State v. Johnson

No. 528                  July 31, 2024                       137

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                LOUIS HOWARD JOHNSON,
                    Defendant-Appellant.
               Washington County Circuit Court
                    19CR70677; A179197

   Ricardo J. Menchaca, Judge.
   Submitted June 12, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
138                                             State v. Johnson

         ORTEGA, P. J.
          A jury convicted defendant of six counts of first-degree unlawful sexual penetration, ORS 163.411, and
seven counts of first-degree sexual abuse, ORS 163.427. In
his first assignment of error, defendant argues that the trial
court plainly erred in failing to sua sponte strike a police
officer’s testimony that one of the victims came across as
“very forthcoming.” We are not persuaded that the trial court
plainly erred in failing to strike that comment because the
jurors could have viewed it as permissible demeanor testimony. In his second, third, and fourth assignments of error,
defendant argues that the trial court plainly erred when it
ordered him to pay a $2,500 compensatory fine to each of
the three victims. We conclude that there was no plain error
because defense counsel had a plausible strategic reason not
to object to the compensatory fines. We therefore affirm.
         The Comment that a Witness was “Very Forthcoming.”
A jury convicted defendant for crimes against three women
that occurred over 20 years ago when they were children.
One of the victims, AO, was 26 years old at the time of
trial. When AO contacted the police in 2019, she spoke with
Officer Keller. During Officer’s Keller’s testimony at trial,
the following exchange occurred:
      “[PROSECUTOR]: —[D]id anything stand out …
   about her demeanor as you—you talked to her?
      “[OFFICER KELLER]: Absolutely. … She stuck out
   in my mind. When she came in and talked to me, just her
   demeanor, she was very—it was very evident to me that she
   had something to say. She was very—as she kind of relayed
   the story or told me of the incidents, her face—she would—
   just tears would just stream down her face.
       “It wasn’t like—she wasn’t crying, but it was just tears
   just coming down her face. Her lip—bottom lip was quivering. She had to take breaks in order to just relay the story.
   We just took our time because a lot of the questions were
   very sensitive questions. She was very—came across very
   forthcoming—
      “[PROSECUTOR]:       Well, let me—
      “[OFFICER KELLER]: Sorry.
Nonprecedential Memo Op: 

 (2024)              139

       “[PROSECUTOR]: Sorry. That’s okay. Did—the person she talked about, did she even have a last name for you
   at the initial meeting?”
(Emphasis added.)
        On appeal, defendant argues that the trial court
erred in failing to sua sponte strike Officer Keller’s statement that AO came across as “very forthcoming.” At trial,
defendant did not object, so he requests plain-error review.
         An error is plain when it is an error of law, the
legal point is obvious and not reasonably in dispute, and
the error is apparent on the record without our having to
choose among competing inferences. State v. Vanornum, 

, 

 (2013). It is a matter of discretion
whether we will correct a plain error. State v. Gornick, 

, 

 (2006). Given defendant’s failure
to object at trial, “the pertinent question is whether the trial
court plainly erred by not interrupting [the challenged testimony] sua sponte.” State v. Corkill, 

, 

, rev den, 

 (2014).
          Whether a witness’s statement constitutes impermissible vouching is a legal question. State v. Sperou, 

, 

 (2019). “[I]n Oregon a witness, expert
or otherwise, may not give an opinion on whether he believes
a witness is telling the truth.” State v. Middleton, 

, 

 (1983); see State v. Keller, 

, 

 (1993) (“Once again, we repeat that a
witness may not testify about the credibility of another witness.”). In cases of true vouching, the trial court must intervene sua sponte because the testimony creates “a risk that
jurors would rely on witnesses’ opinions about the credibility of an alleged victim to avoid their independent obligation
to determine whether the complainant’s allegations were
truthful.” Corkill, 

. On the other hand,
“testimony about the physical appearance of a speaker, or
testimony that is solely descriptive of the manner in which
a communication is made—so-called demeanor evidence—is
admissible and is not vouching evidence.” State v. Wilson,

, 

 (2014), rev den, 

 (2015).
140                                              State v. Johnson

         Here, it is certainly possible that a juror could associate the word “forthcoming” with truthfulness. But, as
defendant acknowledges, the word can be understood in different ways, and it can also mean responsive. The prosecutor asked Officer Keller about AO’s demeanor, and when the
officer testified that AO was “very forthcoming,” the jurors
could have understood the officer to mean that, despite the
fact that tears were coming down her face and her bottom
lip was quivering, AO was able to respond to the officer’s
questions. Given that context, the jurors could have understood the officer as describing AO’s demeanor. Therefore, it is
not obvious that Officer’s Keller’s statement constituted true
vouching. Cf. B. A. v. Webb, 

, 

(2012), rev den, 

 (2013) (expert’s testimony that
she had “ ‘no doubt’ ” that the plaintiff told her the “ ‘absolute truth’ ” constituted explicit vouching for the plaintiff’s
credibility). Because the error is not obvious, there was no
plain error. Vanornum, 

. Accordingly, we reject
defendant’s first assignment of error.
        Compensatory Fines. In his second, third, and
fourth assignments of error, defendant seeks plain-error
review of the trial court’s decision to require defendant to
pay a $2,500 compensatory fine to each of the three victims.
        At the sentencing hearing, there was testimony
that defendant or his family posted bail or security in the
amount of $32,500. With regard to fees or fines, the trial
court ruled as follows:
       “With respect to the money, I’m going [to] waive attorney fees for the simple fact that I don’t find that they’re
   going to serve any meaningful purpose. [Defense counsel]
   did a great job, as I’ve said a couple of times now, and we’re
   in the middle of an attorney crisis and so I probably should
   impose attorney fees, which would be substantial, but I’m
   just going to waive them. I don’t find that they serve any
   real purpose.
      “Nor do I find that the Court fines in this particular
   case serve any real purpose. But what I am going to do on
   the $32,500 is, I am going to direct that $2,500 be given to
   [CJ], $2,500 be given to [NJ], and $2,500 be given to [AO]
   as a compensatory fine on this case in general. It’s—it’s a
   small amount given what you [have] been through, but, you
Nonprecedential Memo Op: 

 (2024)                141

   know, use that money for something worthwhile for your
   family. And I—rather than it go to the administrative costs
   of doing business here in court and to attorney fees, try to
   put that money towards something good.
      “If that’s—it’s not that much money, but it’s—it’s something. So that will be taken out of the $32,500 that was
   posted as security. The remaining amount of that money
   will go to the person that posted it. I believe it’s [defendant’s] family.”
          At the sentencing hearing, defendant did not object
to the trial court’s ruling regarding compensatory fines, so
he requests plain-error review. As we explained earlier, an
error is plain when, among other requirements, it is “apparent on the record without requiring the court to choose
among competing inferences.” Vanornum, 

.
“[I]f this court is required to choose from among competing inferences as to possible strategic reasons for a defendant’s failure to object to a trial court’s ruling, we cannot
say that the error is ‘plain’ on the face of the record.” State
v. Drinkwater, 

, 

 (2009), rev den,

 (2010).
        Here, defense counsel may have chosen not to
object to the compensatory fines because the trial court
waived attorney fees, which could have been substantial,
and, despite the compensatory fines, the trial court’s ruling
meant that a significant portion of the bail or security would
be returned to defendant’s family. Because defense counsel
may have chosen not to object to the compensatory fines for
those reasons, we cannot say that the error was plain. We
therefore reject defendant’s second, third, and fourth assignments of error.
        Affirmed.