State v. Vage

Decision Date15 June 2016
Docket NumberA153712
Citation278 Or.App. 771,379 P.3d 645
Parties State of Oregon, Plaintiff–Respondent, v. Javier Vage, Jr.; aka Javier Maldonado, Jr.; aka Javier Vega, Jr., Defendant–Appellant.
CourtOregon Court of Appeals

Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA

, P.J.

In this criminal appeal, defendant challenges his convictions for coercion (Count 1) and fourth-degree assault constituting domestic violence (Counts 2 and 3). Defendant raises two assignments of error, neither of which was preserved below. In his first assignment, defendant contends that the trial court erred by failing to exclude, sua sponte , vouching testimony of a state's witness. In his second assignment, defendant argues that the court erred by ordering him to pay court-appointed attorney fees without first establishing his ability to pay them. We conclude that defendant's first assignment of error does not qualify for plain error review. As to defendant's second assignment of error, we agree that the trial court plainly erred by requiring defendant to pay court-appointed attorney fees, and we exercise our discretion to correct the error. Accordingly, we reverse the portion of the judgment requiring defendant to pay attorney fees, but otherwise affirm.

In August 2012, police received reports that defendant had, on multiple occasions, assaulted his girlfriend. The victim told Officer Gould that, during the first incident, defendant had punched her in the head with a closed fist, causing her to have headaches for two weeks. She also described a second incident where defendant punched her in the face, causing her nose to “gush blood,” and a third incident where defendant “came up behind her and grabbed her by the shoulders and began shaking her and holding her” for about two minutes. A grand jury indicted defendant for one count of coercion, three counts of fourth-degree assault constituting domestic violence, and one count of failure to report as a sex offender.

At defendant's trial, the jury heard testimony from various witnesses, including Gould and the victim (who by that time had recanted her earlier statements and testified in favor of defendant). During the victim's testimony, she denied that defendant had caused her injuries, instead attributing her injuries to falling down on her own, to the fire department's efforts to assist her, or to another perpetrator, Kirk Clark.” When asked why she had told police that defendant had caused her injuries,1 the victim gave varying answers, including that (1) she had “flashbacks” that caused her to believe that it had been defendant; (2) she was confused about what had happened; and (3) she is “90 percent blind.”2 The victim did not claim to have lied to the police; rather, her testimony suggested that, because of her physical and cognitive limitations, she had been confused or mistaken about how she had sustained her injuries.

To address the victim's trial testimony, which, as noted, was inconsistent with her earlier statements to police, the state recalled Gould to the stand. He was asked once more about the statements the victim made to him during his investigation:

[Prosecutor]: Did she ever mention anything about having caused the injury herself? Ever on that day mention having caused the injury herself?
[Gould]: No.
[Prosecutor]: Or. falling in her van and hitting her nose on the door?
[Officer Gould]: No. She was very clear that [defendant] had punched her. I didn't get the impression at all, based on a conversation, that she was not being truthful with me. She didn't—I mean, part of my job as an officer is to show up and gauge somebody's honesty. I don't recall when I was talking with her that day that she was being hesitant, that she was being deceptive, that she wasn't changing her story. She was giving the same concise answers when I asked her details. So, you know, based on how she was responding to my questions, I didn't get any indication that she was lying to me about what happened.

(Emphasis added.)

Defendant did not object to the testimony highlighted above, move to strike the testimony, or seek a curative instruction. Rather, on recross-examination, defendant's counsel directly inquired as follows:

[Defense Counsel]: And when you talked to [the victim], it's your testimony that she seemed to be honest, she didn't appear to be lying?
[Officer Gould]: Correct.”

The jury found defendant guilty of one count of coercion and two counts of fourth-degree assault. At sentencing, the trial court ordered defendant to pay a $200 fine and $820 in attorney fees, as requested by the state. Defendant did not object to the imposition of attorney fees, nor did he inform the court that he was unable to pay those fees. The court did not make any findings regarding defendant's financial circumstances, though the trial record suggests that defendant was homeless and that he slept in the victim's van, which he sometimes parked in the parking lot of a temporary employment agency in Salem.3

We first address defendant's claim that the trial court plainly erred by failing to strike sua sponte Gould's statements because they constituted impermissible vouching for the victim's credibility. Defendant acknowledges that he did not object to that testimony at trial, but urges us to exercise our discretion to correct what he asserts was a plain error, apparent on the face of the record. According to defendant, the error was apparent because Gould's statements directly commented on the victim's credibility, which Oregon courts have repeatedly held is improper. See, e.g. , State v. Keller , 315 Or. 273, 285, 844 P.2d 195 (1993)

(“Once again, we repeat that a witness may not testify about the credibility of another witness.”). He contends that the record contains no indication that defendant had a tactical reason for not objecting to the testimony. Furthermore, defendant argues that the error was prejudicial because “the verdicts hinged entirely on a credibility determination: whether [the victim] was telling the truth during the interview with Gould, or whether defendant and [the victim] were telling the truth at trial.”

