State v. Higgins, 258 Or. App. 177

Defendant appeals convictions for unlawful sexual penetration, sodomy, and rape.
Issue is whether the trial court’s failure to sua sponte exclude the complainant’s mother’s credibility comment requires reversal.
Mother Eagles testified that she waited hours to ensure the complainant wasn’t lying about the events.
Complainant testified defendant forced himself on her during a Bend, Oregon motel stay with no physical evidence aside from credibility.
Court holds the error was plain and reverses and remands for a new trial.
Rule: ORAP 5.45 and plain error standards apply when preserved error is not required.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the credibility-comment by a third party requires reversal as plain error	State argues error is not plain due to potential strategic reasons	McQuisten/Other authorities show such comments impermissible and prejudicial	Yes; plain error requiring reversal and remand

State v. Middleton, 294 Or 427 (1983) (prohibits witness opinion on truthfulness; credibility lies with trier of fact)
State v. Milbradt, 305 Or 621 (1988) (trial court should curb credibility testimony suoi sponte)
State v. McQuisten, 97 Or App 517 (1989) (trial court must exclude credibility comments by witnesses)
B. A. v. Webb, 253 Or App 1 (2012) (trial courts must exclude credibility comments; appellate review limited)
State v. Lupoli, 348 Or 346 (2010) (indirect credibility comments may be impermissible)
State v. Lowell, 249 Or App 364 (2012) (plain error where credibility is central to case)
State v. Gornick, 340 Or 160 (2006) (plain error analysis requires plausible inference, not automatic)