State v. Harrison

When a claimed “plain error” is associated with a trial court not having sua sponte interrupted a line of questioning, the existence of any error does not depend solely on whether the lawyer’s questions or the elicited answers would have been inadmissible if they had been objected to.

Defendant appealed his conviction on charges related to the sexual abuse of a four-year-old child (the child). The child had reported the abuse to his mother. The mother reported the incident to the police, who referred her to an organization (the organization) where a counselor (the counselor) interviewed the child. The child repeated the allegations to the counselor, and Defendant was ultimately arrested as a result, and charged with criminal offenses. At trial, the counselor testified that “the statistic at [the organization] is 96 to 98 percent of the time when a child makes a disclosure about abuse, there’s truth to it.” On appeal, Defendant argued that the counselor impermissibly vouched for the child’s credibility when the counselor made that statement. Defendant had not objected to that testimony in the trial court, and the State referred to the testimony in its closing argument. Defendant contended that the Court may consider the alleged error of the trial court’s not excluding the evidence sua sponte; Defendant argued that this was a plain error on the record, which does permit the Court to review. The State countered that there is a reasonable dispute about whether the counselor vouched for the child’s credibility. The Court found that the asserted error was not plain, reasoning that the testimony instead resembles general information about the credibility of a general class of witnesses. It held that there is a reasonable dispute as to whether the counselor impermissibly vouched for the child, and thus the trial court did not plainly err by not striking the disputed testimony. Affirmed.