State v. Montgomery

                                       655

Argued and submitted March 8, reversed and remanded August 30, 2023, peti-
           tion for review denied January 12, 2024 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
              BRADLEY AUSTIN MONTGOMERY,
                     Defendant-Appellant.
                Deschutes County Circuit Court
                     18CR77859; A176205
                                   

    Defendant appeals from a judgment of conviction after a jury trial for one
count of first-degree sodomy, assigning as error the trial court’s exclusion of evi-
dence regarding the alleged victim’s past sexual behavior, and as plain error the
trial court’s failure to strike improper vouching by the prosecutor during closing
argument or to declare a mistrial. Held: The prosecutor’s repeated statements
that defendant had lied or was a liar improperly vouched for the alleged victim
and constituted plain error because the statements were so prejudicial that they
deprived defendant of a fair trial. The court therefore reversed and remanded
defendant’s conviction. Because it will likely arise on remand, the court also
addressed and rejected defendant’s contention that the trial court erred in
excluding evidence of the victim’s past sexual behavior.
    Reversed and remanded.



    Walter Randolph Miller, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, and Patrick M. Ebbett, Assistant
Attorney General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
    TOOKEY, P. J.
    Reversed and remanded.
656                                                State v. Montgomery

         TOOKEY, P. J.
         Defendant appeals from a judgment of conviction
after a jury trial for one count of first-degree sodomy.1 He
assigns as error the trial court’s exclusion of evidence regard-
ing the alleged victim’s past sexual behavior, and as plain
error the trial court’s failure to strike improper vouching by
the prosecutor during closing argument or to declare a mis-
trial. We conclude that the prosecutor’s improper conduct
resulted in reversible error, and we therefore reverse and
remand defendant’s conviction. Because it will likely arise
on remand, we also address defendant’s contention that the
trial court erred in excluding evidence of the victim’s past
sexual behavior and conclude that the court did not err.
         The sodomy charge stems from defendant’s alleged
nonconsensual sexual contact with KC, his cousin’s wife.
Viewing the evidence in the light most favorable to the state,
defendant was spending the night at KC’s and his cousin’s
apartment. After a night of socializing, KC’s husband fell
asleep on the couch. KC directed defendant to a guest bed-
room and went to her own bedroom. Two hours later, defen-
dant came into KC’s bedroom while she was asleep, pushed
aside her underwear, and engaged in oral sex. KC awoke
and thought that defendant was her husband, until she felt
his hair and his wedding ring. When she realized that defen-
dant was not her husband, she yelled at him to stop, went
out of the bedroom, woke her spouse, and told him that she
woke to find defendant “going down on her.” The spouse con-
fronted defendant, who had returned to the guest bedroom,
asking if he had had sex with KC. Defendant said that he
did not remember. The spouse then forced defendant from
the house and called 9-1-1. Police arrived and questioned
defendant about whether he had assaulted KC. Defendant
initially replied that he did not remember; but after learn-
ing that KC’s child had been in the bed with KC, he did
admit to having had oral sex with KC but having believed
that it was consensual. The police investigation resulted in
the charged offense.
       Defendant’s defense theory was that the sexual con-
duct was consensual. He testified that he initially lied to
   1
       Defendant was also charged with and acquitted of three other offenses.
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police to protect himself and KC, having been aware that
KC would not have wanted her spouse to know. Pre-trial,
defendant sought to introduce his testimony that, about five
years before, KC had had consensual extramarital sex that
had resulted in a divorce from her current spouse. The two
had since reconciled. Defendant asserted that the evidence
was relevant and admissible under OEC 412(2)(b)(A)2 (pro-
viding that evidence of a victim’s past sexual behavior is not
admissible unless it relates to motive or bias or is otherwise
constitutionally required to be admitted) to show that KC
had a motive to accuse him. The trial court excluded the tes-
timony as irrelevant and, after a jury trial, defendant was
convicted.
         Because they are dispositive, we address first defen-
dant’s third and fourth assignments of error, in which he
asks us to review as plain error the trial court’s failure
either to sua sponte strike improper closing argument by the
prosecutor or to sua sponte grant a mistrial. As the Supreme
Court recently explained in State v. Chitwood, 

,

 (2022), a prosecutor’s asserted improper state-
ments during closing argument can be reviewed as plain
error. The court’s review begins with the question whether
the prosecutor’s statements were obviously improper or
impermissible, i.e., whether it was obvious or not reasonably

