State v. Montgomery

Counsel may not express a personal opinion of the witness’s credibility. State v. Sperou, 365 Or 121, 135 (2019); Heroff v. Coursey, 280 Or App 177, 194 (2016), rev den, 360 Or 851 (2017). “Evidence of a victim’s collateral sexual activity is not admissible to show consent to the sexual activity that is the subject of an alleged crime.” State v. Beeler, 166 Or App 275, 285 (2000), rev den, 331 Or 244 (2000).

Defendant was convicted of first-degree sodomy. At trial, the prosecutor called Defendant a liar multiple times in closing statements and the trial court excluded evidence of the victim’s previous extramarital affair that Defendant wished to offer as a motive to falsely accuse him. Defendant appealed the conviction and argued that the prosecution’s statements were improper vouching and evidence of the victim’s past sexual behavior was admissible under OEC 412(2)(b)(A). Counsel may not express a personal opinion of the witness’s credibility. State v. Sperou, 365 Or 121, 135 (2019); Heroff v. Coursey, 280 Or App 177, 194 (2016), rev den, 360 Or 851 (2017). “Evidence of a victim’s collateral sexual activity is not admissible to show consent to the sexual activity that is the subject of an alleged crime.” State v. Beeler, 166 Or App 275, 285 (2000), rev den, 331 Or 244 (2000). The Court found the prosecutor improperly vouched when he repeatedly called Defendant a liar. The Court reasoned that the error rose to the level of legal error because the State’s entire case relied on the victim’s credibility and Defendant’s lack thereof. Lastly, the Court determined that OEC 412 was constructed to preclude the type of evidence that Defendant wanted to admit. Accordingly, the Court remanded the case because of prosecutorial misconduct. Reversed and remanded.