Submitted May 30, 2014.
CR1200809. Clackamas County Circuit Court. Thomas J. Rastetter, Judge.
Peter Gartlan, Chief Defender, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 349] EGAN, J.
Defendant appeals a judgment of conviction and sentence for assault in the fourth degree, constituting domestic violence, ORS 163.160(3), and harassment, ORS 166.065(3). On appeal, defendant raises two unpreserved assignments of error, arguing that the trial court erred in two respects. First, defendant asserts that the trial court plainly erred in failing to sua sponte strike testimony by a deputy, when that deputy opined that, during his investigation of the incident, he had not believed the victim's initial version of what had occurred during the domestic dispute. Second, defendant argues that the trial court erred by requiring him to pay $510 in court-appointed attorney fees because the record is silent regarding defendant's ability to pay that fee. As explained in more detail below, we do not reach defendant's first unpreserved assignment of error, but we agree with defendant that it is appropriate for us to review and correct his second assignment of error.
The following facts are undisputed. Late one evening, after drinking alcohol, defendant and the victim got in a fight. Some time later that day, Clackamas County Sheriff Deputy Eagle interviewed the victim, who had a black eye. Eagle questioned the victim about how she had received the black eye. The victim initially told Eagle that she " fell down," but later told Eagle that defendant had punched her. Eagle subsequently arrested defendant, who was charged with assault in the fourth degree and harassment.
At defendant's trial, Eagle testified:
" [PROSECUTOR:] And kind of based on her body language and what she said, did you believe her?
" [EAGLE:] No.
" [PROSECUTOR:] Okay. So did you keep asking her ...