State v. Maxon

                                             670
205 v. Maxon
State                                                                     30322,
                                                                        April Or2020
                                                                                 App




                           Submitted April 2, affirmed April 22, 2020


                                STATE OF OREGON,
                                 Plaintiff-Respondent,
                                           v.
                            STEVEN ELLIOTT MAXON,
                                Defendant-Appellant.
                           Clackamas County Circuit Court
                                18CR02036; A169207
                                         

               Ulanda L. Watkins, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
               PER CURIAM
               Affirmed.
Cite as 

 (2020)                             671

        PER CURIAM
         Defendant was convicted after a bench trial on
three counts of menacing. ORS 163.190. He argues on
appeal that the trial court erred in denying his motion for
judgment of acquittal on one of the counts and in refusing
to allow defense counsel to question a defense witness about
whether his testimony was accurate and truthful. We reject
without discussion defendant’s contention that the court
erred in denying his motion for judgment of acquittal. With
respect to the evidentiary issue, defendant asserts, and the
state acknowledges, that the court erred in excluding the
witness’s testimony. The state argues, however, that the
error was harmless under the circumstances of this case.
As explained below, we agree.
         As a general matter, a court must not allow a witness
to give “vouching” testimony, that is, “one’s personal opinion
about the credibility of a witness.” State v. Sperou, 

, 

 (2019). The reason for the vouching
rule is to ensure that the jury’s role in assessing witness
credibility “is not usurped by another witness’s opinion testimony.” State v. Chandler, 

, 

(2016). The vouching rule is not implicated, however, when
a witness asserts his or her own truthfulness: “[A] witness
does not impermissibly ‘vouch for’ or ‘bolster’ his or her own
testimony by proclaiming truthfulness.” State v. Sanchez-Jacobo, 

, 

 (2012), rev den,

 (2013) (emphasis in original).
         Here, defendant presented testimony from his roommate that generally supported defendant’s version of the
events that led to the menacing charges. On redirect,
defense counsel asked the witness whether his testimony
had been “accurate and truthful,” and the trial court sua
sponte struck the question as “vouching.”
         That was error. We conclude, however, that the
error was harmless. This case is not meaningfully distinguishable from State v. Partain, 

, 

, rev den, 

 (2019). There, we concluded that a
trial court’s error in preventing the defendant from answering a question about whether he was lying was harmless,
672                                           State v. Maxon

primarily because “the content of the excluded statement
does not differ meaningfully from the assertion implied by
the oath that defendant took before testifying.” Id. at 805. In
this case, not only did defendant’s roommate take an oath,
defense counsel asked the roommate on redirect whether he
was “testifying under oath today,” and he confirmed that he
was. Consistent with Partain, we agree with the state that,
under those circumstances, the error was harmless.
        Affirmed.