State v. Murphy

                                      330

                 Submitted January 24, affirmed April 27, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   MARK TIMOTHY MURPHY,
                       Defendant-Appellant.
                   Klamath County Circuit Court
                       19CR03656; A173010
                                   

    Defendant was convicted of first-degree invasion of personal privacy, ORS
163.701, based on an incident involving his 15-year-old stepdaughter, D. The
key issue at trial was whether defendant had knowingly videorecorded D in the
shower or whether he did so accidentally. There was no physical evidence, other
than the video, so it was a credibility contest. In that context, a Department
of Human Services caseworker testified that she had investigated the incident
and, after interviewing the children and adults, concluded the investigation with
a determination of “founded for sexual abuse” against defendant. On appeal,
defendant contends that the trial court erred in failing to strike the caseworker’s
“founded” testimony as impermissible vouching. Defendant acknowledges that he
did not preserve the claim of error and requests discretionary plain-error review.
Held: The trial court plainly erred in not striking the testimony, because, on this
record, the caseworker was unambiguously vouching for D’s credibility, which is
impermissible. However, there is little likelihood that the error affected the outcome, because the trial court sitting as factfinder made clear that it was relying
on its own credibility assessments in finding defendant guilty. Primarily for that
reason, the Court of Appeals declined to exercise its discretion.
    Affirmed.




    Andrea M. Janney, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
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  AOYAGI, J.
  Affirmed.
  Tookey, P. J., specially concurring.
332                                            State v. Murphy

         AOYAGI, J.
           Defendant was convicted of first-degree invasion of
personal privacy, based on an incident involving his 15-year-old stepdaughter. On appeal, he contends that the trial
court erred in failing to strike testimony by a Department
of Human Services (DHS) caseworker that her investigation
of the incident resulted in a determination of “founded for
sexual abuse” against defendant. Defendant acknowledges
that his claim of error is unpreserved, but he contends that
the error is “plain,” and he asks us to exercise our discretion
to reverse on that basis. As explained below, we conclude
that the trial court plainly erred in failing to strike the testimony as impermissible vouching, but we decline to exercise our discretion to correct the error, largely because there
is little likelihood that it affected the court’s guilty finding.
Accordingly, we affirm.
                            FACTS
         Defendant is D’s stepfather. When D was 15 years
old, an incident occurred in which defendant placed his cell
phone in the downstairs bathroom of the family home, where
D lived with her mother, siblings, and defendant. The phone
was set to videorecord. The phone captured video of D getting undressed in preparation for a shower. A few days later,
D’s mother found the video in the trash folder on defendant’s
phone. She recorded a copy of the video with her own phone
and took it to the police.
         Defendant was indicted on one count of first-degree
invasion of personal privacy, ORS 163.701, a Class C felony.
As relevant here, that crime is committed when a person
“knowingly makes or records a … visual recording of
another person in a state of nudity without the consent of
the other person; and … [a]t the time the visual recording is made or recorded the person being recorded is in a
place and circumstances where the person has a reasonable expectation of personal privacy.” Here, defendant was
alleged to have “unlawfully, knowingly, and without the
consent of [D]” made a video recording of D while she “was
in a state of nudity and in a place and circumstances where
[she] had a reasonable expectation of personal privacy.”
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         Defendant waived a jury trial and proceeded with
a bench trial. The only significant fact dispute at trial was
whether defendant knowingly recorded D. According to D,
after dinner, she announced that she was going to shower
and asked if anyone needed to use the bathroom first, at
which point defendant went into the bathroom, saying that
he needed to put in his contacts. When D went into the bathroom to shower, she noticed defendant’s backpack on the
floor, with his phone in the front mesh pocket. For his part,
defendant denied knowing that D was going to shower. He
testified that he did not remember D saying anything about
showering, but that his wife (D’s mother) had said that she
was going to shower, and that he put his phone in the bathroom to record his wife. According to defendant’s wife, she
had been planning to shower in the downstairs bathroom,
but D “jumped in” before she got there. Defendant’s wife further testified that it would not have been unprecedented for
defendant to videorecord her (his wife) in the shower, with or
without her permission, as he had done it before. Defendant
testified that he soon realized that D was in the shower,
rather than his wife; retrieved his phone as soon as D left
the bathroom; and deleted the video without viewing it.
         One of the witnesses at trial was Vaughn. Her testimony was brief. Vaughn testified that she is a DHS protective services caseworker, that she was called out to investigate a “sexual abuse allegation against [defendant],” that
her “role was to assess for child abuse and neglect,” that
she interviewed the children and adults and “assessed the
circumstances in the allegation,” and that her investigation “resulted in a founded for sexual abuse against [defendant],” which was “related to the video recording of [D].”1
The prosecutor then showed Vaughn six exhibits, which she
authenticated as photos that she had taken of the bathroom
and defendant’s backpack. On cross-examination, Vaughn
testified that she did not specifically ask D about grooming behavior by defendant but that she did “a full assessment including a non-leading child interview” and “did have

