State v. Chandler, 344 P.3d 543

Background

Defendant was convicted of two counts of first-degree sexual abuse based on allegations by two girls, ages 12 (D) and 7 (A), who reported being touched by defendant during an overnight stay.
Detective Gates conducted a ~2-hour videotaped interrogation of defendant; the tape was played to the jury and contains repeated denials by defendant and Gates’s statements that she believed the victims and that defendant was lying.
Defendant moved to redact portions of the videotape, arguing primarily that Gates’s comments improperly vouched for the victims’ credibility and invited the defendant to label others liars; he cited Lupoli and Milbradt.
The trial court denied the redaction request, reasoning that Gates’s comments during interrogation were a fair part of the interrogation context and not the type of in‑court vouching barred by law.
On appeal defendant argued both (a) that Gates’s comments constituted impermissible vouching and (b) alternatively that the statements should have been excluded under OEC 403 as unfairly prejudicial (relying on Southard).
The Court of Appeals held defendant failed to preserve the OEC 403/Southard argument and declined to address plain error; it also explained that Lupoli’s prohibition on in‑court vouching does not extend to out‑of‑court statements like those here (citing Odoms), and affirmed the conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Detective’s videotaped comments (vouching)	State: tape admissible; comments were interrogation context and not in‑court witness vouching	Gates’s statements vouched for victims and improperly commented on credibility (citing Lupoli, Milbradt)	Court: admission not error — Lupoli line bars in‑court vouching but does not bar out‑of‑court statements in interrogation (Odoms)
Exclusion under OEC 403 (unfair prejudice)	State: argument unpreserved; trial court never addressed OEC 403 so no basis on appeal	Tape’s probative value was substantially outweighed by unfair prejudice; Southard supports exclusion when expert or evidence may usurp jury credibility role	Court: OEC 403 argument unpreserved; appellant did not seek plain‑error review, so court declined to consider it
Trial court’s preservation obligation / record adequacy	State: trial court had no opportunity to do OEC 403 balancing because defendant didn’t present that argument below	Defendant: fairly cited OEC 403 in addendum and should have been considered on appeal	Court: defendant’s below argument focused on vouching rule, not OEC 403/Southard; therefore trial court never made balancing findings and issue is unpreserved
Jury unanimity instruction request	State: prior precedent rejects mandatory unanimous instruction for conviction (as framed)	Defendant requested unanimous-vote instruction for conviction	Court: rejected the instruction request consistent with precedent (citing Bowen)

Key Cases Cited

State v. Lupoli, 348 Or. 346 (2010) (prohibits one witness’s opinion testimony on another witness’s credibility at trial)
State v. Milbradt, 305 Or. 621 (1988) (condemns vouching testimony)
State v. Southard, 347 Or. 127 (2009) (OEC 403 exclusion of child‑abuse diagnosis evidence absent physical evidence to avoid jurors deferring to expert credibility implication)
State v. Odoms, 313 Or. 76 (1992) (distinguishes and permits out‑of‑court statements commenting on credibility; opinion rule does not sensibly apply to out‑of‑court statements)
State v. Middleton, 294 Or. 427 (1982) (context for vouching jurisprudence)
State v. Brown, 310 Or. 347 (1990) (plain‑error review standards)
State v. Higgins, 258 Or. App. 177 (2013) (addresses when appellate court may consider unpreserved issues)
State v. Tilden, 252 Or. App. 581 (2012) (court ordinarily will not reach plain‑error question unless appellant asks)
State v. Bowen, 215 Or. App. 199 (2007) (rejects defendant’s requested jury unanimity instruction)