646 May 22, 2024 No. 332

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

PLACIDO SALVADOR SOLANO, 

aka Placido Salvadorsolano,

Defendant-Respondent.

Clackamas County Circuit Court

19CR05482; A177959

Todd L. Van Rysselberghe, Judge.

Argued May 24, 2023.

Ryan T. O’Connor argued the cause for appellant. On the 

briefs were Margaret V. Huntington and O’Connor Weber 

LLC.

David B. Thompson, Assistant Attorney General, argued 

the cause and filed the brief for respondent. Also on the brief 

were Ellen F. Rosenblum, Attorney General, and Benjamin 

Gutman, Solicitor General.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

SHORR, P. J.

Affirmed.

Pagán, J., dissenting.
Cite as 332 Or App 646 (2024) 647
648 State v. Solano

SHORR, P. J.

Defendant appeals from a judgment of conviction 

for one count of sexual abuse in the first degree of his cousin, 

O. ORS 163.427. In his first assignment of error, defendant 

contends that the trial court erred by admitting O’s hearsay 

statements under OEC 803(18a) because O was an adult at 

the time of trial and thus does not fall under that exception.1

Applying our recent case law, we conclude that the trial 

court did not err in admitting those statements. Defendant 

next combines several assignments of error, arguing that 

the trial court erred by excluding three witnesses’ opinions 

of the victim’s character for truthfulness under OEC 608(1).2

Defendant makes two arguments in support of this combined assignment. First, defendant argues that the court 

abused its discretion by misapplying the controlling law. 

We reject that argument on its merits. Second, defendant 

argues that the court erred because it failed to distinguish 

that O’s character for truthfulness was being challenged 

both at the time that she was a hearsay declarant and when 

she was testifying as a trial witness. We conclude that that 

argument is not preserved and therefore do not reach it. In 

his final assignment of error, defendant contends that the 

trial court erred by admitting impermissible “vouching” 

testimony when it allowed the state’s witnesses to use the 

term “disclosure” when referring to O’s allegations against 

defendant. We reject that argument on the merits. For the 

following reasons, we affirm the trial court judgment.

The facts on appeal are largely procedural and, 

for the purpose of this appeal, not substantially in dispute. 

1 OEC 803(18a) provides, in relevant part:

“(b) A statement made by a person concerning an act of abuse as defined 

in ORS 107.705 or 419B.005 *** is not excluded by [OEC 802] if the declarant 

either testifies at the proceeding and is subject to cross examination, or is 

unavailable as a witness but was chronologically or mentally under 12 years 

of age when the statement was made or was 65 years of age or older when the 

statement was made.

“*****

“(d) This subsection applies to a child declarant, a declarant who is an 

elderly person as defined in ORS 124.050 or an adult declarant with a developmental disability.”

2 OEC 608(1) provides that “[t]he credibility of a witness may be attacked or 

supported by evidence in the form of opinion or reputation.”
Cite as 332 Or App 646 (2024) 649

Defendant and O are cousins. In 2018, when O was 17 years 

old, she disclosed to the Children’s Center that defendant had 

sexually abused her when they attended a family sleepover 

as children, ten years earlier, in 2008. That disclosure led to 

an investigation and indictment of defendant for first-degree 

rape (Count 1) and first-degree sexual abuse (Count 2). In 

part due to COVID-19, the trial was not scheduled until 

three years later, in 2021. At trial, the state planned to call 

O, who was by that time an adult, to testify about the alleged 

abuse she suffered from defendant. The state also planned 

to introduce O’s hearsay statements made during the 2018 

Children’s Center interview where O initially disclosed the 

abuse. In other words, the state sought to introduce O’s statements both as a trial witness and as a hearsay declarant.

Defendant made several pretrial motions to exclude 

that evidence. First, defendant moved to exclude, as improper 

vouching, any reference to O as a “victim” and any reference to O’s allegations against defendant as “disclosures.” 

The trial court granted that motion as to defendant’s objections to the term “victim” but denied defendant’s motion as 

to the term “disclosures.”3

 Defendant also moved to exclude 

O’s hearsay statements altogether, arguing that O no longer 

qualified as a “child declarant” under OEC 803(18a), which 

the trial court denied. To rebut O’s statements, defendant 

sought to call several of O’s family members—who had not 

had contact with O for three years—to testify about O’s character for truthfulness. Over defendant’s objection, the trial 

court excluded that testimony for lack of foundation, noting 

in particular the witnesses’ lack of recent contact with O. 

A jury ultimately convicted defendant of first-degree sexual 

abuse (Count 2). Defendant now appeals from that judgment.

