State v. Hutchings

132 April 9, 2026 No. 17

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

JOSHUA DANIEL HUTCHINGS,

Petitioner on Review.

(CC 20CR07446) (CA A179185) (SC S072024)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 27, 2026.

Stacy Du Clos, Deputy Public Defender, Oregon Public

Defense Commission, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Ernest

G. Lannet, Chief Defender, Criminal Appellate Section.

Ryan Kahn, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Dan Rayfield, Attorney General, and Paul

L. Smith, Interim Solicitor General.

BUSHONG, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

* Appeal from Multnomah County Circuit Court, Heidi H. Moawad, Judge.

340 Or App 208, 570 P3d 267 (2025).

Cite as 375 Or 132 (2026) 133

134 State v. Hutchings

BUSHONG, J.

In this criminal case, we are asked to decide

whether the prosecutor’s elicitation of vouching testimony

without objection warrants reversal of defendant’s convic-

tion for unlawful use of a weapon. The Court of Appeals

affirmed the conviction, concluding that the admission

of the testimony was not grounds for reversal as a “plain

error,” because it was plausible that defendant had, for stra-

tegic reasons, chosen not to object to that testimony. State v.

Hutchings, 340 Or App 208, 570 P3d 267 (2025). We allowed

review on defendant’s petition to address how the possibility

that counsel had strategic reasons for not objecting to inad-

missible vouching testimony affects the analysis on plain-

error review. Assuming without deciding that the testimony

here violated the categorical prohibition on vouching, we

conclude that the error was plain, but the Court of Appeals

did not abuse its discretion in declining to reverse defen-

dant’s conviction based on that error.

In general, an appellate court “may, in its discre-

tion, consider a plain error,” that is, an error that was not

preserved for appellate review by a timely objection. ORAP

5.45(1). An error constitutes a plain error if it is (1) an

error of law, (2) obvious and not reasonably in dispute, and

(3) apparent on the record. Ailes v. Portland Meadows, Inc.,

312 Or 376, 381-82, 823 P2d 956 (1991) (citing State v.

Brown, 310 Or 347, 355-56, 800 P2d 259 (1990)). But, as we

have explained, determining that an error is plain “does not

mean that [the] defendant is entitled to a reversal.” State v.

Wiltse, 373 Or 1, 4, 559 P3d 380 (2024).1 Appellate courts

have discretion to reverse a conviction based on a plain error

in some cases. Whether an appellate court should exercise

that discretion depends on other considerations, “including,

1

In Wiltse, we also stated that a plain error “is not necessarily a revers-

ible error.” 343 Or at 4-5. We used the word “reversible” in that context to mean

“eligible for reversal.” Under Article VII (Amended), section 3, of the Oregon

Constitution, “an appellate court may not reverse a criminal defendant’s convic-

tion based on an error—whether preserved or unpreserved—that is harmless.”

State v. Ortiz, 372 Or 658, 671, 554 P3d 796 (2024). Thus, a plain error does not

provide legal grounds for reversal—that is, it is not legally reversible—if it is

harmless under the constitutional standard. An error is considered harmless for

purposes of that standard if “there is little likelihood that the error affected the

jury’s verdict.” Id. at 671 (citing State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)).

Cite as 375 Or 132 (2026) 135

but not limited to, the considerations that this court identi-

fied in Ailes.” Id.

The dispute in this case centers on the possibility

that defendant, consistent with his trial strategy, made a

“strategic choice” not to object to vouching testimony elicited

by the prosecutor. We have indicated in another context that

the possibility that a defendant “made a strategic choice not

to object” is a factor that is relevant to the analysis. Wiltse,

373 Or at 11 (citing State v. Fults, 343 Or 515, 523, 173 P3d

822 (2007)). How that possibility affects the analysis on

plain-error review is the main issue in dispute here.

The state contends—and the Court of Appeals con-

cluded—that the possibility that defendant made a strategic

choice not to object to the vouching testimony means that

the error was not “plain,” and, therefore, an appellate court

may not consider it. Defendant contends that the possibility

that he made a strategic choice not to object is a factor to

consider in determining whether to reverse his conviction

based on the error, but it does not determine whether the

error is reviewable as plain error. Defendant argues that

allowing vouching testimony was plain error, because the

prosecutor’s elicitation of that testimony was an obvious

error of law that is apparent from the record and not rea-

sonably in dispute. Defendant further contends that his

conviction should be reversed based on that error, because

the competing interests of the parties and the gravity of the

error favor a reversal.

