State v. Inman

SERCOMBE, J.,

dissenting.

INTRODUCTION

Vouching evidence, by its nature, is quite prejudicial to a defendant, and its admission usurps the province of the jury and undermines the fairness of a trial. Because of that, in criminal cases where a trial court has plainly erred by failing to strike true vouching testimony by a lay or expert witness, and where the credibility of the verified witness is a significant issue in the case, we have exercised our discretion to correct the error. Here, despite the explicit testimony by a police officer about the truthfulness of the victim, whose credibility was identified by both parties to be a core issue in the case, the lead opinion does not follow our precedents to correct an error that is, by its nature, both plain and grave in character. Instead, it reasons that the error should not be corrected because (1) the prejudice to defendant was not as bad as it would have been if the vouching had been by an expert witness, (2) there was some *947 evidence of the sodomy crime in addition to the victim’s testimony, and (3) correction of plain error is usually a bad idea because it undercuts preservation principles.

With respect, those reasons do not justify the outcome reached by the lead opinion: (1) Because of its pernicious effect, we have condemned the introduction of explicit or “true” vouching testimony, whether voiced by a lay or an expert witness, and whether the vouching is direct or indirect, (2) although there might be little prejudice to a defendant by vouching testimony when there is overwhelming evidence of the crime, that is not the case here, and (3) the Supreme Court has classified this type of error — failure to strike true vouching testimony — as so plainly wrong that it needs no predicate objection to be correctible. Accordingly, lack of preservation is unimportant in evaluating whether to correct that type of error. In my view, then, the lead opinion improperly relies on those considerations in declining to correct the error in this case.

In addition, the lead opinion fails to credit factors— the gravity of the error or the needs of justice in the case— that have prompted our court in other cases to correct this type of plain error. We have, for example, been more inclined to exercise discretion to correct plain error when its potential consequence is a lengthy term of imprisonment, such as the 25-year term meted to defendant here. We also assess any error as consequential, and more demanding of review, when the case is a close one. As evidenced by the split verdicts on both charges, this is such a case. We have also favored providing relief on direct review that would be likely in later post-conviction relief proceedings, as is the case here, where the failure of trial counsel to object to and attempt to cure the vouching testimony was likely to be inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution. We are less inclined to correct error when it is induced or invited by the defendant, when the failure to object could be advantageous to the defendant, or when the unchallenged evidence is cumulative. But none of those circumstances is present here.

Thus, I dissent from the lead opinion’s failure to correct plain and grave error of the type that we have readily *948 corrected in previous cases, that is based upon a rationale that is out of step with our case law, and that fails to consider significant factors that have guided the exercise of our review discretion in the past.

PLAIN ERROR

I begin with the question reserved by the lead opinion — whether the trial court committed plain error in failing to strike the direct vouching testimony of Detective McCourt and to caution the jury to not consider that testimony. As noted by the lead opinion, during direct examination, McCourt was asked about conversations that he and prosecutors had with J after her forensic interview and shortly before trial. McCourt responded with the testimony that is the subject of defendant’s vouching argument on appeal:

“Q. Now, who did you make the arrangements with to have [J] brought to do an interview?

“A. I contacted her mother * * *.

“Q. And [her mother] agreed to bring her daughter down to the PD for an interview?

“A. Yes, she did.

“Q. Okay. And so any conversations you had with [J] after this were after that forensic interview?

“A. Yes.

“Q. Okay. Now, have you had an opportunity to speak with [J] in the presence of the district attorney’s office?

“A. Yes, I have.

“Q. And were those — What was the purpose of those visits?

“A. We like to make — We like to talk to the witness again before the trial just to see, make sure they’re going to be able to — if they’re going to be able to come testify in a court, make sure they still remember, or if they have — if they decide — Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can — we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.

*949 “Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?

“A. Yes.

“Q. And you did not write any such a report or *** note any such inconsistencies at any time?

“A. I did not.”