    1
      DHS rules define “sexual abuse” to include “voyeurism.” OAR 413-015-
1015(1)(f)(A). By contrast, voyeurism alone would not qualify as “sexual abuse”
under the criminal statutes. See ORS 163.415 (third-degree sexual abuse); ORS
163.425 (second-degree sexual abuse); ORS 163.427 (first-degree sexual abuse).
334                                            State v. Murphy

significant concerns for grooming type or sexual abuse type
behaviors regarding [D’s] disclosures of telling the family
she was going to be taking a shower and him entering immediately after to place the video device.” Finally, Vaughn testified to D being “significantly impacted” by the incident,
based on what D said in her interview.
        After hearing all of the evidence, the trial court
found defendant guilty of first-degree invasion of personal
privacy and entered a judgment of conviction.
                          ANALYSIS
         On appeal, defendant raises a single assignment
of error. He contends that the trial court plainly erred by
failing to strike Vaughn’s testimony that her investigation
resulted in a “founded for sexual abuse” determination
against defendant. Defendant argues that that testimony
constituted impermissible vouching for D’s credibility. He
acknowledges that his claim of error is unpreserved, and he
requests plain-error review. In response, the state argues
that Vaughn’s testimony did not constitute vouching; that
the court therefore did not plainly err by failing to strike it;
and that, in any event, we should not exercise our discretion
to correct any plain error, because defendant “had a tactical reason not to object” and because the court’s speaking
verdict made clear that it decided the case based on its own
credibility assessments of the witnesses’ in-court testimony.
          “Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 

, 

 (2000). However, we have discretion to consider “a plain error.” ORAP 5.45(1). An error is “plain” when
it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State
v. Vanornum, 

, 

 (2013). Whether
an error is “plain” is an issue of law. State v. Gornick, 

, 

 (2006). If the trial court plainly erred,
it is a matter of discretion whether we will correct it. 

         We begin with the issue of whether the challenged
testimony constituted impermissible vouching. “Vouching”
refers to the expression of one’s personal opinion about the
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credibility of a witness. See State v. Chandler, 

, 

 (2016) (discussing history of the “judicially created rule” against vouching). Because credibility
determinations are the exclusive province of the factfinder,
witnesses are prohibited from expressing a view on whether
another witness is “telling the truth.” State v. Middleton,

, 

 (1983). “[T]he rule against
vouching prohibits a witness from making a direct comment,
or one that is tantamount to a direct comment, on another
witness’s credibility.” State v. Black, 

, 

 (2019). “[T]estimony that constitutes vouching is
categorically inadmissible.” 

. “Whether proffered
testimony constitutes impermissible vouching is measured
by whether it conveys one witness’s opinion of the truthfulness of another witness, or, instead, provides information
that permits the jury to make that determination.” 

. Ultimately, “[w]hether a witness’s statement constitutes impermissible vouching is a legal question.” State v.
Sperou, 

, 

 (2019).

        When faced with an unpreserved claim of error
regarding vouching, our first task is to assess the challenged
testimony to determine whether the witness unambiguously
vouched, may or may not have vouched (ambiguous), or
unambiguously did not vouch. If a witness unambiguously
vouched, it is plain error not to have stricken the testimony,
even absent an objection. See State v. Corkill, 

, 

, rev den, 

 (2014) (listing
cases holding that it was plain error not to exclude “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”).