As we will explain, we agree with defendant that

the elicitation of vouching testimony is generally reviewable

on appeal as plain error even if the defendant may have

made a strategic choice not to object to that testimony. We

further conclude, however, that the Court of Appeals did not

abuse its discretion in declining to reverse defendant’s con-

viction based on that error.

HISTORICAL AND PROCEDURAL FACTS

The facts relevant to our review are not in dispute

and are taken from the record and the Court of Appeals’

decision. Defendant lived in the same apartment complex

as the alleged victim, KC, though they did not know each

136 State v. Hutchings

other. On the day in question, defendant and KC got into an

argument. Defendant had parked his car in KC’s assigned

parking spot, and KC had parked his vehicle in a way that

blocked defendant’s car. Defendant confronted KC about

blocking his car, resulting in an argument. According to KC,

defendant pulled out a gun during the argument, pointed it

at KC, and threatened to shoot him. Defendant eventually

returned to his apartment, and KC called the police.

Gresham Police Officer Zachary Smelser responded,

interviewed KC, and then met with defendant outside his

apartment. Smelser arrested defendant and informed him

of his Miranda rights, and defendant agreed to talk to

Smelser. During that discussion, defendant acknowledged

that he had gotten into an argument with KC but denied

brandishing a gun. Defendant acknowledged that he owned

a Glock-type gun that matched the description that KC had

offered, but defendant claimed that his guns were locked

in a safe in his apartment at the time of the argument.

Later, police executed a search warrant and found a gun in

defendant’s safe that matched the description that KC had

offered.

Defendant was indicted and went to trial on a

charge of unlawful use of a weapon involving the threat-

ened use of a firearm. Smelser testified at trial about his

discussions with KC and defendant. On cross-examination,

Smelser acknowledged that he did not have any kind of “spe-

cial training” to help him judge someone’s credibility “when

comparing stories.” Defense counsel asked Smelser if he had

a “method” for determining who was telling the truth in a

“he said/she said” situation. Smelser responded that he did

not have a particular “method” but would make that deter-

mination on a “case by case” basis. Defense counsel also

asked Smelser if he had observed differences in demeanor

between two people who had been involved in a dispute.

Smelser responded that, in that situation, the “accuser” and

the person being accused would “sometimes” display simi-

lar types of demeanor, and that any difference in demeanor

“varies case by case.” Smelser indicated that, in this case,

KC appeared to be “shaken up” and “distressed,” and that

defendant seemed “curious” and “concerned.”

Cite as 375 Or 132 (2026) 137

On redirect examination, the prosecutor asked

Smelser, “And in fact, in response to questions asked by

[defense counsel], did you come to a conclusion about whether

you thought [defendant] was telling the truth?” Smelser

responded, “I did.” The prosecutor then asked, “And what

was that conclusion?” Smelser responded, “I felt that he was

not truthful.” Defendant did not object to the question or

move to strike the response.

A jury convicted defendant of unlawful use of a

weapon, and the court sentenced him to 36 months’ proba-

tion. Defendant appealed, assigning error to the trial court’s

failure to strike, sua sponte, Smelser’s testimony that defen-

dant “was not truthful.” Defendant contended that the testi-

mony was “plainly vouching” and that the trial court’s fail-

ure to strike the testimony was plain error that warranted

reversal.

The Court of Appeals affirmed the conviction, con-

cluding that the trial court had not plainly erred in failing

to strike Smelser’s testimony. The court explained, applying

its own precedents, that failing to strike vouching evidence

is not plain error where the record supports a plausible

inference that the defendant chose not to object for strate-

gic reasons. Hutchings, 340 Or App at 210-11 (citing State v.

Wilson, 266 Or App 481, 492, 337 P3d 990 (2014), rev den,

356 Or 837 (2015), and State v. Macias, 282 Or App 473, 481,

386 P3d 186 (2016)). The court further explained that part

of defendant’s trial strategy was to “cast doubt” on the police

investigation, and the vouching testimony was consistent

with that strategy because it suggested that Smelser had

“disbelieved defendant from the start,” causing the police “to

conduct an inadequate investigation.” Id. at 212.