The lead opinion concedes that McCourt’s testimony constitutes “objectionable” vouching because it “could have conveyed to the jury that McCourt did not believe that J had lied or told a fib.” 275 Or App at 931 (Hadlock, J., lead opinion). The state likewise acknowledges that McCourt’s testimony was an “implicit comment on [J’s] credibility.” Two particular aspects of the testimony vouch for J’s credibility. First, McCourt stated that he spoke with J both to “make sure” that she was “going to be able to come testify in a court, make sure [she] still remember [ed]” and to see if J was “lying to us or * * * told us a fib,” so that, if either were true, the victim’s testimony would not “have to waste your time and the court’s time.” Put simply, McCourt testified that he evaluated J’s truthfulness to determine if the prosecution should continue.

Second, McCourt testified that, if there had been “any inconsistencies or any problems,” he would have reported those inconsistencies or problems to the parties, and he did not. The “inconsistencies” referenced were issues with J’s memory and the recountings of the crimes (“make sure they still remember”). 1 “Any problems,” however, refer to the other point of the interview, to assess the victim’s truthfulness (finding out “that they were lying to us or they told us a fib”). The jury could have concluded that McCourt believed J, otherwise he would have reported her untruthfulness to the parties as potentially exculpatory evidence. Thus, reduced to its essence, McCourt’s testimony was that he determined that the victim was truthful in telling the *950 circumstances of the crimes. Although McCourt did not simply state, “I believed J was telling the truth,” he said much the same thing — viz., “I did not stop the prosecution or inform the parties because I believed J was telling the truth.” That testimony was offered by the state (“And did you not write any such report ***?”) for one reason alone— to bolster J’s credibility. 2

Because that testimony is true vouching — that is, an explicit comment by one witness on the credibility of another witness that is offered to bolster the veracity of that witness — the court’s failure to strike it is indisputably plain error. “[I]n Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.” State v. Middleton, 294 Or 427, 438 , 657 P2d 1215 (1983). It is plain error for a trial court to not strike true vouching testimony sua sponte, whether that witness is an expert or a lay witness. See State v. Milbradt, 305 Or 621, 630 , 756 P2d 620 (1988) (“We suggest in the future that if counsel attempts to elicit [testimony commenting on the credibility of a witness,] the trial judge, sua sponte, should summarily cut off the inquiry before a jury is contaminated by it.”); State v. Higgins, 258 Or App 177, 178 , 308 P3d 352 (2013), rev den, 354 Or 700 (2014) (plain error to not strike mother’s testimony that she “‘knew for sure’” that her daughter was not lying when the daughter said that the defendant had raped her); B. A. v. Webb, 253 Or App 1, 12 , 289 P3d 300 (2012), rev den, 353 Or 428 (2013) (plain error for trial court to fail to strike testimony that the witness had “‘no doubt’” what the complainant told her was the “‘absolute truth’” because that testimony constituted “explicit vouching for [the complainant’s] credibility” and a “blatant and pervasive violation of the Middleton/Milbradt proscription”); State v. Hollywood, 250 Or App 675, 677-79 , 282 P3d 944 (2012) (plain error to not strike testimony that “‘there is no lying going on about what [the complainant’s] telling us *951 in this evaluation’”); State v. Lowell, 249 Or App 364, 365-66 , 277 P3d 588 , rev den, 352 Or 378 (2012) (plain error to allow testimony to stand that the witness “‘didn’t think that [the defendant] was being very honest and upfront’”).

We summarized that line of cases in State v. Corkill, 262 Or App 543, 552 , 325 P3d 796 , rev den, 355 Or 751 (2014):

“Each of the cases in which we have held that a trial court should have excluded evidence sua sponte *** has involved true ‘vouching’ evidence, that is, one witness’s testimony that he or she believes that another witness is or is not credible, which a party offers to bolster or undermine the veracity of that other witness. That kind of testimony impermissibly ‘invade [s] the jury’s role as the sole judge of the credibility of another witness.’ State v. Charboneau, 323 Or 38, 47 , 913 P2d 308 (1996). Often, it creates a ‘risk that the jury will not make its own credibility determination, which it is fully capable of doing, but will instead defer’ to an expert’s opinion on that point. State v. Southard, 347 Or 127, 141 , 218 P3d 104 (2009).”

(Brackets in Corkill; some citations omitted.)

