State v. Zambrano

No. 1062 November 4, 2026 343 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MIGUEL ZAMBRANO, Defendant-Appellant. Washington County Circuit Court 20CR66026; A180145 Brandon M. Thompson, Judge. Argued and submitted April 2, 2025. Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge. EGAN, J. Reversed and remanded. 344 State v. Zambrano Cite as 354 Or App 343 (2026) 345 EGAN, J. Defendant appeals from a judgment of conviction for one count of first-degree sodomy (Count 1), three counts of first-degree sexual abuse (Counts 2, 4, and 6), and one count of attempted use of a child in a display of sexually explicit conduct (Count 5).1 In 13 assignments of error, defendant argues that the trial court erred in (1) excluding defendant’s statement to police that he would take a polygraph; (2) admit- ting a therapist’s testimony about the complainant’s symp- toms and treatment; (3) denying defendant’s motion for judg- ment of acquittal (MJOA) on Count 5, attempted display, and instructing the jury on the meaning of “lewd exhibit” for pur- poses of Count 5; (4) failing to declare a mistrial sua sponte in response to the prosecutor’s allegedly improper rebuttal arguments; and (5) imposing restitution and a compensatory fine and applying the security amount posted by defendant’s sister to the restitution/compensatory fine award. We conclude that the trial court erred in exclud- ing defendant’s statement that he would take a polygraph because it failed to consider defendant’s proposed limiting instruction when it conducted OEC 403 balancing, and that error was not harmless. Additionally, we reject the state’s argument that we should affirm the trial court’s ruling on the alternative basis that the statement was inadmissible hearsay. We further conclude that the appropriate remedy is a limited remand for the trial court to conduct OEC 403 balancing based on a proper understanding of defendant’s proposed instruction, and “to thereafter determine whether to reenter the judgment or whether a new trial is necessary and appropriate.” State v. Antonio, 334 Or App 778, 781, 556 P3d 1053 (2024). We further conclude that the trial court did not err in admitting the therapist’s testimony under OEC 403 based on the record before the trial court at the time that it made its ruling. As to defendant’s challenges related to Count 5, attempted display, we accept the state’s concession that, under State v. Parra-Sanchez, 324 Or App 712, 527 P3d 1008, rev den, 371 Or 333 (2023), the trial court plainly erred in instructing the jurors on the meaning of “lewd exhibit,” and 1 Defendant was acquitted of Count 3, first-degree rape. 346 State v. Zambrano we conclude that that error was not harmless. Accordingly, defendant is entitled to a new trial on that count.2 We fur- ther conclude, however, that defendant’s MJOA argument is unpreserved and that his claim of error does not meet the requirements for plain-error review. Consequently, he is not entitled to outright acquittal on Count 5. We also reject defendant’s claims of error related to statements that the prosecutor made in rebuttal argument because defendant’s challenges do not meet the require- ments for reversal as plain error under State v. Chitwood, 370 Or 305, 518 P3d 903 (2022). Finally, we conclude that the trial court did not err in imposing restitution and a compensatory fine and in ordering that the security-release deposit be applied to pay the imposed fines. I. BACKGROUND We begin with an overview of the background facts and procedural history for context and discuss additional facts and procedural history as relevant to each assignment of error. When A was seven years old, defendant and A’s mother, Hill, began a relationship that lasted approximately four years. When A was 11, she disclosed to her mother that defendant had sexually abused her. In two forensic inter- views at CARES Northwest, A disclosed various instances of sexual abuse by defendant and disclosed that on one occa- sion defendant had taken pictures of A in the shower and after A came out of the shower in a towel, defendant told A to remove the towel, which A refused to do. The state charged defendant with first-degree sod- omy, three counts of first-degree sexual abuse, first-degree rape, and attempted use of a child in a display of sexually explicit conduct. At trial, the state’s evidence included A’s testimony about the abuse, the testimony of people A had disclosed the abuse to, including A’s friends and mother, jour- nal entries that A had written about the abuse, recordings of A’s forensic interviews, and the testimony of Chavarria, a trauma counselor at CARES who provided counseling to A. 2 In the event that