STATE OF OREGON v. MIGUEL ZAMBRANO (2026)

Defendant appeals from a judgment of conviction for one count of first-degree sodomy (Count 1), three counts of first-degree sexual abuse (Counts 2, 4, and 6), and one count of attempted use of a child in a display of sexually explicit conduct (Count 5).¹ In 13 assignments of error, defendant argues that the trial court erred in (1) excluding defendant's statement to police that he would take a polygraph; (2) admitting a therapist's testimony about the complainant's symptoms and treatment; (3) denying defendant's motion for judgment of acquittal (MJOA) on Count 5, attempted display, and instructing the jury on the meaning of “lewd exhibit” for purposes of Count 5; (4) failing to declare a mistrial sua sponte in response to the prosecutor's allegedly improper rebuttal arguments; and (5) imposing restitution and a compensatory fine and applying the security amount posted by defendant's sister to the restitution/compensatory fine award.

We conclude that the trial court erred in excluding defendant's statement that he would take a polygraph because it failed to consider defendant's proposed limiting instruction when it conducted OEC 403 balancing, and that error was not harmless. Additionally, we reject the state's argument that we should affirm the trial court's ruling on the alternative basis that the statement was inadmissible hearsay. We further conclude that the appropriate remedy is a limited remand for the trial court to conduct OEC 403 balancing based on a proper understanding of defendant's proposed instruction, and “to thereafter determine whether to reenter the judgment or whether a new trial is necessary and appropriate.” State v. Antonio, 334 Or App 778, 781, 556 P3d 1053 (2024).

We further conclude that the trial court did not err in admitting the therapist's testimony under OEC 403 based on the record before the trial court at the time that it made its ruling. As to defendant's challenges related to Count 5, attempted display, we accept the state's concession that, under State v. Parra-Sanchez, 324 Or App 712, 527 P3d 1008, rev den, 371 Or 333 (2023), the trial court plainly erred in instructing the jurors on the meaning of “lewd exhibit,” and we conclude that that error was not harmless. Accordingly, defendant is entitled to a new trial on that count.² We further conclude, however, that defendant's MJOA argument is unpreserved and that his claim of error does not meet the requirements for plain-error review. Consequently, he is not entitled to outright acquittal on Count 5.

We also reject defendant's claims of error related to statements that the prosecutor made in rebuttal argument because defendant's challenges do not meet the requirements for reversal as plain error under State v. Chitwood, 370 Or 305, 518 P3d 903 (2022). Finally, we conclude that the trial court did not err in imposing restitution and a compensatory fine and in ordering that the security-release deposit be applied to pay the imposed fines.

I. BACKGROUND

We begin with an overview of the background facts and procedural history for context and discuss additional facts and procedural history as relevant to each assignment of error. When A was seven years old, defendant and A's mother, Hill, began a relationship that lasted approximately four years. When A was 11, she disclosed to her mother that defendant had sexually abused her. In two forensic interviews at CARES Northwest, A disclosed various instances of sexual abuse by defendant and disclosed that on one occasion defendant had taken pictures of A in the shower and after A came out of the shower in a towel, defendant told A to remove the towel, which A refused to do.

The state charged defendant with first-degree sodomy, three counts of first-degree sexual abuse, first-degree rape, and attempted use of a child in a display of sexually explicit conduct. At trial, the state's evidence included A's testimony about the abuse, the testimony of people A had disclosed the abuse to, including A's friends and mother, journal entries that A had written about the abuse, recordings of A's forensic interviews, and the testimony of Chavarria, a trauma counselor at CARES who provided counseling to A.

Defendant's evidence included his testimony that the allegations were false; evidence that he had consistently denied the accusations and fully cooperated with police; and testimony from an expert on child forensic interviews about factors that can influence the reliability of a child's statements, such as suggestibility and bias. Defendant also pointed to inconsistencies in A's disclosures over time and the lack of physical or eyewitness evidence.

The jury found defendant guilty of first-degree sodomy, three counts of first-degree sexual abuse, and attempted display. The jury acquitted defendant of first-degree rape.

II. POLYGRAPH STATEMENT

Before trial, defendant moved to admit at trial his statement to police that he would take a polygraph test. Defendant made the statement during an interrogation after police arrested him. During the interrogation, defendant categorically denied the allegations, and when police asked him if he would “take a polygraph assessment,” he replied, “Absolutely.” In his motion, defendant argued that the statement was admissible as “consciousness of innocence” under the “state of mind” hearsay exception, OEC 803(3), and that its probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under OEC 403.

The trial court agreed with defendant that the statement was admissible under the “state of mind” hearsay exception, OEC 803(3), but excluded the statement after concluding that it constituted “impermissible bolstering” under State v. Snider, 296 Or 168, 674 P2d 585 (1983), and that it was inadmissible under OEC 403. Defendant challenges that ruling on appeal, arguing that the trial court erred in excluding the statement under Snider and OEC 403. The state does not defend the trial court's reliance on Snider but argues that the trial court correctly excluded the statement under OEC 403; that any error was harmless; or that we should affirm the trial court's ruling on the alternative basis that the statement was inadmissible hearsay.

We begin with the trial court's ruling under OEC 403 and conclude that the court incorrectly excluded the statement because the court's balancing was flawed. We then address harmlessness and conclude that the error was not harmless. Finally, we address the state's argument that we should affirm the trial court's ruling excluding the statement because it was inadmissible hearsay and conclude that the statement was admissible under the state-of-mind hearsay exception.

A. OEC 403

Defendant argued that the statement was admissible under OEC 403 because the statement was highly relevant to the issue of defendant's credibility and that, with a proper limiting instruction, the “brief and simple” statement would not cause confusion, undue delay, or unfair prejudice. The limiting instruction that defendant proposed would say that no polygraph ever occurred and that even if it did the results would not be admissible under the rules of evidence. See State v. Brown, 297 Or 404, 441, 687 P2d 751 (1984) (polygraph evidence is inadmissible because, among other things, jurors might misuse and overvalue the evidence); Snider, 296 Or at 171 (evidence of “the fact that a person had taken a polygraph test” is inadmissible).

The state argued that the statement was inadmissible under OEC 403 because under Oregon case law “mere mention of a polygraph is highly prejudicial and creates a danger of confusion.” See State v. Lyon, 304 Or 221, 231, 744 P2d 231 (1987) (concluding that polygraph test results are inadmissible even when stipulated); see also State v. Harberts, 315 Or 408, 416, 848 P2d 1187 (1993) (where the state seeks to admit a defendant's statement made in the context of a polygraph examination, “the trial judge must determine whether the statement can be redacted to exclude any reference to the polygraph”); State v. Sullivan, 152 Or App 75, 81, 952 P2d 100 (1998) (defendant's proffered polygraph results showing a truthful answer that contact was not sexual in nature were inadmissible). The state argued that reference to defendant's willingness to take a polygraph would “open the door to the reasons why no polygraph was offered,” which would entail “testimony and other evidence regarding the lack of reliability of [polygraph] evidence,” and would cause “confusion, undue delay, and needless presentation of the evidence.” The state argued that those concerns substantially outweighed the probative value of the statement, which, in the context of defendant's “consistent, repeated firm denials” of guilt was low.