In a footnote, the court indicated that, even if the

admission of vouching testimony amounted to plain error,

the court would not exercise its discretion to reverse the con-

viction based on that error. Id. at 212 n 2. The court again

noted the plausible inference that defendant had a strategic

reason not to object to the testimony. In addition, in consid-

ering the gravity of the error, the court stated that “ ‘this is

not the kind of expert vouching testimony that most often

has prompted [the court] to reverse a criminal conviction[.]’ ”

138 State v. Hutchings

Id. (quoting State v. Inman, 275 Or App 920, 932, 366 P3d

721 (2015), rev den, 359 Or 525 (2016)). The court explained

that Smelser did not testify “as an expert in identifying

untruthfulness,” and the fact that he was a law-enforcement

officer, standing alone, “would not necessarily have led the

jury to believe that he had special insight into defendant’s

veracity.” Id. In addition, in assessing whether the trial

court had been given an opportunity to correct the error, the

court noted that, if defendant had objected to the testimony,

“the trial court could have easily cured any error by striking

the testimony and instructing the jury to disregard it.” Id.

We allowed review on defendant’s petition to clarify

how the possibility that defendant had a strategic reason for

failing to object to vouching testimony affects the analysis

on plain-error review.

ANALYSIS

The issues on review are (1) whether the possibil-

ity that defendant may have made a strategic choice not to

object to vouching testimony was properly a consideration

for the court in determining whether defendant had identi-

fied a plain error, and (2) if the admission of that testimony

was reviewable as a plain error, whether defendant’s convic-

tion should be reversed based on that error. We begin with

the principles of preservation and plain-error review that

we recently summarized in Wiltse.

The general rule is that, before an appellate court

may address whether a trial court committed an error, “ ‘the

adversely affected party must have preserved the alleged

error in the trial court[.]’ ” Wiltse, 373 Or at 10 (quoting Ailes,

312 Or at 380). An exception to this general rule is that an

appellate court may consider unpreserved errors “if they con-

stitute ‘plain error.’ ” Id.; see also Peeples v. Lampert, 345 Or

209, 219, 191 P3d 637 (2008) (describing plain-error review

as “[t]he principal exception to preservation requirements”).

The Oregon Evidence Code specifically requires a “timely

objection or motion to strike” improperly admitted evidence.

OEC 103(1)(a). That requirement is subject to an exception

for “plain errors affecting substantial rights although they

were not brought to the attention of the court.” OEC 103(4).

Cite as 375 Or 132 (2026) 139

Appellate courts addressing a claimed plain error

“employ a two-step analysis.” Wiltse, 373 Or at 10. The first

step is to determine “if the error constitutes a plain error.”

Id. As noted, an error is “plain” if it is (1) an error of law,

(2) obvious and not reasonably in dispute, and (3) apparent

on the record. Id. That third requirement means that the

appellate court “must not need to go outside the record to

identify the error or choose between competing inferences[.]”

Id. Whether an error constitutes a plain error is a question

of law, which this court reviews for errors of law. Id. If an

error constitutes a plain error, then, at the second step of the

analysis, “an appellate court determines whether to exercise

its discretion to reverse based on the error.” Id.

This court has identified a nonexclusive list of fac-

tors that may help an appellate court determine—at step

two of the analysis—whether to exercise its discretion to

reverse based on a plain error. Specifically, the court may

consider

“ ‘the competing interests of the parties; the nature of the

case; the gravity of the error; the ends of justice in the par-

ticular case; how the error came to the court’s attention;

and whether the policies behind the general rule requiring

preservation of error have been served in the case another

way, i.e., whether the trial court was, in some manner, pre-

sented with both sides of the issue and given an opportu-

nity to correct any error.’ ”

Id. at 11 (quoting Ailes, 312 Or at 382 n 6). In Wiltse, we

indicated that additional factors “can include whether the

party alleging a plain error encouraged the error or made a

strategic choice not to object to it, and whether the opposing

party played a role in causing the error.” Id. (internal cita-

tions omitted).

