and submitted April 26, 2016
County Circuit Court C122303CR, C131573CR, A156848 Rick
A. Kreuscher argued the cause and fled the brief for
Rebecca M. Auten, Assistant Attorney General, argued the
cause for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
DeVore, Presiding Judge, and James, Judge, and Duncan, Judge
pro tempore. [*] DUNCAN, J. pro tempore.
Or. 746] Defendant appeals judgments in two consolidated
cases- Washington County Circuit Court Case Numbers C122303CR
and C131573CR- in which he was convicted of multiple sexual
offenses against two victims. Defendant contends that the
trial court erred in admitting out-of-court statements made
by a detective to defendant during an interview because,
according to defendant, the statements constituted improper
comments on the credibility of witnesses. Defendant also
contends that the trial court erred by denying
defendant's motion for a mistrial after the admission of
the statements and by failing to give a curative instruction
regarding the statements. Defendant finally challenges the
length of the post-prison supervision terms imposed on his
convictions in Case Number C131573, and the state concedes
that the post-prison supervision terms are too long.
Held: The trial court did not err in admitting the
detective's statements, or in denying defendant's
related motion for a mistrial and request for a curative
instruction, because the statements were not admitted for the
truth of the credibility opinions they contained. However,
the trial court did err by imposing a sentence that exceeded
the statutorily permitted duration.
Or. 747] DUNCAN, J. pro tempore
appeals judgments in two consolidated cases-Washington County
Circuit Court Case Numbers C122303CR and C131573CR-in which
he was convicted of multiple sexual offenses against two
victims. Defendant raises six assignments of error.
As explained below, we reject all but defendant's fourth
assignment of error, which pertains to Case Number C131573CR.
In that assignment, he challenges the length of the
post-prison supervision terms imposed on two counts of
unlawful sexual penetration in the first degree. The state
concedes that the post-prison supervision terms are too long.
We agree. Accordingly, we remand both cases for resentencing,
because they were consolidated for trial, and we otherwise
first three assignments of error concern the admission of
out-of-court statements made by a detective to defendant
during an interview about the victims' allegations.
During the interview, defendant denied the allegations and,
in response, the detective repeatedly asserted that defendant
was lying and the victims were telling the
truth. Ultimately, defendant made inculpatory
trial, the state sought to introduce a recording of the
interview. Defendant objected to the admission of the
detective's statements regarding the credibility of
defendant and the victims, asserting that the statements were
hearsay and improper comments on the credibility of
witnesses. See State v. Middleton, 294 Or. 427, 438,
657 P.2d 1215 (1983) [287 Or. 748] (a witness "may not
give an opinion on whether [the witness] believes [another]
witness is telling the truth"); see also State v.
Keller, 315 Or. 273, 285, 844 P.2d 195 (1993) (the
prohibition against vouching applies "whether the
witness is testifying about the credibility of the other
witness in relation to the latter's testimony at trial or
*** in relation to statements made by the latter on some
other occasion"). The state responded that the
statements were "not being offered for [their]
truth." Instead, they were being offered "to show
[defendant's] reaction to being confronted with a
particular statement." The trial court agreed with the
state, and ruled that the statements did not constitute
impermissible comments on the credibility of witnesses,
"Okay. Well, let me start off by saying this was a
police interview. And even though police interviews are done
in different-with different techniques, some nice guy, some
bad guy, this is I believe an attempt by the Defense to
sanitize the complete interview. And all the objections are
"It's all coming in. I do not find that it's
hearsay. I do not find that it's vouching. I do not find
that, like the last one we talked about, that it necessarily
implies what was said or not said on the interview."
the state introduced the recording, including the
detective's statements. In response, defendant moved for
a mistrial and, in the alternative, requested that the jury
be instructed to disregard the statements.
the presentation of the evidence, the trial court instructed
the jury, at the state's request, on its use of the
detective's statements. Specifically, the trial court
told the jury, "Statements that were made by [the
detective] to the Defendant * * * during the video-recorded
interview are not to be considered for their truth.