The trial court ruled that the statement was inadmissible under OEC 403.³ In making its ruling, the court reasoned:

“I like [defense counsel's] initial curative instruction to fix all the concerns I have, [but] it leaves me with the additional problem that I hadn't contemplated[,] * * * which is [defendant's] offered [to take a polygraph] and then we tell [the jury] they're not allowed to know if one happened or what happened. Does the jury decide, oh, he did take one and he failed, and that's why we're here, and that's prejudicial to [defendant]. I can't allow them to make that inference. I can't allow them to make the inference that [defendant] passed and we're here anyways, because, of course, that wouldn't make any sense, which leads back to the inference of, well, he couldn't have passed because they wouldn't be proceeding and I think that is unduly prejudicial to [defendant].”

Defendant clarified that the limiting instruction he proposed would say that as a factual matter no polygraph occurred and even if it did, it would not be admissible. Defendant argued that that instruction would “clearly address[ ]” the court's concerns and “would not result in any confusion by the jury.” The trial court adhered to its ruling without addressing defendant's proposed instruction or argument.

On appeal, defendant argues that the trial court erred in excluding his statement under OEC 403 because, among other things, it “committed an error in its assessment of the efficacy of a limiting instruction.” We agree. In making its ruling, the trial court assessed the danger of unfair prejudice and confusion of the issues based on concerns that the jury might infer that defendant took and failed a polygraph, which would be prejudicial to defendant, or that he took and passed a polygraph, which would be confusing to the jury. Those concerns were based on the trial court's erroneous understanding that defendant's proposed limiting instruction would tell the jury that defendant offered to take a polygraph but that they are “not allowed to know if one happened or what happened.” As discussed above, however, defendant's proposed instruction would tell the jury that as a factual matter no polygraph was given and, even it was, the results would be inadmissible. Accordingly, the trial court incorrectly excluded defendant's statement because the court's 403 balancing was flawed. See State v. Baughman, 276 Or App 754, 772, 369 P3d 423 (2016), aff'd, 361 Or 386, 393 P3d 1132 (2017) (concluding that the trial court erred in admitting prior acts evidence because it misapprehended the probative value of the evidence in conducting OEC 403 balancing).

B. Harmless Error

Having concluded that the trial court erred in excluding defendant's statement on the basis that it did, we must determine whether that error was harmless. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (if we conclude that a trial court's error was harmless, we must affirm the conviction). Whether an error is harmless is a question of law. State v. Ramoz, 367 Or 670, 703, 483 P3d 615 (2021). In determining whether an error is harmless, we analyze “whether there was ‘little likelihood’ that the error affected the verdict.” Id. at 704. To determine whether erroneously excluded evidence affected the verdict, “we consider the nature of the evidence in the context of the trial as a whole.” State v. Simon, 294 Or App 840, 849, 433 P3d 385 (2018), rev den, 365 Or 502 (2019). “The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling.” Davis, 336 Or at 32.

The state argues that any error in excluding defendant's statement to detectives that he would “absolutely” take a polygraph test was harmless because it would be cumulative of other evidence that was admitted. See State v. Klein, 352 Or 302, 314, 283 P3d 350 (2012) (“Erroneous exclusion of evidence that is ‘merely cumulative’ of admitted evidence and not ‘qualitatively different’ than admitted evidence generally is harmless.”). The state points to evidence of defendant's assertions of innocence that was admitted at trial, including his repeated and categorical denials of the accusations in a recorded pretext phone call with A's mother, to police during an interrogation, and as a witness at trial, as well as defendant's cooperation with the police, including his willingness to speak with police after waiving his Miranda rights, and his voluntary consent to a search of his cell phone.

Defendant argues that his statement is qualitatively different than other evidence of his assertions of innocence and cooperation with police. In defendant's view, an offer to take a polygraph is “uniquely powerful” evidence of defendant's innocence because the results of a polygraph test are in law enforcement's hands and out of defendant's control.

We agree with defendant that his willingness to take a polygraph test, which was relevant to a central issue in the case, was qualitatively different than other evidence of defendant's credibility. See State v. Black, 364 Or 579, 596, 437 P3d 1121 (2019) (“An error is less likely to be harmless where it relates to a central factual issue in the case.”). Defendant's statement to police, which he made during an interrogation at the police station, permits an inference that defendant's claims of innocence were credible because he was willing to have his claims tested by law enforcement. Thus, on this record, we cannot conclude that there was little likelihood that the trial court's error in excluding the statement affected the verdict.

C. State-of-Mind Hearsay Exception

We next address the state's argument that we should affirm the trial court's exclusion of defendant's statement on the alternative basis that the statement was inadmissible hearsay.⁴ Defendant argued below that his statement was admissible under the “state of mind” hearsay exception because it “demonstrate[d] that his state of mind was that of a clear conscience.” OEC 803(3) (“A statement of the declarant's then existing state of mind, emotion, sensation or physical condition” is excluded from the general bar on hearsay). The state argued that the statement was not admissible under OEC 803(3) because it was “not an expression of the defendant's ‘mental or emotional condition’ or ‘state of mind,’ ” and that defendant was offering it to prove the facts underlying his state of mind—that he did not sexually abuse A. See OEC 803(3) (the hearsay exception does not apply to “a statement of memory or belief to prove the fact remembered or believed”).

The trial court rejected the state's argument and concluded that the statement was admissible under OEC 803(3). On appeal, the state argues that that conclusion was error, contending, as it did below, that OEC 803(3) does not apply to defendant's statement and thus the statement was inadmissible hearsay.

We review a trial court's legal conclusion regarding whether a hearsay statement is admissible under a hearsay exception for legal error. State v. Moon, 334 Or App 332, 336, 555 P3d 813 (2024). Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OEC 801(3). Under OEC 802, hearsay is inadmissible unless the statement falls within a hearsay exception. As noted, under the “state of mind” hearsay exception, 803(3), “[a] statement of the declarant's then existing state of mind, emotion, sensation or physical condition” is excluded from the general bar on hearsay. The exception does not apply, however, to “a statement of memory or belief to prove the fact remembered or believed.” OEC 803(3).

The parties do not dispute that defendant's statement is hearsay because defendant offered his statement that he would take a polygraph to prove the truth of the matter asserted—that he was willing to take a polygraph. Thus, the only question before us is whether the statement was admissible under the OEC 803(3) hearsay exception.

Defendant argues that OEC 803(3) applies because the statement was offered to prove his “then existing state of mind”—that he “believed he had nothing to hide and would be candid with police.” Defendant argues, in other words, that it was a “direct statement of his then-existing state of mind (he was willing to take a polygraph) that was relevant to defendant's cooperation with law enforcement, his credibility, and an ultimate inference of innocence,” and that defendant's “willingness to take a polygraph tended to refute the state's evidence that defendant was lying about not abusing [A].”

