State v. Wilson
266 Or. App. 481
Or. Ct. App.2014Background
- Defendant convicted of second-degree rape, two counts of first-degree sexual abuse, and multiple counts of unlawful marijuana delivery after L (his 13-year-old niece) testified she smoked marijuana with him and he then sexually assaulted her.
- L disclosed the abuse in October 2010; police interviewed her the same day and later that evening; several witnesses recounted L’s statements and described her emotional demeanor when she disclosed.
- Prosecutor asked witnesses (Bornman, Fuller, others) whether L appeared "faking" her emotions; Bornman and Fuller answered that L was not faking ("this was not fake"; "I did not think she was faking it").
- Defense did not object to those specific questions/answers at trial; defense later used cross-examination and closing argument to argue L’s emotional reaction was related to other concerns (family separation, not the abuse), indicating a tactical choice.
- On appeal defendant argued the trial court plainly erred by failing to strike the witnesses’ "not faking" testimony as impermissible vouching; the court affirmed, concluding any error was not plain.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Sercombe) | Held |
|---|---|---|---|
| Whether testimony that the complainant was "not faking" constituted impermissible vouching that the court should have struck sua sponte | Testimony described demeanor and was admissible; any failure to strike was not plain error and defense may have had tactical reasons not to object | Such testimony impermissibly vouched for complainant’s credibility and the court had a duty to strike it sua sponte | Court: Not plain error. Statements were largely permissible demeanor evidence and defense had plausible tactical reasons not to object; affirmed. |
Key Cases Cited
- State v. Middleton, 294 Or 427 (prohibits witnesses giving opinion on another witness’s truthfulness)
- State v. Kellar, 315 Or 273 (extends Middleton to out-of-court statements and limits expert credibility opinion)
- State v. Lupoli, 348 Or 346 (observations of physical characteristics and demeanor generally not impermissible vouching)
- State v. Milbradt, 305 Or 621 (trial judge should cut off explicit credibility testimony sua sponte)
- State v. Corkill, 262 Or App 543 (distinguishes true vouching from permissible demeanor evidence and discusses sua sponte duty to exclude explicit vouching)