harmlessness analysis in Oregon

2025State v. Horton, 327 Or App 256, 263 , 535 P3d 338 (2023) (laying out the harmlessness test); see also State v. Ortiz, 372 Or 658, 677 , 554 P3d 796 (2024) (citing Horton’s approach with approval).2 “An instructional error is not harmless if the verdict could have been based on an erroneous theory of liability as a result of the instructional error.” Waterman, 319 Or App at 701 .

2025State v. Horton, 327 Or App 256, 263 , 535 P3d 338 (2023) (laying out the harmlessness test); see also State v. Ortiz, 372 Or 658, 677 , 554 P3d 796 (2024) (citing Horton’s approach with approval).2 “An instructional error is not harmless if the verdict could have been based on an erroneous theory of liability as a result of the instructional error.” Waterman, 319 Or App at 701 .

2025State v. Horton, 327 Or App 256, 263 , 535 P3d 338 (2023) (laying out the harmlessness test); see also State v. Ortiz, 372 Or 658, 677 , 554 P3d 796 (2024) (citing Horton’s approach with approval).2 “An instructional error is not harmless if the verdict could have been based on an erroneous theory of liability as a result of the instructional error.” Waterman, 319 Or App at 701 .

2025State v. Horton, 327 Or App 256, 263 , 535 P3d 338 (2023) (laying out the harmlessness test); see also State v. Ortiz, 372 Or 658, 677 , 554 P3d 796 (2024) (citing Horton’s approach with approval).2 “An instructional error is not harmless if the verdict could have been based on an erroneous theory of liability as a result of the instructional error.” Waterman, 319 Or App at 701 .

2025State v. Horton, 327 Or App 256, 263 , 535 P3d 338 (2023) (laying out the harmlessness test); see also State v. Ortiz, 372 Or 658, 677 , 554 P3d 796 (2024) (citing Horton’s approach with approval).2 “An instructional error is not harmless if the verdict could have been based on an erroneous theory of liability as a result of the instructional error.” Waterman, 319 Or App at 701 .

2025State v. Horton, 327 Or App 256, 263 , 535 P3d 338 (2023) (laying out the harmlessness test); see also State v. Ortiz, 372 Or 658, 677 , 554 P3d 796 (2024) (citing Horton’s approach with approval).2 “An instructional error is not harmless if the verdict could have been based on an erroneous theory of liability as a result of the instructional error.” Waterman, 319 Or App at 701 .

2026See Davis, 336 Or at 34 (treating whether evi- dence was or was not “merely cumulative” as significant to the harmlessness analysis for an evidentiary error) Although it seems possible that defendant might have chosen not to testify, or might have testified differently, absent the admis- sion of Anderson’s testimony and report, that possibility is not reflected in the record, and, under these circumstances, we must consider defendant’s testimony in our harmlessness analysis.

2021In conducting a harmlessness analysis, our focus “is on the possible influ- ence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling.” Id.

2021See Nguyen, 293 Or App at 498-99 (identifying “the importance of the erroneously admitted evidence to a party’s theory of the case” as being relevant to the harmlessness analysis).

2021The “defendant has the burden to demonstrate that the error affected a substan- tial right.” State v. Nguyen, 293 Or App 492, 498 , 429 P3d 410 (2018).

2020In making that argument, defendant relies on the harmlessness standard for federal constitutional error set out in Chapman v. California, 386 US 18 , 87 S Ct 824 , 17 L Ed 2d 705 (1967), which requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not con- tribute to the verdict obtained.” Id. at 24 .

2020In making that argument, defendant relies on the harmlessness standard for federal constitutional error set out in Chapman v. California, 386 US 18 , 87 S Ct 824 , 17 L Ed 2d 705 (1967), which requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not con- tribute to the verdict obtained.” Id. at 24 .

2026See State v. McGinnis, 335 Or 243, 250 , 64 P3d 1123 (2003) (“When a defendant testifies * * * and admits the substance or truthfulness of the matters contained in the erroneously admitted evidence, the facts established by the in-court admissions may eliminate any harm associated with the erroneously admitted evidence.”); see also id. at 253- 54 (noting that an exception applies when the erroneously admitted evidence is a compelled statement).