The state argues that defendant's “unsworn, self-exculpatory, out-of-court statement * * * to prove that he believes that he is innocent” is inadmissible under OEC 803(3). In the state's view, defendant's out-of-court statement that he would take a polygraph is indistinguishable from a defendant's out-of-court statement that he is innocent, which, the state argues, would not be admissible under OEC 803(3). As we understand the state's argument, defendant's statement is equivalent to a statement that he is innocent or believes he is innocent and is thus subject to the “limit” contained in OEC 803(3), in that it is a “statement of memory or belief to prove the fact remembered or believed.” See State v. Bement, 363 Or 760, 774, 429 P3d 715 (2018) (describing the OEC 803(3) exception as being “subject to a limit: other than in cases involving wills, the state-of-mind exception does not apply to ‘a statement of memory or belief to prove the fact remembered or believed’ ”). At oral argument, the state contended that if defendant's statement were admissible, “every trial would be a never-ending parade of defense witnesses” testifying that “ ‘I talked to defendant and he said he didn't do it.’ ”

Defendant responds that his statement that he would take a polygraph is distinguishable from a direct statement that he is innocent because of the context in which the statement occurred. In defendant's view, his statement that he would take a polygraph in response to police interrogation is different than just saying, “I am innocent,” because it reflects his state of mind in that moment when he is being questioned by officers, and that state of mind is relevant to defendant's credibility. By contrast, in most contexts, a person's statement that they are innocent is not probative of their state of mind in that moment in a way that similarly bears on the person's credibility.

As a matter of first impression, we agree with defendant's distinction and conclude that his willingness to submit to a polygraph during a police interrogation was evidence of his contemporaneous state of mind and was relevant to his credibility such that the statement was admissible under OEC 803(3). See, e.g., State v. Santana-Lopez, 237 Wis 2d 332, 337-38, 613 NW2d 918 (2000) (an offer to take a polygraph test is “relevant to the state of mind of the person making the offer” and “may reflect a consciousness of innocence”); see also John H. Wigmore, 6 Evidence in Trials at Common Law, § 1732, 3 (4th ed 2026) (“[I]t seems highly desirable that any statement protesting innocence, made upon arrest, should be receivable upon the principle of corroborating a witness[.]”).⁵

To the extent that the state is arguing that defendant's statement is inadmissible under OEC 803(3) because it is a “statement of memory or belief” to prove the fact remembered or believed—that defendant believes he is innocent because he did not commit the crimes—his statement was not an assertion of a memory or belief of past events. Rather, it was a statement offered to show his contemporaneous state of mind—willingness to cooperate—when confronted with an offer to have his claims of innocence tested in the hands of law enforcement, and that state of mind was relevant to defendant's credibility.⁶ Cf. State v. Blaylock, 267 Or App 455, 461-62, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (victim's statement, “ ‘I hope [defendant] is not drunk when I get home,’ ” was not a statement of the victim's memories or beliefs of past events and thus was admissible under OEC 803(3) because it showed the victim's state of mind and was relevant to defendant's claim of self-defense and defendant's theory that the victim was the one with the alcohol problem).

D. Remedy

In sum, we conclude that the trial court correctly determined that defendant's statement was admissible under OEC 803(3), but that it incorrectly excluded it under OEC 403 because its balancing was flawed, and we further conclude that that error was not harmless. In these circumstances, where the trial court's OEC 403 balancing was based on an erroneous understanding of defendant's limiting instruction, we remand to the trial court to conduct OEC 403 balancing again, with a proper understanding of defendant's proposed instruction, and “to thereafter determine whether to reenter the judgment or whether a new trial is necessary and appropriate.” Antonio, 334 Or App at 781.

III. CHAVARRIA'S TESTIMONY

In defendant's second assignment of error, he argues that the trial court erred in admitting testimony from Chavarria, A's therapist, about A's symptoms and treatment because that testimony was tantamount to a diagnosis of sexual abuse and thus was inadmissible under OEC 403. See State v. Southard, 347 Or 127, 142, 218 P3d 104 (2009) (holding that an expert's diagnosis of sexual abuse in the absence of any physical evidence of abuse is not admissible under OEC 403).

As a threshold matter, we note that defendant did not object to Chavarria's testimony at trial. Rather, defendant filed a pretrial motion in limine to exclude Chavarria's testimony, and in a pretrial hearing the trial court ruled, with some limitations, that the testimony, as described by the state, was admissible. Defendant refers to that ruling in arguing that his challenge to the admission of Chavarria's testimony is preserved. While it is true that a “pretrial objection to evidence can preserve the issue of its admissibility for review[,] * * * the scope of the record on review is limited to the record before the trial court when it made the challenged ruling.” State v. Beauvais, 357 Or 524, 532, 354 P3d 680 (2015). Accordingly, the scope of our review is limited to defendant's pretrial motion, the state's response, and the hearing on defendant's motion. To the extent that Chavarria's testimony at trial was different from what was contemplated in the pretrial ruling, defendant needed to object at trial to bring the issue to the court's attention, which he did not do.

In defendant's motion to exclude Chavarria's testimony, he argued, among other things, that the evidence was not admissible because its probative value was substantially outweighed by the risk of unfair prejudice under OEC 403. Defendant noted that the state had indicated in an email to defense counsel that Chavarria would testify to “[c]ounseling disclosures. No diagnoses.” Defendant argued that evidence of A's counseling disclosures would have little probative value because it would be cumulative of other evidence that the state intended to offer. The state responded that A's counseling disclosures were admissible under OEC 403 because her “statements regarding sexual abuse, self-blame, pain, regret, and fear of the defendant in a setting of repeated therapeutic counseling sessions” would be highly probative and “categorically different” than other evidence of her disclosures.

At a hearing on defendant's motion, the state reiterated that Chavarria would not offer any diagnosis but would testify about A's disclosures of abuse; fear of defendant as related to why she did not disclose earlier; feelings of shame and anger about not disclosing sooner; and discomfort in talking about the abuse, including that during one virtual session A “moved the camera away from her face” when the topic of the sexual abuse arose. Chavarria would also testify that A “express[ed] that the treatment * * * is starting to help her.” Defendant reiterated his argument that Chavarria's testimony about A's statements would be cumulative and inadmissible under OEC 403 and because it “implicitly * * * establishes a diagnosis in the eyes of the jury.”

The trial court ruled that Chavarria's testimony, with some limitations not relevant here, was admissible under OEC 403.⁷ Specifically, the court ruled that A's statements as to why she did not disclose initially, how treatment is making her feel better, specific disclosures, and her fear of defendant were admissible because the “evidence is highly relevant * * * to prove that * * * [A is] being truthful [and] to rebut a defense that this did not happen,” and that it is not unduly prejudicial “because it does not distract the jury from the central question of whether or not [defendant] committed [the] sexual abuse” and would not “confuse or mislead the jury.”

