State v. Allen

• Docket Number: A177905
• Decision Date: 24 January 2024
• Citation: 330 Or.App. 335
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. BRITTANY MARIE ALLEN, Defendant-Appellant.
• Court: Oregon Court of Appeals

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330 Or.App. 335

STATE OF OREGON, Plaintiff-Respondent, v. BRITTANY MARIE ALLEN, Defendant-Appellant.

A177905

Court of Appeals of Oregon

January 24, 2024

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted December 22, 2023.

Tillamook County Circuit Court 20CR41647; Mari Garric Trevino, Judge.

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.

In this criminal case, defendant appeals her conviction 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 admitted 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 Sheriffs 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 * * * 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 bullshit. 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 admission 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 methamphetamine 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 possible that the methamphetamine had been placed in defendant'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 possession of methamphetamine, and defendant now appeals.

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) defendant 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 discretion 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 P.3d 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 "obvious, 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 P.3d 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 witness by expressing a personal opinion as to that witness's credibility. State v. Sperou, 365 Or. 121, 128, 442 P.3d 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 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 P.3d 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 constitute vouching and is not "categorically inadmissible." Id. at 334-35; see also State v. Peterson, 291 Or.App. 573, 578, 422 P.3d 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 detectives 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 prosecutor referenced them during rebuttal arguments. But there is no plain error when we are required to "choose...