Child declarant exception to hearsay. Defendant 

first assigns error to the trial court’s admission of O’s hearsay statements under the “child declarant” exception to the 

rule against hearsay. OEC 803(18a)(b), (d). That exception 

allows for “admission of out-of-court statements made by 

a ‘child declarant’ concerning acts of sexual abuse, if ‘the 

3 The trial court originally granted, in part, defendant’s motion as to the 

term “disclosure.” When the issue was raised again, the court concluded “there 

won’t be any restriction on that term[’s] use in trial.”
650 State v. Solano

declarant’ testifies as a witness at trial and is subject to 

cross-examination.” State v. Juarez-Hernandez, 316 Or App 

741, 744, 503 P3d 487, rev den, 369 Or 856 (2022). Defendant 

argues that the trial court erred by admitting O’s hearsay 

statements that she made to the Children’s Center because 

O was an adult at the time of trial, and thus did not qualify 

as a “child declarant” under the rule. We rejected that argument in Juarez-Hernandez. Id. at 754. Admissibility under 

OEC 803(18a)(b) and (d) turns on the age of the declarant 

when the statements were made, regardless of the declarant’s age when testifying at trial. Id. The trial court did not 

err because O was 17 years old at the time she made the 

statements.

Exclusion of character witness testimony. Defendant 

next raises several assignments of error in which he contends 

that the trial court erred by excluding three witnesses’ opinions of O’s character for truthfulness under OEC 608(1) for 

lack of foundation. The state responds by noting the threeyear gap in time between the witnesses’ last contact with O 

and the associated lack of recent knowledge of her character. 

See State v. Paniagua, 268 Or App 284, 290, 341 P3d 906 

(2014) (“[T]he proponent must demonstrate that the contact 

was ‘sufficiently recent so that there will be a current basis 

for the testimony.’” (quoting State v. Caffee, 116 Or App 23, 27, 

840 P2d 720 (1992), rev den, 315 Or 312 (1993))). We review a 

trial court’s OEC 608(1) ruling for abuse of discretion. Caffee, 

116 Or App at 27. “Discretion” refers to “the authority of a 

trial court to choose among several legally correct outcomes.” 

Truong v. Premo, 291 Or App 164, 192, 419 P3d 740 , rev den, 

363 Or 677 (2018) (internal quotation marks omitted).

Defendant first argues that the court abused its 

discretion by excluding testimony regarding O’s character 

for truthfulness because “the trial court treated ‘recency’ 

as an element independent from ‘frequency’ that defendant 

had to establish in order to admit the testimony.” Defendant 

contends that the proper focus of the analysis is instead on 

the testimony’s probative value as a whole, and that in this 

case, the witnesses’ lifelong, frequent, and prolonged contacts with O should obviate the requirement that the witnesses must have had recent contact with O.
Cite as 332 Or App 646 (2024) 651

We disagree that the court erred in considering 

the recency of the witnesses’ contact with and their current 

knowledge of O’s character for truthfulness.

In State v. Maxwell, we explicitly held that a trial 

court must consider frequency and recency when determining the probative value of character testimony under OEC 

608(1). 172 Or App 142, 154-55, 18 P3d 438, rev den, 332 Or 

559 (2001) (“The admissibility of evidence of prior character to prove present character depends on whether, in the 

discretion of the trial court, the contacts on which the opinion is based are frequent enough and recent enough to have 

probative value to the testimony.” (emphasis in original)). In 

Maxwell, we concluded that, as to a particular offer of an 

opinion of someone who had known the witness three years 

prior to the trial,

“the trial court could properly conclude that [the offered] 

opinion about [the witness’s] character for truthfulness was 

based on contacts so remote that they would not ordinarily 

create an impression about character, particularly when 

the issue was [the witness’s] character at the time of trial.”

Id. at 155. As a result, we held that the trial court had not 

abused its discretion in excluding that offered opinion or 

others that were not based on sufficiently recent contacts. 

Id. at 155-56.

Here, the trial court evaluated whether the witnesses’ contact with O was sufficiently recent to be probative 

of their present opinion of O’s character, given the threeyear gap in contact, and concluded that it was not. The trial 

court properly applied the standard articulated in Maxwell

and did not abuse its discretion in doing so.