On appeal, defendant challenges the trial court's ruling, renewing his argument that Chavarria's testimony implicitly conveyed that she found A's reports of abuse to be credible and thus constituted impermissible vouching under Southard. 347 Or at 141 (a diagnosis of sexual abuse in the absence of physical evidence of abuse is inadmissible under OEC 403 because the diagnosis “pose[s] the risk that the jury will not make its own credibility determination * * * but will instead defer to the expert's implicit conclusion that the victim's reports of abuse are credible”); see also State v. Sperou, 365 Or 121, 128, 442 P3d 581 (2019) (“In Oregon, witnesses are categorically prohibited from giving vouching testimony.”). Specifically, defendant argues that the trial court erred in ruling that the testimony was admissible under OEC 403 because that ruling was based on a predicate legal error. Defendant also argues that the trial court erred in admitting the testimony under OEC 403 because it “overvalued the probative weight of the evidence, and it undervalued the prejudicial effect.” As noted, although defendant primarily bases his argument on Chavarria's actual testimony at trial, we are restricted to reviewing the trial court's ruling based on the record before the trial court when it made its ruling.⁸

We review whether a witness's testimony constitutes impermissible vouching for legal error, Sperou, 365 Or at 128, and conclude that, based on the record before the trial court when it made its ruling, it did not err in admitting Chavarria's testimony. The testimony, as represented by the state and understood by the trial court, included A's statements to Chavarria about why she did not disclose initially; how therapy was making her feel better; specific disclosures about the abuse; and her fear of defendant. That testimony did not amount to an implicit diagnosis of sexual abuse, such as a statement that A had been referred to Chavarria for treatment after being evaluated for sexual abuse or other testimony that would have conveyed to the jury that Chavarria found A to be credible. Cf. State v. Volynets-Vasylchenko, 246 Or App 632, 639, 267 P3d 206 (2011) (expert witness's testimony that the complainant's treatment recommendations after an evaluation included that the complainant do therapy with a therapist “skilled in working with children who have been the victims of abuse” conveyed the expert's implicit conclusion that the complainant was credible).

Turning to defendant's argument that the trial court overvalued the probative value and undervalued the prejudicial effect of the testimony under OEC 403, we conclude that the court did not abuse its discretion. See State v. Boauod, 302 Or App 67, 73, 459 P3d 903 (2020) (“[W]e review the trial court's ultimate determination as to whether evidence is unfairly prejudicial under OEC 403 for abuse of discretion.” (Internal quotation marks omitted.)). Defendant argues that the evidence was cumulative in the context of the “abundant” statements from A that the state had introduced, and that the evidence was highly prejudicial because the testimony implicitly vouched for A's credibility.

Based on the record before the trial court when it made its ruling, the trial court reasonably concluded that the testimony about A's statements would be “highly probative” as to A's credibility, which was a central issue in the case, and not unduly cumulative. See id. (evaluating the probative value of evidence based on “the degree to which [it] is relevant to prove or disprove an issue and the extent to which that issue is material to the resolution of the case”). With respect to defendant's argument that the testimony was highly prejudicial because it constituted impermissible vouching, as discussed above, the testimony as outlined by the state in the pretrial hearing did not impermissibly vouch for A's credibility. Under those circumstances, the trial court's exercise of discretion in admitting the testimony was “within the range of legally permissible choices” and was not “to an end not justified by, and clearly against, evidence and reason.” Id. (internal quotation marks omitted).

IV. ATTEMPTED DISPLAY

In defendant's third and fourth assignments of error, he argues that the trial court erred in denying his MJOA on Count 5, attempted display, and in instructing the jury that “lewd exhibit,” for purposes of attempted display, means “exhibition that would produce lust or sexual desire in the viewer as determined from the perspective of the defendant.” See Parra-Sanchez, 324 Or App at 718 (concluding that “the state must prove that the exhibition of a child's sexual or intimate parts was objectively lewd, not simply that defendant found it to be sexually gratifying” (emphasis in original)). The state concedes that the trial court's instruction on the meaning of “lewd exhibit” was erroneous and that the instructional error was not harmless. As to defendant's challenge to the trial court's denial of his MJOA, the state argues that that claim of error is unpreserved and is not reviewable as plain error. We agree with and accept the state's concession that, under Parra-Sanchez, the trial court's instruction on the meaning of “lewd exhibit” was erroneous, and that that error was not harmless.

Turning to defendant's challenge to the denial of his MJOA, we begin with the issue of preservation. At the close of the state's case, defendant moved for a “general judgment of acquittal” on multiple counts, including Count 5, attempted display, “based on the insufficiency of the evidence, [and] lack of corroborating physical evidence even in obvious areas where it should exist.” On appeal, defendant argues that his general challenge to the sufficiency of the evidence of attempted display preserved his claim of error. We disagree. Defendant did not offer any argument at all, let alone a specific theory, as to why the state's evidence was insufficient, and thus defendant's challenge is not preserved. See State v. Paragon, 195 Or App 265, 268, 97 P3d 691 (2004) (“A motion for judgment of acquittal * * * must state the specific theory on which the state's proof was insufficient.”); State v. Shields, 184 Or App 505, 509 n 1, 511 n 2, 56 P3d 937 (2002), rev den, 335 Or 355 (2003) (motion for judgment of acquittal based on insufficiency of evidence must raise specific theory as to why state's evidence was insufficient or the argument is not preserved).

Thus, we must address whether defendant's challenge meets the requirements for plain-error review—that is, whether the error is (1) an error “of law”; (2) “apparent,” meaning the legal point is obvious and not reasonably in dispute; and (3) appears “on the face of the record.” State v. Reynolds, 250 Or App 516, 519-20, 280 P3d 1046, rev den, 352 Or 666 (2012) (internal quotation marks omitted). Even where those conditions are met, we must determine whether to exercise our discretion to correct the error. Id. at 520. Here, it is undisputed that the sufficiency of the evidence is a question of law and that we need not go outside the record to resolve the issue. See id. (reviewing sufficiency of the evidence argument as plain error). Thus, the question before us is whether it is obvious and not reasonably in dispute that the evidence was insufficient to prove attempted display.

Under ORS 163.170(1), as relevant here, a person commits the crime of display if the person “[e]mploys, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a visual recording[.]” As relevant here, “sexually explicit conduct” means “actual or simulated” “[l]ewd exhibition of sexual or other intimate parts.” ORS 163.665(3)(f). “Lewd exhibition,” for purposes of ORS 163.665, “means the showing of a child's sexual or other intimate parts that is itself salacious or focused on sex[,] * * * and whether something constitutes a lewd exhibition is determined by reference to objective standards.” Parra-Sanchez, 324 Or App at 733. Under ORS 161.405(1), “[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”

Here, the evidence supporting the attempted display offense was A's testimony that when she was in the shower she “saw [defendant's] phone like come over the shower” and when she got out of the shower, she asked defendant what he was doing and he showed her pictures on his phone of A's breasts. A had wrapped herself in a towel after getting out of the shower, and defendant “asked [A] to take it off,” and she said, “No.”

Defendant argues that that evidence was insufficient to prove attempted display because at most it established that defendant intended to view A nude but did not establish that defendant had the intent to permit or induce A to engage in a “lewd exhibition.” See id. at 721 (“[M]ere nudity can be encompassed in the definition of ‘lewd exhibition’ when it can be said to be lascivious or salacious— not simply nudity in the context of ordinary, daily activities such as showering or dressing.”).

Viewing the facts in the light most favorable to the state, we conclude that it is not obvious or beyond reasonable dispute that the evidence was legally insufficient to prove attempted display. State v. Cannon, 328 Or App 29, 31-32, 537 P3d 182 (2023) (stating standard of review for MJOA); see State v. Litscher, 285 Or App 508, 514-18, 397 P3d 511, rev den, 362 Or 94 (2017) (applying that standard in addressing whether the trial court plainly erred in denying the defendant's MJOA).

