State v. Johnson

728                   December 28, 2023                 No. 681

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                    PETER JOHNSON,
                    Defendant-Appellant.
                Jackson County Circuit Court
                    19CR14005; A176792

   David J. Orr, Judge.
   Submitted November 13, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid A. MacFarlane, Chief Deputy Defender,
Office of Public Defense Services, filed the brief for appellant.
  Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
   AOYAGI, P. J.
   Affirmed.
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 (2023)                               729

        AOYAGI, P. J.
         Defendant was convicted of two counts of first-
degree sodomy, ORS 163.405, and two counts of first-degree
sexual abuse, ORS 163.427. On appeal, he contends that
the trial court erred in failing to declare a mistrial after a
witness vouched for the complainant. Specifically, he argues
that the court erred in denying his motion for a mistrial or,
in the alternative, if that motion was made too late, that the
court plainly erred by not declaring a mistrial sua sponte.
We agree with the state that the court took appropriate cor-
rective action to address the situation, including striking
the testimony, giving a detailed curative instruction, and
giving a final instruction that reiterated the jury’s singular
responsibility for making credibility determinations. The
trial court did not abuse its discretion by denying a mistrial
and instead taking the actions that it did. Accordingly, we
affirm.
                            FACTS
         In 2018, defendant and his three-year-old daugh-
ter, M, were living with a family friend, Stafford. Defendant
went to California in December to visit his ailing sister
and ended up staying there into 2019. While defendant was
gone, M described sexual abuse by defendant to Stafford.
Stafford contacted the authorities. Detective Reynolds sub-
sequently interviewed M, who again described sexual abuse
by defendant. Defendant was arrested in March 2019 upon
his return to Oregon. Defendant made some incriminating
statements in a police interview. He was later indicted, and
the charges against him were tried to a jury.
        During trial, the prosecution played a video of
Reynolds’s interview of M. After playing the video, the pros-
ecutor asked Reynolds the following question, and Reynolds
gave the following answer:
       “[PROSECUTOR]: Based on your training and experi-
   ence interviewing children, what stood out to you in regard
   to [M’s] disclosure to you?
      “[REYNOLDS]: Some of the things that stood out to
   me was her reluctance to talk about it, the sensory stuff
   that she described, the—the things she talked about that
730                                            State v. Johnson

   made me realize based on my training and experience
   that she was talking about something she actually experi-
   enced. For instance, if you heard her say that it happened
   almost—I think she said it happened every night.
      “In my training and experience, when you talk to some-
   body that’s been abused over and over and it’s the same
   thing every time it tends to all blur together, they can’t
   even single out a certain event unless something unusual
   happened during that event.
      “And in this case with [M], she talked about somebody
   interrupting them and Dad having to pull his pants up and
   that just really stood out as something it was obvious to me
   she had truly experienced.”
(Emphases added.)
         Defense counsel did not object to the foregoing testi-
mony, and Reynolds continued testifying for a few more min-
utes (five transcript pages), until the trial concluded for the
day. After the jurors exited the courtroom, the court advised
the prosecutor and defense counsel that it wanted to meet
with them in chambers the next morning before the trial
resumed. The court explained that “there may be a reason
to strike some testimony,” specifically Reynolds’s answer to
the above-quoted question, and that the court would play
the recording in chambers when they met.
         The next morning, the court met with the prosecu-
tor and defense counsel as planned. Afterwards, the court
put on the record that the meeting had occurred, including
that its purpose was to discuss how to address the fact that
Reynolds had given some testimony the prior day that vio-
lated the vouching rule. The court noted that it was “still not
clear on whether the defense chose not to object to that as
a strategic approach to in the hope of * * * arguing that the
witness was biased.” The court then asked defense counsel
how he wanted to proceed now that he had spoken to his
client. Defense counsel at that time moved for a mistrial.
Describing the case as a pure credibility contest, defense
counsel argued that a limiting instruction was not enough
and that a mistrial was necessary, because it was “just such
a substantial issue that I don’t believe that he can have a fair
and impartial jury just based on this credibility evidence.”
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        The trial court initially stated that it did not believe
that a mistrial was “on the table at this point because there
was no objection at any point.” Defense counsel responded
that, under the case law, “the judge themselves is supposed
to take care of it” even if the defense misses it. The court
stated that it understood, then asked the state’s position.
The prosecutor agreed that Reynolds had “crossed the line
into vouching” and requested that her answer be stricken
and that a limiting instruction be given.
         The court denied defendant’s motion for a mistrial,
reasoning that the testimony should not have come in but
that it could be adequately addressed by striking it and giv-
ing curative instructions. The court concluded by stating, “It
didn’t appear to me that the way that that testimony came
out had such a—had the kind of impact that does require
a mistrial. I think it’s a matter that can be cured through
limiting instructions.”
         The court then called in the jury and stated as fol-
lows to the jury:
      “All right. It looks like all the jurors—all the jurors
   are back and seated and ready to go and so we’ll resume,
   basically, where we left off yesterday, except that there is
   another instruction.
      “Usually, most of the instructions are given at the
   beginning and at the end, but because of the way things
   developed, there is an instruction that I’m going to read
   now. And then I am also going to talk about some testimony
   that you heard that I’m going to order stricken.
       “If you recall, the initial instructions that I gave yester-
   day I talked about sometimes I may order that evidence be
   stricken from the record and you shouldn’t give that any
   weight, and so we’ll be doing that here in just a moment. So
   here is the actual, the legal instruction that applies:
      “It is for you, and you alone, to decide whether to believe
   a witness’s testimony.
      “Witnesses are not permitted to give opinions on
   whether another witness is, or was, being truthful in any
   given statement. And I’m gonna add there a statement in
   the witness stand or a statement outside of court.
732                                                State v. Johnson

