State v. E. J. R.

488                     July 2, 2025                 No. 576

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 In the Matter of E. J. R.,
                         a Youth.
                  STATE OF OREGON,
                       Respondent,
                            v.
                         E. J. R.,
                        Appellant.
               Yamhill County Circuit Court
                   22JU02662; A181622

   Ladd J. Wiles, Judge.
   Submitted February 18, 2025.
  Shannon Storey, Chief Defender, Juvenile Appellate
Section, and Sara F. Werboff, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
   EGAN, J.
   Vacated and remanded for written findings under ORS
419C.478(1).
Cite as 

 (2025)   489
490                                          State v. E. J. R.

        EGAN, J.
         Youth appeals a judgment committing him to the
Oregon Youth Authority (OYA) with a recommendation for
placement in a youth correctional facility (YCF). He raises
four assignments of error. In the first and second assignments, youth argues that the juvenile court plainly erred
when it did not strike vouching testimony by a nurse examiner. In the third assignment, youth argues that the juvenile court failed to make sufficient written findings under
ORS 419C.478(1) describing why it is in youth’s best interests to be committed to the legal custody of OYA. In his
fourth assignment, youth argues that the juvenile court
erred in recommending that he be placed in a YCF because
that recommendation was based on a misunderstanding
of the juvenile court’s authority. We reject youth’s first and
second assignments because the nurse’s statements do not
unambiguously constitute vouching. We also reject youth’s
fourth assignment because we do not understand the juvenile court to have misunderstood its authority. However,
as to the third assignment of error, we agree with youth
that the written findings do not satisfy ORS 419C.478(1).
Accordingly, we vacate and remand for written findings
under ORS 419C.478(1).
                    I. BACKGROUND
         A full recitation of the facts is not necessary to
understand the specific issues on appeal. In June 2022, the
state filed a petition alleging youth was within the juvenile court’s jurisdiction for acts that, if committed by an
adult, would constitute two counts of first-degree rape, ORS
163.375, and two counts of first-degree sexual abuse, ORS
163.427. All four counts involved the same victim, T, and the
same episode. Youth denied the allegations and proceeded to
a contested jurisdictional hearing.
         At the hearing, the state introduced testimony
from nurse Theodore, who had examined T. During direct
examination, the state asked Theodore, “And when [T]
came in, do you recall what her demeanor was like when
you met up with her?” Theodore responded, “Yes, she was
… very shy, scared, you know, kind of just embarrassed,
Cite as 

 (2025)                                  491

if I—I mean, I had to say, like just didn’t want us looking
at her, didn’t want us asking questions, and I’ve seen that
multiple times in these exams, so she was reacting in a way
that most patients would.” The state then proceeded to ask,
“[W]ould you say her demeanor stayed the same throughout?” Theodore responded, “For the most part—” to which
the state followed up with “This time you were with her?”
Theodore explained, “—[Y]ou know, [T] just wanted to go
home, made that very clear, and we do try to work as quickly
and as efficiently as possible to get them out of that situation
because it is traumatizing to be not at home after having
something so awful happen to you.”
         The state also questioned Neumann from the
Juvenile Department about the department’s recommendation for youth. Neumann responded that “[i]t is the juvenile
department’s recommendation that [youth] be committed to
the Oregon Youth Authority for placement at a youth correctional facility[.]” [ ] Youth also questioned Neumann about
the availability of community placement through OYA.
Youth argued for placement in the community and did not
want placement in a YCF.
         The court found youth to be within the juvenile
court’s jurisdiction for conduct that, if committed by an
adult, would constitute one count of first-degree rape and
one count of first-degree sexual abuse. As for the disposition, the court explained that youth needed structure and
that the court would follow the juvenile department’s recommendation to commit youth to OYA’s legal custody for placement in a YCF. The court stated:
   “So at least at this point with the evidence that’s been presented to me, I do follow the recommendation to commit
   you to the youth authority. The youth authority will—I
   think has to start with a youth correctional facility for
   placement, though, and correct me if I’m wrong, [Juvenile
   Department representative], I think that if there’s the right
   responsivity by you and the analysis from the evaluations
   that are coming back in a certain way that they could consider you for placement in something other than, say, as
   your attorney [argued], MacLaren, but there’s other places
   that you might be able to go that could provide you the level
   of structure that will help you ….”
492                                               State v. E. J. R.