on remand the trial court again excludes defendant’s statement that he would take a polygraph and reenters the judgment, that judg- ment would not include the conviction for Count 5. Cite as 354 Or App 343 (2026) 347 Defendant’s evidence included his testimony that the allegations were false; evidence that he had consistently denied the accusations and fully cooperated with police; and testimony from an expert on child forensic interviews about factors that can influence the reliability of a child’s statements, such as suggestibility and bias. Defendant also pointed to inconsistencies in A’s disclosures over time and the lack of physical or eyewitness evidence. The jury found defendant guilty of first-degree sod- omy, three counts of first-degree sexual abuse, and attempted display. The jury acquitted defendant of first-degree rape. II. POLYGRAPH STATEMENT Before trial, defendant moved to admit at trial his statement to police that he would take a polygraph test. Defendant made the statement during an interrogation after police arrested him. During the interrogation, defen- dant categorically denied the allegations, and when police asked him if he would “take a polygraph assessment,” he replied, “Absolutely.” In his motion, defendant argued that the statement was admissible as “consciousness of inno- cence” under the “state of mind” hearsay exception, OEC 803(3), and that its probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under OEC 403. The trial court agreed with defendant that the statement was admissible under the “state of mind” hearsay exception, OEC 803(3), but excluded the statement after con- cluding that it constituted “impermissible bolstering” under State v. Snider, 296 Or 168, 674 P2d 585 (1983), and that it was inadmissible under OEC 403. Defendant challenges that ruling on appeal, arguing that the trial court erred in excluding the statement under Snider and OEC 403. The state does not defend the trial court’s reliance on Snider but argues that the trial court correctly excluded the state- ment under OEC 403; that any error was harmless; or that we should affirm the trial court’s ruling on the alternative basis that the statement was inadmissible hearsay. We begin with the trial court’s ruling under OEC 403 and conclude that the court incorrectly excluded the 348 State v. Zambrano statement because the court’s balancing was flawed. We then address harmlessness and conclude that the error was not harmless. Finally, we address the state’s argument that we should affirm the trial court’s ruling excluding the state- ment because it was inadmissible hearsay and conclude that the statement was admissible under the state-of-mind hear- say exception. A. OEC 403 Defendant argued that the statement was admissi- ble under OEC 403 because the statement was highly rele- vant to the issue of defendant’s credibility and that, with a proper limiting instruction, the “brief and simple” statement would not cause confusion, undue delay, or unfair prejudice. The limiting instruction that defendant proposed would say that no polygraph ever occurred and that even if it did the results would not be admissible under the rules of evidence. See State v. Brown, 297 Or 404, 441, 687 P2d 751 (1984) (polygraph evidence is inadmissible because, among other things, jurors might misuse and overvalue the evidence); Snider, 296 Or at 171 (evidence of “the fact that a person had taken a polygraph test” is inadmissible). The state argued that the statement was inadmis- sible under OEC 403 because under Oregon case law “mere mention of a polygraph is highly prejudicial and creates a danger of confusion.” See State v. Lyon, 304 Or 221, 231, 744 P2d 231 (1987) (concluding that polygraph test results are inadmissible even when stipulated); see also State v. Harberts, 315 Or 408, 416, 848 P2d 1187 (1993) (where the state seeks to admit a defendant’s statement made in the con- text of a polygraph examination, “the trial judge must deter- mine whether the statement can be redacted to exclude any reference to the polygraph”); State v. Sullivan, 152 Or App 75, 81, 952 P2d 100 (1998) (defendant’s proffered polygraph results showing a truthful answer that contact was not sex- ual in nature were inadmissible). The state argued that ref- erence to defendant’s willingness to take a polygraph would “open the door to the reasons why no polygraph was offered,” which would entail “testimony and other evidence regard- ing the lack of reliability of [polygraph] evidence,” and would cause “confusion, undue delay, and needless presentation of Cite as 354 Or App 343 (2026) 349 the evidence.” The state argued that those concerns sub- stantially outweighed the probative