In Parra-Sanchez, we concluded that evidence that the defendant entered the complainant's room after she showered and viewed her in various states of nudity while she tried to cover herself with a towel, as well as partially opening a shower curtain while the complainant was showering, was insufficient to prove the element of “lewd exhibition.” 324 Or App at 736-37. Unlike in Parra-Sanchez, where the defendant did not attempt to induce the complainant to engage in “the showing of [her] sexual or other intimate parts that is itself salacious or focused on sex,” here, defendant had taken pictures of A's breasts while she showered and then asked her to remove her towel after she got out of the shower. Id. at 733. Based on that evidence, it is not obvious or beyond reasonable dispute that no rational trier of fact could infer that defendant intended to induce A to engage in a “lewd exhibition,” that is, to show her breasts— an intimate part—in a salacious manner. Accordingly, the trial court did not plainly err in denying defendant's MJOA.

V. PROSECUTOR'S ARGUMENTS

In defendant's fifth through ninth assignments of error, he argues that the trial court plainly erred in failing to declare a mistrial in response to the prosecutor's allegedly improper statements during rebuttal closing argument. For a prosecutor's statements in closing or rebuttal argument to rise to the level of plain error, it must be “beyond dispute” that they “were so prejudicial as to have denied defendant a fair trial.” Chitwood, 370 Or at 312 (internal quotation marks omitted). To satisfy that standard, the statements, individually or collectively, must have been both obviously improper and incurable. State v. Perez, 373 Or 591, 606, 568 P3d 940 (2025).

Here, defendant challenges numerous statements that the prosecutor made in rebuttal closing argument. We address each challenge individually, providing the necessary facts and procedural history as relevant to each argument.

First, defendant challenges the prosecutor's statement that

“[Defense counsel's] reference to [A's] statements in her journal * * * is sad and tragic to be used in the manner that it was by the defense. Those are statements of a child who is pouring out her pain and pouring out her self-loathing and her depression, because a man in her life completely changed her, used her, molested her, and she's trying to process it. For that to be twisted and try to shove down a group of, you know, jurors’ throats as some sort of suggestion that [A] is broken and gets some massive benefit in disclosing the abuse and going through this process, that she, herself, said that she didn't want to go through, she never wanted to do these things, to use that as an attempt to suggest that that journal is showing that she's just this broken kid that can't be trusted, is sad.”

The prosecutor made that argument in response to defense counsel's closing argument, where he questioned A's credibility by referring to statements that A wrote in her journal, such as “[m]y mom only cares about [my siblings]” and “[m] y best friend hates me.” Defense counsel argued that those statements suggested that A fabricated the abuse because of other stressors in her life and to receive validation.

On appeal, defendant argues that the state's comments that it was “sad and tragic” for defense counsel to question whether A's journal was evidence of abuse and that defense counsel “twisted and tr[ied] to shove down a group of * * * jurors’ throats” an alternate theory of the journal were improper because they “disparaged the defense function” and suggested that defense counsel was “attempting to manipulate the jury.” He further argues that the prosecutor's comment that A is “going through this process, that she, herself, said she didn't want to go through,” and “never wanted to do,” improperly commented on defendant's right to trial and “suggested an improper basis for convicting defendant to punish him for exercising his trial right.”

With respect to the first set of comments, we agree that they were improper because they characterized defense counsel's argument in a disparaging and emotionally charged manner. See State v. Lundbom, 96 Or App 458, 461-62, 773 P2d 11, rev den, 308 Or 382 (1989) (statements that are “calculated to elicit an emotional response from the jury * * * [and] attempt to establish a defendant's guilt by making unwarranted personal attacks on his attorney * * * is not only unfair, but it impugns the integrity of the system as a whole”). In our view, however, the comments were not so egregious that a curative instruction could not remedy the prejudice. See State v. Babcock, 327 Or App 358, 360, 535 P3d 345 (2023), rev den, 374 Or 143 (2025) (generally, “a proper jury instruction is adequate to cure any presumed prejudice from a prosecutor's misconduct” (internal quotation marks omitted)). That is, they were not “among the rare statements that are so prejudicial that, as a practical matter, the bell once rung, cannot be unrung.” State v. Settlemier, 333 Or App 179, 182, 551 P3d 995 (2024), rev den, 373 Or 212 (internal quotation marks omitted); cf. State v. Muniz, 332 Or App 56, 63, 548 P3d 172, rev den, 372 Or 763 (2024) (prosecutor's statements during rebuttal, when viewed in the context of the record as a whole in an emotionally fraught case, including an earlier appeal to the jurors’ emotions, were so prejudicial that, as a practical matter, they could not have been cured by an instruction).

As for the remaining comment, in our view, it was not obviously improper. Even if we were to accept defendant's interpretation as one possible way to understand the comment—such that the prosecutor was improperly commenting on defendant's right to trial—the comment also could reasonably be interpreted in another way—as the prosecutor merely rebutting defendant's theory that A fabricated the abuse to gain some benefit. See Perez, 373 Or at 607 (a statement was not obviously improper where it was susceptible to more than one interpretation, at least one of which was not impermissible).

Next, defendant challenges statements that the prosecutor made about Bourg, an expert in forensic psychology who testified on behalf of defendant. For context, we recount certain testimony that Bourg provided at trial. On direct examination, Bourg testified about issues related to a child's disclosures of abuse that might call into question the reliability of those disclosures, such as suggestibility, concretization, and bias. On cross-examination, Bourg testified that A is in an age group that is less suggestible than younger children, that certain types of suggestive questions are generally accepted in forensic interviews, and that the interviewer at CARES did not use any leading questions during her interviews with A. The prosecutor also asked Bourg if she had ever “testified for the prosecution” in 21 years, and she replied that she had been called by them twice but did not end up testifying. The prosecutor asked Bourg about the compensation she receives testifying in criminal cases, and Bourg testified that between 2017 and 2021 she made $837,075.

Turning to defendant's argument on appeal, he challenges statements about Bourg that the prosecutor made in rebuttal. The prosecutor made the comments in the context of arguing that Bourg's testimony on direct implied that problems such as suggestibility were “rampant” in A's case but that her testimony on cross-examination contradicted that implication. Referring to Bourg's testimony, the prosecutor said,

“[W]hat is the ultimate goal of testimony like that? It's not truth. It's not impartiality and an impartial examination of the facts. It's an attempt to create a narrative that will twist a jury's fears, spark concerns that don't need to be sparked. In short, the truth is that [Bourg] is a 21 year [long] criminal defense veteran who makes really good money using biased words, biased testimony to manipulate juries about children.”