        The court entered an order and judgment committing youth to the legal custody of OYA for placement in a
YCF for a period not to exceed 20 years, with credit for time
served, and with the period not extending beyond the date
on which youth reaches 25 years of age. The court’s written
findings included:
   “[I]t is in the best interest and welfare of the youth that he
   be placed in legal custody of the Oregon Youth Authority,
   State of Oregon, for placement in a youth correctional facility. There is no less restrictive placement that will assure
   the youth will conform his conduct to the law and other
   conditions that may be imposed to protect the best interest
   of the youth or community.”
         Youth appeals the juvenile court’s judgment and
disposition, raising four assignments of error that reduce to
three legal issues, which we address in turn.
                       II. DISCUSSION
A. Vouching
         We begin with the issue of whether the challenged
testimony constituted vouching. Youth challenges two of
Theodore’s statements, claiming that her testimony “was
tantamount to a statement that the nurse believed the
complainant had been sexually assaulted” and therefore
constitutes impermissible vouching evidence. First, youth
argues that the juvenile court plainly erred when it permitted Theodore’s testimony that T “was reacting the way
most patients would” during a sexual assault examination.
Second, he argues that the juvenile court erred in permitting Theodore to testify that it was “traumatizing” to not be
at home after “having something so awful happen to you.”
Youth’s arguments are unpreserved, but he asserts that it
was plain error for the trial court not to strike the statements as vouching. The state argues that Theodore’s testimony is not unambiguous vouching because she did not comment directly on T’s truthfulness or credibility but rather
made statements regarding T’s demeanor. We conclude that
Theodore’s statements were, at most, ambiguous and therefore do not warrant correction on plain error review.
Cite as 

 (2025)                              493

         We review issues of vouching for legal error. State
v. Sperou, 

, 

 (2019). “ ‘Vouching’
refers to the expression of one’s personal opinion about the
credibility of a witness.” Id. at 128 (citation omitted). “[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. Murphy, 

, 

 (2022) (quoting State v. Black,

, 

 (2019)).
         Whether a statement constitutes vouching “depends
on the context in which it arose and the context of how it
was offered at trial.” State v. Wellington, 

,

, rev den, 

 (2024). The key inquiry is
“whether the testimony at issue directly expressed an opinion on the truth of another witness’s statement or merely
tended to show that another witness either is or is not telling the truth.” Alne v. Nooth, 

, 314, 

 (2017). Testimony that is “solely descriptive of the manner in which a communication is made—so called demeanor
evidence—is permissible and not a comment on a witness’s
credibility.” State v. Pergande, 

, 

 (2015) (quoting State v. Wilson, 266 Or app 481, 490, 

 (2014), rev den, 

 (2015)).
         “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.” Murphy, 

.
“If a witness unambiguously vouched, it is plain error not to
have stricken the testimony, even absent an objection.” 

“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.” 

 Finally, “if the witness unambiguously did not vouch, obviously there is no error, plain or
otherwise, in not striking the testimony as vouching.” 

. In this case, neither of Theodore’s challenged statements unambiguously constituted vouching.
494                                            State v. E. J. R.

         In the first challenged statement, Theodore testified that T was
   “very shy, scared, you know, kind of just embarrassed, if
   I—I mean, I had to say, like just didn’t want us looking
   at her, didn’t want us asking questions, and I’ve seen that
   multiple times in these exams, so she was reacting in a way
   that most patients would.”
Youth argues that that statement constituted vouching because it equated T’s reaction with that of the many
abuse victims that Theodore has seen—thereby expressing
Theodore’s belief that T was genuinely a victim of abuse.
However, Theodore’s description of T’s demeanor and its
similarity to that of other patients did not unambiguously
express Theodore’s opinion that T was a credible witness.
          In general, “testimony about the physical appearance of a speaker” and demeanor evidence is not vouching
evidence. State v. Miller, 

, 

,
rev den, 

 (2023); see also State v. Lupoli, 

, 

 (2010) (“[O]bservations of [the complainant’s] physical characteristics and demeanor ordinarily
would not be, in and of themselves, impermissible vouching.”). In context, Theodore’s description could be understood
as comparing T’s demeanor with that of a victim of sexual
abuse or it could just as readily be understood as comparing T’s demeanor to that of any patient undergoing the type
of invasive exam that Theodore was conducting. Theodore’s
statement was therefore ambiguous, and the juvenile court
did not plainly err in failing to intervene. See Wellington,

 (concluding that the “challenged testimony
was not unambiguously vouching and that the legal point,
therefore, is not obvious and is reasonably in dispute” and
therefore the error is not plain).
         Similarly, Theodore’s second challenged statement—
that T “just wanted to go home,” followed by the explanation
that “we do try to work as quickly and as efficiently as possible to get them out of that situation because it is traumatizing to not be at home after having something so awful happen to you”—is also not unambiguous vouching. Although it
is possible, as defendant argues, that it could be understood
to imply that T wanted to go home because something awful
Cite as 

