Argued and submitted on February 21, 2013.
Deschutes County Circuit Court No. 10FE0011AB, Alta Jean Brady, Judge.
Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Pat Higgins filed the supplemental brief pro se.
Rolf C. Moan, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and De Muniz, Senior Judge.
DE MUNIZ, S. J.
Defendant appeals from judgments of conviction for unlawful sexual penetration, sodomy, and rape. Although defendant assigns numerous errors to the trial court, we address only whether the trial court's failure to sua sponte refuse to permit the complainant's mother to comment on the complainant's credibility was an error requiring reversal. We hold that the error is plain and requires that we reverse defendant's convictions and remand for a new trial.
Defendant began dating the complainant's mother, Eagles, in August 2008. In January 2009, defendant traveled with the complainant by train from Modesto, California, to Bend, Oregon. After arriving in Bend, defendant rented a motel room with one queen-sized bed. During the night, defendant removed the complainant's clothes and engaged in sexual intercourse with the complainant, even though she continually said "no."
In the weeks following the incident, the complainant became angry and upset. Eventually she began cutting herself and skipping school. Two to three weeks after the trip, the complainant gave her mother a letter attempting to explain what had happened. When Eagles spoke to the complainant, the complainant explained that defendant had "forced" himself on her at the motel the night they had arrived in Bend.
At trial, in response to the prosecutor's question, "[w]hat did [the complainant] tell you, " Eagles stated:
"She told me that he forced himself on her, and I'm like, 'Okay, well, how far did things go?' and she told me that it went all the way. And I waited like so many hours and let her repeat it to me again that way I knew for sure she wasn't lying."
(Emphasis added.) Following the trial, defendant was found guilty on all counts.
Defendant argues that Eagles's comment, "And I waited like so many hours and let her repeat it to me again so that way I knew for sure she [the complainant] wasn't lying, " was an impermissible comment on the complainant's credibility that this court should address as plain error. The state has two arguments in response. First, the state argues that Eagles's comment does not qualify for plain error review because defendant may have failed to object to the comment at trial for strategic reasons. Second, the state argues that, even if Eagles's response to the prosecutor's question was an impermissible comment on the complainant's credibility, at most defendant would only have been entitled to a cautionary jury instruction and not a mistrial. Therefore, this court should, in its exercise of discretion, decline to review the error.
The decision of an appellate court to review "unpreserved or unraised error" is "made with utmost caution." State v. Fults, 343 Or 515, 522, 173 P.3d 822 (2007). We may consider, under ORAP 5.45(a), unpreserved issues if the error (1) is one of law; (2) is "apparent, " in that the "legal point is obvious, not reasonably in dispute"; and (3) appears "on the face of the record, " such that "[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable." State v. Brown, 310 Or 347, 355, 800 P.2d 259 (1990). Additionally, we analyze such errors based on "the law existing at the time the appeal is decided" and not when the error occurred. State v. Jury, 185 Or.App. 132, 136-37, 57 P.3d 970 (2002). When a plain error is established, we still must ...