value of the statement, which, in the context of defendant’s “consistent, repeated firm denials” of guilt was low. The trial court ruled that the statement was inad- missible under OEC 403.3 In making its ruling, the court reasoned: “I like [defense counsel’s] initial curative instruction to fix all the concerns I have, [but] it leaves me with the addi- tional problem that I hadn’t contemplated[,] * * * which is [defendant’s] offered [to take a polygraph] and then we tell [the jury] they’re not allowed to know if one happened or what happened. Does the jury decide, oh, he did take one and he failed, and that’s why we’re here, and that’s prej- udicial to [defendant]. I can’t allow them to make that inference. I can’t allow them to make the inference that [defendant] passed and we’re here anyways, because, of course, that wouldn’t make any sense, which leads back to the inference of, well, he couldn’t have passed because they wouldn’t be proceeding and I think that is unduly prejudi- cial to [defendant].” Defendant clarified that the limiting instruction he proposed would say that as a factual matter no poly- graph occurred and even if it did, it would not be admissi- ble. Defendant argued that that instruction would “clearly address[ ]” the court’s concerns and “would not result in any confusion by the jury.” The trial court adhered to its rul- ing without addressing defendant’s proposed instruction or argument. On appeal, defendant argues that the trial court erred in excluding his statement under OEC 403 because, among other things, it “committed an error in its assessment of the efficacy of a limiting instruction.” We agree. In mak- ing its ruling, the trial court assessed the danger of unfair prejudice and confusion of the issues based on concerns 3 The trial court also ruled that the statement was “improper bolstering” under State v. Snider, 296 Or 168, 674 P2d 585 (1983). As noted above, the state does not defend that basis on appeal, and we conclude that Snider does not apply to the circumstances in this case. See Snider, 296 Or at 172 (evidence of plea agreement that the state’s witness “must take and pass a polygraph examination to verify trial testimony constitutes improper bolstering of the witness’s credibil- ity” and is inadmissible). 350 State v. Zambrano that the jury might infer that defendant took and failed a polygraph, which would be prejudicial to defendant, or that he took and passed a polygraph, which would be confusing to the jury. Those concerns were based on the trial court’s erroneous understanding that defendant’s proposed limit- ing instruction would tell the jury that defendant offered to take a polygraph but that they are “not allowed to know if one happened or what happened.” As discussed above, however, defendant’s proposed instruction would tell the jury that as a factual matter no polygraph was given and, even it was, the results would be inadmissible. Accordingly, the trial court incorrectly excluded defendant’s statement because the court’s 403 balancing was flawed. See State v. Baughman, 276 Or App 754, 772, 369 P3d 423 (2016), aff’d, 361 Or 386, 393 P3d 1132 (2017) (concluding that the trial court erred in admitting prior acts evidence because it mis- apprehended the probative value of the evidence in conduct- ing OEC 403 balancing). B. Harmless Error Having concluded that the trial court erred in excluding defendant’s statement on the basis that it did, we must determine whether that error was harmless. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (if we conclude that a trial court’s error was harmless, we must affirm the conviction). Whether an error is harmless is a question of law. State v. Ramoz, 367 Or 670, 703, 483 P3d 615 (2021). In determining whether an error is harmless, we analyze “whether there was ‘little likelihood’ that the error affected the verdict.” Id. at 704. To determine whether erroneously excluded evidence affected the verdict, “we consider the nature of the evidence in the context of the trial as a whole.” State v. Simon, 294 Or App 840, 849, 433 P3d 385 (2018), rev den, 365 Or 502 (2019). “The correct focus of the inquiry regarding affirmance despite error is on the possible influ- ence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling.” Davis, 336 Or at 32. The state argues that any error in excluding defen- dant’s statement to detectives that he would “absolutely” take a polygraph test was harmless because it would be cumulative Cite as 354 Or App 343 (2026) 351 of other evidence that was admitted. See State v. Klein, 352 Or 302, 314, 283 P3d 350 (2012) (“Erroneous exclusion of evi- dence that is ‘merely cumulative’ of admitted evidence and not ‘qualitatively