- Court: Oregon Court of Appeals
- Area(s) of Law: Evidence
- Date Filed: 03-02-2016
- Case #: A145644
- Judge(s)/Court Below: DeHoog, J. for the Court; Duncan, P.J.; Schuman, S.J.
On remand from the Oregon Supreme Court, the Court considered Defendants second, third and fourth assignments of error not reached on the first review. Defendant was convicted by a jury of two counts of first-degree sexual abuse (ORS 163.427) for conduct involving a five-year-old child. At trial, over Defendant’s objection, the court allowed the State to play an audiotape of Defendant’s interrogation, during which the officer made statements regarding Defendant’s body language and its implications for Defendant’s credibility. Defendant argued that the officer’s statements that he could “read body language” were impermissible under State v. McQuisten, 97 Or App 517, 520 (1989). The court overruled Defendant’s objection, reasoning the prohibition against witnesses vouching for the credibility of one another did not apply to out-of-court statements such as the ones at issue. The court also denied Defendant’s subsequent motion for a mistrial, but directed the jury orally and in writing to disregard comments made by the officer regarding Defendant’s credibility. On appeal, Defendant renewed his arguments below. The State argued any error in admitting the audiotaped interrogation was harmless because the court directed the jury not to consider the officer’s statements for the purpose of determining Defendant’s credibility. Because the Court will presume jurors follow instructions “absent an overwhelming probability that they would have been unable to do so,” (State v. Smith, 310 Or 1, 26 (1990)), and there was no evidence on the record to that effect, the Court agreed with the State and held the officer’s assertions were not the type of assertion so compelling a jury would be unable to independently evaluate the evidence, particularly where a court instructs the jury to disregard the assertions. Additionally, the Court held even if the trial court should not have admitted the audiotape the error was harmless, and denying Defendant’s motion for mistrial was permissible. Affirmed.