possible influence error in Oregon

2017Considerations that “may properly inform that ‘single inquiry,’ includ [e] ‘the nature of the error that occurred below,’ [Davis, 336 Or at 32 ], and the ‘context of the legal error.’ Id. at 33 .” Perkins, 221 Or App at 143 .

2011Further, in State v. Perkins, 221 Or App 136, 143 , 188 P3d 482 (2008), we explained that “a variety of considerations may properly inform that single inquiry, including the nature of the error that occurred below, and the context of the legal error.

2025“A criminal defendant who assigns error to the exclusion or admission of evidence ‘must establish that the error was not harmless.’ ” State v. Gibson, 338 Or 560, 575-76 , 113 P3d 423 , cert den, 546 US 1044 (2005) (quoting State v. Lotches, 331 Or 455, 487 , 17 P3d 1045 (2000), cert den, 534 US 833 (2001)).

2020The court’s inquiry “must focus ‘on the possible influence 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.’ * * * That inquiry requires us to examine *661 the nature of the error that occurred below and the context of that error. * * * If the particular issue to which the error pertains has no relationship to the jury’s determination of its verdict, then there is little likelihood that the error affected the verdict.” State v. Gibson, 338 Or 560, 576 , 113 P3d 423 , cert den, 546 US 1044 (2

2025“A criminal defendant who assigns error to the exclusion or admission of evidence ‘must establish that the error was not harmless.’ ” State v. Gibson, 338 Or 560, 575-76 , 113 P3d 423 , cert den, 546 US 1044 (2005) (quoting State v. Lotches, 331 Or 455, 487 , 17 P3d 1045 (2000), cert den, 534 US 833 (2001)).

2025“A criminal defendant who assigns error to the exclusion or admission of evidence ‘must establish that the error was not harmless.’ ” State v. Gibson, 338 Or 560, 575-76 , 113 P3d 423 , cert den, 546 US 1044 (2005) (quoting State v. Lotches, 331 Or 455, 487 , 17 P3d 1045 (2000), cert den, 534 US 833 (2001)).

2025“A criminal defendant who assigns error to the exclusion or admission of evidence ‘must establish that the error was not harmless.’ ” State v. Gibson, 338 Or 560, 575-76 , 113 P3d 423 , cert den, 546 US 1044 (2005) (quoting State v. Lotches, 331 Or 455, 487 , 17 P3d 1045 (2000), cert den, 534 US 833 (2001)).

2025“A criminal defendant who assigns error to the exclusion or admission of evidence ‘must establish that the error was not harmless.’ ” State v. Gibson, 338 Or 560, 575-76 , 113 P3d 423 , cert den, 546 US 1044 (2005) (quoting State v. Lotches, 331 Or 455, 487 , 17 P3d 1045 (2000), cert den, 534 US 833 (2001)).

2026This court’s “harmless-error analysis concerns ‘the possible influence 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.’ ” Starr, 337 Or App at 691 (quoting Davis, 336 Or at 32 ).

2025HARMLESSNESS Under Article VII (Amended), section 3, of the Oregon Constitution, we must affirm despite error if there is “little likelihood that the particular error affected the verdict[.]” State v. Davis, 336 Or 19, 32 , 77 P3d 1111 (2003); see State v. Rosenbohm, 237 Or App 646, 649 , 241 P3d 344 (2010) (“We must reverse when it is clear that an argument was improper, properly challenged and likely to prejudice the jury unfairly.” (Internal quotation marks omitted.)). “[O]ur harmless-error analysis concerns ‘the possible influence of the error on the verdict rendered, not whether this *350

2023In conducting that analysis, we focus on the possible influence 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.” State v. Zaldana-Mendoza, 299 Or App 590, 613 , 450 P3d 983 (2019) (internal quotation marks omitted).

2023In conducting that analysis, we focus on the possible influence 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.” State v. Zaldana-Mendoza, 299 Or App 590, 613 , 450 P3d 983 (2019) (internal quotation marks omitted).

2023In conducting our harmless error analysis, “we focus on the possible influence 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.” State v. Ramirez, 310 Or App 62, 67 , 483 P3d 1232 (2021) (internal quotation marks omitted).

2023In conducting our harmless error analysis, “we focus on the possible influence 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.” State v. Ramirez, 310 Or App 62, 67 , 483 P3d 1232 (2021) (internal quotation marks omitted).