      “Despite the court’s efforts to prevent such testimony, a
  witness’s testimony occasionally can be interpreted as an
  opinion on another witness’s truthfulness in regard to a par-
  ticular statement. Again, whether that statement is in court
  or out of court. If that occurs, you should not give any weight to
  the witness’s opinion about the credibility of that statement.
     “You are the sole arbiters of the facts in this case and
  thus must disregard any other witness’s opinion about the
  credibility of any account of the underlying events.
     “So yesterday after we finished watching the video
  there was a question posed to the witness which was some-
  thing along the lines of did—did something stand out to
  you about that video.
      “So I don’t want to call particular attention to the par-
  ticular things that were said, because the idea is that it be
  stricken, but basically from that point on everything that
  was said about—about the—or anything that might have
  been said about the—the statements made by the child
  in the video is stricken. That means you must give it no
  weight whatsoever. Zero. Nada.
     “Anything that was said about the credibility of—of a
  statement by—by the—by the child is stricken. And again,
  zero, zero weight is to be given to it. None whatsoever.”
          The trial continued. Late in the day, the parties
gave their closing arguments, and the court gave the jury
its final instructions. The final instructions included:
     “It is for you, and you alone, to decide whether to believe
  a witness’s testimony.
     “Witnesses are not permitted to give opinions on
  whether another witness is, or was, being truthful in any
  given statement.”
     “Despite the court’s efforts to prevent such testimony, a
  witness’s testimony occasionally can be interpreted as an
  opinion on another witness’s truthfulness in regards to a
  particular statement. If that occurs, you should not give
  any weight to the witness’s opinion about the credibility of
  that statement.
     “You are the sole arbiters of the facts in this case and
  thus must disregard any other witness’s opinion about the
  credibility of any account of the underlying events.”
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         After deliberation, the jury found defendant guilty
on all four counts. Defendant appeals the resulting judg-
ment of conviction.
                         ANALYSIS
        Defendant argues that the trial court erred in deny-
ing his motion for a mistrial or, in the alternative, if that
motion was made too late, that the court plainly erred by
not declaring a mistrial sua sponte as soon as Reynolds gave
vouching testimony. We review the denial of a motion for
mistrial for abuse of discretion. State v. Wasyluk, 

, 

 (2015).
         “Vouching” refers to the expression of one’s per-
sonal opinion about the credibility of a witness. See State v.
Chandler, 

, 

 (2016) (discuss-
ing history of the “judicially created” prohibition on vouch-
ing). Because credibility determinations are the exclusive
province of the jury, witnesses are categorically prohibited
from expressing a view on whether another witness is “tell-
ing the truth.” State v. Middleton, 

, 

 (1983); accord State v. Black, 

, 

 (2019). “The rule applies to both direct comments
and other statements, whether made in or out of court, that
are ‘tantamount’ to comments on the veracity of other wit-
nesses.” State v. Sperou, 