Defendant notes that Wiltse listed a “strategic

choice not to object” as an additional factor that the court

can address at step two of the analysis. Defendant argues

from that observation that whether he had made a strate-

gic choice not to object to the admission of Smelser’s testi-

mony is only relevant in determining, at step two, whether

defendant’s conviction should be reversed based on the error

in admitting that testimony. The state responds that the

140 State v. Hutchings

possibility that defendant made a strategic choice not to

object means that the court would have to “choose between

competing inferences,” which means—at step one of the

analysis—that the error is not a plain error at all.

We have addressed the “strategic choice” issue in

four previous plain-error cases, two involving claims of

erroneous sentences, one involving errors in the prosecu-

tor’s closing argument, and one involving an erroneous jury

instruction. Although those cases are informative, none of

them clearly decided whether a defendant’s strategic choice

not to object to the admission of evidence is analyzed at step

one or step two of our framework for addressing a claim of

plain error. The “strategic choice” issue traces back to our

decision in State v. Gornick, 340 Or 160, 130 P3d 780 (2006),

so we will begin with that case and discuss it in some detail.

In Gornick, we considered “whether the Court of

Appeals improperly considered, as plain error, an unpre-

served claim of sentencing error[.]” Id. at 162. After the

defendant had pleaded guilty to a charge of third-degree

assault, the trial court found certain aggravating facts and

imposed an upward departure sentence. Id. The defendant

did not object or contend that he was entitled to have a jury

determine whether the state had proved the aggravating

facts beyond a reasonable doubt. Id. On appeal, the defen-

dant argued for the first time that a jury determination of

aggravating facts was required by the Sixth Amendment to

the United States Constitution, as interpreted in Blakely v.

Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403

(2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct

2348, 147 L Ed 2d 425 (2000). Id. The Court of Appeals con-

cluded that the defendant’s claim was reviewable as plain

error, exercised its discretion to address that error, and

vacated the defendant’s sentence. Id.

We allowed the state’s petition for review and

reversed. We explained that “a trial court does not commit

legal error by finding aggravating facts if the defendant

chooses not to exercise his rights under Blakely.” Gornick,

340 Or at 168. Thus, the “mere fact that a judge, rather

than a jury, decides the facts relevant to sentencing does

not demonstrate that any error occurred[,]” because “[b]oth

Cite as 375 Or 132 (2026) 141

courses of proceeding are constitutionally permissible.” Id.

The defendant in Gornick had entered a guilty plea pursu-

ant to a plea agreement that “clearly stated that he was giv-

ing up his jury trial rights” and consented to “having the

trial court impose a sentence which the court found appropri-

ate[.]” Id. at 169 (emphasis added; internal quotation marks

and brackets omitted). Those circumstances left us “with a

single event, the trial court finding the aggravating facts,

but multiple competing inferences that can be drawn from

that event.”2 Id. One possible inference was that “the trial

court erred by finding the aggravating facts in violation of

the Sixth Amendment.” Id. Another possible inference was

that “the defendant chose, for one of many possible reasons,

not to have a jury find the aggravating facts”—as his plea

agreement suggested he had. Id. at 170. If that were the

case, we explained, then “the trial court did not err.” Id. And

we noted a “third possible inference [was] that [the] defen-

dant did not want the trial court to find the facts but chose

not to object for strategic purposes.” Id. (emphasis added).

Under those circumstances, we explained, the

record did “not clearly show that the trial court erred, only

that it may have erred.” Id. (emphasis added). Thus, we con-

cluded that “the first requirement of the plain error analysis

[was] not satisfied[,]” because “we would be forced to choose

between competing inferences respecting the trial court’s

finding of the aggravating facts[.]” Id.

We also addressed how a defendant’s “strategic

choice” not to object to a sentence imposed by the trial court

affected the appellate court’s analysis on plain-error review

in State v. Fults, 343 Or 515, 173 P3d 822 (2007). There, the

trial court imposed a 36-month term of supervised proba-

tion on a charge of manufacturing a controlled substance

(MCS) even though the presumptive sentence under the

sentencing guidelines was 24 months’ supervision. As we

explained, the trial court had imposed that 36-month term

of supervised probation on the MCS charge “to match the

guidelines sentence” that applied “to one of [the] defendant’s

2

We referred to the “competing inferences” that could be drawn because, for

an error to be “plain” at the first step of the plain-error analysis, the court must

not need to “go outside the record to identify the error or choose between compet-

ing inferences[.]” Gornick, 340 Or at 166.