         Conversely, if a witness’s testimony was ambiguous—
such that the witness may or may not have been vouching—
there is no plain error in not having stricken the testimony
sua sponte, in part because the lack of objection prevented
clarification of the testimony. See, e.g., State v. Harrison, 

, 

 (2014), rev den, 

(2015) (where there was “a reasonable dispute as to whether
[the witness] impermissibly vouched for” the alleged child
336                                          State v. Murphy

victim, “the trial court did not plainly err by not sua sponte
striking the disputed testimony”); State v. Wilson, 

, 

 (2014), rev den, 

 (2015)
(where the witness “was not clearly vouching for L’s credibility in accusing defendant of sexual abuse, … the trial
court did not plainly err in failing to strike the testimony
sua sponte”). And, if the witness unambiguously did not
vouch, obviously there is no error, plain or otherwise, in not
striking the testimony as vouching. See, e.g., State v. Hunt,

, 

 (2015) (concluding that
the trial court did not plainly err by not striking alleged
vouching testimony, because it was not vouching; in context,
the witness was explaining his own conduct, not commenting on the alleged victim’s credibility).
         In this case, it is difficult to see how Vaughn’s testimony did not constitute impermissible vouching for D’s
credibility. The only factual issue in serious dispute was
whether defendant knew that D was going to take a shower
in the downstairs bathroom when he placed his cell phone
in the bathroom with it set to videorecord. There was no
relevant physical evidence (beyond the video itself); it was a
pure credibility contest. If the factfinder believed D, defendant knew that D was going to take a shower and intended
to record her. If the factfinder believed defendant, defendant did not know that D was going to take a shower and
intended to record his wife taking a shower.
         In that context, Vaughn took the stand and testified that, after interviewing the children and adults, she
concluded her investigation with a “founded for sexual
abuse” determination against defendant. Because this was
a bench trial, it is reasonable to assume that the factfinder
was familiar with the legal meaning of “founded” in the
DHS context. DHS rules equate “founded” with “substantiated,” and the standard is akin to criminal “reasonable
suspicion.” Querbach v. Dept. of Human Services, 

, 

 (2020), rev allowed, 

(2021). When a DHS order contains a “founded disposition”
of abuse, we review “whether a reasonable person could
reach the determination that DHS made,” i.e., whether it
“was reasonable for DHS to believe” that abuse occurred.

 (emphasis added). Notably, if the mere existence of an
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abuse allegation was sufficient to give rise to a “founded”
disposition, all allegations would be “founded,” which is not
the case. Where a DHS caseworker relies solely on interviewing the witnesses to determine whether an allegation is
“founded”—as opposed to “unfounded” or “unable to determine,” OAR 413-015-1010(2)—the caseworker is necessarily
making a credibility determination, regardless of the degree
of certainty required for a “founded” disposition.2
           Given that Vaughn’s “founded for sexual abuse” conclusion was necessarily based solely on her own assessment of
the witnesses’ credibility after interviewing them, we agree
with defendant that the challenged testimony was impermissible vouching. Although Vaughn conveyed her credibility assessment less directly than saying “I believed D,”
her “founded” statement, in context, was unambiguously a
comment on D’s credibility. See Sperou, 

 (“Not
all vouching takes the form of overt statements that a witness is trustworthy. Some vouching is subtler, and certain
statements might be vouching in some contexts but not others.”).3 It was not a “direct comment” on D’s credibility, but it
was “tantamount to a direct comment,” and that is equally
impermissible. Black, 

 (vouching is “categorically inadmissible,” and it includes both “direct” comments on another witness’s credibility and statements that
are “tantamount to a direct comment”).
        Although not identical, this situation is somewhat
similar to those in State v. Lupoli, 

, 

     2
       Relying on the legal standard for a DHS “founded” disposition, the concurrence takes the view that Vaughn might not have been vouching. See 319 Or
App at 343-44 (Tookey, P. J., specially concurring). We disagree for the reasons
explained in the text. At the same time, we recognize that Vaughn’s testimony
would be even more problematic if the factfinder was unaware of the DHS definition of “founded” and our case law on “founded” dispositions. In a jury trial, jurors
would likely rely on the common meaning of “founded,” which, if anything, would
convey a stronger credibility assessment in D’s favor.
     3
       In Sperou, the court held that testifying witnesses had impermissibly
vouched for the complainant in a sex-crime case, where they used the term “victim” to refer to her. 

. The court explained that “the use of the term
‘victim’ to refer to the complaining witness or other witnesses, in circumstances
where the accusers’ own testimony is the only evidence that the alleged criminal
conduct occurred, conveys the speaker’s belief that the accusers are credible.”

 It “amounts to vouching, and, where (as here) it is virtually impossible for a
witness’s use of the term to serve a legitimate, nonvouching purpose, any use of
the term is categorically inadmissible.” 