Defendant argues that those statements were improper because they were “inflammatory, disparaged the defense function and witnesses, and constituted vouching.” We conclude that the prosecutor's comment that the goal of Bourg's testimony was “not truth” or “an impartial examination of the facts”—in the context of the testimony that the prosecutor highlighted—was a permissible comment on the witness's credibility that was grounded in the evidence and thus was not obviously improper. See State v. Slay, 331 Or App 398, 404, 545 P3d 768, rev den, 372 Or 560 (2024) (“Advocacy, whether it be in the criminal or civil context, would be nearly impossible if attorneys were not able to comment on a witness's credibility, provided that their argument is grounded in the evidence in the record.”). We agree with defendant, however, that the prosecutor's statement that Bourg “makes really good money using biased words, biased testimony to manipulate juries about children” was improper because it was a disparaging personal attack on the witness. We conclude, however, that the comment was not so egregious that the only proper remedy would have been for the trial court to sua sponte declare a mistrial. Rather, a timely curative instruction would have been sufficient to cure the prejudice.

Next, defendant challenges the prosecutor's statement that psychotherapy is

“the same scary word that was brought up in jury selection and now by [Bourg]. The idea that psychotherapy is something like, you know, where they * * * glue your eyes open and put you in front of a screen and force you, you know, for you to absorb whatever narrative they want you to see * * *.”

Defendant argues that those comments were improper because they “mischaracterized defense testimony and argument and consequently, argued from facts not in evidence,” and was inflammatory “by calling to mind violent imagery and associating the defense with that imagery.” Even assuming that the comments were obviously improper, they were not so egregious that any prejudice would not have been remedied by striking the comment and issuing a proper instruction. See, e.g., State v. Washington, 355 Or 612, 661, 330 P3d 596, cert den, 574 US 1016 (2014) (presuming that the jury followed the court's instruction that attorneys’ statements are not evidence, where the prosecutor referenced uncharged violent conduct by the defendant).

Lastly, defendant challenges the prosecutor's statement:

“Imperfection speaks truth. If somebody wants to tell or at least try to tell the perfect story, they're going to have that story in order. * * * [A] did not give a perfect story. She forgot certain times. She talked about how her memory is good sometimes and bad sometimes. She didn't disclose everything in one sitting[.] * * * Imperfection speaks truth. Perfection or an attempt to create a perfect story speaks lies. That's why the defendant's testimony is unbelievable. It's unbelievable because it is an attempt to weave this perfect explanation around some really damning evidence.”

Defendant argues that those statements constituted improper vouching. See State v. Montgomery, 327 Or App 655, 660, 536 P3d 627 (2023), rev den, 371 Or 825 (2024) (“[C] ounsel may argue that the jury should infer that a witness is credible based on the evidence in the record. But counsel may not express a personal opinion of the witness's credibility.”). In our view, the prosecutor's statements were not obviously improper because in context, where the prosecutor was arguing that the jury should find A credible, the jury would have understood the prosecutor to be suggesting that evidence of inconsistencies in A's disclosures indicated truthfulness, whereas “perfection” in defendant's testimony and statements indicated untruthfulness. In other words, the jury would not have understood the prosecutor's argument to be expressing his personal opinion of the witnesses’ credibility.

VI. RESTITUTION AND COMPENSATORY FINE

In defendant's tenth through thirteenth assignments of error, he argues that the trial court erred in imposing restitution for horse therapy and for mileage; in imposing a compensatory fine for future horse therapy; and in applying the security amount posted by his sister to the restitution/compensatory fine award. We review restitution and compensatory fine awards for legal error. State v. Howard, 292 Or App 517, 519, 424 P3d 803 (2018) (restitution); State v. Grismore, 283 Or App 71, 73, 388 P3d 1144 (2016) (compensatory fine). We are “bound by the trial court's factual findings if they are supported by any evidence in the record.” State v. Pumphrey, 266 Or App 729, 730, 338 P3d 819 (2014), rev den, 357 Or 112 (2015).⁹

A. Restitution

We begin with an explanation of the law governing restitution awards, followed by the relevant facts and procedural history, and then proceed to our analysis.

“ORS 137.106 requires an award of restitution when three prerequisites are met: (1) criminal activities; (2) economic damages; and (3) a causal relationship between the two.” State v. Andrews, 366 Or 65, 69, 456 P3d 261 (2020) (internal footnote omitted). For purposes of restitution, ORS 31.705(2)(a) defines “economic damages” in part as “objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services[.]” Treatment expenses are “necessarily incurred” when they are incurred for necessary treatment. See State v. Perdew, 304 Or App 524, 527, 467 P3d 70 (2020) (“Medical expenses are ‘necessarily incurred’ when they are incurred for ‘necessary medical treatment.’ ”). The state bears the burden of establishing the amount of economic damages. State v. Aguirre-Rodriguez, 367 Or 614, 618, 482 P3d 62 (2021).

Here, the state requested restitution for, among other things, A's “horse therapy,” including the cost of the sessions and associated travel costs. At the restitution hearing, A's mother, Hill, testified that “Grace Therapeutic * * * is a horse stable that has * * * rescue horses that are partnered or paired with * * * kiddos who are suffering from abuse or addiction.” There is a “counseling element” to the program and the theory is that the therapy “retrain[s] * * * the frontal lobe that, with abuse, tends to go dormant.” Horse therapy gives kids “the tools to care for the horse” and is “child-led,” so “there's times that [A] may bring up things specific to the abuse, but other times, she may not.” The horse therapy program also gives kids the “opportunity to be paired or partnered with other victims in kind of a mentor type space.”

There are counselors working with the kids as well. A is primarily paired with the owner of the horse therapy program, who is “a trained nurse” with “a social work * * * background” but is not a mental health professional. The program has “different therapists or different folks with different credentials,” including an occupational therapist, physical therapist, behavioral therapist, and a licensed marriage and family counselor who “are all working in partnership with the kid[s].” Part of the therapy involves caring for and riding the horses, and Hill did not know what percentage of time A spends talking about the abuse rather than learning to care for or ride a horse. Hill learned about horse therapy from one of the professionals at CARES, who said that the therapy has “been very positive for kiddos who are abuse victims.” Hill testified that A has done very well with horse therapy, as opposed to conventional therapy, and that she expects that A will need the therapy at least through high school, with the frequency of the sessions declining over those years. As for the transportation costs, Hill testified that she drives 68 miles round trip to the weekly sessions and that when she calculated the damages, she used the 2020 federal mileage rate, which was .575 dollars per mile.

The state argued that a restitution award was appropriate because it was reasonably foreseeable that A would need therapy, that there would be additional costs, including mileage and gas, in order to facilitate the therapy, and that using the federal mileage rate to calculate the transportation costs was reasonable. The state noted that A was referred to horse therapy by CARES after she did an evaluation there; that there are counselors present and that the theory behind the horse therapy was to retrain the frontal lobe; and that the therapy was “actively working for [A].”

Defendant argued that restitution was not appropriate because the only evidence was from Hill, who is not a mental health professional and who had very little substantive information to offer about what A's horse therapy entails. Defendant noted that A's primary point of contact, the nurse who owns the facility, is not a mental health professional, and that the horse therapy “seems a lot more like a hobby.” Defendant also argued that calculating the travel costs at the federal mileage rate was not appropriate because “those aren't actual economic damages” that Hill paid.

The trial court found that there was a criminal act, economic damages, and causation; and that the economic damages “were reasonable and foreseeable.” The court noted that “CARES did refer” the horse therapy; that the therapy is working for A; and that there are therapists at the property. With respect to the transportation costs, the court found that they were reasonable because the horse therapy was the “right fit” for A and using the federal rate was an appropriate way to measure the costs because with “gas prices going up and down, it would be impossible and somewhat speculative to figure out exactly what [the costs] would be on any particular day.” Based on those findings, the court imposed $17,446.17 in restitution.