Defendant also argues that the court erred by 

excluding testimony regarding O’s character for truthfulness at the time that O made the statements to the 

Children’s Center as a hearsay declarant, which defendant 

asserts was admissible under OEC 806.4

 Defendant contends that he offered the testimony to impeach O’s character 

4 OEC 806 provides, in relevant part, “When a hearsay statement *** has 

been admitted in evidence, the credibility of the declarant may be attacked, and 

if attacked may be supported, by any evidence which would be admissible for 

those purposes if the declarant had testified as a witness.”
652 State v. Solano

for truthfulness at two different critical times: (1) when O 

made statements as a hearsay declarant during the 2018 

Children’s Center interview and (2) when O testified as a 

trial witness. On appeal, defendant argues that to establish 

“recent” contacts for an opinion of O’s character as a hearsay 

declarant under OEC 806, the court must consider the witnesses’ contacts with O at the time that O made the hearsay 

statements, not at the time of trial, as the trial court did.

The state notes that defendant never contended 

in the trial court that the relevant time for assessing O’s 

character for truthfulness was at the time that O made 

her hearsay statements. Thus, the state contends, the trial 

court only considered that the proposed character testimony 

would “target O’s veracity as a trial witness” at the time of 

trial under OEC 608. As we explain, we agree with the state 

that defendant’s argument is not preserved and, therefore, 

do not reach the merits of it.

Whether an argument has been preserved “turn[s] 

on whether, given the particular record of a case, the court 

concludes that the policies underlying the [preservation] 

rule have been sufficiently served.” State v. Parkins, 346 Or 

333, 341, 211 P3d 262 (2009). The policies underlying the 

preservation rule are: “to allow the trial court to consider 

a contention and correct any error, to allow the opposing 

party an opportunity to respond to a contention, and to foster a full development of the record.” State v. Clemente-Perez, 

357 Or 745, 752, 359 P3d 232 (2015).

We begin by acknowledging that defendant at least 

generally argued to the trial court that it should evaluate “the recency of the character witnesses’ contacts with 

[O] at the time [O] made her out-of-court statements.” The 

record reflects that defendant presented that issue to the 

court when defense counsel stated, “The issue should be the 

recency of the allegation—the recency of the opinion at the 

time of the allegation.” But, when viewed within the broader 

record, it becomes clear that defendant made that argument 

squarely in the context of O as a testifying trial witness under 

OEC 608(1). Only now on appeal does defendant present the 

argument in the context of O as a hearsay declarant under 

OEC 806.
Cite as 332 Or App 646 (2024) 653

The record does not reflect that defendant sought 

to impeach O as a hearsay declarant under OEC 806 in 

the first instance. Relatedly, defendant never discussed or 

argued to the trial court how O’s status as both a hearsay 

declarant under OEC 806 and a trial witness under OEC 

608(1) might affect the “recency” requirement. Instead, 

defendant’s argument was always squarely made in the context of OEC 608(1). For instance, when defendant argued 

to the trial court that “[t]he issue should be the recency of 

the allegation—the recency of the opinion at the time of the 

allegation,” defendant was not distinguishing the “recency” 

requirement for hearsay declarants as opposed to trial witnesses. To the contrary, defendant had just argued that 

Paniagua (applying OEC 608(1) “recency” requirement to a 

trial witness) was wrongly decided:

“I think this Paniagua case is a little too focused—or at 

least Kirkpatrick’s summary of Paniagua

“*****

“—is a little too focused. It shouldn’t just be about how 

recent the contacts are. It should be about the nature of the 

contacts in that person’s lifetime, and to the extent that 

that case requires recency, it is wrongly decided.

“The issue should be the recency of the allegation—the 

recency of the opinion at the time of the allegation.”

Defendant then pointed out that the trial had been delayed 

three years due to “separate trial or co-defendant issues, 

motions to suppress, and then the Coronavirus” and insisted 

that “character evidence cannot be about that kind of delay 

that’s outside the purview of the [d]efendant.” Consistent 

with that interpretation of defendant’s argument, defendant 

noted to the trial court that “if recency is the issue, then if 

we would have asked for a speedy trial and tried to push 

it through, then maybe we would have had that evidence.” 

Those statements, when taken together, are not consistent 

with the argument that defendant now makes on appeal 

under OEC 806, and were not “‘specific enough to ensure 

that the court [could] identify its alleged error with enough 

clarity to permit it to consider and correct the error immediately.’” Clemente-Perez, 357 Or at 752 (quoting State v. Wyatt, 

331 Or 335, 343, 15 P3d 22 (2000)).
654 State v. Solano

We respectfully disagree with the dissent’s contention that defendant generally preserved the “issue” of the 

recency of the character witnesses’ knowledge of O’s character for truthfulness, which the dissent contends was sufficient to preserve the issue under our case law. The barrier 

to applying that principle here is that defendant’s argument 

on appeal has shifted from the particular argument that he 

made in the trial court. As noted, in the trial court, defendant and the state argued about the application of the case 

law construing OEC 608 and how to judge the recency of 

time between the character witnesses’ last contact with O 

and the time that O appeared at trial to testify. The trial 

court addressed that issue.

