evidential error in Oregon

2014State v. Dimmick, 248 Or App 167, 176 , 273 P3d 212 (2012); see also OEC 103(1) (“Evidential error is not presumed to be prejudicial.

2014State v. Dimmick, 248 Or App 167, 176 , 273 P3d 212 (2012); see also OEC 103(1) (“Evidential error is not presumed to be prejudicial.

2023The purpose of this rule is to assure that appellate courts are able to determine whether it was error to exclude the evidence and whether any error was likely to have affected the result of the case.” State v. Affeld, 307 Or 125, 128 , 764 P2d 220 (1988); see also State v. Krieger, 291 Or App 450, 451, 455 , 422 P3d 300 , rev den, 363 Or 599 (2018) (rejecting claim of error regarding exclusion of testimony, because the defen- dant “did not make an offer of proof sufficient to permit us to determine whether any error in excluding the testimony was prejudicial,” and identifying “several purpose

2023The purpose of this rule is to assure that appellate courts are able to determine whether it was error to exclude the evidence and whether any error was likely to have affected the result of the case.” State v. Affeld, 307 Or 125, 128 , 764 P2d 220 (1988); see also State v. Krieger, 291 Or App 450, 451, 455 , 422 P3d 300 , rev den, 363 Or 599 (2018) (rejecting claim of error regarding exclusion of testimony, because the defen- dant “did not make an offer of proof sufficient to permit us to determine whether any error in excluding the testimony was prejudicial,” and identifying “several purpose

1995Or Const, Art VII (amended), § 3; State v. Walton, 311 Or 223 , 809 P2d 81 (1991).

1995Or Const, Art VII (amended), § 3; State v. Walton, 311 Or 223 , 809 P2d 81 (1991).

1991This court has interpreted this to mean that the verdict may be affirmed if there is ‘little likelihood that the error affected the verdict.’ State v. Hansen, 304 Or 169, 180-81 , 743 P2d 157 (1987); see also State v. Miller, 300 Or 203, 220-22 , 709 P2d 225 (1985).” In State v. Miller, 300 Or 203, 220-21 , 709 P2d 225 (1985), cert den 475 US 1141 (1986), this court stated: “OEC 103(1) provides: ‘Evidential error is not presumed to be prejudicial.

1991This court has interpreted this to mean that the verdict may be affirmed if there is ‘little likelihood that the error affected the verdict.’ State v. Hansen, 304 Or 169, 180-81 , 743 P2d 157 (1987); see also State v. Miller, 300 Or 203, 220-22 , 709 P2d 225 (1985).” In State v. Miller, 300 Or 203, 220-21 , 709 P2d 225 (1985), cert den 475 US 1141 (1986), this court stated: “OEC 103(1) provides: ‘Evidential error is not presumed to be prejudicial.

2025“Evidential error is not presumed to be prejudicial.” OEC 103(1).4 “Article VII (Amended), section 3, [of the Oregon Constitution] requires an appellate court to affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected the ver- dict.” State v. Gibson, 338 Or 560, 576 , 113 P3d 423 (2005) (citing State v. Davis, 336 Or 19, 33 , 77 P3d 1111 (2003)). “[A] decision to exclude evidence relevant to bias or inter- est[,] which is [in] error, is reversible if it denies the jury an adequate opportunity to assess the credibility of a witness whose

2025“Evidential error is not presumed to be prejudicial.” OEC 103(1).4 “Article VII (Amended), section 3, [of the Oregon Constitution] requires an appellate court to affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected the ver- dict.” State v. Gibson, 338 Or 560, 576 , 113 P3d 423 (2005) (citing State v. Davis, 336 Or 19, 33 , 77 P3d 1111 (2003)). “[A] decision to exclude evidence relevant to bias or inter- est[,] which is [in] error, is reversible if it denies the jury an adequate opportunity to assess the credibility of a witness whose

2025“Evidential error is not presumed to be prejudicial.” OEC 103(1).4 “Article VII (Amended), section 3, [of the Oregon Constitution] requires an appellate court to affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected the ver- dict.” State v. Gibson, 338 Or 560, 576 , 113 P3d 423 (2005) (citing State v. Davis, 336 Or 19, 33 , 77 P3d 1111 (2003)). “[A] decision to exclude evidence relevant to bias or inter- est[,] which is [in] error, is reversible if it denies the jury an adequate opportunity to assess the credibility of a witness whose