different’ than admitted evidence generally is harmless.”). The state points to evidence of defendant’s assertions of innocence that was admitted at trial, including his repeated and categorical denials of the accusations in a recorded pretext phone call with A’s mother, to police during an interrogation, and as a witness at trial, as well as defen- dant’s cooperation with the police, including his willingness to speak with police after waiving his Miranda rights, and his voluntary consent to a search of his cell phone. Defendant argues that his statement is qualitatively different than other evidence of his assertions of innocence and cooperation with police. In defendant’s view, an offer to take a polygraph is “uniquely powerful” evidence of defen- dant’s innocence because the results of a polygraph test are in law enforcement’s hands and out of defendant’s control. We agree with defendant that his willingness to take a polygraph test, which was relevant to a central issue in the case, was qualitatively different than other evidence of defendant’s credibility. See State v. Black, 364 Or 579, 596, 437 P3d 1121 (2019) (“An error is less likely to be harm- less where it relates to a central factual issue in the case.”). Defendant’s statement to police, which he made during an interrogation at the police station, permits an inference that defendant’s claims of innocence were credible because he was willing to have his claims tested by law enforcement. Thus, on this record, we cannot conclude that there was lit- tle likelihood that the trial court’s error in excluding the statement affected the verdict. C. State-of-Mind Hearsay Exception We next address the state’s argument that we should affirm the trial court’s exclusion of defendant’s state- ment on the alternative basis that the statement was inad- missible hearsay.4 Defendant argued below that his state- 4 In advancing its alternative argument, the state cites the “right for the wrong reason” doctrine. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659, 20 P3d 180 (2001) (describing the “right for the wrong reason” doctrine). However, that doctrine applies only to issues raised for the first time 352 State v. Zambrano ment was admissible under the “state of mind” hearsay exception because it “demonstrate[d] that his state of mind was that of a clear conscience.” OEC 803(3) (“A statement of the declarant’s then existing state of mind, emotion, sensa- tion or physical condition” is excluded from the general bar on hearsay). The state argued that the statement was not admissible under OEC 803(3) because it was “not an expres- sion of the defendant’s ‘mental or emotional condition’ or ‘state of mind,’ ” and that defendant was offering it to prove the facts underlying his state of mind—that he did not sex- ually abuse A. See OEC 803(3) (the hearsay exception does not apply to “a statement of memory or belief to prove the fact remembered or believed”). The trial court rejected the state’s argument and concluded that the statement was admissible under OEC 803(3). On appeal, the state argues that that conclusion was error, contending, as it did below, that OEC 803(3) does not apply to defendant’s statement and thus the statement was inadmissible hearsay. We review a trial court’s legal conclusion regarding whether a hearsay statement is admissible under a hear- say exception for legal error. State v. Moon, 334 Or App 332, 336, 555 P3d 813 (2024). Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OEC 801(3). Under OEC 802, hearsay is inadmis- sible unless the statement falls within a hearsay exception. As noted, under the “state of mind” hearsay exception, 803(3), “[a] statement of the declarant’s then existing state of mind, emotion, sensation or physical condition” is excluded from the general bar on hearsay. The exception does not apply, however, to “a statement of memory or belief to prove the fact remembered or believed.” OEC 803(3). The parties do not dispute that defendant’s state- ment is hearsay because defendant offered his statement on appeal, not to issues—like the one presented here—that were raised before the trial court. See Sherertz v. Brownstein Rask, 314 Or App 331, 341-42, 498 P3d 850 (2021), rev den, 369 Or 338 (2022) (when an argument was made before the trial court and is made again on appeal, Outdoor Media does not apply and we will normally resolve the issue, unless a remand is necessary for factual findings, exercise of discretion, or the like). Cite as 354 Or App 343 (2026) 353 that he would take a polygraph to prove the truth of the matter asserted—that he was willing to take a polygraph. Thus, the only question before us is whether the statement was