State v. Partain

297 Or.App. 799

444 P.3d 1136

STATE of Oregon, Plaintiff-Respondent,

v.Jeremiah Scott PARTAIN, Defendant-Appellant.

A166137

Court of Appeals of Oregon.

Argued and submitted March 18, 2019.

May 30, 2019

Kyle Krohn, 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.

Philip Thoennes, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.

Before Powers, Presiding Judge, and Armstrong, Judge, and Kistler, Senior Judge.

KISTLER, S. J.

Defendant appeals from a second-degree theft conviction for stealing merchandise from a Walmart store. On appeal, he assigns error to the trial court’s ruling preventing him from vouching for his own testimony. The state concedes that the trial court erred in excluding that testimony, and the question on appeal reduces to whether the error was harmless. For the reasons explained below, we conclude that it was. We accordingly affirm the trial court’s judgment.

Three witnesses testified at trial: a Walmart employee who reviewed surveillance videos taken while defendant was in the store, a police officer who interviewed defendant after the employee reported the theft to the police, and defendant. We summarize each person’s testimony below, as well as the exhibits offered at trial.¹

Medlinsky works as a loss prevention officer at the Grants Pass Walmart store. While working there, she received a note that "somebody had run out of the building with a full backpack." She reviewed surveillance tapes for the time that the suspect was in the store. Those tapes showed that the suspect entered the store around 8:30 p.m. on May 10 and left hurriedly at approximately 12:30 a.m. on May 11. During those four hours, he walked around the store, selected items from the shelves, and placed some of them in a shopping cart. Among the items were a backpack—which a store employee had removed from a locked rack and left at a register—an air mattress, and a tent. On the tapes, Medlinsky could see the suspect taking the air mattress, backpack, and tent out of the store. She also noticed that the backpack was full as the suspect left and assumed that it contained smaller items that he had put in the shopping cart as he walked around the store. Video from a camera outside the store showed the person running along the side of the store toward a fence.

Medlinsky reviewed the sales records for the time that the suspect was in the store to see if she could find any record of a sale for the three larger items (the air mattress, backpack, and tent) that she could see him take out of the store. However, the sales records did not show that anyone had purchased those items during the time that the suspect was in the store.² She put together a loss prevention report and also some surveillance video and still photos from the video, which she provided to the police.³ On seeing those materials, Officer Kopp identified defendant as the person pictured in the video and the stills. Kopp also discovered that defendant was in custody and spoke with him at the Josephine County jail on May 29.

In speaking with Kopp, defendant confirmed that he was the person in the video but denied stealing any of the items. He explained to Kopp that he had purchased those items and had receipts for all of them. Kopp told defendant that the video showed him purchasing a couple of items from the electronics department but said that it did not show him purchasing the other items, such as the tent that he took out of the store. When defendant insisted that he had receipts for all the items, Kopp told him, "Well, if you have receipts for them, you’re going to want to present them once we go to court, all right?" Defendant noted that he could not get the receipts while he was in custody, and Kopp responded, "Well, hopefully when you get out of here, before your next court appearance (indiscernible), you’ll be able to show the receipts."

The final person to testify was defendant. Defendant testified that his boss had dropped him off at the Walmart store after work and that he had been killing time waiting for his ride to come pick him up. He testified that he bought various items from Walmart separately, some at the self-checkout counters and others from cashiers at registers, as he waited for his ride over the four-hour period. He confirmed Medlinsky’s conclusion that he had put some of the smaller items that initially were in the shopping cart into the backpack before he left the store. He also agreed that he had rushed out of the store with the air mattress, backpack, and tent. He explained that he had received a text around 12:30 a.m. indicating that his ride was waiting for him outside and that he rushed out of the store so that his ride would not leave him. Defendant also testified that he had kept the sales receipts for the items he took out of the store and that the receipts were in the bags with the items. He testified that the "following day I got arrested [for some other reason] at 5:00 in the morning, and so I hadn’t really had a chance to—to unpack that stuff and throw away the receipts. I actually still have them * * *."