142 State v. Hutchings

other convictions[.]” Id. at 517. The defendant’s lawyer “affir-

matively endorsed that choice[.]” Id. And, as we noted, there

was “still more to the story.” Id. at 518. Because of the defen-

dant’s criminal record, an extensive jail sentence was “a

real possibility.” Id. At sentencing, the defendant’s lawyer

urged the court to impose “as little jail time as possible” so

that the defendant could begin pursuing vocational reha-

bilitation. Id. On appeal, the defendant contended for the

first time that the 36-month term of probation on the MCS

charge was erroneous and argued for reversal as plain error.

Id. The Court of Appeals agreed and vacated the sentence.

The state sought review in this court, arguing that

the defendant’s “express acceptance” of the sentence pre-

cluded appellate review, that the error was not “apparent

on the face of the record,” and that the Court of Appeals’

reason for exercising its discretion to reverse based on the

unpreserved error “was an inappropriate one.” Id. at 519

(internal quotation marks omitted). The state urged this

court to “start with its last objection” regarding the Court

of Appeals’ exercise of discretion. Id. We agreed to do so,

because we believed that the Court of Appeals’ decision indi-

cated that that court may have “misapprehend[ed] its role

in cases in which it is asked to exercise its discretion under

ORAP 5.45(1) to consider unpreserved error.” Id.

Ultimately, we reversed the Court of Appeals’ deci-

sion in Fults and remanded the case for further proceedings.

We explained that “a Gornick-style inquiry into whether the

fact that defendant may have had a strategic reason not to

object means that there was no error at all would be less help-

ful * * * than simply proceeding directly” to reviewing the

Court of Appeals’ consideration of what it believed to have

been a “plain” error. Id. at 520. We thus assumed—for pur-

poses of that case—that there was a plain error and turned

to reviewing the Court of Appeals’ “decision to consider the

alleged error.” Id. In that context, we explained that “the

Court of Appeals should take into consideration any strate-

gic purpose that [the] defendant may have had in not object-

ing to the trial court’s course of action.” Id. We concluded

that the Court of Appeals’ decision to consider the defen-

dant’s unpreserved claim of error was an abuse of discretion

Cite as 375 Or 132 (2026) 143

because the court offered only one reason for doing so: The

state had “no valid interest in requiring [the] defendant to

serve an unlawful sentence.” Id. at 523 (emphasis omitted).

We explained that “other factors also must be considered

and may outweigh that one.” Id. Among those “other factors”

was “the possibility that [the] defendant made a strategic

choice not to object to the sentence[.]” Id.

More recently, we addressed the “strategic choice”

issue in a different context in State v. Chitwood, 370 Or 305,

518 P3d 903 (2022). The issue in Chitwood was whether two

“highly improper” statements made by the prosecutor during

the rebuttal closing argument constituted plain error, and if

so, whether they were so egregious that they deprived the

defendant of a fair trial. We concluded that the prosecutor’s

statements constituted plain error without addressing at

step one in the analysis whether the defendant may have

had strategic reasons for not objecting to those statements

at trial. At step two of the analysis, the state argued that the

error did not warrant reversal, because “there was ‘a possi-

bility that [the] defendant made a strategic choice’ not to

request a mistrial or a curative instruction[,]” which would

make it “unfair to the state” for the court to exercise its

discretion to reverse based on that error. Id. at 322-23. We

rejected that argument, noting “the prosecutor’s role” in cre-

ating the defendant’s “predicament” and the fact that “the

record [did] not show that defendant encouraged or invited

the prosecutor’s conduct[.]” Id. at 326. The dissenting opin-

ion noted that our “cases have left unresolved the question

whether a party’s strategic choice not to object is relevant to

the existence of plain error, or relevant only to the discretion-

ary choice to correct such an error, or both.” Id. at 334 n 2

(Garrett, J., dissenting) (emphasis in original).