   2
     OEC 412 provides, in part:
         “(1) Notwithstanding any other provision of law, in a prosecution for a
   crime [including those at issue in this case] * * *, the following evidence is not
   admissible:
         “(a) Reputation or opinion evidence of the past sexual behavior of an
   alleged victim or a corroborating witness; or
         “* * * * *
         “(2) Notwithstanding any other provision of law, in a prosecution for a
   crime or an attempt to commit a crime listed in subsection (1) of this section
   * * *, evidence of an alleged victim’s past sexual behavior other than reputa-
   tion or opinion evidence is also not admissible, unless the evidence other than
   reputation or opinion evidence:
         “(a) Is admitted in accordance with subsection (4) of this section; and
         “(b) Is evidence that:
         “(A) Relates to the motive or bias of the alleged victim;
         “(B) Is necessary to rebut or explain scientific or medical evidence offered
   by the state; or
         “(C) Is otherwise constitutionally required to be admitted.”
658                                           State v. Montgomery

in dispute that the statements allowed the jury to consider
facts that had not been received into evidence, or otherwise
encouraged the jury to decide the case on an improper basis.
See 

.
         Here, we have no difficulty concluding that the pros-
ecutor’s statements during closing argument and rebuttal
encouraged the jury to decide the case on an improper basis.
The asserted misconduct consisted in part of repeated state-
ments during closing argument and rebuttal that defendant
had lied in his testimony. For example, in closing, the prose-
cutor argued:
       “So contrast the statement that he gave to law enforce-
   ment that night with trial here just yesterday. So she says—
   or he says that [the victim] touched his back and gave him
   a look. First of all, that’s a lie. She testifies to nothing like
   that.”
(Emphasis added.) Defendant had admitted in his testi-
mony at trial that he had lied to police when they came to
investigate the report of abuse, telling them that he did not
remember assaulting KC or did not know how he got into
KC’s bedroom. Defendant testified that he had lied because
he thought the sex was consensual, he did not know that KC
was going to accuse him of assault, and he wanted to protect
KC and “save my butt.” The prosecutor also told the jury in
closing, “And if he’s willing to lie to save his butt that night,
he is willing to lie in front of you to save his butt from the
fate of your verdict.” Additionally, the prosecutor told the
jury in closing, “He was a liar in November and he was liar
yesterday.” (Emphasis added.)
         Further, the prosecutor told the jury in closing that
no one would ever know the truth about what had occurred
during the period of time between when defendant and KC
went to their separate bedrooms and when KC called 9-1-1:
   “ ‘Beyond a reasonable doubt,’ what does that mean? How
   do you—how do you evaluate it? It doesn’t mean that you
   won’t leave here with questions. What did he do for two
   hours? I don’t know. I have no idea. We’re never going to
   know the answer to that. Lord knows he’s not going to tell
   us the truth. I have no idea. You’re not going to know. And
   you’re going to have to be able to decide this case fairly and
   justly without having an answer to that question.”
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The prosecutor also told the jury in closing that a defen-
dant’s own testimony can be used against a defendant and
that, just because a defendant testifies does not create rea-
sonable doubt:
      “The defendant’s testimony can be used against him.
   Sometimes people say, ‘Well, I mean, I heard another story.
   I heard his story. It’s totally unbelievable, but I heard it.
   And so, I mean, the fact that his explanation is out there, I
   mean, I guess that could be true.’ It’s not.
      “You get—as this jury, you get to emphatically tell him,
   ‘That is a lie.’ And you get to sign the verdict form and feel
   confident that his statement to you was untrue and that
   [the victim’s] statement to you is true. Because a defendant
   testifies does not create reasonable doubt.”
         Finally, in rebuttal, the prosecutor argued:
      “When he got up here and he testified and he put his
   hand up and he told you that he was going to tell the truth,
   he lied.”
(Emphasis added.)
        In defendant’s view, the prosecutor’s closing and
rebuttal arguments crossed the line from legitimate com-
ment on the evidence to improper vouching for KC and an
improper statement of the burden of proof.
         We do not agree with defendant that the prosecutor
misstated the law or the burden of proof in stating that the
fact that a defendant testifies does not give rise to reason-
able doubt. It is the state’s burden to establish a defendant’s
guilt beyond a reasonable doubt. State v. Rosasco, 

, 

 (1922) (“The law presumes every defen-
dant upon trial charged with crime to be innocent, and it
devolves upon the prosecution to prove by evidence to the
satisfaction of the trial jury beyond a reasonable doubt, that
the defendant committed the crime charged in the indict-
ment.”). But the prosecutor was correct that the mere fact
that a defendant testifies does not give rise to reasonable
doubt; it is for the jury to determine whether the evidence
meets the state’s burden. State v. Brown, 