, 

 (2019)
(quoting Chandler, 

).
         When a witness improperly vouches, the trial court
has discretion how to address the situation, which means
that the court may address it in any manner that comes
within “the range of legally permissible choices.” State v.
Garrison, 

, 

 (2014), rev den,

 (2015). Striking the offending testimony and
giving curative instructions are permissible choices, unless
they are “insufficient to cure the problem as a matter of
law.” State v. Williams, 

, 

,
rev den, 

 (2016) (citing State v. Wright, 

, 

 (1996)). With respect to curative instruc-
tions, we presume that juries follow instructions, unless
there is “an overwhelming probability” that they are unable
to do so. State v. Smith, 

, 

 (1990).
734                                         State v. Johnson

         Here, it is undisputed that Reynolds’s answer
regarding what stood out from M’s interview included
improper vouching for M. The only question is whether the
trial court adequately addressed the situation by striking
that testimony and giving curative instructions or, con-
versely, whether it was required to declare a mistrial.
        For present purposes, we assume arguendo that
defendant moved for a mistrial quickly enough to ade-
quately preserve the claim of error for appeal. See State v.
Cox, 

, 

 (2015) (explaining
that a motion for a mistrial may be considered timely, even
if not made instantaneously, as long as the circumstances
allow the trial court to take prompt curative action).
          We agree with the state that the trial court ade-
quately addressed the situation. That is, its actions were
not “insufficient to cure the problem as a matter of law.”
Williams, 

. Williams is instructive. There,
in a child sexual abuse prosecution, the jury heard a 45-min-
ute audio recording of a police interview, during which the
officer told the defendant that he could “read” body language,
said that he could tell from the defendant’s body language
that he was “holding something back” and not being entirely
truthful, and pointed to specific physical movements by the
defendant that he said indicated to him that the defendant
was lying. 

. The defendant made a vouching
objection early in the playing of the recording, which was
overruled, and, at the end of the playing of the recording,
he moved for a mistrial, arguing that the jury hearing the
vouching was so prejudicial that it could not be cured. 

. The trial court denied the motion for a mistrial, but
it instructed the jury both orally and in its written instruc-
tions to disregard the officer’s comments on the defendant’s
credibility. 

. On appeal, we held that the court did
not abuse its discretion. 

.
        The vouching testimony in this case was arguably
more powerful than that in Williams—while testifying at
trial, Reynolds expressed her view that the very young
complainant was credible, and she explicitly referenced her
training and experience in doing so—although Reynolds’s
statements were also briefer and more spontaneous and
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 (2023)                            735

thus harder to avoid the jury hearing than the recorded
statements in Williams. Certainly, the trial court needed to
take action, even absent an objection. See Davis v. Cain, 

, 

 (2020) (“[V]ouching by wit-
nesses is so inherently problematic that the Supreme Court
has advised trial judges to summarily cut off a vouching
question to a witness, sua sponte, ‘before a jury is contam-
inated by it.’ State v. Milbradt, 

, 

 (1988). Relatedly, at least with respect to ‘true’ vouch-
ing, a trial court may commit plain error if it fails to sua
sponte address vouching by a witness.”); State v. McQuisten,

, 

 (1989) (reversing for a new
trial where the court allowed into evidence a recording of a
police interview in which a police officer made statements to
the defendant indicating that he believed the complainant).
        The trial court did take action, however, that was
prompt, thoughtful, and thorough. Specifically, the court:
    •   Recognized the potential vouching problem and
        raised it to the parties, even though defendant had
        not objected.
    •   Considered the case-specific circumstances in
        deciding whether striking the testimony and giving
        curative instructions would be adequate to ensure
        a fair trial.
    •   Struck the vouching testimony from evidence.
    •   Gave a clear and specific curative instruction to the
        jury close in time to the vouching.
    •   Gave final instructions to the jury that reiterated
        the jury’s singular responsibility for making credi-
        bility determinations.
We are not persuaded that this is a circumstance in which
there is an overwhelming probability that the jury could
not follow its instructions. The court therefore did not abuse
its discretion in denying a mistrial and instead taking the
actions that it did to address Reynolds’s improper vouching
statements.
        Affirmed.