State v. Hunt

Under ORS 163.670(1), “permits” means “allows” or “makes possible” and does not require an authority to forbid. True vouching testimony supplants the jury’s assessment of credibility, requiring the court to sua sponte strike the testimony.

Defendant was convicted of two counts of rape in the second degree, one count of sexual abuse in the first degree and one count of attempted use of a child in a display of sexually explicit conduct as a result of 25-year-old Defendant’s romantic relationship with a 13-year-old (M). At trial, the State presented evidence that showed Defendant requested a “naughty” photo from M and argued this constituted Defendant’s attempt to “permit” M to engage in sexually explicit conduct. Defendant argued that to “permit” requires an “authority to forbid” and, therefore, the evidence was insufficient to permit the jury to find that Defendant had attempted to “permit” M to engage in sexually explicit conduct. The state also elicited at trial a deputy’s testimony of information M provided during interviews regarding characteristics of Defendant, specifically that the deputy “thought the information she gave [him] was just the best of her knowledge at the time.” Defendant did not object and the court did not strike the testimony. On appeal, the Court held that the trial court did not err in denying Defendant’s motion for judgment of acquittal on the charge of attempted use of a child in a display of sexually explicit conduct because “permit” means “allows” or “makes possible,” and that the more limited definition Defendant advanced was applicable to a different statute based on different considerations of text, context and legislative history. Defendant additionally argued on appeal that the deputy’s testimony regarding M’s interviews was vouching testimony, requiring the trial court to sua sponte strike the deputy’s testimony. The Court held the testimony was not true vouching evidence because it did not supplant the jury’s assessment of M’s credibility; consequently, the trial court did not err when it did not strike the testimony on its own initiative. Affirmed.