the burden of persuasion
from the state to the defendant, or invited adverse infer-
ences from a defendant’s invocation of constitutional rights.
See Chitwood, 370 Or at 316 (distortion of term “moral cer-
tainty” was a misstatement of applicable law); State v. Mayo,
303 Or App 525, 537, 465 P3d 267 (2020) (state’s argument
shifted burden to the defendant to create reasonable doubt);
State v. Soprych, 318 Or App 306, 309-10, 507 P3d 276 (2022)
(comment on a defendant’s constitutional rights may preju-
dice right to a fair trial). Even in those extreme examples
of prosecutorial misconduct, the touchstone for reversal is
whether the defendant was deprived of the right to a fair
trial, which has been characterized as “an exceedingly high
bar.” Chitwood, 370 Or at 328.
In any event, it is not beyond dispute that the state-
ments, when considered in the context of the trial and the
parties’ arguments, were so prejudicial as to have denied
defendant a fair trial, nor that the only legally permissible
action for the trial court to take was to either declare a mis-
trial or admonish the jury. As such, any error that the trial
court might have made with regard to the state’s summa-
tion and rebuttal arguments was not plain.
Affirmed.