Defendant challenges the restitution award on appeal, renewing his arguments that the state did not establish that horse therapy was a necessarily incurred expense and that the federal mileage rate did not “ascertain or quantify the cost of transportation.”

Beginning with defendant's first argument, he contends that the state “did not prove that horse therapy was treatment, let alone necessary treatment.” He notes that Hill lacks expertise; did not know how much time A works with a counselor during the sessions; the owner of the facility is not a mental health professional; and that the state presented no evidence that “grooming and riding horses has a perceivable therapeutic effect” or that “any abatement in symptoms was a result of horse therapy” as opposed to other treatments that A underwent.

Under our standard of review, where we are bound by the trial court's findings of fact if there is evidence in the record to support them and we “review the evidence supporting the trial court's restitution order in the light most favorable to the state,” we conclude that the trial court did not err in imposing restitution. Perdew, 304 Or App at 527. Hill's testimony that someone at CARES recommended horse therapy; that there are counselors at the facility who work with the kids; that the program is designed to retrain the frontal lobe; and that the therapy is working for A supports the trial court's finding that horse therapy is necessary treatment and thus that the costs were necessarily incurred. See State v. Jordan, 249 Or App 93, 100, 274 P3d 289, rev den, 353 Or 103 (2012) (concluding that testimony from victim's wife that she believed that “naturopathic treatment was ‘really successful’ ” and that “organic foods were necessary to spark the victim's brain cells” was sufficient evidence from which the trial court could find that the disputed expenses were necessary); Perdew, 304 Or App at 528 (“All that is required is some evidence of necessity.” (Emphasis in original; internal quotation marks omitted.)).

Turning to defendant's second argument, he contends that the trial court erred in using the federal mileage rate to calculate Hill's transportation costs because the federal rate “does not ascertain or quantify the cost of transportation”—that is, it does not represent Hill's actual damages. We conclude that the trial court did not err.

We have previously concluded that economic damages for purposes of restitution “do not have to be proved as ‘objectively verified,’ but rather the legislature only required that they be ‘objectively verifiable monetary losses.’ ” State v. McClelland, 278 Or App 138, 142, 372 P3d 614, rev den, 360 Or 423 (2016) (emphases in original). And in determining whether the state has sufficiently proved economic damages, we have concluded that “as a general matter, testimony based on a victim's personal knowledge or evidence * * * is sufficient to demonstrate objectively verifiable economic damages.” Id. at 143. Here, when Hill testified that she calculated her costs based on the distance that Hill and A travelled to the therapy sessions, the frequency of the sessions, and the federal mileage rate, she was implicitly testifying that those costs reflected her actual losses. That evidence was sufficient to show that Hill had suffered an “objectively verifiable” monetary loss. See State v. Onishchenko, 249 Or App 470, 477-78, 278 P3d 63, rev den, 352 Or 378 (2012) (victim's testimony of what he paid for shoes was, “alone,” sufficient to support the trial court's determination of the victim's economic damages).

B. Compensatory Fine

Defendant also assigns error to the trial court's imposition of a $21,143.20 compensatory fine, which the court ordered defendant to pay to cover the future costs of A's horse therapy. The state requested the compensatory fine at defendant's sentencing, and the trial court indicated that it would address the issue at a later restitution hearing because it wanted “some direction” from the state with respect to the appropriate amount. Defendant did not object to the trial court's decision to delay addressing the compensatory fine.

The prerequisites for ordering a compensatory fine in these circumstances are the same as for restitution— (1) criminal activities, (2) economic damages, and (3) a causal relation between the two. See State v. Alonso, 284 Or App 512, 516, 393 P3d 256 (2017) (listing three prerequisites for ordering a compensatory fine under ORS 137.101). Also, for purposes of a compensatory fine, the term “economic damages” has the same meaning as it does for purposes of restitution. Grismore, 283 Or App at 74 (for purposes of a compensatory fine, “economic damages” are “objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services”). Unlike restitution, a trial court need not determine the precise amount of economic damages and may impose a fine directed at future expenses. See id. at 75-76.

At the restitution hearing, the state requested a $21,143.20 compensatory fine to cover Hill's future costs related to A's horse therapy based on Hill's testimony about the costs of the therapy and that A would need the therapy, with declining frequency, until she graduated from high school. In opposing the fine, defendant argued, as he did with respect to the restitution, that the state did not establish that Hill's costs for horse therapy were “economic damages” because those damages were not “necessarily incurred.” The trial court imposed the compensatory fine after finding that “$21,143.20 is appropriate * * * under the same reasons why I found horse therapy appropriate under the restitution statute.”

In challenging the fine on appeal, defendant makes two arguments. First, he renews the same argument as to the compensatory fine that he did as to the restitution award— that the state did not prove that the costs of horse therapy were “economic damages” because they were not necessarily incurred. We reject that argument for the same reasons that we rejected defendant's argument as to the restitution award.

Second, defendant argues that the trial court plainly erred in imposing the compensatory fine during the restitution hearing rather than at the time when defendant was sentenced. See ORS 137.101(1) (“Whenever the court imposes a fine as a penalty for the commission of a crime * * * the court may order that the defendant pay any portion of the fine separately * * * as compensatory fines[.]”). In defendant's view, “there is no statutory authority for the trial court to * * * delay imposition of a compensatory fine until the restitution hearing, and impose a compensatory fine in lieu of restitution.”

Even assuming that the trial court plainly erred, we would not exercise our discretion to correct the error. The trial court imposed the compensatory fine after considering the evidence and arguments, and as discussed above in the restitution section, that evidence was sufficient to support the fine. In those circumstances, “remand for resentencing would be gratuitous, and declining to review such errors does not prejudice defendant,” because the trial court would likely impose the same fine on remand. State v. Garlitz, 287 Or App 372, 380, 404 P3d 1090 (2017) (internal quotation marks and brackets omitted); see State v. Ross, 336 Or App 428, 442, 561 P3d 141 (2024), rev den, 373 Or 444 (2025) (declining to exercise discretion to correct trial court's plain error in imposing compensatory fine without complying with the statutory requirements because the trial court would likely impose the same fines on remand).

C. Security Amount

At the restitution hearing, the state argued that funds posted to secure defendant's pretrial release should be applied toward the restitution and compensatory awards. Those funds were posted by defendant's sister, who signed an agreement stating:

“All security amounts will be receipted in the name of the person posting security and will be applied to any fines, fees, restitution or court-ordered financial obligation such as payment of restitution, child or spousal support, fees, expenses, court costs or court appointed attorney fees in this case or any other case the defendant or surety owes on * * *.”

Defendant argued that the funds were not “a part of * * * defendant's financial resource,” and thus they should be returned to defendant's sister rather than applied to the restitution and compensatory awards. Defendant relied on State v. Morales, 367 Or 222, 476 P3d 954 (2020), which held that funds deposited by a third party as security release of a defendant cannot provide the basis for imposing attorney fees on the defendant, when the defendant does not otherwise have the ability to pay those fees. The state argued that Morales does not apply because a defendant's ability to pay is not at issue when the trial court orders restitution or a compensatory fine.

