State v. Rhoades

                                   490

 Argued and submitted February 4, affirmed September 9, 2021, petition for
               review denied February 3, 2022 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                JOSHUA ANDREW RHOADES,
                    Defendant-Appellant.
                 Marion County Circuit Court
                    18CR57715; A171653
                               

   Thomas M. Hart, Judge.
   Stephen A. Houze argued the cause and filed the briefs
for appellant.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Affirmed.
Cite as 

 (2021)                                   491

         PER CURIAM
          Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427, and sodomy in
the first degree, ORS 163.405, relating to his four-year-old
stepdaughter. On appeal, defendant contends that the trial
court plainly erred by failing to sua sponte strike two pieces
of testimony as impermissible vouching. He further contends that the trial court plainly erred in failing to recuse
itself for bias. We affirm.
          Defendant acknowledges that he did not preserve
any of his claims of error. We may review an unpreserved
claim of error if it is “plain,” that is, if the error is (1) “one of
law”; (2) “obvious, not reasonably in dispute”; and (3) “appears
on the face of the record, so that we need not go outside
the record to identify the error or choose between competing inferences, and the facts constituting the error are
irrefutable.” State v. Corkill, 

, 

, rev den, 

 (2014) (internal quotation marks
omitted).
         Defendant first assigns error to the trial court’s
failure to sua sponte strike testimony from a Department of
Human Services (DHS) child protective services worker who
testified about her interview with defendant’s stepdaughter.
The DHS worker described the “protocol” that DHS uses
when interviewing a child to “gauge whether or not they
have an understanding of … the difference between a
truth and a lie.” After the DHS worker provided an example
of that “protocol” involving the child witness truthfully identifying the color of a pen, the following exchange occurred:
   “[Prosecutor]: Okay. And did she say she would only talk
   about true things with you in that interview?
   “[Witness]: Yes, she did.
   “[Prosecutor]: Okay. And what did [she] tell you when you
   spoke with her?”
The DHS worker next testified that the child disclosed sexual abuse.
       Defendant contends that the DHS worker’s testimony constituted impermissible vouching because it was
492                                          State v. Rhoades

“tantamount” to a comment on the child witness’s credibility. See, e.g., State v. Beauvais, 

, 

 (2015) (“A direct comment on the credibility of a witness
or a statement that is ‘tantamount’ to stating that another
witness is truthful is not admissible[.]”). However, commenting on the competency—as opposed to the credibility—of a
child witness is not impermissible vouching. See 

(“Expert testimony that provides jurors with useful information in making their own credibility assessment ordinarily is admissible[.]”).
          In Smith v. Franke, we evaluated a police officer’s
testimony about the “protocol” involved when interviewing
a child, including the practice of asking the child to truthfully describe the color of an object to “demonstrate[ ] to [the
officer’s] satisfaction that she knew what it was to tell the
truth and what it was to tell a lie.” 

,

 (2014), rev den, 

 (2015). We concluded that the testimony did not amount to impermissible
vouching because the officer did not comment on whether
she believed that the child was telling the truth, but rather
spoke only to the competency of the child to differentiate a
true statement from a lie. Specifically, “[t]estimony that a
child demonstrated knowledge of the difference between the
truth and a lie does not amount to testimony that the child
did not lie, nor does it otherwise pass on the credibility of
that child either directly or indirectly.” Id. at 479-80.
         In light of the similarities between the DHS worker’s
testimony in this case and that of the officer in Smith, it is
far from “obvious” that the testimony constituted a direct
statement on the stepdaughter’s credibility such that the
trial court should have struck it sua sponte. See Corkill, 

 (recognizing that cases where a trial court
should have sua sponte excluded testimony as impermissible vouching typically involve “true ‘vouching’ ” evidence,
that is, a “witness’s testimony that he or she believes that
another witness is or is not credible, which a party offers to
bolster or undermine the veracity of that other witness”).
         Defendant next assigns error to the trial court’s
failure to strike testimony from a child counselor who testified that the child’s statements were internally consistent
Cite as 

 (2021)                             493

and that the counselor had advised the child to tell the truth
in court. As with the DHS worker’s testimony, however, the
counselor’s testimony did not involve true vouching—that is,
a witness commenting on the credibility of other witnesses.
It is not “obvious” that a witness’s observation as to the consistency of the content of the child’s statements is a comment on the child’s credibility. As far as advising the child
to tell the truth, the counselor again did not assert that she
believed that the child was truthful, rather that, much like
any witness in a courtroom who takes an oath, the child
was advised to tell the truth. Nothing about the counselor’s
testimony was true vouching such that the trial court was
required to strike it sua sponte.
         Defendant’s final assignment of error challenges
the trial court’s failure to sua sponte recuse itself based on
its personal knowledge of defendant. However, defendant
does not identify any personal knowledge beyond knowledge
gained through presiding over other court matters involving defendant, nor does defendant cite any cases in which a
trial court was required to sua sponte recuse itself based on
similar circumstances. The trial court did not plainly err in
declining to recuse itself.
        Affirmed.