State v. Anderson

314 Or.App. 495

498 P.3d 843

STATE of Oregon, Plaintiff-Respondent,

v.Alyson Rachel ANDERSON, Defendant-Appellant.

A171331

Court of Appeals of Oregon.

Argued and submitted December 15, 2020

September 15, 2021

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and Egan, Chief Judge, and DeHoog, Judge.^*

EGAN, C. J.

Defendant appeals a judgment of convictions for driving under the influence of intoxicants (DUII), ORS 813.010 (Count 1); unlawful possession of methamphetamine, ORS 475.894 (Count 2); and recklessly endangering another person, ORS 163.195 (Count 3). Defendant raises two assignments of error. We reject defendant's first assignment without discussion. In defendant's second assignment of error, she argues that the trial court erred in granting the state's motion in limine when it excluded testimony concerning an officer's reputation for truthfulness or untruthfulness. The state concedes that the court erred in excluding that evidence but argues that we should nevertheless affirm because that error is harmless. As explained below, we agree with the parties that the court erred in excluding the evidence. We further conclude that the error is harmless as to Count 2 but not harmless as to Counts 1 and 3; we, therefore, reverse and remand Counts 1 and 3, remand for resentencing, and otherwise affirm.

Evidentiary error is not presumed to be harmful, and we will affirm a defendant's conviction if there is "little likelihood" that the particular error affected the verdict. State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). Although the trial court relied on a pretrial record in ruling on the motion in limine , we review all pertinent portions of the record in determining harmlessness. State v. Goff , 258 Or. App. 757, 765, 311 P.3d 916 (2013). We summarize the record in accordance with that standard.

Defendant was driving with her child in the passenger seat when Trooper West stopped her for erratic driving. Soon thereafter, West began a DUII investigation due to defendant's driving and her "unusual" behavior. As a part of that investigation, West requested that defendant consent to field sobriety tests, which she did. After those tests, West concluded that defendant was under the influence of intoxicants and requested to search defendant's car. Defendant consented and, because defendant's son was in the passenger seat, West only searched the driver's side of her vehicle. West found a "residue" amount of drugs in defendant's wallet, which West believed was methamphetamine.¹ West also found cannabis, cannabis concentrate, and cannabis paraphernalia. At the end of the search, West asked defendant about drug use. Defendant admitted that she had "smoked some [cannabis] earlier that night." At the conclusion of her investigation, West believed that defendant was under the influence of methamphetamine and cannabis and arrested defendant for DUII.

After defendant was arrested, officers performed a search of the rest of her car. During that search, officers found methamphetamine and methamphetamine paraphernalia inside the car. That methamphetamine weighed approximately one-half gram. After the search, defendant was transported to jail to be examined by a drug recognition expert (DRE).

Officer Stone was the DRE who responded to West's request for an evaluation of defendant. Stone performed a standard 12-step DRE evaluation of defendant at the jail.²

At the conclusion of defendant's evaluation, Stone concluded that defendant was under the influence of cannabis. Defendant was released from custody and shortly thereafter charged by information with DUII, unlawful possession of methamphetamine, and recklessly endangering another person.

Before trial, the state filed a motion in limine to exclude certain character evidence regarding Stone. The court held a hearing on the matter and, for purposes of determining its admissibility, defendant presented two witnesses’ testimony concerning Stone's character for truthfulness. The Chief of Police for the City of Springfield, Lewis, was called first. The colloquy between Lewis and defendant concerning Stone's reputation was as follows:

"Q Are you generally aware of Officer Stone's reputation in the law enforcement community of other law enforcement officers and the command and administrative people in law enforcement for being truthful or not truthful?

"A Can you start with the first part of the question there again?

"Q Are you familiar with his reputation in that community for being truthful or not truthful?

"A Yes.

"Q And what is that reputation?

"A The reputation is there's some individuals that does not think he's truthful and there's others that do think he's truthful."