I agree with Judge Ortega’s assertion in her concurrence that there is a distinction in plain error vouching cases between the “true vouching” identified in Corkill— ’’one witness’s testimony that he or she believes that another witness is or is not credible, which a party offers to bolster or undermine the veracity of that other witness” — and testimony that is not explicitly vouching for another that a judge is not obliged to strike. In Corkill, for example, we concluded that it was not plain error for the court not to strike the defendant’s answers to a prosecutor’s questions about whether police officer witnesses were lying when their testimony contradicted that of the defendant. Id. at 553. Those inquiries, we concluded, went not to bolstering or undermining a different witness’s testimony but to “undermining the credibility of the witness who is presently on the stand.” Id. As such, it was not “true vouching.”

In State v. Wilson, 266 Or App 481, 487-88, 492-93 , 337 P3d 990 (2014), rev den, 356 Or 837 (2015), we determined that a court did not plainly err in not striking testimony by *952 a witness that the complainant was not “ ‘faking it’ ” in being “‘extremely upset.’” We concluded that the testimony was not about the truthfulness of the complainant’s testimony about the sexual abuse, but was more akin to permissible testimony about the complainant’s demeanor. Id. at 493. As such, it was not true or explicit vouching. In Easter v. Mills, 239 Or App 209, 214 , 243 P3d 1212 (2010), rev den, 350 Or 130 (2011), testimony by the victim’s mother that the victim did not have a motive to lie was held not to be impermissible vouching because the “mother was not asked whether she believed that [the victim] was telling the truth (nor did her answer reveal whether she believed that [the victim] was telling the truth).”

But, contrary to Judge Ortega’s assertion, it is plain error not to strike explicit vouching whether the vouching is direct (opinion testimony that the witness was truthful) or indirect (testimony that the witness took or failed to take an action or reached a conclusion because of an opinion that a witness was truthful). In State v. McQuisten, 97 Or App 517 , 519 n 2, 520, 776 P2d 1304 (1989), we concluded that the trial court “had a duty, sua sponte, not to allow testimony” from a police officer that “it is pretty hard for [a sexual assault victim] to fabricate those feelings” and that the complainant was showing “very true emotions and signs” of sexual abuse, because “the jury could reasonably have drawn the inference that the officer believed the story of the complaining witness, bolstering her credibility in its estimation.” In Higgins, 258 Or App at 178 , it was plain error for a trial court to not strike testimony by the complainant’s mother that she waited for “‘so many hours’” to let the complainant repeat her story so she “‘knew for sure that [the complainant] wasn’t lying.’” And, based on State v. Keller, 315 Or 273 , 844 P3d 195 (1993), and State v. Lupoli, 348 Or 346 , 234 P3d 117 (2010), we have repeatedly held that it is plain error for a court not to strike indirect vouching testimony in the form of expert testimony about the status of a witness based on the expert’s opinion of the witness’s credibility. See, e.g., State v. Wells, 257 Or App 808, 809 , 308 P3d 274 (2013) (plain error not to strike CARES evaluator’s diagnosis of sexual abuse based on an interview of the victim); State v. Preuitt, 255 Or App 215, 222-23 , 296 P3d 648 , *953 rev den, 353 Or 868 (2013) (plain error not to strike expert’s conclusions that she had no “‘concerns or red flags’” that a complainant’s testimony of being abused was a ‘“story that she had adopted from somewhere else’”).

Thus, the error in failing to strike McCourt’s testimony is no less plain because it is indirect and explicit vouching. McCourt’s testimony is as plainly inadmissible as the admission of the indirect comment on the victim’s credibility that was admitted, over the defendant’s objection, in State v. Ferguson, 247 Or App 747 , 271 P3d 150 (2012). In that case, the complainant alleged that she had been drugged and raped by the defendant. She reported that allegation to her father, who directed another person to call the police. The father testified at trial that he “‘let the police be called’” and that he would not have done so if he thought that the complainant “‘had just made a mistake, got drunk, but had sex with somebody knowingly.’” Id. at 752 . We concluded that the court erred in admitting that “indirect comment on the victim’s credibility.” Id. at 754 . So too here, McCourt’s testimony that he interviewed J to determine if she was telling the truth and that he would have, but did not, report to the parties if he had concluded that there were “any inconsistencies or any problems,” is plainly inadmissible as vouching for the truthfulness of J. Thus, the trial court’s inaction in the face of true vouching testimony was plainly erroneous; the court’s duty to assure fundamentally fair proceedings was unqualified and needed no objection or other prompting.