Defendant also testified that, as he was "rushing out of the store," he heard "somebody behind [him] saying, ‘He’s stealing,’ but [he] didn’t think she was talking [about him]." He explained that he "passed numerous—numerous employees. * * * They didn’t bother to stop me, so I honestly didn’t think that she was talking to me, you know, or was—or was accusing me of it."

On cross-examination, defendant essentially confirmed his earlier testimony, and he agreed that he had asked Kopp, "Is there any way that I won’t be charged with this?" Defendant then began explaining that he had been concerned that the charge might affect an existing "downward dispositional [departure]." Despite the prosecutor’s suggestion that defendant’s existing downward dispositional departure was "a little bit off topic," defendant continued to explain that his downward dispositional departure had been "the basis for most of [his] decisions * * * since [he] got on probation last March."

On redirect, defense counsel asked defendant if he had been arrested for things in the past and was on probation at that point, to which defendant replied, "Oh, yes."⁴

Defendant noted that "there was a time where when I was on probation every single time I got ID-ed by an officer." The following exchange then took place:

"[DEFENSE COUNSEL]: As a result of that, an implication can be made by the State that you would therefore lie. Is that the case here?

"[STATE]: Objection, Your Honor. He can’t comment on his own—

"[DEFENDANT]: Thank you.

"[STATE]: —truthfulness.

"[DEFENDANT]: Thank you. I wasn’t quite sure -

"THE COURT: Sustained.

"[DEFENDANT]: Okay. I wasn’t—

"THE COURT: Why don’t you just wait for the next question?

"[DEFENDANT]: Okay.

"[DEFENSE COUNSEL]: I have nothing further."

Given that evidence, the trial court found defendant guilty of second-degree theft.

As noted, on appeal, defendant has assigned error to the trial court’s ruling preventing him from responding to his counsel’s observation that, because his probation could be revoked, "an implication can be made by the State that [defendant] would therefore lie." The state, for its part, concedes that, in light of our decision in State v. Sanchez-Jacobo , 250 Or. App. 621, 631-32, 282 P.3d 880 (2012), rev. den. , 353 Or. 280, 298 P.3d 30 (2013), the trial court erred. That is, the state does not dispute that the prohibition against vouching does not extend to a witness’s commenting on his or her own credibility. We accept the state’s concession and turn to the only question remaining on appeal—whether, in the context of this case, the ruling was harmless. More specifically, the question is whether any error in foreclosing defendant from vouching for his own credibility was harmless because, in the context of this case, it had little likelihood of affecting the trial court’s verdict. See State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003).

In considering that issue, we note, as an initial matter, that defendant did not make an offer of proof when the trial court sustained the state’s objection. Because the substance of what defendant would have said can be inferred from his counsel’s question, no express offer of proof was necessary to preserve the error for appeal. See State v. Wirfs , 250 Or. App. 269, 274, 281 P.3d 616, rev. den. , 352 Or. 378, 290 P.3d 814 (2012). However, one function of an offer of proof is to permit an appellate court to determine whether erroneously excluded evidence was likely to have affected the verdict. See State v. Affeld , 307 Or. 125, 128, 764 P.2d 220 (1988). Without some explanation at trial as to what defendant would have said if he had been permitted to answer the question, defendant is left to argue on appeal that the implication in his counsel’s question—he would have asserted that he was not lying—was harmful.⁵

On appeal, defendant argues that, because his credibility was the central issue at trial, preventing him from asserting, "I’m not lying," at the end of his testimony likely affected the verdict. The state counters that the excluded testimony was of minimal significance because an assertion that defendant was not lying did not add anything of significance to his oath to tell the truth, especially in light of the trial court’s ability to make an independent assessment of defendant’s credibility when he testified at trial. The specific issue here, then, is whether there was little likelihood that if defendant had been permitted to affirm the veracity of his story, the court would have been more likely to believe his testimony, as opposed to the testimony and evidence provided by the state.

Evidentiary error is not...