State v. Brand

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Austin Callahan BRAND, aka Austin Brand, Defendant-Appellant.
• Citation: 455 P.3d 960,301 Or. App. 59
• Docket Number: A162224
• Court: Oregon Court of Appeals
• Decision Date: 04 December 2019

301 Or.App. 59

455 P.3d 960

STATE of Oregon, Plaintiff-Respondent,

v.Austin Callahan BRAND, aka Austin Brand, Defendant-Appellant.

A162224

Court of Appeals of Oregon.

Argued and submitted April 24, 2018.

December 4, 2019

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.

Defendant appeals a judgment of conviction for first-degree kidnapping, coercion, fourth-degree assault, menacing, and recklessly endangering another person.¹In his first assignment of error, defendant argues that the trial court erroneously admitted impermissible vouching testimony 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 defendant's only objection at trial was to the detective's testimony regarding delayed reporting in general—which we previously 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 preserved 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 vouching.Because that error was not harmless, we reverse and remand.²

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 defendant'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 defendant'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 recovery, 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 investigation of defendant's alleged conduct and interviewed S multiple times, also testified at trial.Turnage described his extensive training and experience investigating domestic violence cases and testified that such cases often involve what is known as delayed reporting.³Shortly thereafter, the prosecutor asked, "we had a situation here with a delayed report; is that right?"Defense counsel interjected, stating "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 person.That's essentially what they're doing.We have these act in front of us.I have this training and experience, and I'm telling the jury, through my continuation in this testimony, 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 successful, I want to make sure that I am—that objection is ongoing for—

"THE COURT: That's—make your record however you want to, but I understand your position.

"[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 experience 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 opportunity to report?

"[TURNAGE]: Sure.[S], in this case *** had some opportunity to get away, escape, leave, go, run, call, talk to the police, do what have you * * *.There were those opportunities 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 continued assaults against herself . * * *"

(Emphasis added.)

We first consider the threshold issue of whether defendant preserved his first assignment of error.As a general rule, we will not consider claims of error that were not raised in the trial court.State v. Wyatt , 331 Or. 335, 341, 15 P.3d 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, 15 P.3d 22.

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 evidence 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 P.3d 238(2013).And, as the state also notes, evidence regarding the phenomenon of delayed reporting is, as a general matter, admissible 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 P.3d 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...