 (2025)                             495

had happened to her, that is not the only reasonable understanding of the testimony. The state’s question, “This time
you were with her?” together with Theodore’s response, “we
do try to work as quickly and as efficiently as possible to
get them out of that situation because it is traumatizing to
be not at home after having something so awful happen to
you” could be understood as Theodore explaining generally
why, when she performs sexual assault examinations, she
tries “to work as quickly and as efficiently as possible”—“to
get them out of that situation” to minimize their trauma.
Theodore’s use of “them” could be understood as a reference
the type of patients that she usually sees as opposed to T
specifically. Although the explanation followed her observation that T wanted to go home, it does not necessarily imply
that something awful had happened to T and that was the
reason that T wanted to go home. Like the first, the second
statement is ambiguous. Therefore, the two statements at
issue are not unambiguously vouching statements that warrant correction on plain error review. Accordingly, the trial
court did not plainly err in failing to strike the challenged
statements by Theodore.
B.   Juvenile Court’s Discretionary Authority
         We turn next to youth’s argument that the juvenile court erred because it failed to recognize that it had
discretion in recommending placement in a YCF. See ORS
419C.495(1) (“An adjudicated youth placed in the legal custody of the Oregon Youth Authority may be placed in a youth
correction facility … only when the juvenile court having
jurisdiction so recommends[.]”). That argument is premised
youth’s understanding of the juvenile court’s statement, “I
think [youth] has to start with a youth correctional facility.”
He contends that his advocacy for placement in a custodial
community program implicitly informed the juvenile court
that it had discretion not to recommend placement in a YCF
and, thereby preserved his claim of error. In the alternative, he requests plain error review. The state argues that
the issue is unpreserved and does not warrant plain error
review.
      We need not decide whether youth preserved his
argument, because we do not understand the juvenile court’s
496                                           State v. E. J. R.

statement to which youth objects to reflect a misunderstanding of the applicable legal framework. As explained above,
the state recommended that youth be committed to the custody of OYA for placement in a YCF. The court explained
why it was persuaded to follow that recommendation, and
then stated, “I do follow the recommendation to commit you
to the youth authority.” We understand that to mean that
the court was persuaded both to commit youth to OYA custody and to recommend placement in a YCF. Immediately
after that, the court stated, “I think [youth] has to start
with a youth correctional facility.” We disagree with youth
that that statement represents a misunderstanding of the
court’s discretionary authority to permit placement in a
YCF. Viewed in context, the statement simply explains the
practical results of the court’s acceptance of the state’s recommendation to permit placement in a YCF. The juvenile
court did not misunderstand its discretionary authority.
C. Written Findings
         Finally, we address whether the juvenile court’s
written findings satisfy ORS 419C.478(1). Youth argues
that ORS 419C.478(1) requires the juvenile court to make
written findings explaining why commitment to the legal
custody of OYA is in the youth’s best interest and that, here,
the juvenile court’s findings were insufficient. The state
responds that the juvenile court did sufficiently explain why
commitment to OYA was in youth’s best interest. We review
the sufficiency of the juvenile court’s written findings pursuant to ORS 419C.478(1) for legal error. State v. D. B. O., 

, 

 (2023). We agree with youth
that the juvenile court’s explanation here does not reflect
the careful and explicit evaluation that is required under
ORS 419C.478(1).
        As a preliminary matter, the argument is not preserved, but “youth is excused from preservation requirements because he had no opportunity to object before the
judgment and commitment order were issued.” 

.
         ORS 419C.478(1) authorizes the juvenile court
to “place an adjudicated youth who is at least 12 years of
age in the legal custody of [OYA] for care, placement, and
Cite as 

 (2025)                               497

supervision” but requires that, as part of any order doing so,
the court “ ‘shall include written findings describing why it
is in the best interests of the adjudicated youth to be placed
with [OYA].’ ” State v. E. S., 

, 

 (2024) (quoting ORS 419C.478(1)). “[W]ritten findings
required by ORS 419.478(1) ‘are necessary even when evidence supports the juvenile court’s disposition.’ ” 

 (quoting
D. B. O., 

). “Regardless of community safety
or other practical considerations leading to the youth’s commitment, such as a probation violation, the mandate explicitly requires the findings to describe why it is in the youth’s
‘best interests’ to be committed to OYA.” D. B. O., 

 (emphasis in original). “[T]he legislature imposed the
findings requirement to ensure that the juvenile court takes
time to consider the positive and negative impacts a decision
may have on the adjudicated youth.” 