.
338                                          State v. Murphy

(2010), and State v. Milbradt, 

, 

 (1988).
Vaughn testified that, as a DHS protective services caseworker, it was her job to investigate and “assess” the allegation against defendant related to the shower-recording
incident and that, in that context, she interviewed the witnesses and concluded that the allegation was “founded.” In
Lupoli, 

, the court held that healthcare professionals impermissibly vouched for the credibility of child
complainants when they testified to why the children’s statements (without any physical evidence) led them to diagnose
sexual abuse. In Milbradt, 

, the court stated,
“We have said before, and we will say it again, but this time
with emphasis—we really mean it—no psychotherapist may
render an opinion on whether a witness is credible in any trial
conducted in this state. The assessment of credibility is for
the trier of fact and not for psychotherapists.” (Emphasis in
original.).
         Here, Vaughn’s telling the factfinder that she concluded her investigation with a determination that the allegation was “founded for sexual abuse” against defendant
did nothing to help the factfinder make its own credibility determinations. See Black, 

 (“Whether
proffered testimony constitutes impermissible vouching is
measured by whether it conveys one witness’s opinion of the
truthfulness of another witness, or, instead, provides information that permits the jury to make that determination.”).
Nor did it serve any other apparent legitimate evidentiary
purpose. See Sperou, 

 (considering the lack of
“a legitimate, nonvouching purpose”). It served only to convey Vaughn’s assessment of D’s credibility to the factfinder.
We therefore agree with defendant that the testimony was
impermissible vouching and that the trial court plainly
erred by not striking it.
         Under the particular circumstances of this case,
however, we decline to exercise our discretion to correct the
error. Because “correction of an unpreserved error is contrary to the policies requiring preservation[,]” we undertake the correction of an unpreserved error “with utmost
caution.” State v. Benson, 

, 

(2011); see also Ailes v. Portland Meadows, Inc., 

, 

 (1991) (“A court’s decision to recognize
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unpreserved or unraised error in this manner should be
made with utmost caution.”). Toward that end, we consider a
variety of factors in deciding whether to correct plain error.
See Ailes, 

 n 6 (identifying factors that may be
considered, including “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 the policies behind the general rule requiring preservation of error have been served in
the case in another way”).
          Here, the most significant factor in our decision
is the gravity of the error, specifically our conclusion that
there is little likelihood that it affected the outcome in this
particular case. See State v. Digesti, 

,

 (2014), rev den, 

 (2015) (in deciding
whether to exercise our discretion to correct plain error, we
“consider whether the error was harmless—that is, whether
there was little likelihood that the error affected the verdict”); see also, e.g., State v. Inman, 

,

 (2015), rev den, 

 (2016) (“[T]he error
in this case was not particularly grave, in terms of its likelihood of affecting the verdict.”). The charge against defendant was tried to the court, and the trial court explained
on the record in detail why it had decided to find defendant
guilty. In doing so, the court never mentioned Vaughn’s
testimony—which was brief and not mentioned by either
party in opening statements or closing arguments.4 More
importantly, the court made clear that it had made its own
credibility determinations from carefully listening (and
relistening) to the in-court testimony of defendant, his wife,
and D and that its guilty finding was based on its own credibility determinations.
        Some factors weigh in favor of correcting the error,
including that this case was a pure credibility contest

    4
      We also note that, beyond her working for DHS, Vaughn never suggested
that she had any special expertise in evaluating the credibility of children or
adults in this context or otherwise. Cf. State v. Ross, 

, 

, rev den, 

 (2015) (“In many cases where credibility is critical to
the outcome, even a single ‘vouching’ statement by a witness … with years of
experience and training in the field of child abuse prevention, can be given considerable weight by the jury.”).
340                                                       State v. Murphy

among the witnesses and that defendant was convicted of a
felony. However, those factors are outweighed by other considerations, including that the error could have been easily corrected (and a retrial avoided) had defendant objected
and, more importantly, as discussed, that there is little
likelihood that the error affected the outcome.5 Against the
backdrop of the Supreme Court’s admonition to exercise the
“utmost caution” in reversing convictions based on unpreserved claims of error, Ailes, 