admissible under the OEC 803(3) hearsay exception. Defendant argues that OEC 803(3) applies because the statement was offered to prove his “then existing state of mind”—that he “believed he had nothing to hide and would be candid with police.” Defendant argues, in other words, that it was a “direct statement of his then-existing state of mind (he was willing to take a polygraph) that was relevant to defendant’s cooperation with law enforcement, his credibility, and an ultimate inference of innocence,” and that defendant’s “willingness to take a polygraph tended to refute the state’s evidence that defendant was lying about not abusing [A].” The state argues that defendant’s “unsworn, self-exculpatory, out-of-court statement * * * to prove that he believes that he is innocent” is inadmissible under OEC 803(3). In the state’s view, defendant’s out-of-court statement that he would take a polygraph is indistinguishable from a defendant’s out-of-court statement that he is innocent, which, the state argues, would not be admissible under OEC 803(3). As we understand the state’s argument, defendant’s statement is equivalent to a statement that he is innocent or believes he is innocent and is thus subject to the “limit” con- tained in OEC 803(3), in that it is a “statement of memory or belief to prove the fact remembered or believed.” See State v. Bement, 363 Or 760, 774, 429 P3d 715 (2018) (describing the OEC 803(3) exception as being “subject to a limit: other than in cases involving wills, the state-of-mind exception does not apply to ‘a statement of memory or belief to prove the fact remembered or believed’ ”). At oral argument, the state con- tended that if defendant’s statement were admissible, “every trial would be a never-ending parade of defense witnesses” testifying that “ ‘I talked to defendant and he said he didn’t do it.’ ” Defendant responds that his statement that he would take a polygraph is distinguishable from a direct statement that he is innocent because of the context in which the statement occurred. In defendant’s view, his statement 354 State v. Zambrano that he would take a polygraph in response to police interro- gation is different than just saying, “I am innocent,” because it reflects his state of mind in that moment when he is being questioned by officers, and that state of mind is relevant to defendant’s credibility. By contrast, in most contexts, a per- son’s statement that they are innocent is not probative of their state of mind in that moment in a way that similarly bears on the person’s credibility. As a matter of first impression, we agree with defendant’s distinction and conclude that his willingness to submit to a polygraph during a police interrogation was evidence of his contemporaneous state of mind and was rele- vant to his credibility such that the statement was admissi- ble under OEC 803(3). See, e.g., State v. Santana-Lopez, 237 Wis 2d 332, 337-38, 613 NW2d 918 (2000) (an offer to take a polygraph test is “relevant to the state of mind of the per- son making the offer” and “may reflect a consciousness of innocence”); see also John H. Wigmore, 6 Evidence in Trials at Common Law, § 1732, 3 (4th ed 2026) (“[I]t seems highly desirable that any statement protesting innocence, made upon arrest, should be receivable upon the principle of cor- roborating a witness[.]”).5 To the extent that the state is arguing that defen- dant’s statement is inadmissible under OEC 803(3) because it is a “statement of memory or belief” to prove the fact remem- bered or believed—that defendant believes he is innocent because he did not commit the crimes—his statement was not an assertion of a memory or belief of past events. Rather, it was a statement offered to show his contemporaneous state of mind—willingness to cooperate—when confronted with 5 We note that the majority of jurisdictions that have addressed whether a defendant’s willingness to take a polygraph is admissible have not analyzed the issue under the state-of-mind hearsay exception. Rather, they have held that the statement is inadmissible based on an assessment of its probative value, gen- eral hostility towards polygraph evidence, and the danger of confusion. See, e.g., United States v. Bursten, 560 F2d 779, 785 (7th Cir 1977) (offer to take a poly- graph is inadmissible because such a statement “is so unreliable and self-serv- ing as to be devoid of probative value”); DeBlase v. State, 294 So 3d 154, 216-17 (Ala Crim App 2018) (holding that a defendant’s offer to take a polygraph test is inadmissible and citing cases from other jurisdictions holding the same); People v. Muniz, 190 P3d 774, 785-86 (Colo App 2008) (same, and noting that “such evi- dence would create a