State v. Vage, 379 P.3d 645

Background

Defendant was indicted for coercion, multiple counts of fourth-degree assault constituting domestic violence, and failure to report as a sex offender after the victim initially told police he assaulted her.
At trial the victim recanted those accusations and testified she was confused or mistaken about how her injuries occurred; she did not assert she lied to police earlier.
The prosecution recalled Officer Gould, who had taken the victim’s initial statements; Gould testified (without objection) that he believed the victim had been honest when she told him defendant punched her—an explicit credibility comment (vouching).
Defense counsel neither objected nor asked for a curative instruction; defense later elicited confirmation from Gould that the victim seemed honest when he spoke with her.
Jury convicted defendant of one count of coercion and two counts of fourth-degree assault; at sentencing the court ordered $820 in court-appointed attorney fees without making findings about defendant’s ability to pay (record indicated possible homelessness).
Defendant appealed, arguing (1) the court erred by not striking sua sponte Gould’s vouching testimony, and (2) the court plainly erred in imposing attorney fees without establishing ability to pay.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court plainly erred by not striking sua sponte Officer Gould’s vouching testimony	State: No plain error; court had no duty to anticipate or strike unobjected-to testimony and defendant’s later confirmation suggests strategic choice	Defendant: Gould’s statements were impermissible vouching on credibility and, though unobjected, the error is plain and prejudicial	Court: Not plain error — plausible competing inference that defense strategically declined to object and even solicited the credibility confirmation
Whether imposing court-appointed attorney fees without findings of ability to pay was plain error	State: Record supported inference defendant could be employable (e.g., waiting at temp agency); no basis to correct	Defendant: Statutory requirement that court find defendant "is or may be able" to pay was unmet; imposition therefore plain error	Court: Plain error — record legally insufficient to show ability to pay; exercise discretion to correct; fees reversed

Key Cases Cited

State v. Keller, 315 Or. 273, 844 P.2d 195 (1993) (witness may not testify about another witness’s credibility)
State v. Salas-Juarez, 264 Or. App. 57, 329 P.3d 805 (2014) (vouching testimony is impermissible and may be plain error when not objected to)
State v. Wilson, 266 Or. App. 481, 337 P.3d 990 (2014) (commenting on another witness’s credibility is impermissible)
State v. Corkill, 262 Or. App. 543, 325 P.3d 796 (2014) (plain-error review for court’s failure to sua sponte intervene requires error be beyond dispute and relate to court’s duty to act)
State v. Gornick, 340 Or. 160, 130 P.3d 780 (2006) (plain error precluded where record permits plausible strategic inference for not objecting)
State v. Mejia-Espinoza, 267 Or. App. 682, 341 P.3d 180 (2014) (court may not impose court-appointed attorney fees absent legally sufficient record that defendant is or may be able to pay)
State v. Coverstone, 260 Or. App. 714, 320 P.3d 670 (2014) (state bears burden to prove ability to pay; appellate correction considered in light of gravity of error)
State v. Tiscornia, 272 Or. App. 753, 358 P.3d 326 (2015) (evidence of past work years earlier insufficient to show present ability to pay fees)
State v. Belen, 277 Or. App. 47, 369 P.3d 438 (2016) (insufficient evidence of assets or expected income renders fee imposition plain error)
State v. Fleet, 270 Or. App. 246, 347 P.3d 345 (2015) (appellate courts may correct erroneous fee imposition where amount and defendant’s sentence make burden significant)