, we conclude that
the ends of justice would not be served by exercising our
discretion in this case. Accordingly, we reject defendant’s
assignment of error and affirm the judgment of the trial
court.
           Affirmed.
           TOOKEY, P. J., specially concurring.
         I agree with the disposition in this case: We should
affirm. I write separately because I disagree with the path
that the majority takes to get to that disposition.
         The issue in this case is whether it was plain error
for the trial court, during a bench trial, to not sua sponte
strike a DHS protective services caseworker’s testimony
that the result of DHS’s investigation was “founded for sexual abuse against” defendant. As the majority correctly
notes, an error is “plain” only when it is an error of law, the
legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose
among competing inferences. 319 Or App at 334. I do not
believe that there is plain error in this case.
         In analyzing that issue, it is important to understand what it means when DHS makes a “founded” disposition. A premise of the majority’s analysis is that it is reasonable to assume that the trial court, as factfinder, “was
familiar with the legal meaning of ‘founded’ in the DHS context.” 319 Or App at 336. I agree.

    5
      The state argues that defendant had a strategic reason not to object, and
that we should not exercise our discretion for that reason too, but we are unpersuaded by that argument and do not rely on it in deciding not to exercise our
discretion.
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         OAR 413-015-1010 sets forth the standard for Child
Protective Services (CPS) assessment dispositions.1 OAR
413-015-1010(1) provides that “[t]he standard for determining CPS assessment dispositions is reasonable cause
to believe.” There are three possible dispositions that can
result from a CPS assessment under OAR 413-015-1010:
“founded,” “unfounded,” and “unable to determine.” OAR
413-015-1010(2)(a) - (c).
         A founded disposition means, in pertinent part, that
“there is reasonable cause to believe the abuse occurred.”
OAR 413-015-1010(2)(a). An unfounded disposition means,
in pertinent part, that “there is no evidence the abuse
occurred.” OAR 413-015-1010(2)(b). An “unable to determine” disposition means, in pertinent part, that “there is
some indication the abuse occurred, but there is insufficient
evidence to conclude that there is reasonable cause to believe
the abuse occurred.” OAR 413-015-1010(2)(c).
    1
       OAR 413-015-1010 provides:
         “(1) The standard for determining CPS assessment dispositions is reasonable cause to believe.
         “(2) The possible CPS assessment dispositions are:
         “(a) ‘Founded,’ which means there is reasonable cause to believe the
     abuse occurred. ‘Founded’ is synonymous with ‘substantiated’ as defined in
     ORS 418.205 - 418.327.
         “(b) ‘Unfounded,’ which means there is no evidence the abuse occurred.
     ‘Unfounded’ is synonymous with ‘unsubstantiated’ as defined in ORS 418.205
     - 418.327.
         “(c) ‘Unable to determine,’ which means there is some indication the
     abuse occurred, but there is insufficient evidence to conclude that there is
     reasonable cause to believe the abuse occurred. ‘Unable to determine’ is synonymous with ‘inconclusive’ as defined in ORS 418.205 - 418.327 and may
     only be used in the following circumstances:
         “(A) After extensive efforts have been made, the CPS worker is unable to
     locate the family; or
         “(B) After completing a CPS assessment, there is insufficient information to support any other disposition and:
         “(i) The alleged victim is unable or unwilling to provide consistent information; or
         “(ii) There is conflicting or inconsistent information from collateral contacts or family.”
     In Querbach v. Dept. of Human Services, 

, 

(2020), we observed that, as set forth in OAR 413-015-1010, founded is “synonymous with ‘substantiated’ as defined in ORS 418.205 - 418.327” and that
“[t]hose statutes, in turn, define ‘substantiated’ as ‘reasonable cause to believe’
that abuse occurred, echoing the rules.”
342                                            State v. Murphy

         In Berger v. SOSCF, 

, 

 (2004), we explained a “founded” disposition means
“only that there is reasonable cause to believe that abuse
has occurred.” Reasonable cause “is equivalent to reasonable suspicion.” A. F. v. Oregon Dept. of Human Services,

, 

 (2012). Consequently,
there is a “very low evidentiary threshold for deciding that
a complaint is founded.” 