2026See State v. McGinnis, 335 Or 243, 250 , 64 P3d 1123 (2003) (“When a defendant testifies * * * and admits the substance or truthfulness of the matters contained in the erroneously admitted evidence, the facts established by the in-court admissions may eliminate any harm associated with the erroneously admitted evidence.”); see also id. at 253- 54 (noting that an exception applies when the erroneously admitted evidence is a compelled statement).

2022See, e.g., State v. Haines, 283 Or App 444, 454 , 388 P3d 365 (2017) (not obtaining a valid waiver from a defendant who proceeds without counsel “is not harmless if, on review, we are unable to determine what the outcome would have been if the defendant had been represented by counsel” (internal quotation marks omitted)).

2022See, e.g., State v. Haines, 283 Or App 444, 454 , 388 P3d 365 (2017) (not obtaining a valid waiver from a defendant who proceeds without counsel “is not harmless if, on review, we are unable to determine what the outcome would have been if the defendant had been represented by counsel” (internal quotation marks omitted)).

2021Finally, the state suggests that a defendant must request a jury poll to develop a record that is adequate for appellate review, and that that requirement is properly viewed as part of the state law of preservation, rather than as part of the harmlessness analysis—which, as noted above, is controlled by federal law for federal constitutional viola- tions, including the one that occurred in this case, Flores Ramos, 367 Or at 333 (applying the federal harmlessness standard where the trial court gave a nonunanimous jury instruction).

2021Here, we look to defendant’s opening brief to determine which evidence he is claiming was derivative of the cell phone evidence, was wrongly not suppressed, and may have influenced the ver- dict.2 See Federal National Mortgage Association v. Goodrich, 275 Or App 77, 86 , 364 P3d 696 (2015) (“We will not consider a ground for reversal that is raised on appeal for the first time in a reply brief.”); see also ORAP 5.45(1) (limiting our consideration to errors “assigned as error in the opening brief”).

2021Here, we look to defendant’s opening brief to determine which evidence he is claiming was derivative of the cell phone evidence, was wrongly not suppressed, and may have influenced the ver- dict.2 See Federal National Mortgage Association v. Goodrich, 275 Or App 77, 86 , 364 P3d 696 (2015) (“We will not consider a ground for reversal that is raised on appeal for the first time in a reply brief.”); see also ORAP 5.45(1) (limiting our consideration to errors “assigned as error in the opening brief”).

2014See United, States v. Gonzalez-Lopez, 548 US 140, 148-50 , 126 S Ct 2557 , 165 L Ed 2d 409 (2006) (the erroneous denial of certain rights — to self-representation, to public trial, to trial by jury by the giving of a defective reasonable-doubt instruction, and to choice of counsel — qualifies as structural error; such error has pervasive consequences and is not subject to the harmlessness analysis, but, instead, automatically requires reversal).

2014See United, States v. Gonzalez-Lopez, 548 US 140, 148-50 , 126 S Ct 2557 , 165 L Ed 2d 409 (2006) (the erroneous denial of certain rights — to self-representation, to public trial, to trial by jury by the giving of a defective reasonable-doubt instruction, and to choice of counsel — qualifies as structural error; such error has pervasive consequences and is not subject to the harmlessness analysis, but, instead, automatically requires reversal).

2006See State v. Metcalfe, 172 Or App 501, 503 , 19 P3d 374 (2001) (in testing the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the offense).

2006See State v. Metcalfe, 172 Or App 501, 503 , 19 P3d 374 (2001) (in testing the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the offense).

2003That is the plaintiffs obligation; the defendant need not do anything.” Shoup, 171 Or App at 373 (emphasis in original).

2002See also Ring v. Arizona, 536 US 584 , _ n 7, 122 S Ct 2428 , 2443 n 7, 153 L Ed 2d 556 (2002) (declining to reach state’s argument that Apprendi error was harmless; remanding instead to the state court for further proceedings; noting that “the Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the first instance”); 122 S Ct at 2448-50 (O’Connor, J., dissenting) (disagreeing that sea.

2002See also Ring v. Arizona, 536 US 584 , _ n 7, 122 S Ct 2428 , 2443 n 7, 153 L Ed 2d 556 (2002) (declining to reach state’s argument that Apprendi error was harmless; remanding instead to the state court for further proceedings; noting that “the Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the first instance”); 122 S Ct at 2448-50 (O’Connor, J., dissenting) (disagreeing that sea.

1992Id. at 1893-94.

1992Id. at 1893-94.