2021In conducting our harmless error analysis, “we focus on ‘the possible influence 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.’ ” State v. Scott, 265 Or App 542, 549 , 335 P3d 1283 (2014) (quoting Davis, 336 Or at 32 ).

2021In conducting our harmless error analysis, “we focus on ‘the possible influence 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.’ ” State v. Scott, 265 Or App 542, 549 , 335 P3d 1283 (2014) (quoting Davis, 336 Or at 32 ).

2009State v. Perkins, 221 Or App 136, 145 , 188 P3d 482 (2008) (declining to find harmlessness where erroneously admitted evidence went ‘directly to the heart of [the state’s] factual theory of the case’) (quoting Davis, 336 Or at 34 ). ‘If erroneously admitted evidence relates to a “central factual issue” to the case, it is more likely to have affected the determination than if it dealt with a tangential issue.’ State v. Roller, 201 Or App 166, 173 , 118 P3d 804 (2005).

2009State v. Perkins, 221 Or App 136, 145 , 188 P3d 482 (2008) (declining to find harmlessness where erroneously admitted evidence went ‘directly to the heart of [the state’s] factual theory of the case’) (quoting Davis, 336 Or at 34 ). ‘If erroneously admitted evidence relates to a “central factual issue” to the case, it is more likely to have affected the determination than if it dealt with a tangential issue.’ State v. Roller, 201 Or App 166, 173 , 118 P3d 804 (2005).

2025See Davis, 336 Or at 32 (“The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of Nonprecedential Memo Op: 338 Or App 500 (2025) 503 guilt as substantial and compelling.”).

2022In making that determination, we look at all the evidence in the record and “we consider the importance of the erroneously admitted evidence to a party’s theory of the case.” State v. Stewart, 270 Or App 333, 341 , 347 P3d 1060 , rev den, 357 Or 743 (2015); see State v. Mendoza-Sanchez, 291 Or App 299, 313 , 419 P3d 765 (2018) (when making a harmless error determination “we review all pertinent portions of the record”).

2022In making that determination, we look at all the evidence in the record and “we consider the importance of the erroneously admitted evidence to a party’s theory of the case.” State v. Stewart, 270 Or App 333, 341 , 347 P3d 1060 , rev den, 357 Or 743 (2015); see State v. Mendoza-Sanchez, 291 Or App 299, 313 , 419 P3d 765 (2018) (when making a harmless error determination “we review all pertinent portions of the record”).

2022As we observed in 2008 in State v. Vargas-Samado, 223 Or App 15, 19 , 195 P3d 464 (2008), “the correct focus of that inquiry is on the possible influence 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.

2022As we observed in 2008 in State v. Vargas-Samado, 223 Or App 15, 19 , 195 P3d 464 (2008), “the correct focus of that inquiry is on the possible influence 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.

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

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

2020Although we do not independently weigh the evidence, we nonetheless “consider[ ] the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt,” recognizing that “the less substantial the evidence of guilt, the more likely it is that an error affected the result.” State v. Dowty, 299 Or App 762, 773 , 452 P3d 983 (2019) (internal citations and quotation marks omitted). *206 Defendant’s trial was not a one-on-one credibility contest between him and A. See State v. Mackey, 290 Or App 272, 280 , 414 P3d 443 , adh’d to as modified

2020Although we do not independently weigh the evidence, we nonetheless “consider[ ] the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt,” recognizing that “the less substantial the evidence of guilt, the more likely it is that an error affected the result.” State v. Dowty, 299 Or App 762, 773 , 452 P3d 983 (2019) (internal citations and quotation marks omitted). *206 Defendant’s trial was not a one-on-one credibility contest between him and A. See State v. Mackey, 290 Or App 272, 280 , 414 P3d 443 , adh’d to as modified

2020Although we do not independently weigh the evidence, we nonetheless “consider[ ] the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt,” recognizing that “the less substantial the evidence of guilt, the more likely it is that an error affected the result.” State v. Dowty, 299 Or App 762, 773 , 452 P3d 983 (2019) (internal citations and quotation marks omitted). *206 Defendant’s trial was not a one-on-one credibility contest between him and A. See State v. Mackey, 290 Or App 272, 280 , 414 P3d 443 , adh’d to as modified