 (internal quotation marks omitted). Importantly, in making a founded determination,
“the agency decides only whether there is evidence that
creates a reasonable suspicion of child abuse; it does not
decide whether child abuse in fact occurred or even probably occurred.” Berger, 

 (emphasis added);
see also Querbach v. Dept. of Human Services, 

, 137 n 5, 

 (2020) (“[U]nder A. F., the legal
issue before the court was whether a reasonable person
could determine that, based on the facts and circumstances
known to DHS, it was reasonable to suspect abuse; the legal
issue, again, was not whether a reasonable person could
find that the abuse had, in fact, occurred.” (First emphasis
added; second emphasis in original.)). The determination as
to whether abuse occurred is “for the court in a dependency
proceeding.” Querbach, 

 (internal quotation marks omitted). We also observed in Berger that, when
faced with a complaint of abuse, “contrary evidence will
have, at best, a limited effect on the issue that the agency
must decide.” 

.
         With that understanding of what it means for DHS
to reach a “founded” disposition, I turn to the evidentiary
record at the time that Vaughn testified as to the “founded”
disposition, so as to put her testimony in the proper context. State v. Sperou, 

, 

 (2019)
(“[C]ertain statements might be vouching in some contexts
but not others. Accordingly, it is important to consider each
statement in the context in which it was made.”).
         At trial, Vaughn was the second witness called
by the state. The first witness called by the state, Deputy
Towery, testified that D’s mother had brought the video in
question to the police; testified as to the contents of the video;
testified as to how and why D’s mother had acquired the
video from defendant’s cellphone; and testified that police
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seized defendant’s phone and a copy of the video was not
located on defendant’s phone.
           Vaughn then testified as follows:
      “Q Where are you employed, Ms. Vaughn?
      “A    Department of Human Services, Child Welfare.
      “Q And in that role what are your duties?
      “A    I’m a protective services caseworker.
      “Q So as a result of that did you get called out to a case
   on April 13th, 2017?
      “A Your Honor, per ORS 3.270, I have to be ordered to
   testify ….
      “THE COURT: You are so ordered to testify.
      “A    Thank you. Repeat the question for me, please?
      “Q In April of 2017 were you called out on a case involving [D], [D’s mother], and [defendant]?
      “A    I was.
      “Q What was the nature of that call?
       “A The reported concern was regarding a sexual abuse
   allegation against [defendant].
      “Q And what was your role in this, then?
       “A My role was to assess for child abuse and neglect so
   I interviewed children, adults, assessed the circumstances
   in the allegation.
      “Q And what was the result of that investigation?
      “A It resulted in a founded for sexual abuse against
   [defendant].”
          The majority concludes that Vaughn’s testimony
that the investigation resulted in a “founded” disposition,
“in context, was unambiguously a comment on D’s credibility.” 319 Or App at 337. I disagree for two overlapping
reasons.
         First, given the legal significance of a “founded” disposition, it is not the case that Vaughn’s testimony reflected
that she believed D or found D credible; in fact, Vaughn’s
344                                                        State v. Murphy

testimony does not even reflect whether D’s credibility
was involved in making the “founded” disposition. And, as
explained above, a “founded” disposition does not reflect a
DHS determination that abuse had occurred, or even that
it was more likely than not that it had occurred. See Berger,

 (in determining whether a disposition
is founded “the agency decides only whether there is evidence that creates a reasonable suspicion of child abuse;
it does not decide whether child abuse in fact occurred or
even probably occurred”). Instead, the “founded” disposition here merely reflects that DHS believed it was “reasonable to suspect abuse” after conducting interviews and, as
we understand it, having been presented with information
that defendant surreptitiously recorded a video of his minor
stepdaughter in the shower, and that that video had created
significant enough concerns for the child’s mother that the
child’s mother turned the video over to police. Thus, in the
context of this case, Vaughn’s testimony that the investigation resulted in a “founded” disposition was not necessarily
an “expression of one’s personal opinion about the credibility
of a witness.” Sperou, 

. And it certainly was not
“unambiguously a comment on D’s credibility.” 319 Or App
at 337.
         Second, at the time Vaughn testified that the DHS
investigation resulted in a “founded” disposition, the evidentiary record was silent as to what was said to Vaughn
by those whom she had interviewed, and was silent as to
whether Vaughn interviewed D. At the time Vaughn testified that there was a “founded” disposition, one could infer
that Vaughn did interview D, but that is not the only inference that could have been drawn.
         Consequently, I would conclude that the error here,
if any, was not plain, and I would affirm for that reason.2




    2
      To be sure, there might be a case in which it is plain error to permit a DHS
protective services caseworker to testify concerning the disposition of a DHS
assessment. But, for the reasons expressed herein, this is not that case.