State v. Hanson

An error does not qualify for plain error review if the record contains a competing inference that the party may have a strategic purpose for not objecting and the competing inference is plausible.

Defendant appeals a judgment of conviction for four counts of first-degree sexual abuse. Defendant claims the trial court committed plain error in failing to strike the vouching evidence sua sponte. An error is plain if it is one of law, an obvious error that is not reasonably in dispute, and an error that appear on the face of the record. The challenged testimony did not qualify for plain error review because in order to decide the issue the Court would have to choose between competing inferences about whether Defendant made a conscious decision not to object to the testimony. An error does not qualify for plain error review if the record contains a competing inference that the party may have a strategic purpose for not objecting and the competing inference is plausible. In this case Defendant could plausibly made a conscious decision not to object to the vouching evidence because it may have been truthful and Defendant had little to gain by objecting to the testimony. Affirmed.