Finally, we addressed the “strategic choice” issue

again in a different context in Wiltse, 373 Or 1. The defen-

dant in Wiltse argued for the first time on appeal that the

trial court had plainly erred in giving a jury instruction

that amounted to a comment on the evidence. The Court of

Appeals agreed with the defendant that the instruction was

a comment on the evidence that was prohibited by ORCP 59

E, but it held that giving the instruction was not plain error,

144 State v. Hutchings

because “it was possible that [the] defendant had agreed to

the instruction or had made a strategic choice not to object

to it and, therefore, the alleged error * * * did not appear on

the record.” Id. at 3-4. We reversed. We explained that the

premise of the Court of Appeals’ decision was that “it is not

error for a trial court to give an instruction that comments

on the evidence if the parties agree to the instruction or

make a strategic choice not to object to it.” Id. at 4. But, we

concluded, “that premise is incorrect.” Id.

We explained that, under our case law, whether a

jury instruction “violates the rules that govern jury instruc-

tions * * * is a question of law that can be determined by

examining the instruction itself[.]” Id. at 9-10. If the instruc-

tion violates those rules, then “giving it was error and the

error [was] apparent on the record.” Id. at 10. We further

explained that ORCP 59 E’s “prohibition against comments

on the evidence protects the jury’s role as the factfinder, and

parties cannot agree to allow a trial court to interfere with

that role.” Id. at 18. If a trial court gives an instruction that

violates ORCP 59 E, “the trial court has erred and the error

is apparent on the record.” Id. “Whether the parties agreed

to the instruction or made [a] strategic choice not to object

to it does not alter the fact that, by giving the instruction,

the trial court violated its independent duty under ORCP

59 E.” Id. But, we explained, those possibilities “can affect

whether an appellate court exercises its discretion to rem-

edy an error.” Id. (emphasis in original).

In summary, we have addressed the “strategic

choice” issue in two sentencing cases (Gornick and Fults); one

closing argument case (Chitwood); and one jury instruction

case (Wiltse). In Gornick, we considered whether the defen-

dant had made a strategic choice not to object to the sentence

at step one of the analysis in determining whether the error

was plain. In Fults, we assumed that the sentencing error

was plain and considered—at step two of the analysis—

whether the defendant had made a strategic choice not to

object to the sentence. In Chitwood, we addressed the strate-

gic choice issue at step two of the analysis without deciding

whether the issue was relevant in determining the existence

of plain error at step one. And in Wiltse, we determined that

Cite as 375 Or 132 (2026) 145

whether the defendant had made a strategic choice not to

object to a jury instruction was a factor to be considered at

step two of the analysis in determining whether a conviction

should be reversed based on that plain error.

None of those cases resolved the issue presented

here, which involves the admission of vouching evidence

without objection, but the analysis we applied in those other

contexts is informative. In the context of a sentencing error,

Gornick indicated that a strategic choice not to object is part

of the analysis, at step one, if one of the permissible infer-

ences that can be made from that choice is that “the trial

court did not err.” 340 Or at 170. Wiltse applied that princi-

ple in the context of an instructional error, concluding that

the error was “plain,” because a defendant’s strategic choice

not to object would not “alter the fact that, by giving the

instruction, the trial court violated its independent duty” to

avoid commenting on the evidence. 373 Or at 18.

Under OEC 103(1)(a), a trial court ruling admit-

ting evidence generally is not considered an error on appeal

absent a timely objection or motion to strike. It follows that

trial courts ordinarily do not have any independent duty to

exclude inadmissible evidence, but only a duty to correctly

rule on a timely objection or motion to strike. That could ren-

der such circumstances less like Wiltse—where the court’s

duty to act was independent of any decision by the parties—

and more like Gornick, where a party’s decision could mean

that the court had not erred at all. But the rule against

vouching is not based on OEC 103. The “vouching rule” is a

judicially created evidentiary rule that is not codified in the

Oregon Evidence Code. State v. Chandler, 360 Or 323, 331,

380 P3d 932 (2016). As a result, “the exact contours of the

rule may be difficult to trace.” Id.

In general, impermissible vouching occurs when

a witness makes “[a] direct comment on the credibility of

a witness or a statement that is ‘tantamount’ to stating

that another witness” is truthful or untruthful. State v.

Beauvais, 357 Or 524, 543, 354 P3d 680 (2015).3 Such testi-

3

Beauvais addressed testimony that a witness had been truthful, but, as we

have noted, the rule against vouching applies “both to comments that bolster and

to comments that undermine a witness’s credibility.” Chandler, 360 Or at 331 n 3.