.
         Our prior case law on this issue informs our analysis.
In D. B. O., we vacated and remanded the juvenile court’s
decision to commit an adjudicated youth to OYA custody
because the court’s written finding that the youth “[could
not] be maintained in the community” was too ambiguous.

. We held that the finding did not satisfy ORS
419C.478(1) because it failed to explain why placement in
OYA was in the youth’s best interest and most likely to lead
to a positive outcome for the youth. 

. “While [the
finding] could perhaps lead to an explanation, ‘it is not an
explanation itself’ concerning what is best for the youth.” 

at 749-50 (quoting State v. S. D. M., 

, 

 (2022)).
         Similarly, in E. S., we vacated and remanded the
juvenile court’s decision to commit a youth to OYA for
placement in a YCF for the same reasons stated in D. B. O.
E. S., 

. The court’s written findings were
made on a form containing a single line for best-interest
findings, which we noted was “not well suited to making
thoughtful written findings.” 

. As for the substance
of the findings, we explained that “the juvenile court must
direct its written findings to the specific issue of why it is in
a youth’s best interest to be placed with OYA.” 

. We
further explained,
498                                                State v. E. J. R.

      “Findings that are ambiguous as to whether they are
      directed to the youth’s best interest—versus being directed
      to what is in the best interests of the community, what is
      in the best interests of other individuals, what is administratively convenient, what is justifiable punishment for a
      probation violation, or the like—will not survive appellate
      review and will result in a remand for additional findings.”

        The legislature expressed its intent that the juvenile court carefully evaluate its decision to place youth in
OYA custody and consider the positive and negative impacts
such a decision may have on an adjudicated youth and to
articulate its reasoning and conclusion in written form.
D. B. O., 

-50 (citing State v. S. D. M., 

, which explains that legislatively required
written best-interest findings are meant to ensure that a
juvenile court’s decision is most likely to lead to a positive
outcome for the child). “In other words, by imposing the
findings requirement, the legislature created a process that
requires juvenile courts to carefully and thoroughly consider
any factor favoring or counseling against the commitment
to OYA custody.” State v. N. K. H., 

, ___
P3d ___ (2025). “That process is designed to protect a child’s
interests and to safeguard against conclusory approaches
to a decision that has the power to fundamentally alter a
childhood.” 

          Here, the juvenile court committed youth to OYA
and recommended placement in a YCF. It explained that
“[t]here is no less restrictive placement that will assure the
youth will conform his conduct to the law and other conditions that may be imposed to protect the best interests of the
youth or community.” Like the written findings in D. B. O.
and E. S., that statement is ambiguous as to whether it
reflects consideration of youth’s best interest or the best
interest of the community. In particular, by referring to
youth’s inability to conform to conditions “imposed to protect the best interests of the … community,” the finding
fails to focus, as the legislature has required, on youth’s best
interest.
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 (2025)                                                  499

         Further, the statement is too conclusory to satisfy
the ORS 419C.478(1) requirement of an “explanation of why
it would be in the best interests of youth to be committed to
a custodial setting rather than to remain with family or in
the community.” D. B. O., 

. The legislature has tasked the juvenile court not just with stating that
the decision to place the child in custody is in the child’s
best interest, but with “describ[ing] why” the choice to place
the child in the custody of OYA is in the best interest of
that particular child. ORS 419C.478(1) (emphasis added). To
“describe why” that choice is in the child’s best interest, the
juvenile court should identify its factual findings regarding
the child’s needs, in particular, the needs that are driving
the court’s decision to place the child in OYA custody and
any needs that may cut against the placement; explain how
placing the child in OYA custody will serve those needs; and
consider the downsides of OYA custody for the particular
child.1Written findings that simply state there are no other
options for a child do not demonstrate the careful evaluation
that the legislature contemplated to ensure that a juvenile
court’s decision is most likely to lead to a positive outcome
for the child. Accordingly, we vacate and remand for additional written findings under ORS 419C.478(1).
                           III.    CONCLUSION
        In sum, the juvenile court did not err in failing to
sua sponte strike Theodore’s testimony because her statements were not unambiguous vouching. Additionally, we
disagree with youth that the juvenile court was mistaken
about its discretionary authority in recommending placement in a YCF. However, the juvenile court did err in failing to provide sufficient written findings pursuant to ORS
419C.478(1).
       Vacated and remanded for written findings under
ORS 419C.478(1).


     1
       As noted above, a juvenile court may commit a youth to the custody of OYA
but not permit placement in a YCF. However, when, as in this case, OYA custody
and YCF placement go hand in hand—with the result that, as in this case, the court
understands that the youth will initially be placed in a YCF—the court’s best-interest analysis will necessarily take into consideration the youth’s placement in a YCF.