State v. Criswell, 386 P.3d 58

Defendant was tried four times on multiple counts of sexual abuse and sodomy involving three child victims (ages 14, 10, 7); earlier convictions were vacated under Southard and the case remanded.
After retrial(s), the jury convicted on 12 counts; the new sentence was 844 months (prev. sentence after first trial was 450 months).
At the third trial, a Juliette’s House doctor (Miller) referred to ‘‘formulat[ing] a diagnosis and treatment plan’’ despite instruction not to testify about diagnoses; that exchange produced a mistrial.
Defendant moved to dismiss on double-jeopardy grounds, arguing official misconduct (prosecutor and Miller) caused the mistrial; the trial court denied the motion.
Defendant also challenged multiple evidentiary rulings as impermissible vouching (expert/interviewer testimony and report descriptions); the court admitted the disputed testimony.
On appeal the court affirmed on double-jeopardy and evidentiary claims but found plain error in sentencing: the trial judge increased the aggregate sentence without making Partain findings on the record, so the case was remanded for resentencing.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Criswell)	Held
Double jeopardy dismissal after mistrial	Prosecutor and witness did not act with indifference; any disclosure was inadvertent and curable	Prosecutor and doctor’s conduct was indifferent/misconduct causing mistrial, barring retrial	Denied: trial court’s credibility findings supported; defendant failed Part 3 scienter prong (no indifference) so retrial not barred
Admission of interviewer/expert testimony (vouching)	Testimony explained children’s behavior and demeanor; assisted jury, not commenting on credibility	Testimony and report language vouch for victims and usurp jury’s credibility role	Admitted: testimony was permissible expert/demeanor evidence and did not directly vouch for credibility
Admission of prior medical/report statements (vouching)	Descriptions (e.g., "competent [age]") are demeanor/observational and helpful	Those report descriptions implicitly vouched for reliability of statements	Admitted: treated as demeanor-based observations, not impermissible credibility opinions
Increased sentence after retrial (presumptively vindictive)	State: no specific new facts shown; trial court relied on statutory minimums and general harms	Defendant: longer aggregate sentence presumptively vindictive absent Partain findings; plain error review warranted	Reversed for resentencing: error was plain and not harmless because judge failed to state on-record facts showing increased sentence was not vindictive

State v. Southard, 347 Or 127, 218 P.3d 104 (Ore. 2009) (physician’s diagnosis of sexual abuse without physical evidence inadmissible under OEC 403)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (federal standard: retrial barred only when official conduct intended to provoke mistrial)
State v. Partain, 349 Or 10, 239 P.3d 232 (Ore. 2010) (on remand, judge imposing harsher post-remand sentence must state on the record facts unknown at original sentencing to dispel vindictiveness)
State v. Pratt, 316 Or 561, 853 P.2d 827 (Ore. 1993) (three-prong test for retrial barred by official misconduct under Article I, §12)
State v. Chandler, 360 Or 323, 380 P.3d 932 (Ore. 2016) (witness may not comment on another witness’s credibility; distinguishes permissible expert context)
State v. Beauvais, 357 Or 524, 354 P.3d 680 (Ore. 2015) (expert testimony describing typical victim behavior admissible if it aids jury without directly vouching)
State v. Bucholz, 317 Or 309, 855 P.2d 1100 (Ore. 1993) (discusses limits of plain-error review where required sentencing findings might easily have been made)