146 State v. Hutchings

mony is excluded to ensure that “ ‘the jury’s role in assess-

ing witness credibility is not usurped by another witness’s

opinion testimony.’ ” State v. Black, 364 Or 579, 585, 437 P3d

1121 (2019) (quoting Chandler, 360 Or at 330); see also State

v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983) (“We

expressly hold that in Oregon a witness, expert or other-

wise, may not give an opinion on whether he believes a wit-

ness is telling the truth.”). In that sense, a trial court’s obli-

gation to address vouching evidence is similar to the court’s

independent obligation to correctly instruct the jury on the

law that we addressed in Wiltse.

We have indicated, without expressly holding, that

trial courts may have an obligation to intervene sua sponte

with respect to evidence that violates the rule against

vouching. See State v. Sperou, 365 Or 121, 140, 442 P3d

581 (2019) (holding that the trial court’s error in denying a

defendant’s pretrial motion to exclude vouching testimony

was not a harmless error, and noting that, “[i]n general, wit-

ness vouching in Oregon is considered prejudicial, so much

so in fact that it sometimes requires intervention by the

trial court even when parties fail to object to it”); State v.

Milbradt, 305 Or 621, 630, 756 P2d 620 (1988) (suggesting

that, if a question seeks to elicit vouching testimony, “the

trial judge, sua sponte, should summarily cut off the inquiry

before a jury is contaminated by it”).

Defendant contends that the testimony at issue vio-

lates the “categorical prohibition” against vouching evidence

that we have previously recognized, and, therefore, that this

case is more like Wiltse, because any strategic decision by

defendant was immaterial to whether the trial court plainly

erred. The state contends in this court that the testimony

here does not violate that categorical prohibition, because it

could have been offered for a purpose other than the truth of

the credibility opinion that it expresses;4 the state further con-

tends that, even if the testimony was impermissible vouching

evidence, it was not an abuse of discretion to decline to reverse

defendant’s conviction based on its erroneous admission.

We need not address the state’s first argument

because we agree with its second. Assuming without

4

The state did not make that argument in the Court of Appeals.

Cite as 375 Or 132 (2026) 147

deciding that the testimony was impermissible vouching, we

conclude that the error affects, at step two of the analysis,

whether an appellate court should, in its discretion, reverse

defendant’s conviction on plain-error review. And, as we will

explain, we conclude in this case that the Court of Appeals

did not abuse its discretion in declining to reverse defen-

dant’s conviction.

If the testimony was categorically prohibited as

vouching, whether the trial court erred at all in receiving it

would not depend on whether defendant might have had a

strategic reason for not objecting to the testimony. In that

regard, impermissible vouching evidence is more like the

instructional error in Wiltse than the sentencing error in

Gornick. Even if the record revealed that defendant chose,

for strategic reasons, not to object to vouching testimony,

if the testimony is categorically prohibited as vouching, it

would still be error to allow it, though the error might not

be grounds for reversal.5 We conclude in this context that

the possibility that defendant did not object to vouching evi-

dence for strategic reasons is immaterial to the appellate

court’s inquiry at step one of the analysis. In other words, if

there was an error in admitting testimony that is categor-

ically prohibited as vouching, the error was plain regard-

less of whether defendant chose, for strategic reasons, not to

object to that testimony.

The only remaining issue is whether defendant’s

conviction should be reversed based on that plain error. As

noted, that is a discretionary decision that involves consid-

eration of the factors listed in Ailes and other relevant fac-

tors, including the possibility that defendant may not have

objected to the evidence for strategic reasons. Wiltse, 373

5

For example, if the trial court had excused the jury after the prosecutor’s

question, inquired about defendant’s failure to object, and defense counsel had

responded on the record that the defense chose not to object, because the testi-

mony was consistent with defendant’s theory of the case and defendant wanted

the jury to hear it, then we would have a clear record that defendant’s failure to

object was for strategic reasons. Because the prohibition on vouching evidence is

categorical where the evidence is offered for the truth of the opinion testimony, a

defendant’s choice not to object to vouching testimony offered for its truth would

not make the testimony admissible, but it might very well preclude reversal

on appeal. See State v. Serrano, 355 Or 172, 188, 324 P3d 1274 (2014) (stating

that this court “has consistently declined to review plain error” that had been

“encouraged” by the party seeking review).