,

 (1988) (“[I]t is the jury’s task * * * to weigh evi-
dence, judge the credibility of witnesses and the reliability
660                                      State v. Montgomery

of their testimony, and to resolve conflicts in the evidence.”).
And we conclude further that the prosecutor’s statement did
not imply that defendant had the burden to prove reason-
able doubt.
         But we agree with defendant that the prosecutor’s
statements that defendant had lied were improper vouching.
In presenting closing arguments to the jury, counsel has a
large degree of freedom to comment on the evidence submit-
ted and urge the jury to draw any and all legitimate infer-
ences from that evidence. State v. Stull, 

, 

 (2019). For example, counsel may argue
that the jury should infer that a witness is credible based
on the evidence in the record. But counsel may not express a
personal opinion of the witness’s credibility. State v. Sperou,

, 

 (2019); Heroff v. Coursey, 

, 

 (2016), rev den, 

(2017) (“[I]t is permissible for a prosecutor to argue that the
jury should infer that a witness is credible based on the evi-
dence in the record, so long as the prosecutor does not vouch
for the witness by interjecting his or her personal opinion
of the witness’s credibility.”). The state’s case depended on
which version of events the jury found to be true—KC’s or
defendant’s. The prosecutor could have pointed to evidence
in the record to cast doubt on defendant’s testimony or to
lend credibility to KC’s testimony. But it was the jury’s role
to determine whose version of events was more credible. The
prosecutor’s repeated statements that defendant had lied
or that he was a liar constituted improper vouching from
which the jurors could infer that the prosecutor believed KC
and not defendant, and the jury might have been tempted to
evaluate the witnesses’ credibility on that basis rather than
on the evidence. See Berg v. Nooth, 

, 299-
300, 

 (2013) (so reasoning); Davis v. Cain, 

, 

 (quoting statement
from United States v. Edwards, 

 (9th Cir
1995), that the rule against vouching was “designed to pre-
vent prosecutors from taking advantage of the natural ten-
dency of jury members to believe in the honesty of lawyers in
general, and government attorneys in particular”); see also
Davis, 

 (a prosecutor’s arguments cross
into impermissible vouching territory when they are “in the
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nature of ‘take my word for it,’ not ‘let me show you.’ ”). We
conclude that the prosecutor’s statements were improper.
          The remaining question is whether the prosecutor’s
improper statements are subject to “plain error” review under
the Supreme Court’s analysis in Chitwood. In that case, the
court noted that, for plain error review, there must be “legal
error.” 

. The court stated that, to establish legal
error, “a defendant who seeks review of an unpreserved chal-
lenge to prosecutorial statements must demonstrate that
the statements were so prejudicial that they deprived the
defendant of a fair trial.” 

. The court stated that,
in the unique context of plain error review, a prosecutor’s
statements constitute “legal error” if they were so prejudicial
that an instruction to disregard them would not have been
sufficient to assure the court, in its consideration of all the
circumstances, that the defendant received a fair trial. 

. In other words, a prosecutor’s misconduct constitutes
“legal error” in the context of plain error review if it would
have been an abuse of discretion for the trial court to deny
a motion for a mistrial had a motion for mistrial been made.
See State v. Pierpoint, 

, 

 (2023)
(applying Chitwood to hold that two highly improper prose-
cutorial statements, considered together, were so prejudicial
that they could not have been cured by an instruction).
          We conclude that the prosecutor’s statements here
rose to the level of “legal error” in this unique plain error
context. That is because the state’s entire case depended on
its ability to persuade the jury that KC was credible and that
defendant was not telling the truth when he testified that
the sexual contact was consensual. If defendant’s counsel
had objected to the first of the improper comments—“that’s
a lie”—the court could have instructed the prosecutor to
refrain from suggesting a personal view of defendant’s cred-
ibility and thereby prevented further misconduct. The court
could also have instructed the jury to disregard the pros-
ecutor’s comment reflecting a personal view of defendant’s
credibility and to decide the case based only on its own eval-
uation of the evidence. The jury would have been required to
follow the court’s instruction and disregard the prosecutor’s
comments. Such an instruction would have prevented the
jury from relying on the prosecutor’s comments as vouching
662                                                  State v. Montgomery

for KC and would have been sufficiently curative of the pros-
ecutor’s misconduct to prevent an unfair trial. See Chitwood,

 (“[A] defendant asserting plain error must
demonstrate that the prosecutor’s comments were so preju-
dicial that an instruction to disregard them would not have
been sufficiently curative to assure the court, in its consider-
ation of all the circumstances, that the defendant received a
fair trial.”). But under Chitwood, we are required to consider
the totality of the record in determining whether defendant
was denied a fair trial. 