The state objected to the admission of that testimony by asserting that "the fact that someone's reputation is split does not lead to that being a reputation. So if a reputation is mixed, that means he doesn't have a specific reputation in the community." In response, defendant argued that the "case law is less than 100 percent clear" but that defendant is entitled to present testimony on the matter. The court agreed with the state and concluded, as to Lewis, that he

"basically testified that half of his department believes Officer Stone *** is truthful and half of his department believes Officer Stone is untruthful.

"That strikes me as not a reputation for truthfulness or for untruthfulness. ***

"I don't think it's appropriate to bring in [Lewis] to basically give us a neutral reading or interpretation of Officer Stone's truthfulness. It's not necessarily a reputation that is going to properly impeach Officer Stone."

Next, Lieutenant McKee testified as to his opinion "that[,] with regard to truthfulness and honesty[,] that unless [Stone's] written or spoken word is corroborated by video or other compelling evidence, I don't find it to be trustworthy."³ The state did not object to McKee testifying as to his opinion of Stone but did object to McKee testifying to any specific instances that were the basis for his opinion. The court agreed with the state and concluded that McKee would be permitted to "testify to his opinion." The trial began shortly thereafter. The state's evidence included testimony by Stone about his examination of defendant and, consistent with the pretrial rulings, defendant called McKee to impeach Stone's credibility. The jury found defendant guilty on all counts. Defendant then initiated this appeal.

On appeal, defendant argues that the trial court erred in excluding Lewis's testimony concerning Stone's reputation. The state concedes that the trial court erred when it concluded that Lewis's testimony was inadmissible under OEC 608, but nevertheless argues that the error was harmless. Because, as defendant notes, we have "not directly addressed" whether "split reputation" is admissible reputation evidence, we discuss that issue below and, ultimately, agree with the parties that the trial court erred.

"We review a trial court's exclusion of character testimony under OEC 608(1) for abuse of discretion." State v. Paniagua , 268 Or. App. 284, 289, 341 P.3d 906 (2014). "An abuse of discretion on an evidentiary ruling by a trial court occurs when the court's ruling exceeds the range of all legally correct discretionary choices. In that context, ‘discretion’ refers to the authority of the trial court to choose among several legally correct outcomes." State v. Mackey , 290 Or. App. 272, 275, 414 P.3d 443, adh'd to as modified on recons , 293 Or. App. 559, 429 P.3d 748 (2018).

Defendant argues, and the state agrees, that "split reputation" evidence is admissible under OEC 608.⁴ We agree that split reputation evidence is admissible under OEC 608, which permits reputation evidence for "truthfulness or untruthfulness." Each part of Lewis's testimony—that "some" find Stone to be truthful and others find him untruthful—would be separately admissible under OEC 608.⁵ That Lewis would testify to both does not make it any less reputation evidence as allowed under the rule. The plain text of OEC 608 requires only that the reputation be for truthfulness or untruthfulness.

It does not require that the reputation be shared by every member of the community to be admissible under OEC 608, and we do not insert requirements into statutes that have been omitted. See ORS 174.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is * * * not to insert what has been omitted[.]"). Thus, we agree with the parties that the trial court erred in concluding that "split" or "mixed" reputation evidence is inadmissible under OEC 608.

Having concluded that the trial court erred, we must next address whether that error was harmless. "Harmless error" is a shorthand reference to Article VII (Amended), section 3, of the Oregon Constitution.⁶ Davis , 336 Or. at 27-28, 77 P.3d 1111. That standard reduces to "a single inquiry: Is there little likelihood that the particular error affected the verdict?" Id . at 32, 77 P.3d 1111. In conducting a harmless error analysis, we differentiate among the various charges against a defendant to determine, with respect to each, whether the record establishes that any error in admitting or excluding evidence was harmless. State v. Lachat , 298 Or. App. 579, 589-90, 448 P.3d 670 (2019), rev. den. , 366 Or. 257, 458 P.3d 1128 (2020) (taking that approach). In determining whether the exclusion of Lewis's testimony was harmless, we consider "the nature of the error that occurred below," and the "context of the legal error." State v. Perkins , 221 Or. App. 136, 143, 188 P.3d 482 (2008). Some of the factors that we rely on in...