2025“Evidential error is not presumed to be prejudicial.” OEC 103(1).4 “Article VII (Amended), section 3, [of the Oregon Constitution] requires an appellate court to affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected the ver- dict.” State v. Gibson, 338 Or 560, 576 , 113 P3d 423 (2005) (citing State v. Davis, 336 Or 19, 33 , 77 P3d 1111 (2003)). “[A] decision to exclude evidence relevant to bias or inter- est[,] which is [in] error, is reversible if it denies the jury an adequate opportunity to assess the credibility of a witness whose

2025Here, there is no question that Johnson’s credibil- ity was important to the outcome of the case—she was the 4 We acknowledge that, “in a criminal case, the right to impeach a witness for bias or interest is secured to criminal defendants by the Oregon and United States constitutions as part of the right to confront witnesses.” State v. Nacoste, 272 Or App 460, 467-68 , 356 P3d 135 (2015).

2025Here, there is no question that Johnson’s credibil- ity was important to the outcome of the case—she was the 4 We acknowledge that, “in a criminal case, the right to impeach a witness for bias or interest is secured to criminal defendants by the Oregon and United States constitutions as part of the right to confront witnesses.” State v. Nacoste, 272 Or App 460, 467-68 , 356 P3d 135 (2015).

2016See OEC 103(1) (“Evidential error is not presumed to be prejudicial.”); State v. Holcomb, 213 Or App 168, 182-83 , 182 n 8, 159 P3d 1271 , rev den, 343 Or 224 (2007) (analyzing whether erroneous admission of the defendant’s statements required reversal of the defendant’s convictions, even in the absence of any party arguments regarding harmlessness).

2016See OEC 103(1) (“Evidential error is not presumed to be prejudicial.”); State v. Holcomb, 213 Or App 168, 182-83 , 182 n 8, 159 P3d 1271 , rev den, 343 Or 224 (2007) (analyzing whether erroneous admission of the defendant’s statements required reversal of the defendant’s convictions, even in the absence of any party arguments regarding harmlessness).

2013Rather, such error is reversible error only if “a substantial right of [a] party is affected.” Id.

2012Jett v. Ford Motor Co., 335 Or 493, 500 , 72 P3d 71 (2003); see also OEC 103(1) (“Evidential error is not presumed to be prejudicial.

2012Jett v. Ford Motor Co., 335 Or 493, 500 , 72 P3d 71 (2003); see also OEC 103(1) (“Evidential error is not presumed to be prejudicial.

2007In that case, this court stated that, “ ‘for purposes of determining whether the state may appeal an order “suppressing” * * * evidence, the significant factor is whether the order has been made as the result of some pretrial action by the parties.’ ” Koennecke, 274 Or at 172 (quoting State v. Hoare, 20 Or App 439, 444 , 532 P2d 240 (1975) (emphasis in original)); see also State v. Hammerton/Walmsley, 320 Or 454 , 456 n 1, 886 P2d 1012 (1994) (in prosecutions for felony driving while revoked, state properly appealed from orders entered prior to trial that excluded revocation orders). 6 OEC 103

2007In that case, this court stated that, “ ‘for purposes of determining whether the state may appeal an order “suppressing” * * * evidence, the significant factor is whether the order has been made as the result of some pretrial action by the parties.’ ” Koennecke, 274 Or at 172 (quoting State v. Hoare, 20 Or App 439, 444 , 532 P2d 240 (1975) (emphasis in original)); see also State v. Hammerton/Walmsley, 320 Or 454 , 456 n 1, 886 P2d 1012 (1994) (in prosecutions for felony driving while revoked, state properly appealed from orders entered prior to trial that excluded revocation orders). 6 OEC 103

2007In that case, this court stated that, “ ‘for purposes of determining whether the state may appeal an order “suppressing” * * * evidence, the significant factor is whether the order has been made as the result of some pretrial action by the parties.’ ” Koennecke, 274 Or at 172 (quoting State v. Hoare, 20 Or App 439, 444 , 532 P2d 240 (1975) (emphasis in original)); see also State v. Hammerton/Walmsley, 320 Or 454 , 456 n 1, 886 P2d 1012 (1994) (in prosecutions for felony driving while revoked, state properly appealed from orders entered prior to trial that excluded revocation orders). 6 OEC 103

1999Evidential error does not require reversal if there is "(1) substantial and convincing evidence of guilt, in a criminal case, and (2) little if any likelihood that the error affected the verdict." State v. Carr, 302 Or. 20, 27 , 725 P.2d 1287 (1986), (quoting Legislative Commentary to OEC 103); State v. Larson, 325 Or. 15, 27-28 , 933 P.2d 958 (1997).