 (“Ultimately, an appellate court
is required to decide ‘whether, under the circumstances as
a whole, defendant was denied the right to a fair trial, as a
matter of law, by the events that transpired at trial.’ Davis,
345 Or at 583[.]”). We conclude that the prosecutor’s repeated
inappropriate statements of the prosecutor’s personal view
that defendant was a liar were so prejudicial that, if defen-
dant had objected and moved for a mistrial, the trial court
would have abused its discretion in denying the motion.
Accordingly, under the analysis set forth in Chitwood, we
conclude that there was “legal error” and, therefore, plain
error. We further exercise our discretion to correct the error
and therefore reverse defendant’s conviction.
          Because the issue is likely to arise on remand, we
also address defendant’s first and second assignments of
error, in which he contends that the trial court erred in dis-
allowing his testimony about KC’s purported prior extra-
marital affair that had resulted in a dissolution of marriage
from her current spouse. In rejecting the testimony, the trial
court said that “the fact of an affair approximately five years
prior to this incident in question, with the victim not being
in any kind of romantic relationship with defendant, does
not tend to prove or disprove that she has a motive.” The
court commented that “any partner is likely to be unhappy
if they find out that their partner has had an affair.” The
court explained that KC’s alleged motive to accuse defen-
dant was not made more or less likely by evidence that KC
had had extramarital sex five years earlier.3 As he argued

   3
     The court explained:
   “[T]he fact of an affair approximately five years prior to this incident in ques-
   tion, with victim not being in any kind of romantic relationship with defen-
   dant, does not tend to prove or disprove that she has a motive to fabricate.”
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below, defendant argues on appeal that evidence of KC’s
divorce as a result of past infidelity supports the inference
that KC had a motive to accuse defendant of sexual assault.
         We review the trial court’s ruling as to the relevance
of the disputed evidence for errors of law, State v. Davis, 

, 

 (2003), and we agree with the trial
court that the proffered evidence of KC’s past extramari-
tal sex was not relevant. “ ‘Relevant evidence’ is evidence
having a tendency to make the existence of any fact that
is of consequence to the determination of the action more
probable or less probable than it would be without the evi-
dence.” OEC 401. The “fact of consequence” for which defen-
dant asserts the disputed evidence was relevant was KC’s
purported motive to lie about the consensual nature of the
sexual contact with defendant so as to avoid upsetting her
spouse.
         As the trial court surmised, the risk of upsetting a
spouse would likely be present as a result of extramarital
sexual conduct, and evidence of KC’s past sexual conduct
was unlikely to make the motive to lie to avoid upsetting her
spouse more or less probable. See State v. Niles, 

, 

 (1991), rev den, 

 (1992)
(rejecting similar contention under similar circumstances,
because “[e]vidence about the prior incidents did not make
it more probable that [the victim] was motivated to fabri-
cate”). The trial court here explained that evidence of KC’s
prior infidelity “doesn’t prove anything other than * * *
some * * * vague argument that [KC] may be promiscuous
or had engaged in * * * what some people might think as
* * * immoral or improper behavior.” We agree with the trial
court that the evidence was not relevant to demonstrate
KC’s purported motive.
         Further, the evidence that defendant offered is the
type of evidence that we have held OEC 412 was intended
to prohibit. See State v. Beeler, 

, 

, rev den, 

 (2000) (“[E]vidence of a vic-
tim’s collateral sexual activity is not admissible to show con-
sent to the sexual activity that is the subject of an alleged
crime.”); State v. Beden, 

, 

(1999) (explaining that OEC 412 is intended to protect
664                                     State v. Montgomery

against “unfair prejudice” by protecting victims of sexual
crimes from the “ ‘degrading and embarrassing disclosure
of intimate details about their private lives’ that might pro-
vide an improper basis for a juror to weigh the credibility
of a victim-witness or for making a decision in the case.”
(quoting Legislative Commentary to OEC 412)). We conclude
that the trial court was correct in excluding the evidence as
irrelevant. Thus, although we reverse defendant’s conviction
because of prosecutorial misconduct, we reject defendant’s
contentions regarding evidentiary error.
        Reversed and remanded.