EXERCISE OF DISCRETION TO REVIEW

Even where error is plain, “the appellate court must exercise its discretion to consider or not to consider the error[.]” Ailes v. Portland Meadows, Inc., 312 Or 376, 382 , 823 P2d 956 (1991). In deciding whether to exercise our discretion to correct an unpreserved error, we apply the nonexclusive factors articulated by the Supreme Court in Ailes :

“[I]n deciding whether to exercise its discretion to consider an error of law apparent on the face of the record, among the factors that a court may consider are: the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether *954 the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error. State v. Brown, 310 Or 347, 355-56 , 800 P2d 259 (1990); State v. Avent, 209 Or 181, 183 , 302 P2d 549 (1956). Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible considerations.”

Id. at 382 n 6. Additional factors that are relevant in deciding whether to exercise discretion to correct an error were listed in State v. Fults, 343 Or 515, 523 , 173 P3d 822 (2007):

“Although we may accept in the abstract the court’s statement that ‘[t]he state has no valid interest in requiring defendant to serve an unlawful sentence,’ other factors also must be considered and may outweigh that one. Among the factors that may apply in this case are: (1) defendant’s apparent encouragement of the judge’s choice; (2) the role of the concurrent, permissible 36-month probationary sentence; (3) the possibility that defendant made a strategic choice not to object to the sentence; and (4) the interest of the judicial system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring preservation of error.”

I note that some of the Ailes/Fults factors are present in every case and lack dispositive significance. It is true, in the abstract, that neither the state nor a defendant has an interest in a criminal conviction procured through improper evidence. The “competing interests of the parties” factor, then, in that type of case, would always favor review and correction. As Fults suggests, however, “other factors also must be considered and may outweigh that one.” Id.

On the other hand, the “interest in requiring preservation of error” factor would always suggest not exercising discretion to correct the error. The lead opinion, in fact, primarily relies on that factor to support its disposition of the case. 275 Or App at 934-35 (Hadlock, J., lead opinion) (“In other words, any retrial that we might require in this case— with its attendant toll on the participants and the judicial system as a whole — would have been avoided entirely had defendant simply objected to McCourt’s testimony at the *955 time it was delivered.”). We rejected that analysis as dispos-itive in State v. Reynolds, 250 Or App 516, 525 , 280 P3d 1046 (2012):

“Admittedly, the preservation principle of ‘judicial efficiency’ would not be served by review of defendant’s unpre-served claim of error. Had defendant moved for a judgment of acquittal on the third-degree assault charge, that relief could have been obtained sooner and with less consumption of judicial resources. That inefficiency, however, is present in nearly all cases where review of unpreserved issues are under consideration. That consideration does not distinguish those cases where review should be allowed from those where it should not. We said as much in State v. Morris, 217 Or App 271, 274 , 174 P3d 1127 (2007), rev den, 344 Or 671 (2008):

“‘To be sure, as the state suggests, if defendant had raised his present objection before the trial court, error might well have been avoided. But that is true in many “plain error” cases — indeed, in virtually all such cases except for those in which the claim of error is based on an intervening, post-judgment change in the law.’

“Thus, the error in this case is plain and serious, and its correction will not undermine the relevant principles that underlie the preservation rule.”

See also State v. Martino, 245 Or App 594, 597 , 262 P3d 1111 (2011) (rejecting state’s argument that “‘had [the] defendant made a timely objection, the state may have been able to produce the necessary evidence’” as reason to not exercise Ailes discretion). Unfortunately, the lead opinion does treat the preservation of error factor as dispositive here.