The state, in turn, argues that Gould's comment does not qualify for plain error review for two reasons. First, the state asserts that “the trial court had no reason to anticipate the challenged testimony because the prosecutor's question did not invite Officer Gould to comment on the victim's credibility.” The state points out that the trial court never affirmatively admitted the testimony, nor was it presented with the task of ruling on its admissibility because there was no objection. The state claims that, under such circumstances, Oregon courts have “not provided guidance [on] how to determine when, during a witness's testimony, it becomes ‘necessary’ to strike a particular statement that it has been unable to exclude.” We understand the state's first argument to be that the error does not qualify for plain error review because it is unclear, as a matter of law, whether (or how) a trial court is required to strike sua sponte vouching testimony that was not elicited.

Second, the state argues that, because defendant's counsel asked Gould to repeat, in a more direct way, his earlier comments about the victim's credibility, defendant may not have intended to object to Gould's initial vouching testimony and may not have wished to have the court intervene at that time. That is, the state contends that the error does not qualify for plain error review because we would be required to choose between competing inferences to conclude that the trial court erred. Moreover, the state claims that, even if the error does qualify for plain error review, we should not exercise our discretion to correct it because the error is harmless and because correcting it would undermine our preservation principles.

We begin by addressing whether Gould's testimony constituted the type of impermissible vouching that would have been inadmissible had it drawn an objection. As we have made clear, under Oregon law, “testimony commenting on the credibility of a witness is impermissible vouching and plain error.” State v. Salas–Juarez , 264 Or.App. 57, 63, 329 P.3d 805

, rev. den. , 356 Or. 575, 342 P.3d 88 (2014). That rule applies when, as here, the witness “is testifying about the credibility of the other witness in relation to statements made by the latter on some other occasion.” State v. Wilson , 266 Or.App. 481, 489, 337 P.3d 990 (2014)

, rev. den. , 356 Or. 837, 346 P.3d 496 (2015) (internal quotation marks omitted). In this case, we conclude that the challenged testimony constituted impermissible vouching, given that Gould's comments explicitly indicated that he believed that the victim, who testified at trial, had been honest when she had accused defendant of assaulting her.

However, because defendant's challenge to that error is unpreserved, we must, as a preliminary matter, determine whether the error meets the criteria for plain error review. Pursuant to ORAP 5.45

, we may only “review an unpreserved claim of error if that error is ‘plain.’ State v. Corkill , 262 Or.App. 543, 551, 325 P.3d 796, rev. den. , 355 Or. 751, 331 P.3d 1010 (2014). An error is “plain” only if (1) “the error is one of law,” (2) the legal error is “obvious, not reasonably in dispute,” and (3) “the error appears on the face of the record,” such 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.” Id. (internal quotation marks omitted). To determine whether all three criteria have been met, “it is critical to...

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5 cases
  • State v. Cone
    • United States
    • Oregon Court of Appeals
    • December 20, 2017
    ...a plausible inference that the defendant may have made a strategic choice not to object to that testimony. See, e.g. , State v. Vage , 278 Or.App. 771, 777, 379 P.3d 645, rev. den. , 360 Or. 697, 388 P.3d 711 (2016) ("It is well established that an ‘error does not qualify as plain error if ......
  • State v. Macias
    • United States
    • Oregon Court of Appeals
    • November 30, 2016
    ...Webb answered defendant's question on cross-examination, and, sua sponte , strike the testimony in question. See State v. Vage , 278 Or.App. 771, 776, 379 P.3d 645 (2016) (on plain error review of an asserted comment on the credibility of a witness, "we must determine whether it was beyond ......
  • State v. Hanson
    • United States
    • Oregon Court of Appeals
    • August 10, 2016
    ...that the party may have had a strategic purpose for not objecting and that competing inference is plausible.” State v. Vage , 278 Or.App. 771, 777, 379 P.3d 645, 648–49 (2016) (internal quotation marks omitted); see State v. Gornick , 340 Or. 160, 169–70, 130 P.3d 780 (2006) (no plain error......
  • State v. Hung Cam Tat
    • United States
    • Oregon Court of Appeals
    • April 7, 2021
    ...nor is this a case in which we would exercise our discretion to correct it, even if it qualified as plain error. See State v. Vage , 278 Or. App 771, 777, 379 P.3d 645, rev. den. , 360 Or. 697, 388 P.3d 711 (2016) ("It is well established that an error does not qualify as plain error if the......
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