State v. Miller, 537 P.3d 191

Background

Defendant Ronald Miller was tried in a bench trial and convicted of first‑degree unlawful sexual penetration (victim C) and first‑degree sexual abuse (victim K) for alleged abuse in 2012 when C was 8 and K was 5; Miller lived briefly in the victims’ residence in 2012.
C gave limited disclosure to a detective in 2012; a formal report and fuller disclosures did not occur until January 2019 after C (then 14) revealed sexualized texting and, in counseling, disclosed abuse by Miller to her adoptive mother, Laurie.
Laurie, a mandatory reporter, made a police report and testified at trial about C’s January 2019 disclosure and about being able to detect when C lies (testifying C is “not a good liar” and describing physical indicators of lying).
On redirect Laurie was asked whether the January 2019 disclosure displayed the behaviors she associates with C lying; she answered “No,” and defense objected that this amounted to impermissible vouching.
Defendant also challenges several of the prosecutor’s closing statements as improper (vouching and facts not in evidence) and the trial court’s restitution order requiring Miller to pay $1,480 to the Criminal Injuries Compensation Account for C’s counseling, arguing lack of evidence that costs were reasonable.
The trial court found both victims credible and convicted; on appeal the court affirmed the convictions (finding any vouching error harmless and the prosecutor’s improper remarks not plain error) but reversed the restitution award for lack of evidence of reasonableness.

Issues

Issue	State's Argument	Miller's Argument	Held
Whether Laurie’s testimony that C did not display her “lying” behaviors in the 2019 disclosure was impermissible vouching	Testimony was permissible demeanor evidence, not a credibility opinion; alternatively any error was harmless	The answer amounted to vouching for C’s truthfulness and warranted a new trial	Even if the answer was vouching, any error was harmless given prior unobjected‑to testimony, prosecutor’s closing, defense strategy, and the court’s reliance on live testimony; no reversal of convictions
Whether prosecutor impermissibly vouched for complainants in closing	Statements were argument about evidence and persuasiveness, not personal credibility endorsements	Prosecutor vouched for victims and used impermissible appeals to authority	Court rejected vouching claim — remarks were within permissible argument about credibility
Whether prosecutor’s references to facts not in evidence (victim advocate phrasing, bench/jury comparison, Gladwell/"thin‑slicing") required plain‑error relief	Statements, while some improper, were not so prejudicial as to deny a fair bench trial and were curable by striking/instruction	Remarks were improper, some factual assertions lacked basis in evidence, and warranted reversal or mistrial	Two of the statements were improper but not so prejudicial in a bench trial to constitute plain error under Chitwood; no plain‑error relief granted
Whether restitution of $1,480 for counseling lacked evidentiary support (reasonableness)	State concedes no evidence of reasonableness and that restitution award plainly erred	Restitution lacked the statutorily required proof of reasonableness	Restitution order reversed because the state failed to prove the costs were reasonable

Key Cases Cited

State v. Chandler, 360 Or 323 (discussing rule against witness vouching)
State v. Middleton, 294 Or 427 (witnesses may not opine on another witness’s truthfulness)
State v. Black, 364 Or 579 (reaffirming categorical inadmissibility of vouching)
State v. Sperou, 365 Or 121 (vouching is a legal question)
State v. Lupoli, 348 Or 346 (demeanor evidence may be inadmissible when inextricably bound up with vouching)
State v. Chitwood, 370 Or 305 (plain‑error standard for unpreserved challenges to prosecutorial statements)
State v. McClelland, 278 Or App 138 (restitution requires proof that medical/therapy costs are reasonable)
State v. Davis, 336 Or 19 (harmless‑error standard for evidentiary error)