In a letter opinion, the trial court agreed with the state that Morales “ruled only that a court cannot look to posted bail by a third party to determine if the defendant has the ability to pay attorney fees”; that the statutory ability-to-pay requirement that applies to attorney fees “does not apply to restitution or compensatory fines”; and that Morales does not address “a valid release agreement that allows for restitution and fines to be taken from the security regardless of who posts it.” The court noted that the release agreement that defendant's sister signed stated that security “will be applied to any fines, fees, restitution or court-ordered obligations,” and it concluded that ORS 135.265(2), which provides that the clerk “shall return” the funds to the person who deposited them “unless the court orders otherwise,” authorized the court to “order[ ] the release agreement to be enforced and fines and fees taken from security regardless of who posted the security.” Accordingly, the trial court ordered the security funds to be applied to the restitution and compensatory awards.

On appeal, defendant argues that the trial court erred in applying the security amount to the money award, renewing his argument that, under Morales, security funds posted by a third party are not a defendant's resources for purposes of the defendant's financial obligations.

We disagree with defendant's expansive reading of Morales. As the trial court concluded in its letter opinion, Morales held only that a security deposit posted by a non-spouse third party on behalf of a defendant, with no indication of a donative intent or other evidence that the money was in fact the property of defendant, cannot be considered part of the defendant's “financial resources” for purposes of a defendant's ability to pay attorney fees. 367 Or at 234; see ORS 161.665(4) (prohibiting a court from ordering a defendant to pay attorney fees unless the defendant is or may be able to pay them, and providing that the court “shall take account of the financial resources of the defendant”). In reaching that holding, the court construed ORS 135.265 and ORS 161.665 together and expressly noted that it was addressing only whether “the deposit by a third party of security funds, by itself, can be the basis for a finding that a defendant has the ability to pay,” and that it was not addressing the question of “whether a trial court ever could apply funds deposited by a third party to satisfy a defendant's court-imposed obligations.” Id. at 225, 232 (emphasis in original).

Thus, Morales does not control whether, under ORS 135.265(2) and the release agreement that defendant's sister signed, the trial court correctly applied the security deposit towards the restitution and compensatory awards. And because defendant's argument relies solely on the holding in Morales, that leads us to reject his claim that the trial court erred.

VII. CONCLUSION

In sum, we conclude that (1) the trial court erred in excluding defendant's statement that he would take a polygraph because the court's OEC 403 balancing was flawed, and that error was not harmless, necessitating a remand for the court to redo its OEC 403 balancing; (2) the trial court did not err in admitting Chavarria's testimony; (3) the trial court plainly erred in instructing the jury on the meaning of “lewd exhibit” for purposes of Count 5, attempted display, and that error was not harmless, but the trial court did not plainly err in denying defendant's MJOA on Count 5, so defendant is entitled to a new trial on Count 5; (4) the trial court did not plainly err in failing to declare a mistrial based on the prosecutor's statements in rebuttal; and (5) the trial court did not err in imposing restitution and a compensatory fine for the complainant's horse therapy and in ordering that the security-release deposit be applied to pay the imposed fines. Accordingly, we reverse defendant's conviction on Count 5, attempted display, and remand for a new trial on that count. With respect to defendant's other convictions, we remand to the trial court to determine whether defendant's offer to take a polygraph is admissible under OEC 403 and to thereafter determine whether to reenter the judgment as to those convictions or whether a new trial is necessary.

Reversed and remanded.

FOOTNOTES

1.   Defendant was acquitted of Count 3, first-degree rape.

2.   In the event that on remand the trial court again excludes defendant's statement that he would take a polygraph and reenters the judgment, that judgment would not include the conviction for Count 5.

3.   The trial court also ruled that the statement was “improper bolstering” under State v. Snider, 296 Or 168, 674 P2d 585 (1983). As noted above, the state does not defend that basis on appeal, and we conclude that Snider does not apply to the circumstances in this case. See Snider, 296 Or at 172 (evidence of plea agreement that the state's witness “must take and pass a polygraph examination to verify trial testimony constitutes improper bolstering of the witness's credibility” and is inadmissible).

4.   In advancing its alternative argument, the state cites the “right for the wrong reason” doctrine. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659, 20 P3d 180 (2001) (describing the “right for the wrong reason” doctrine). However, that doctrine applies only to issues raised for the first time on appeal, not to issues—like the one presented here—that were raised before the trial court. See Sherertz v. Brownstein Rask, 314 Or App 331, 341-42, 498 P3d 850 (2021), rev den, 369 Or 338 (2022) (when an argument was made before the trial court and is made again on appeal, Outdoor Media does not apply and we will normally resolve the issue, unless a remand is necessary for factual findings, exercise of discretion, or the like).

5.   We note that the majority of jurisdictions that have addressed whether a defendant's willingness to take a polygraph is admissible have not analyzed the issue under the state-of-mind hearsay exception. Rather, they have held that the statement is inadmissible based on an assessment of its probative value, general hostility towards polygraph evidence, and the danger of confusion. See, e.g., United States v. Bursten, 560 F2d 779, 785 (7th Cir 1977) (offer to take a polygraph is inadmissible because such a statement “is so unreliable and self-serving as to be devoid of probative value”); DeBlase v. State, 294 So 3d 154, 216-17 (Ala Crim App 2018) (holding that a defendant's offer to take a polygraph test is inadmissible and citing cases from other jurisdictions holding the same); People v. Muniz, 190 P3d 774, 785-86 (Colo App 2008) (same, and noting that “such evidence would create a substantial danger of confusing the issues and misleading the jury”).

6.   The state is correct that the statement was offered to support the ultimate inference that defendant is innocent, but that is true of any relevant evidence that a defendant offers at trial.

7.   In making its ruling, the trial court did not expressly address defendant's argument that Chavarria's testimony would constitute an implicit diagnosis of sexual abuse. In light of its ruling, however, we understand the trial court to have implicitly rejected that argument.

8.   We note that during the pretrial hearing, the parties were also arguing about whether Chavarria's testimony about A's statements was admissible under the OEC 803(4) hearsay exception as statements made for the purpose of medical treatment or diagnosis. During the hearing, the state said it would “lay the foundation” for admissibility under OEC 803(4) in a “104 hearing” and have Chavarria testify outside the presence of the jury about how her “role [during therapy] was to make [A] feel better, make her feel less scared, help her to cope through what she had been going through because of the sexual abuse, and that she knew that talking about those things was part of that process.” In defendant's reply brief, he characterizes that testimony as being testimony that the state would offer at trial before the jury. We disagree with that characterization, and our analysis reflects our understanding of how the trial court viewed the testimony that the state intended to present to the jury, as relevant to the issue before us.

9.   We address these assignments of error because they “may still be at issue after the case is remanded.” See State v. Merrill, 309 Or App 68, 71, 481 P3d 441, rev den, 368 Or 402 (2021) (“Even when a disposition obviates the need to address an assignment of error, we may nevertheless address questions of law that may still be at issue after the case is remanded.”).

EGAN, J.