State v. Brand, 455 P.3d 960

Defendant Austin Brand was convicted of first-degree kidnapping, coercion, fourth-degree assault, menacing, and recklessly endangering; several other counts were dismissed or resulted in acquittal, and four guilty verdicts were nonunanimous.
The alleged victim (S) testified Brand strangled and abducted her, confined her in a rural barn for about four days, repeatedly threatened her, and forced sexual acts; she had multiple opportunities to flee or report but did not do so; her roommate ultimately called police.
Detective Turnage, a domestic-violence investigator, testified generally about the phenomenon of delayed reporting and then opined that, in this case, S delayed reporting because she feared continued assaults.
Defense repeatedly objected—arguing lack of foundation, speculation, and impermissible vouching—and renewed the objection when Turnage applied delayed-reporting principles to S; the trial court overruled.
Officer Hardy also testified (over objection at trial) that S’s behavior was typical and that victims frequently delay reporting; Brand did not challenge Hardy’s testimony on appeal.
The Court of Appeals held Brand preserved his vouching objection, concluded Turnage’s specific opinion was impermissible vouching that supplanted the jury’s role, and reversed and remanded because the error was not harmless given the close, largely credibility-based trial and nonunanimous verdicts.

Issue	State's Argument	Brand's Argument	Held
Preservation of vouching objection	Brand only objected to delayed-reporting testimony generally; did not preserve specific vouching challenge	Brand preserved the specific vouching objection by multiple, ongoing objections and a renewal when Turnage applied delayed-reporting to S	Preserved — objections were adequate to alert the court and preserve the issue
Admissibility: Turnage’s statement that S delayed because she feared further assaults	Turnage’s application of general delayed-reporting principles to the facts is permissible and not a credibility determination	Turnage’s statement was impermissible vouching because it expressed his view that S was truthful	Error — Turnage’s specific conclusion was vouching and therefore inadmissible
Distinction between permissible expert context and impermissible vouching	No meaningful distinction; applying general principles to facts is often helpful and allowable	Applying general principles to the specific victim crossed the line and supplanted jury credibility assessment	Court reaffirmed the line: experts may give general context, but may not state or imply a belief in a witness’s truthfulness
Harmlessness of the error	Turnage’s testimony was cumulative of Hardy’s admissible testimony and therefore harmless	The error was not harmless because credibility was central, the trial was close, and some guilty verdicts were nonunanimous	Not harmless — reversal and remand required

State v. McCarthy, 251 Or App 231 (Or. App. 2012) (expert application of delayed-reporting to a complainant’s specific facts constituted impermissible vouching)
State v. Black, 364 Or 579 (Or. 2019) (explaining the vouching rule and that experts may not convey belief in another witness’s truthfulness)
State v. Middleton, 294 Or 427 (Or. 1983) (permitting expert testimony about typical victim response when it does not vouch for credibility)
State v. Perry, 347 Or 110 (Or. 2009) (expert evidence that delayed disclosure can occur is admissible to rebut inference of fabrication)
State v. Sundberg, 268 Or App 577 (Or. App. 2015) (delayed-reporting expert testimony admissible to explain and rebut delay-based fabrication inferences)
State v. Remme, 173 Or App 546 (Or. App. 2001) (expert testimony must assist, not supplant, jury credibility determinations)
State v. Henley, 363 Or 284 (Or. 2018) (standard for harmless error: whether the error likely affected the verdict)