- Court: Oregon Court of Appeals
- Area(s) of Law: Evidence
- Date Filed: 12-30-2015
- Case #: A153569
- Judge(s)/Court Below: Haddock, J. for the Court; Haselton, C.J.; Armstrong, J.; Ortega, J; Sercombe, J.; Duncan, J.; Nakamoto, J.; Egan, J.; DeVore, J.; Tookey, J.; Garrett, J.; & Flynn, J.
- Full Text Opinion
Defendant challenged his conviction for first-degree sodomy (ORS 163.405) and harassment (ORS 166.065), arguing the court erred by failing to strike on its own accord a police detective's comment on the credibility of the sodomy victim, to which Defendant did not object. Defendant was observed with his face near child J's privates, with her pants down and no underwear, asking her if he could "lick her privates." Defendant was also observed looking under the skirt of another child, E. At trial, police detective McCourt testified that he interviewed J again shortly before trial to ensure the story remained consistent and that J would testify, which Defendant argued was improper vouching testimony. Defendant did not object, and was subsequently convicted. On appeal, the Court first determined whether the court plainly erred, and then determined whether it should exercise its discretion to correct that error. The Court held that it need not decide whether the court plainly erred because it would not exercise its discretion to correct any possible unpreserved error because to do so would undercut the policies served by the preservation doctrine, as discussed in State v. Vanornum, 354 Or 614 (2013) and Peeples v. Lampert, 345 Or 209 (2008); generally speaking, statements that witness statements are consistent is not improper vouching testimony; McCourt's testimony was not plainly inadmissible; any error that occurred was not as grave as warranted reversal in other cases; a curative instruction would likely have sufficed had Defendant objected; and the ends of justice do not require reversal. Affirmed.