substantial danger of confusing the issues and misleading the jury”). Cite as 354 Or App 343 (2026) 355 an offer to have his claims of innocence tested in the hands of law enforcement, and that state of mind was relevant to defendant’s credibility.6 Cf. State v. Blaylock, 267 Or App 455, 461-62, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (victim’s statement, “ ‘I hope [defendant] is not drunk when I get home,’ ” was not a statement of the victim’s memories or beliefs of past events and thus was admissible under OEC 803(3) because it showed the victim’s state of mind and was relevant to defendant’s claim of self-defense and defendant’s theory that the victim was the one with the alcohol problem). D. Remedy In sum, we conclude that the trial court correctly determined that defendant’s statement was admissible under OEC 803(3), but that it incorrectly excluded it under OEC 403 because its balancing was flawed, and we further conclude that that error was not harmless. In these circum- stances, where the trial court’s OEC 403 balancing was based on an erroneous understanding of defendant’s lim- iting instruction, we remand to the trial court to conduct OEC 403 balancing again, with a proper understanding of defendant’s proposed instruction, and “to thereafter deter- mine whether to reenter the judgment or whether a new trial is necessary and appropriate.” Antonio, 334 Or App at 781. III. CHAVARRIA’S TESTIMONY In defendant’s second assignment of error, he argues that the trial court erred in admitting testimony from Chavarria, A’s therapist, about A’s symptoms and treatment because that testimony was tantamount to a diagnosis of sexual abuse and thus was inadmissible under OEC 403. See State v. Southard, 347 Or 127, 142, 218 P3d 104 (2009) (holding that an expert’s diagnosis of sexual abuse in the absence of any physical evidence of abuse is not admissible under OEC 403). As a threshold matter, we note that defendant did not object to Chavarria’s testimony at trial. Rather, 6 The state is correct that the statement was offered to support the ultimate inference that defendant is innocent, but that is true of any relevant evidence that a defendant offers at trial. 356 State v. Zambrano defendant filed a pretrial motion in limine to exclude Chavarria’s testimony, and in a pretrial hearing the trial court ruled, with some limitations, that the testimony, as described by the state, was admissible. Defendant refers to that ruling in arguing that his challenge to the admission of Chavarria’s testimony is preserved. While it is true that a “pretrial objection to evidence can preserve the issue of its admissibility for review[,] * * * the scope of the record on review is limited to the record before the trial court when it made the challenged ruling.” State v. Beauvais, 357 Or 524, 532, 354 P3d 680 (2015). Accordingly, the scope of our review is limited to defendant’s pretrial motion, the state’s response, and the hearing on defendant’s motion. To the extent that Chavarria’s testimony at trial was different from what was contemplated in the pretrial ruling, defen- dant needed to object at trial to bring the issue to the court’s attention, which he did not do. In defendant’s motion to exclude Chavarria’s tes- timony, he argued, among other things, that the evidence was not admissible because its probative value was sub- stantially outweighed by the risk of unfair prejudice under OEC 403. Defendant noted that the state had indicated in an email to defense counsel that Chavarria would testify to “[c]ounseling disclosures. No diagnoses.” Defendant argued that evidence of A’s counseling disclosures would have little probative value because it would be cumulative of other evi- dence that the state intended to offer. The state responded that A’s counseling disclosures were admissible under OEC 403 because her “statements regarding sexual abuse, self- blame, pain, regret, and fear of the defendant in a setting of repeated therapeutic counseling sessions” would be highly probative and “categorically different” than other evidence of her disclosures. At a hearing on defendant’s motion, the state reiter- ated that Chavarria would not offer any diagnosis but would testify about A’s disclosures of abuse; fear of defendant as related to why she did not disclose earlier; feelings of shame and anger about not disclosing sooner; and discomfort in talking about the abuse, including that during one virtual session A “moved the camera away from her face” when the Cite as 354 Or App 343 (2026) 357 topic of the sexual abuse arose. Chavarria would also testify that A “express[ed] that the treatment * * * is starting to help her.” Defendant reiterated his argument