2020Although we do not independently weigh the evidence, we nonetheless “consider[ ] the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt,” recognizing that “the less substantial the evidence of guilt, the more likely it is that an error affected the result.” State v. Dowty, 299 Or App 762, 773 , 452 P3d 983 (2019) (internal citations and quotation marks omitted). *206 Defendant’s trial was not a one-on-one credibility contest between him and A. See State v. Mackey, 290 Or App 272, 280 , 414 P3d 443 , adh’d to as modified

2020Although we do not independently weigh the evidence, we nonetheless “consider[ ] the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt,” recognizing that “the less substantial the evidence of guilt, the more likely it is that an error affected the result.” State v. Dowty, 299 Or App 762, 773 , 452 P3d 983 (2019) (internal citations and quotation marks omitted). *206 Defendant’s trial was not a one-on-one credibility contest between him and A. See State v. Mackey, 290 Or App 272, 280 , 414 P3d 443 , adh’d to as modified

2020Although we do not independently weigh the evidence, we nonetheless “consider[ ] the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt,” recognizing that “the less substantial the evidence of guilt, the more likely it is that an error affected the result.” State v. Dowty, 299 Or App 762, 773 , 452 P3d 983 (2019) (internal citations and quotation marks omitted). *206 Defendant’s trial was not a one-on-one credibility contest between him and A. See State v. Mackey, 290 Or App 272, 280 , 414 P3d 443 , adh’d to as modified

2019We ask whether the instructional error could have "created an erroneous impression of the law in the minds of the jurors which affected the outcome of the case." Egeland , 260 Or.

2018App. at 591 , 263 P.3d 372 .

2018"In making that determination, we consider the possible influence of the error on the verdict that the jury rendered." Dunning , 245 Or.

2017“If erroneously admitted evidence relates to a central factual issue in the case, it is more likely to have affected the jury’s determination.” Whitmore, 257 Or App at 672 .

2012Although Oregon does not regard any error as “structural,” that is, automatically and under every circumstance reversible, Ryan v. Palmateer, 338 Or 278, 296 , 108 P3d 1127 , cert den, 546 US 874 (2005), the constitutional error inherent in mentioning to a jury that a defendant exercised and invoked the right to remain silent is “presumably” harmful, State v. Wederski, 230 Or 57, 60 , 368 P2d 393 (1962).

2012Although Oregon does not regard any error as “structural,” that is, automatically and under every circumstance reversible, Ryan v. Palmateer, 338 Or 278, 296 , 108 P3d 1127 , cert den, 546 US 874 (2005), the constitutional error inherent in mentioning to a jury that a defendant exercised and invoked the right to remain silent is “presumably” harmful, State v. Wederski, 230 Or 57, 60 , 368 P2d 393 (1962).

2012Although Oregon does not regard any error as “structural,” that is, automatically and under every circumstance reversible, Ryan v. Palmateer, 338 Or 278, 296 , 108 P3d 1127 , cert den, 546 US 874 (2005), the constitutional error inherent in mentioning to a jury that a defendant exercised and invoked the right to remain silent is “presumably” harmful, State v. Wederski, 230 Or 57, 60 , 368 P2d 393 (1962).

2012Although Oregon does not regard any error as “structural,” that is, automatically and under every circumstance reversible, Ryan v. Palmateer, 338 Or 278, 296 , 108 P3d 1127 , cert den, 546 US 874 (2005), the constitutional error inherent in mentioning to a jury that a defendant exercised and invoked the right to remain silent is “presumably” harmful, State v. Wederski, 230 Or 57, 60 , 368 P2d 393 (1962).

2012Although Oregon does not regard any error as “structural,” that is, automatically and under every circumstance reversible, Ryan v. Palmateer, 338 Or 278, 296 , 108 P3d 1127 , cert den, 546 US 874 (2005), the constitutional error inherent in mentioning to a jury that a defendant exercised and invoked the right to remain silent is “presumably” harmful, State v. Wederski, 230 Or 57, 60 , 368 P2d 393 (1962).

2012The “focus of that inquiry ‘is on the possible influence of the error on the verdict rendered!.]’ ” Id. (quoting State v. Davis, 336 Or 19, 32 , 77 P3d 1111 (2003)).

2010The court’s inquiry “must focus ‘on the possible influence 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.’ * * * That inquiry requires us to examine the nature of the error that occurred below and the context of that error. * * * If the particular issue to which the error pertains has no relationship to the jury’s determination of *572 its verdict, then there is little likelihood that the error affected the verdict.” 2 Id. (citations omitted).