State v. Ramirez-Estrada
Case #: A147049
Sercombe, J. for the Court; Ortega, P.J.; and De Muniz, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A147049.pdf
Evidence: If it is plausible that the defense counsel did not object to inadmissible testimony as a strategic decision, the trial court's failure to take corrective action is not plain error.
Defendant appealed his convictions for second-degree unlawful sexual penetration and first-degree sexual abuse. Defendant admitted that his counsel did not object, seek curative instruction, or move to strike the testimony in question. Instead, Defendant argued that the trial court failed to strike that testimony sua sponte because it represented “an error of law apparent on the record.” The Court of Appeals held that the trial court’s failure to strike is not plain error. The testimony given by the expert regarding the minor child’s credibility would have been inadmissible because it was a “credibility-based opinion” on the child’s sexual abuse and there was no physical evidence of abuse to coincide with that evaluation. The expert testified that the child’s statements were “highly concerning for sexual abuse.” However, the trial court was not legally obligated to correct the inadmissible testimony because it is plausible that the defense counsel made a tactical choice not to object. The defense counsel focused on the lack of a formal interview conducted on the minor child and that the expert’s testimony was not to be taken as a diagnosis. The defense counsel’s theory relied on the expert’s opinion being deficient, in that, not conducting a formal interview of the child was “an important missed opportunity” and left the expert’s evaluation “worthless” without the details that would arise from a formal, videotaped interview. Therefore, the trial court’s inaction was not plain error because it is plausible, from the record, that the defense counsel made a tactical decision. Affirmed.