that Chavarria’s testimony about A’s statements would be cumulative and inadmissible under OEC 403 and because it “implicitly * * * establishes a diagnosis in the eyes of the jury.” The trial court ruled that Chavarria’s testimony, with some limitations not relevant here, was admissible under OEC 403.7 Specifically, the court ruled that A’s state- ments as to why she did not disclose initially, how treatment is making her feel better, specific disclosures, and her fear of defendant were admissible because the “evidence is highly relevant * * * to prove that * * * [A is] being truthful [and] to rebut a defense that this did not happen,” and that it is not unduly prejudicial “because it does not distract the jury from the central question of whether or not [defendant] com- mitted [the] sexual abuse” and would not “confuse or mis- lead the jury.” On appeal, defendant challenges the trial court’s ruling, renewing his argument that Chavarria’s testimony implicitly conveyed that she found A’s reports of abuse to be credible and thus constituted impermissible vouching under Southard. 347 Or at 141 (a diagnosis of sexual abuse in the absence of physical evidence of abuse is inadmissible under OEC 403 because the diagnosis “pose[s] the risk that the jury will not make its own credibility determination * * * but will instead defer to the expert’s implicit conclusion that the victim’s reports of abuse are credible”); see also State v. Sperou, 365 Or 121, 128, 442 P3d 581 (2019) (“In Oregon, witnesses are categorically prohibited from giving vouching testimony.”). Specifically, defendant argues that the trial court erred in ruling that the testimony was admissible under OEC 403 because that ruling was based on a predi- cate legal error. Defendant also argues that the trial court erred in admitting the testimony under OEC 403 because it “overvalued the probative weight of the evidence, and it undervalued the prejudicial effect.” As noted, although 7 In making its ruling, the trial court did not expressly address defendant’s argument that Chavarria’s testimony would constitute an implicit diagnosis of sexual abuse. In light of its ruling, however, we understand the trial court to have implicitly rejected that argument. 358 State v. Zambrano defendant primarily bases his argument on Chavarria’s actual testimony at trial, we are restricted to reviewing the trial court’s ruling based on the record before the trial court when it made its ruling.8 We review whether a witness’s testimony consti- tutes impermissible vouching for legal error, Sperou, 365 Or at 128, and conclude that, based on the record before the trial court when it made its ruling, it did not err in admitting Chavarria’s testimony. The testimony, as represented by the state and understood by the trial court, included A’s state- ments to Chavarria about why she did not disclose initially; how therapy was making her feel better; specific disclosures about the abuse; and her fear of defendant. That testimony did not amount to an implicit diagnosis of sexual abuse, such as a statement that A had been referred to Chavarria for treatment after being evaluated for sexual abuse or other tes- timony that would have conveyed to the jury that Chavarria found A to be credible. Cf. State v. Volynets-Vasylchenko, 246 Or App 632, 639, 267 P3d 206 (2011) (expert witness’s tes- timony that the complainant’s treatment recommendations after an evaluation included that the complainant do therapy with a therapist “skilled in working with children who have been the victims of abuse” conveyed the expert’s implicit con- clusion that the complainant was credible). Turning to defendant’s argument that the trial court overvalued the probative value and undervalued the prejudicial effect of the testimony under OEC 403, we con- clude that the court did not abuse its discretion. See State v. Boauod, 302 Or App 67, 73, 459 P3d 903 (2020) (“[W]e review the trial court’s ultimate determination as to whether 8 We note that during the pretrial hearing, the parties were also arguing about whether Chavarria’s testimony about A’s statements was admissible under the OEC 803(4) hearsay exception as statements made for the purpose of medical treatment or diagnosis. During the hearing, the state said it would “lay the foun- dation” for admissibility under OEC 803(4) in a “104 hearing” and have Chavarria testify outside the presence of the jury about how her “role [during therapy] was to make [A] feel better, make her feel less scared, help her to cope through what she had been going through because of the sexual abuse, and that she knew that talking about those things was part of that process.” In defendant’s reply brief, he