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State v. Brand

Court of Appeals of Oregon

December 4, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
AUSTIN CALLAHAN BRAND, aka Austin Brand, Defendant-Appellant.

          Argued and submitted April 24, 2018

          Multnomah County Circuit Court 14CR28021; John A. Wittmayer, Judge.

          Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Austin Callahan Brand fled the supplemental and reply briefs pro se.

          Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge. [*]

         Case Summary:

         Defendant appeals a judgment of conviction for first-degree kidnapping, coercion, fourth-degree assault, menacing, and recklessly endangering another person. He argues that the trial court erred when it allowed a detective to testify that the alleged victim delayed reporting defendant's conduct to authorities due to her fear of further assaults by defendant, because it amounted to impermissible vouching. Defendant further argues that the error was not harmless. Held: The trial court erred by allowing the testimony. The detective's explanation for the alleged victim's delayed reporting constituted impermissible vouching. Additionally, the error was not harmless.

         Reversed and remanded.

         [301 Or.App. 60] DEHOOG, P. J.

         Defendant appeals a judgment of conviction for first-degree kidnapping, coercion, fourth-degree assault, menacing, and recklessly endangering another person.[1] In his first assignment of error, defendant argues that the trial court erroneously admitted impermissible vouching testimony when it allowed a detective to testify that the alleged victim's delay in reporting defendant's conduct to authorities was due to her fear of further assaults by defendant. The state's initial response is that defendant failed to preserve that argument. Specifically, the state contends that defendant's only objection at trial was to the detective's testimony regarding delayed reporting in general-which we previously have held to be admissible-and not to any other part of the detective's testimony, including his statement that the victim in this case had delayed making a report because of her fear of further assaults. The state further argues that, even if that issue is preserved, the court did not err when it admitted the challenged testimony, because, contrary to defendant's argument, it was not impermissible vouching. For the reasons that follow, we conclude that defendant preserved the issue he raises in his first assignment of error; we further conclude that the court erred in admitting the detective's explanation of the victim's delayed reporting, because that testimony constituted impermissible vouching. Because that error was not harmless, we reverse and remand.[2]

         [301 Or.App. 61] The pertinent facts are largely procedural and undisputed. However, to provide context to the parties' legal dispute, we first set out portions of the testimony from defendant's trial. The alleged victim, S, testified that defendant had previously been her boyfriend and that the two of them had shared an intimate relationship. At the time of defendant's alleged offenses, S was a recovering heroin addict engaged in methadone treatment and lived with a friend from that program. According to S, defendant came to see her at the apartment that she shared with that friend. They spoke in defendant's car, where he asked her to move out of her apartment and move in with him so that the two of them could be together again. Preferring to focus on her recovery, S refused defendant's request. Defendant responded by first strangling S, and then driving off with her still in his car. As defendant drove, he threatened to crash the car and kill them both; he eventually did drive into a telephone pole, but neither of them was injured. Defendant then took S to a rural barn and, over the next four days, forced her to have sex with him and told her that he intended to keep her at the barn to ensure her withdrawal from methadone. Despite those stated intentions, defendant drove S to and from various places, including her workplace and a methadone clinic, all the while repeatedly threatening her with harm. S acknowledged that, during the course of the incident, she had been able to speak with family and friends and had told them that everything was fine. S also acknowledged that she had had multiple opportunities to call the police for help or even escape, but that she did not attempt to do either of those things over the course of the four days until she went home from the methadone clinic with her roommate. In fact, it was only her roommate who ultimately called the police, in response to defendant repeatedly kicking and banging on the apartment door, demanding to see S.

         Detective Turnage, who took part in the investigation of defendant's alleged conduct and interviewed S [301 Or.App. 62] multiple times, also testified at trial. Turnage described his extensive training and experience investigating domestic violence cases and testified that such cases often involve what is known as delayed reporting.[3] Shortly thereafter, the prosecutor asked, "we had a situation here with a delayed report; is that right?" Defense counsel interjected, stating "Judge, I have a matter for the Court." The trial court directed the jurors to return to the jury room, and defense counsel argued outside their presence that the state had not laid a sufficient foundation to permit Turnage's testimony. Counsel specifically argued that Turnage did not have the "medical or psychological training to discuss these matters." Defense counsel also argued that Turnage's anticipated testimony regarding delayed reporting would involve both speculation and impermissible vouching.

"[DEFENDANT]: Judge, beyond speculation, it then turns into a form of witness vouching; that it's saying there are these acts that you took, and I'm telling the jury, it's okay to do that because that means you're still a victim. And that's just always an improper line of testimony, to say that-you know, basically, he can't say I believe this person. That's essentially what they're doing. We have these act in front of us. I have this training and experience, and I'm telling the jury, through my continuation in this testimony, that if he doesn't outright say I believe it, he's at least implying that by acting on it and accepting it. And he will say this is common in the domestic violence arena, which is then witness vouching.
“* * *
"THE COURT: * * * So what we ought to do is this, we bring the jury back in, [the prosecutor can] do whatever *** with [Turnage] on his qualifications, feel free to make your objection, and I'll rule on it.
"[DEFENDANT]: And then, Judge, if I'm not successful, I want to make sure that I am-that objection is ongoing for-
"THE COURT: That's-make your record however you want to, but I understand your position.
[301 Or.App. 63] "[DEFENDANT]: If-
"THE COURT: I don't think you have to object to every, single question.
"[DEFENDANT]: "No, but if they change topics a little bit, I might say, 'I renew the objection.'
"THE COURT: All right. Do what you think you need to do."
After the jury returned to the courtroom, the prosecutor continued with Turnage's direct examination. In an effort to lay an appropriate foundation, the prosecutor asked Turnage additional questions about his training and experience regarding ...

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