State v. Vage

Under the plain error, an error is “plain” only if: (1) the error is one of law, (2) the legal error is obvious and not reasonably in dispute, and (3) the error appears on the face of the record such that the court need not go outside the record to identify the error or choose between competing inferences, and the facts constituent the error are irrefutable.

In August of 2012, police received reports that defendant had assaulted his girlfriend numerous times. The victim described to officer Gould how defendant physically abused her causing her severe harm. A jury found defendant guilty of one count of coercion and two count of fourth-degree assault. At sentencing, in addition to being sentence to incarceration, defendant was ordered to pay a $200 fine and $820 in attorney fees. Defendant raised two assignments of “plain” error: (1) the trial court erred by failing to exclude, sua sponte, vouching testimony of a state’s witness, and (2) the court erred by ordering him to pay court appointed attorney fees without first establishing his ability to pay. The specific issue on appeal is whether it was “plain” error for the court not to strike officer Gould’s unelicited testimony sua sponte. The Court affirmed the trial courts decision on this issue, because they would have had to choose between competing inferences about whether defendant made a conscious decision not to object to Gould’s testimony. The Court did reverse the trial courts order that defendant pay attorney fees due to his apparent lack of financial resources, and his six-year prison sentence. The Court pointed to State v. Mejia-Espinoza, 267 Or App 682, 684, 341 P3d 180 (2014), where it previously said that a trial court plainly errs when it orders a defendant to pay court-appointed attorney fees and the record does not include legally “sufficient evidence to support a finding that defendant was or might be able to pay the court-appointed attorney fees.” Portion of the judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.