characterizes that testimony as being testimony that the state would offer at trial before the jury. We disagree with that characterization, and our analysis reflects our understanding of how the trial court viewed the testimony that the state intended to present to the jury, as relevant to the issue before us. Cite as 354 Or App 343 (2026) 359 evidence is unfairly prejudicial under OEC 403 for abuse of discretion.” (Internal quotation marks omitted.)). Defendant argues that the evidence was cumulative in the context of the “abundant” statements from A that the state had intro- duced, and that the evidence was highly prejudicial because the testimony implicitly vouched for A’s credibility. Based on the record before the trial court when it made its ruling, the trial court reasonably concluded that the testimony about A’s statements would be “highly proba- tive” as to A’s credibility, which was a central issue in the case, and not unduly cumulative. See id. (evaluating the pro- bative value of evidence based on “the degree to which [it] is relevant to prove or disprove an issue and the extent to which that issue is material to the resolution of the case”). With respect to defendant’s argument that the testimony was highly prejudicial because it constituted impermissi- ble vouching, as discussed above, the testimony as outlined by the state in the pretrial hearing did not impermissibly vouch for A’s credibility. Under those circumstances, the trial court’s exercise of discretion in admitting the testimony was “within the range of legally permissible choices” and was not “to an end not justified by, and clearly against, evidence and reason.” Id. (internal quotation marks omitted). IV. ATTEMPTED DISPLAY In defendant’s third and fourth assignments of error, he argues that the trial court erred in denying his MJOA on Count 5, attempted display, and in instructing the jury that “lewd exhibit,” for purposes of attempted display, means “exhibition that would produce lust or sexual desire in the viewer as determined from the perspective of the defendant.” See Parra-Sanchez, 324 Or App at 718 (conclud- ing that “the state must prove that the exhibition of a child’s sexual or intimate parts was objectively lewd, not simply that defendant found it to be sexually gratifying” (empha- sis in original)). The state concedes that the trial court’s instruction on the meaning of “lewd exhibit” was errone- ous and that the instructional error was not harmless. As to defendant’s challenge to the trial court’s denial of his MJOA, the state argues that that claim of error is unpre- served and is not reviewable as plain error. We agree with 360 State v. Zambrano and accept the state’s concession that, under Parra-Sanchez, the trial court’s instruction on the meaning of “lewd exhibit” was erroneous, and that that error was not harmless. Turning to defendant’s challenge to the denial of his MJOA, we begin with the issue of preservation. At the close of the state’s case, defendant moved for a “general judgment of acquittal” on multiple counts, including Count 5, attempted display, “based on the insufficiency of the evi- dence, [and] lack of corroborating physical evidence even in obvious areas where it should exist.” On appeal, defendant argues that his general challenge to the sufficiency of the evidence of attempted display preserved his claim of error. We disagree. Defendant did not offer any argument at all, let alone a specific theory, as to why the state’s evidence was insufficient, and thus defendant’s challenge is not preserved. See State v. Paragon, 195 Or App 265, 268, 97 P3d 691 (2004) (“A motion for judgment of acquittal * * * must state the spe- cific theory on which the state’s proof was insufficient.”); State v. Shields, 184 Or App 505, 509 n 1, 511 n 2, 56 P3d 937 (2002), rev den, 335 Or 355 (2003) (motion for judgment of acquittal based on insufficiency of evidence must raise specific theory as to why state’s evidence was insufficient or the argument is not preserved). Thus, we must address whether defendant’s chal- lenge meets the requirements for plain-error review—that is, whether the error is (1) an error “of law”; (2) “apparent,” meaning the legal point is obvious and not reasonably in dispute; and (3) appears “on the face of the record.” State v. Reynolds, 250 Or App 516, 519-20, 280 P3d 1046, rev den, 352 Or 666 (2012) (internal quotation marks omitted). Even where those conditions are met, we must determine whether to exercise our discretion to correct the error. Id. at 520. Here, it is undisputed that the sufficiency of the evidence is a question of law and that we need not go outside the record to resolve the issue. See id. (reviewing suf