Other Ailes/Fults factors are not present in this case, and play little part in the analysis. Although we have declined to exercise Ailes discretion when a defendant’s failure to object to or move to strike the offending evidence was a plausible tactic to advance the defense, that is not the case here. See, e.g., State v. Ramirez-Estrada, 260 Or App 312, 319-26 , 317 P3d 322 (2013), rev den, 355 Or 317 (2014) (elicitation by defense counsel of vouching testimony from medical witness as part of strategy to question the sufficiency of the medical examination by that witness). Defendant’s position at trial was that J, the sodomy victim, was not credible *956 because she had been repeatedly interviewed prior to trial and her recollections had been altered by those interviews. The state suggests that defendant’s position invited McCourt’s testimony about the reason for his interview, and defense counsel did not object to the vouching because he figured that the objection would be overruled given that invitation. In my view, defendant’s position that the victim was not credible did not invite McCourt’s testimony that she was. Cf. State v. S. J. F., 247 Or App 321 , 328 n 2, 269 P3d 83 (2011) (defense counsel’s failure to object to holding a hearing without the defendant being present did not invite the error).

There was no plausible reason for defense counsel to not object to McCourt’s vouching. Defendant gained “no conceivable advantage” in not advancing an objection. State v. Dorsey, 259 Or App 441, 446-47 , 314 P3d 331 (2013) (rejecting “ ‘strategic choice’ ” contention where “there was no conceivable advantage to [the] defendant in not advancing” the proper argument); see also Berg v. Nooth, 258 Or App 286, 298 , 309 P3d 164 (2013) (“The holdings in Milbradt, Lupoli, and Southard suggest that it will be the rare case in which reasonable trial strategy will include allowing witnesses— particularly those with pertinent expertise — to vouch for the credibility of people who report sexual abuse.”). Thus, that consideration does not counsel against exercising our discretion to correct the error.

Instead, there are aspects of the “gravity of the error” and the “ends of justice in the particular case” factors here that support the exercise of discretion to correct the plain error. First, we have readily concluded that an error is “grave” when it could have resulted in a wrongful criminal conviction or otherwise increased the term of incarceration of a defendant. See Reynolds, 250 Or App at 522 (entry of criminal conviction without sufficient proof is grave error of “constitutional magnitude”); State v. Ryder, 230 Or App 432, 435 , 216 P3d 895 (2009) (“[T]he gravity of the error — viz., the imposition of an additional felony conviction — strongly militates in favor of the exercise of discretion.”); State v. Newson, 218 Or App 393, 397 , 180 P3d 67 (2008) (“[T]he ‘gravity of the error,’ Ailes, 312 Or at 382 n 6—the imposition of a sentence three years greater than the statutorily *957 prescribed maximum — is substantial.”)- Here, the consequence of leaving undisturbed McCourt’s vouching for the victim is that defendant was imprisoned for 25 years.

In addition, we are more likely to consider the error to be grave if it “likely affected” the outcome of the case or where the prejudicial effect of the error is “significant” or “substantial.” See, e.g., State v. Pergande, 270 Or App 280, 286 , 348 P3d 245 (2015) (“Those facts present a significant risk that the jury’s credibility determinations were affected by Terry’s testimony.”); State v. Roelle, 259 Or App 44, 50 , 312 P3d 555 (2013) (“[W]e conclude that the admission of that evidence likely affected the jury’s verdict.”); B. A., 253 Or App at 12-13 (“[T]he outcome depend [ed] very substantially, perhaps exclusively, on the jury’s determination of the parties’ relative credibility.”). Thus, in cases where the victim’s credibility is a significant issue, an error in permitting vouching of the victim’s credibility is considered to be grave. Here, both the prosecution and the defense, in closing arguments, characterized the case as one involving a credibility contest. Defense counsel argued, “Now, the credibility is the issue here, the credibility of the entire State’s case.” The prosecutor countered, “Either way, if you believe that what [the victims] saw and what they witnessed, if you believe and find them credible, the material elements of the charge have been satisfied.”

Contrary to the lead opinion’s reasoning, in cases where the victim’s credibility is a significant issue, we have found vouching to be prejudicial error even when there is some other corroborating evidence of the crime. For example, in Simpson v. Coursey, 224 Or App 145, 148, 153 , 197 P3d 68 (2008), rev den, 346 Or 184 (2009), a vouching case with facts analogous to this case, we noted that

“[t]he state *** called as a witness the victim’s brother, who corroborated some aspects of the victim’s account of events, specifically that petitioner, the victim, and he wrestled together in petitioner’s bedroom, and that on a few occasions when they were all watching television in petitioner’s bedroom, petitioner asked him to leave the room to get petitioner a drink of water or milk. The victim’s friend testified that the victim had reported the abuse to her at *958 the time and again, more recently, but that the victim had asked her not to say anything about it both times.