Defendant now contends that the trial court should 

have instead considered the issue under OEC 806 when the 

testifying witness O had also made earlier hearsay statements that are admitted at trial. Defendant now contends 

that, under those circumstances, the court should have 

applied OEC 806 and considered the recency of the character witnesses’ knowledge of O’s character for truthfulness at 

the time that O was a hearsay declarant making her earlier 

pre-trial disclosures. Whatever the merits of that argument, 

it was different from the one specifically made at trial and 

requires a different analysis. The trial court would not have 

recognized that OEC 806 and O’s role as a hearsay declarant 

were at issue. As a result, we decline to address the merits of 

the argument, and reject it as unpreserved. Clemente-Perez, 

357 Or at 752.5

Use of the term “disclosure.” In defendant’s final 

assignment, he contends that the trial court erred by admitting impermissible “vouching” testimony when it allowed the 

state’s witnesses to use the term “disclosure” when referring 

to O’s allegations against defendant. We review whether a 

trial court admitted impermissible vouching evidence for 

legal error. State v. Brand, 301 Or App 59, 66, 455 P3d 960 

(2019), rev den, 366 Or 259 (2020).

Defendant compares this case to State v. Sperou, 

where the Supreme Court concluded that, in certain 

5 Defendant does not request that we should nevertheless undertake plainerror review. We decline to do so.
Cite as 332 Or App 646 (2024) 655

contexts, a witness’s “use of the term ‘victim’ may constitute vouching and undercut the presumption of innocence.” 

365 Or 121, 134, 442 P3d 581 (2019) (emphasis in original). 

Specifically, the court concluded that a witness’s use of the 

term “victim” to describe the accuser or accusers amounts 

to improper vouching “in circumstances where the accuser’s 

own testimony is the only evidence that the alleged criminal 

conduct occurred.” Id. at 132.

We decline to extend that holding to the term 

“disclosure” in the context that it is presented to us here. 

Defendant argues that the term “disclosure” has “the connotation of exposing previously hidden but truthful information” and thus “[t]he jury would understand the use of 

the word *** as a comment on the credibility of the accuser 

and of what was being revealed.” We disagree. As the state 

points out, a “disclosure” may refer to the disclosure of information that may ultimately be true or false. See generally 

Gorham v. Thompson, 332 Or 560, 563, 34 P3d 161 (2001) 

(noting that inappropriate questioning of children may 

lead to “false disclosures of sexual abuse”). The term itself 

does not express that the disclosed information is necessarily true or false. Rather, it suggests that the information 

was not previously shared. See Webster’s Third New Int’l 

Dictionary 645 (unabridged ed 2002) (defining “disclose” as 

“to expose to view” or “to make known” or “open up to general knowledge”).

Thus, a witness who uses the term “disclosure” does 

not necessarily vouch for the credibility of an accuser who 

makes a disclosure that they have been abused. See State 

v. Black, 364 Or 579, 587-88, 437 P3d 1121 (2019) (explaining that “impermissible vouching is measured by whether it 

conveys one witness’s opinion of the truthfulness of another 

witness”). On this record, the trial court did not err.6

In sum, we summarily reject defendant’s first 

assignment of error in light of Juarez-Hernandez. We reject 

defendant’s assignments of error in which he contends that 

6 We do not address, nor do we foreclose the possibility that the term “disclosure” may, in some instances, constitute improper vouching. See Sperou, 365 Or 

at 128. (“Some vouching is subtler, and certain statements might be vouching in 

some contexts but not others. Accordingly, it is important to consider each statement in the context in which it was made.”).
656 State v. Solano

the trial court erred in excluding the testimony of certain 

character witnesses who, at the time of trial, lacked recent 

contact with O, because the trial court properly applied existing law to reach a legally permissible outcome. We reject 

defendant’s final assignment of error because we decline to 

extend Sperou to the circumstances of this case.

Affirmed.

PAGÁN, J., dissenting.

I join in all the majority’s conclusions but one: I 

would find that trial counsel sufficiently preserved the second through ninth assignments of error and would address 

the combined issues on the merits.

In State v. Wyatt, the Oregon Supreme Court reiterated that when we consider preservation for appeal, what 

is most important is identifying the issue or error, secondarily to that the source for the claimed position, and least 

important the argument supporting the assignment. 331 Or 

335, 341, 15 P3d 22 (2000) (citing State v. Hitz, 307 Or 183, 

188, 766 P2d 373 (1988)). We have also stated that while we 

liberally construe arguments for the purposes of preservation, a litigant must identify with at least some specificity 

what the issue is to ensure that a lower court and adversary may properly confront the claimed error. See State v. 

