State v. Peterson

“An out-of-court statement about the credibility of a witness is subject to the categorical prohibition against vouching evidence only if the statement is offered the truth of credibility opinion that it expresses.” State v. Chandler, 360 Or. 323, 334, 380 P.3d 932, 938 (2016). Additionally, a court may enter separate convictions when “the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an elements that others do not.” ORS 161.067(1).

Defendant appealed a judgement of conviction for eight counts of second-degree sexual abuse, once count of third-degree sexual abuse, four counts of third-degree rape, and one count of third-degree sodomy. Defendant argued the trial court erred by failing to strike, sua sponte, “a police detective’s expression of gratitude for the alleged victim’s honesty.” Defendant further argued the trial court erred by failing to merge a number of the jury’s guilty verdicts. In response, the State argued the trial court did not err in failing to strike the police officer’s out-of-court statement. The State conceded that the court erred to enter separate convictions for second-degree sex abuse and third-degree rape for each instance of sexual intercourse between the defendant and the victim. “An out-of-court statement about the credibility of a witness is subject to the categorical prohibition against vouching evidence only if the statement is offered the truth of credibility opinion that it expresses.” State v. Chandler, 360 Or. 323, 334, 380 P.3d 932, 938 (2016). Additionally, a court may enter separate convictions when “the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an elements that others do not.” ORS 161.067(1). The Court found that Harris’s out-of-court statement was not obviously offered only for the truth of the credibility opinion that it expressed; however, the trial court plainly erred when it entered separate convictions for each of the second-degree sexual abuse counts and each of the third-degree rape counts that were based on the same conduct. Reversed and remanded for merger consistent with this opinion, otherwise affirmed.