******

“* * * Petitioner’s criminal trial, like the trials in Milbradt and McQuisten , lacked any physical evidence to corroborate either the victim’s or petitioner’s account. The Milbradt court characterized that situation as a ‘credibility contest,’ in which improper vouching is even more prejudicial to the defendant than in other criminal trials, due to the critical importance of the credibility of the victim’s and the defendant’s competing testimony.”

See also State v. Brown, 256 Or App 774, 778 , 302 P3d 1214 (2013) (medical expert vouching prejudicial even “though there was other evidence of sexual abuse”); Berg, 258 Or App at 301-02 (inadequate assistance of counsel in failing to object to vouching testimony was prejudicial notwithstanding “the existence of corroborating physical evidence”).

Instead, we have refused to exercise Ailes discretion to correct a vouching error for lack of prejudice only when there is overwhelming evidence of a defendant’s guilt so that the testimony of the verified witness is truly cumulative. See, e.g., State v. Pickett, 246 Or App 62, 65 , 264 P3d 209 (2011), rev den, 351 Or 541 (2012) (vouching by medical witness not prejudicial where the defendant admitted to sexually abusing the victim and there was substantiating photographic evidence of the abuse); State v. Childs, 243 Or App 129, 131-32 , 259 P3d 77 , rev den, 350 Or 573 (2011) (medical witness vouching not likely to have affected the court’s verdict where there was photographic evidence corroborating the victim’s account of the abuse and the court explicitly eschewed any reliance on the expert testimony).

Here, the eyewitness testimony of Q was hardly overwhelming. There were inconsistencies between the testimony of Q and the victim, J, about details of the sodomy, such as whether the abuse occurred during the daytime or nighttime and whether their mother first learned about the abuse from Q or J. Q, who was 11 years old, testified several times that “I have a bad memory” and “I can barely *959 remember *** a couple minutes ago.” His testimony falls well short of the physical proof found sufficient to classify vouching error as harmless in Pickett and Childs.

Moreover, an error is more likely to be considered grave when the case is a close one, as reflected by a split jury verdict to convict. See, e.g., State v. Logston, 270 Or App 296, 307 , 347 P3d 352 (2015); State v. Abraham, 265 Or App 240, 247 , 335 P3d 293 (2014); State v. Villanueva-Villanueva, 262 Or App 530, 535 , 325 P3d 783 (2014); Berg, 258 Or App at 302 ; State v. Edblom, 257 Or App 22, 33 , 303 P3d 1001 (2013); Brown, 256 Or App at 778 ; Simpson, 224 Or App at 154 ; State v. Olsen, 220 Or App 85, 92 , 185 P3d 467 (2008); State v. Smith, 194 Or App 697, 706 , 96 P3d 1234 (2004). Here, the jury found defendant guilty by an 11-to-l vote on the sodomy charge and by a 10-to-2 vote on the harassment charge. In short, we should exercise discretion to correct the vouching error because the victim’s credibility was a significant issue in an otherwise close case.

McCourt’s credibility with the jury as a police officer is another feature of the case that supports categorizing the vouching error as grave. In my view, a police officer is likely to be viewed by a jury as a more credible witness than a lay witness, and vouching testimony by a police officer from the exercise of official duties is more likely to be prejudicial to a defendant than testimony by a lay witness. Here, McCourt testified that part of his “duties as a detective” was “investigating] these types of incidents” and to officially report if there was “any problem,” including lying, in the testimony of the victim. Thus, as presented to the jury, McCourt’s vouching for the victim was just part of his job.

