State v. Cone

Failing to strike impermissible vouching testimony sua sponte does not constitute plain error if the trial court reasonably infers that a lack of objection by the defense may be a strategic decision. State v. Vage, 278 Or App 771, 777 (2016).

Defendant appealed from a conviction for first-degree sexual abuse, ORS 163.427. Defendant assigned error to the trial court's "failure to sua sponte strike" a portion of witness testimony that constituted impermissible vouching. On appeal, Defendant argued that the trial court's failure to sua sponte strike the contested testimony constituted plain error. State conceded that a portion of the witness’ testimony was vouching, but argued that the trial court did not plainly err because a permissible inference could be made that trial counsel’s failure to object could have been strategic, and thus, the trial court did not err when it failed to intervene. Failing to strike vouching testimony sua sponte does not constitute plain error where the trial court may reasonably infer that a lack of objection by the defense may be a strategic decision. State v. Vage, 278 Or App 771, 777 (2016). The Court of Appeals found that it was reasonable for the trial court to infer trial counsel’s failure to object to the testimony was a strategic decision as Defendant’s strategy centered around the credibility of the victim’s accusations. Accordingly, the Court held that the trial court did not commit plain error. Affirmed.