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,
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.
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,
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
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,
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,
“When * * * the claimed ‘plain error’ is associated with a trial court not having sua sponte interrupted a line of questioning (or not having excluded the resulting evidence sua sponte), the existence of any error does not depend solely on whether—as an abstract matter—the lawyer’s questions or the elicited answers would have been inadmissible if they had been objected to. Rather, any ‘plain error’ must relate to the trial court having not taken affirmative steps to intervene in the parties’ litigation.”
Id.
In this case, as both parties acknowledge, the specific issue on appeal is whether it was plain error for the court not to strike Gould’s unelicited testimony sua sponte. That is, we must determine whether it was beyond dispute that the court had a duty to prevent that testimony from reaching the jury. See id. at 552. For the following reason, we conclude that such a duty was not beyond dispute.
In particular, we are persuaded by the state’s argument that the challenged testimony does not qualify for plain error review because, to decide the issue, we would
Here, it is plausible that defendant made a conscious decision not to object to Gould’s testimony. Contrary to defendant’s assertion on appeal, this case did not turn on “whether [the victim] was telling the truth during the interview with Gould, or whether defendant and [the victim] were telling the truth at trial.” Under defendant’s theory of defense,
That conclusion is further supported by the fact that, on further cross-examination, defendant asked Gould to confirm the challenged vouching testimony. Once again, defense counsel asked Gould, “And when you talked to [the victim], it’s your testimony that she seemed to be honest, she didn’t appear to be lying?” That question, combined with defendant’s initial failure to object and his theory of defense, suggests that defendant may have had a strategic reason for not objecting to Gould’s vouching comments. Therefore, because it is plausible that defendant purposefully chose not to object to the challenged testimony, we cannot conclude that it was plain error for the court not to strike Gould’s testimony sua sponte. See Salas-Juarez,
We next turn to defendant’s claim that the court erred by ordering him to pay attorney fees when the record is legally insufficient to demonstrate that defendant had the ability to pay. Although defendant acknowledges that he failed to object to the imposition of attorney fees, he asks that we correct what he asserts was a plain error, because it is well established that a court may only impose attorney fees if the record establishes that the defendant “is or may be able” to pay them. ORS 151.505(3); ORS 161.665(4).
The state responds that defendant has not established a basis for plain error review. It contends that, although the asserted error is legal in nature, it “neither appears on the face of the record nor is free from reasonable dispute.” The state claims that there is evidence in the record to establish that “defendant
A trial court plainly errs when it orders a defendant to pay court-appointed attorney fees and the record does not include legally “sufficient evidence to support a finding that defendant was or might be able to pay the court-appointed attorney fees.” State v. Mejia-Espinoza,
In this case, the record is legally insufficient to demonstrate that defendant was or may have been able to pay the fees imposed by the court. Contrary to the state’s assertions, the record does not support a reasonable inference that defendant was employable or that he had worked in the recent past. Although there was some testimony that he had sought work through the temporary employment agency, the court had no information about whether defendant was actually able to secure employment through that agency, how frequently he was able to work, or how much he earned. See Mejia-Espinoza,
Furthermore, we conclude it is appropriate to exercise our discretion to correct the error. Mejia-Espinoza,
Notes
The victim had also identified defendant as her abuser in front of the grand jury and in her victim impact statement, though, at trial, she claimed the statement had been written by someone else.
When asked by defense counsel to elaborate on her mental and physical limitations, as well as their effect on her recollection of what happened regarding her injuries, the victim stated:
“I cannot see. I honestly, because of all my abuse issues, I put two and two together and I feel so bad, so bad, because it wasn’t him. * ⅜ * All he did was take care of me.”
According to defendant, his parole officer instructed him to register his address at that location.
Because that issue is dispositive, we do not address the state’s alternative argument regarding the clarity of our case law as applied to nonelicited vouching testimony. See State v. Gornick,
Defendant’s theory of defense, as best we can tell, was that there was too much uncertainty about what happened to the victim to hold defendant accountable for her injuries. Consistent with that theory, defendant sought to establish that the victim had been confused or mistaken when she accused defendant of causing her injuries, relying on the victim’s trial testimony about her cognitive and physical limitations.