In Simpson, we concluded that vouching by a police officer in an otherwise close case was prejudicial to the petitioner. There, the petitioner sought post-conviction relief from his conviction of first-degree sexual abuse, because his criminal trial counsel did not move to strike a police officer’s description of the victim as “Very honest, very straightforward.’” 224 Or App at 148 . We concluded that the officer’s vouching testimony was particularly prejudicial to the petitioner’s case:

*960 “We readily conclude that [the police officer’s] testimony had at least some likelihood of influencing the jury and thus affecting the verdict. The jury heard a uniformed police detective vouch for the victim’s honesty. The possibility that the testimony affected the verdict is magnified by the fact that the criminal trial appears to have been an extremely close case for the jury. It returned a verdict of acquittal on three of the four counts of sexual abuse, and its guilty verdict on the fourth count was by a 10 to 2 vote. The charges * * * turned on whether the jury believed the victim’s testimony. Thus, the possibility that [the police officer’s] testimony vouching for the credibility of the victim affected the verdict is very real.”

Id. at 154 . That same analysis informs the “gravity of the error” and the “ends of justice” inquiries here.

Finally, we have concluded that the ends of justice factor supports an exercise of Ailes discretion to correct plain error when a defendant would likely obtain the same result in post-conviction proceedings. We reiterated that principle in Reynolds:

“We conclude that the ends of justice in this case militate in favor of correcting the plain error. As the dissent notes, it is likely that defendant would be able to obtain post-conviction relief from the erroneous conviction. However, we conclude, contrary to the dissent, that the availability of post-conviction relief is a reason in support of affirmatively exercising our discretion. As we have noted in the plain error context before,

‘“[w]e see no reason, and the state offers none, as to why [the] defendant should be made to jump through more procedural hoops before he can get the relief to which he is entitled. In this case, we are in a position to order the same relief to which [the] defendant would be entitled under a post-conviction proceeding, and we do so in the interests of judicial economy.’

“State v. Cleveland, 148 Or App 97, 100 , 939 P2d 94 , rev den, 325 Or 621 (1997). There is, in short, no reason to deny review where it would result in more unnecessary proceedings and, ultimately, less judicial efficiency.”

250 Or App at 526 (brackets in Reynolds); see also State v. Gammon, 264 Or App 420, 421 , 332 P3d 347 , rev den, 356 Or *961 575 (2014) (same); State v. Simkins, 263 Or App 459, 461-62 , 330 P3d 1235 (2014) (same). Here, the failure of defendant’s trial counsel to object to McCourt’s vouching testimony was inadequate assistance of counsel under Article I, section 11, and would likely entitle defendant to post-conviction relief. See Simpson, 224 Or App at 156 ; see also Berg, 258 Or App at 298-99 (failure of trial counsel to object to the testimony of a vouching witness and prosecutor’s closing argument was inadequate assistance entitling the petitioner to post-conviction relief). In my view, we should provide that relief to defendant sooner than later.

CONCLUSIONS

I disagree with the lead opinion’s conclusion that the court ought not to exercise discretion to correct the plain error in this case because the vouching was not by a medical expert witness and because there was some corroborating evidence of the sodomy crime. The vouching for the sodomy victim likely affected both convictions. In other cases, we have exercised discretion to correct the grave error in not striking true vouching testimony, notwithstanding the normal reluctance to address unpreserved error, because that type of evidence is particularly prejudicial to a defendant and inimical to a fair trial. We have declined to correct that type of error only in three circumstances, none of which is present here: where a defendant invites that error or has a plausible reason to allow that type of evidence to be introduced or when there is overwhelming evidence of a defendant’s guilt. For those reasons, I respectfully dissent.

Duncan and Tookey, JJ., join in this dissent.

McCourt’s interview of J was the first time she spoke with him about the details of the crimes. Presumably, the “inconsistencies” refer to inconsistencies between that telling and the truth. If not, I agree with the lead opinion that it is not vouching to testify that a witness’s statements were consistent with other statements. 275 Or App at 931-32 (Hadlock, J., lead opinion).

In her concurrence, Judge Ortega suggests that McCourt’s testimony was “simply a general description of what officers and prosecutors often do to prepare witnesses for trial” and not specific to McCourt’s interview of J. 275 Or App at 945 (Ortega, J., concurring). It is readily apparent, however, that, in testifying about the “purpose of those visits,” McCourt is testifying about the visits with J immediately before the trial.