Clemente-Perez, 357 Or 745, 752, 359 P3d 232 (2015) (citing 

Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008)). 

The record here demonstrates that defendant specifically, 

and, thus, properly, raised the issue and arguments he now 

raises on appeal.

Defendant wanted to present several witnesses who 

would testify that, at the time of the allegations, the victim had a character for not telling the truth. In response 

to this proffer, the state argued to the court that our case 

law required the trial court to examine two things about 

the relationship between the character witness and the target of their testimony: (1) the frequency of contacts; and (2) 

the recency of those contacts. State v. Paniagua, 268 Or App 

284, 290, 341 P3d 906 (2014). Regarding recency, defendant 

argued that the proffered witnesses’ testimony was relevant 

to the time period when the victim made the allegations and 
Cite as 332 Or App 646 (2024) 657

that using the trial as the only measuring point was unfair 

because it had been delayed three years. The state responded 

that the duration and recency test precluded looking at the 

recency beyond the trial date, and instead to heed the case 

law that stated “such contact must be sufficiently recent to 

provide a current basis for the testimony.” State v. Mackey, 

290 Or App 272, 275-76, 414 P3d 443, adh’d to as modified 

on recons, 293 Or App 559, 429 P3d 748 (2018) (emphasis 

added). Counsel for the state repeated the italicized line to 

emphasize to the court that looking to the time of the allegations was precluded by our case law.

The court, in response to these arguments, stated 

two important conclusions for this appeal: first, the court 

rejected the argument that recency should be looked at in 

relation to the allegations, stating:

“[According to defendant] the present reputation is not 

the issue, it should be the reputation or character at the 

time that the statements were made, but I don’t believe 

that’s consistent with the law, and I didn’t see any analysis 

in the cases that I looked at that applied or approached the 

issue that way.”

Second, the court defended its finding that three 

years is too distant for recency, which led to it precluding the 

witnesses. The first conclusion by the court demonstrates 

the preservation of this argument.

We have previously gauged a trial court’s response 

to an argument to determine whether it understood the 

argument to be the one raised on appeal. Putnam v. Board 

of Parole, 290 Or App 436, 439-40, 417 P3d 524 (2018) 

(“Ultimately, the board’s response to petitioner’s request 

for administrative review indicates the board understood 

[petitioner’s argument] * * * That is, petitioner identified the 

issue with enough clarity that it does not appear that the 

board would have been taken by surprise, misled, or denied 

the opportunity to meet petitioner’s argument.”). The trial 

court here understood defendant to be arguing that the several witnesses had sufficient contacts with the victim at or 

around the time of the allegations, and that the focus should 

not be solely on the trial date, and the court rejected that 

under our current case law.
658 State v. Solano

On appeal, for the first time, defendant’s counsel 

cited OEC 806 for the proposition that hearsay declarants 

may be challenged in a similar manner to testifying witnesses. That contextual citation appears to be the basis for 

the majority’s finding that the assignment of error was not 

preserved. But OEC 806 is just the codification of a doctrine we would likely apply without its existence: that all 

evidence is subject to attacks on its credibility, including 

hearsay declarants. In Dept. of Human Services v. T. M. G., 

307 Or App 117, 124-25, 475 P3d 936 (2020), we held that 

a generalized objection to a juvenile court was insufficient 

to preserve a statutory authority argument on appeal. We 

did so because a statutory authority argument may require 

a statutory interpretation analysis, legislative history, and 

other factual and legal issues that support requiring a more 

articulated objection to preserve such an issue for appeal. 

Id. By contrast, without a citation to OEC 806, defendant’s 

argument has the same thrust and authority: if the underlying sentiment is for character or reputation evidence to 

be probative, and our factors are designed to ensure the 

probative value by adding qualifiers such as frequency and 

recency of contacts, it stands to reason that such measurements should be made from the relevant point in time, which 

could, and in this case did, include the pre-trial allegations 

being challenged as not credible.

Having found that the argument was preserved, I 

would address the issue on the merits and reverse, finding 

that the court erred in excluding the witnesses’ testimony 

regarding the character for truthfulness of the victim at or 

around the time she initially made the allegations against 

defendant. I would further conclude that whether those allegations were made to investigators, doctors, or in front of a 

grand or petite jury would not affect that conclusion because 

it is the recency in relation to the statement being admitted 

that is important for fact-finder’s consideration, and not 

timelines associated with litigation that are outside of the 

witnesses’ and defendant’s control. I respectfully dissent.