148 State v. Hutchings

Or at 11 (quoting factors listed in Ailes, 312 Or at 382 n 6).

Defendant contends that this court should undertake that

discretionary analysis. We decline to do so.

In State v. Vanornum, 354 Or 614, 631, 317 P3d 889

(2013), we indicated that this court “could undertake” the

“discretionary assessment” of whether a plain error war-

rants reversal, but we declined to do so in that case. In gen-

eral, discretion is the authority “to choose among several

legally correct outcomes.” State v. Rogers, 330 Or 282, 312,

4 P3d 1261 (2000). A decision that is “within the range of

legally correct discretionary choices and produced a permis-

sible, legally correct outcome,” is not an abuse of discretion.

Id.

In Vanornum, we observed that “[t]he nature of dis-

cretion is that it is best exercised by the entity principally

charged with its exercise.” 354 Or at 631. Thus, we concluded

on plain-error review that the Court of Appeals is better

situated to make that discretionary determination in the

first instance, because it “is the error-correcting tribunal to

which claims of error and plain error may be presented as a

matter of right.” Id. We adhere to that approach in this case

and decline to undertake that discretionary assessment in

the first instance.

Defendant further contends that, if we do not under-

take that assessment, then we should remand to the Court

of Appeals so that it could determine whether to exercise

its discretion to reverse defendant’s conviction.6 We decline

to do that because the Court of Appeals has already stated

how it would exercise its discretion and why. Hutchings, 340

Or App at 212 n 2.7 We decline to remand to the Court of

6

Defendant contends that that the Court of Appeals “never exercised discre-

tion,” because it concluded that there was not plain error, and that, to the extent

that the Court of Appeals explained in a footnote that it would not exercise dis-

cretion to reverse even if the error was plain, the court had “balanced the parties’

contribution to the error incorrectly.”

7

In stating that it would decline to exercise its discretion to reverse defen-

dant’s conviction, the Court of Appeals expressly addressed two factors listed in

Ailes—the “nature of the case” and the “gravity of the error.” Hutchings, 340 Or

App at 212 n 2. The court also noted that the record “supports a plausible infer-

ence” that defendant had a strategic reason not to object to the testimony. Id.

Although that factor was not listed in Ailes, we concluded in Wiltse that “whether

the party alleging a plain error encouraged the error or made a strategic choice

Cite as 375 Or 132 (2026) 149

Appeals so that it can repeat that statement. Instead, we

review the Court of Appeals’ decision for an abuse of dis-

cretion. See Gornick, 340 Or at 167 (“[T]his court inquires

whether the Court of Appeals abused its discretion in decid-

ing to consider the error under the second step in the plain

error analysis.”).

The Court of Appeals did not abuse its discretion

here. It stated that it must exercise the “utmost caution”

in deciding whether to reverse defendant’s conviction on

plain-error review. Id. We have explained that the decision

to reverse based on a plain error must be made “with the

‘utmost caution’ because such review undercuts the policies

served by the preservation doctrine.” Vanornum, 354 Or

at 630-31 (quoting Ailes, 312 Or at 382). As a result, “it is

only in ‘rare and exceptional cases’ that an appellate court

should reverse based on an error that had not been raised

in the trial court.” State v. Ortiz, 372 Or 658, 666, 554 P3d

796 (2024) (quoting Gornick, 340 Or at 166, and Hotelling v.

Walker, 174 Or 381, 385-86, 148 P2d 933 (1944)).

The Court of Appeals, exercising the appropriate

“utmost caution,” did not see this as one of the “rare and

exceptional cases” that justifies reversing a conviction based

on an error that had not been raised in the trial court. That

was within the range of legally correct choices available to

that court, and it produced a permissible, legally correct

outcome. The court did not abuse its discretion in reaching

that conclusion.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

not to object to it” can be an “additional factor” that the court may consider at

step two of the analysis. Wiltse, 373 Or at 11. Finally, the court pointed out in

assessing another factor listed in Ailes—whether the trial court had been given

an opportunity to correct the error—that, if defendant had objected to that testi-

mony, the trial court likely would have sustained the objection, stricken the tes-

timony, and instructed the jury to disregard it. Hutchings, 340 Or App at 212 n 2.