1999Evidential error does not require reversal if there is "(1) substantial and convincing evidence of guilt, in a criminal case, and (2) little if any likelihood that the error affected the verdict." State v. Carr, 302 Or. 20, 27 , 725 P.2d 1287 (1986), (quoting Legislative Commentary to OEC 103); State v. Larson, 325 Or. 15, 27-28 , 933 P.2d 958 (1997).

1999Evidential error does not require reversal if there is "(1) substantial and convincing evidence of guilt, in a criminal case, and (2) little if any likelihood that the error affected the verdict." State v. Carr, 302 Or. 20, 27 , 725 P.2d 1287 (1986), (quoting Legislative Commentary to OEC 103); State v. Larson, 325 Or. 15, 27-28 , 933 P.2d 958 (1997).

1999Evidential error does not require reversal if there is "(1) substantial and convincing evidence of guilt, in a criminal case, and (2) little if any likelihood that the error affected the verdict." State v. Carr, 302 Or. 20, 27 , 725 P.2d 1287 (1986), (quoting Legislative Commentary to OEC 103); State v. Larson, 325 Or. 15, 27-28 , 933 P.2d 958 (1997).

1998“Nonetheless, prejudicial error occurs if the excluded evidence has some likelihood of affecting the jury’s result.” Cunningham v. Montgomery, 143 Or App 171, 181 , 921 P2d 1355 , rev den 324 Or 487 (1996).

1998“Nonetheless, prejudicial error occurs if the excluded evidence has some likelihood of affecting the jury’s result.” Cunningham v. Montgomery, 143 Or App 171, 181 , 921 P2d 1355 , rev den 324 Or 487 (1996).

1996In State v. Keller, 315 Or 273, 285 , 844 P2d 195 (1993), the Supreme Court stated: “Under Oregon law, ‘a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a “substantial right” of the defendant.

1996In State v. Keller, 315 Or 273, 285 , 844 P2d 195 (1993), the Supreme Court stated: “Under Oregon law, ‘a verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a “substantial right” of the defendant.

1996OEC 103(1); Or Const, Art VII (Amended), § 3; State v. Busby, 315 Or 292, 299 , 844 P2d 897 (1993).

1996OEC 103(1); Or Const, Art VII (Amended), § 3; State v. Busby, 315 Or 292, 299 , 844 P2d 897 (1993).

1994Because that ground for admission was not clearly argued in the trial court, see State v. Hitz, 307 Or. 183, 188 , 766 P.2d 373 (1988) (positions of the parties should be clearly presented to the initial tribunal), we will not consider it. [7] OEC 103(1) provides in part: "Evidential error is not presumed to be prejudicial.

1994Because that ground for admission was not clearly argued in the trial court, see State v. Hitz, 307 Or. 183, 188 , 766 P.2d 373 (1988) (positions of the parties should be clearly presented to the initial tribunal), we will not consider it. [7] OEC 103(1) provides in part: "Evidential error is not presumed to be prejudicial.

1992Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *." [2] State v. Clark, 286 Or. 33, 39-40 , 593 P.2d 123 (1979), says that symptoms indicative of intoxication include, but are not limited to: "(1) Odor of the breath "(2) Flushed appearance "(3) Lack of muscular coordination "(4) Speech difficulties "(5) Disorderly or unusual conduct "(6) Mental disturbance "(7) Visual disorders "(8) Sleepiness "(9) Muscular tremors "(10) Dizziness "(11) Nausea"

1992Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *." [2] State v. Clark, 286 Or. 33, 39-40 , 593 P.2d 123 (1979), says that symptoms indicative of intoxication include, but are not limited to: "(1) Odor of the breath "(2) Flushed appearance "(3) Lack of muscular coordination "(4) Speech difficulties "(5) Disorderly or unusual conduct "(6) Mental disturbance "(7) Visual disorders "(8) Sleepiness "(9) Muscular tremors "(10) Dizziness "(11) Nausea"