State v. Carter

                                       246

      Submitted March 10, 2020, reversed and remanded October 20, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 JAMES JOSEPH JOSE CARTER,
                   aka James Josephjose Carter,
                       Defendant-Appellant.
                 Multnomah County Circuit Court
                       18CR03415; A168481
                                   

     Defendant appeals a judgment of conviction for indecent exposure in violation
of the City of Portland’s municipal code, PCC 14A.40.030. On appeal, defendant
argues that the trial court erred in denying his pretrial motion to exclude statements that the arresting officer made to him describing how she would react if
she were falsely accused of a crime. Held: Defendant’s pretrial motion to exclude
evidence adequately preserved the asserted error on appeal. The trial court erred
in concluding that the arresting officer’s lay opinion, couched in terms of how she,
herself, would have reacted under the same circumstances, was relevant. The
erroneous admission of that evidence likely affected the verdict and therefore
was not harmless.
    Reversed and remanded.



    Leslie G. Bottomly, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    DeHOOG, J.
    Reversed and remanded.
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           DeHOOG, J.
         Defendant appeals a judgment of conviction for
indecent exposure, PCC 14A.40.030.1 Defendant concedes,
as he did at trial, that his demeanor during police questioning was admissible evidence of his guilt; he argues, however,
that the trial court erred in denying his pretrial motion to
exclude, as irrelevant, statements that the arresting officer
made to him describing how she would react if she were
falsely accused of a crime. In response, the state argues
that (1) defendant failed to properly preserve the asserted
error, (2) to the extent that the matter is preserved, the
court did not err, because the officer’s statement provided
relevant context for defendant’s statements, and (3) even if
the trial court did err in admitting the officer’s statement,
that error was harmless. For the reasons that follow, we
agree with defendant that the trial court erred in admitting
the disputed testimony and that the error was not harmless.
Accordingly, we reverse.
         The facts relevant to this appeal are few and undisputed. After an “Uber Eats” delivery driver reported to the
police that defendant had exposed his erect penis to her
when she went to his food cart to pick up an order, Officer
Taylor of the Portland Police Bureau went to question defendant. According to Taylor’s report and testimony, defendant
maintained a flat affect throughout Taylor’s questioning,
despite the nature of the allegations. Taylor testified that
defendant had told her “in just a very matter of fact way”
that it did not surprise him to hear that the driver thought
“she saw his penis, but she didn’t, and there are a lot of reasons why people might think they saw something they did
not.” Taylor responded, “I would lose my mind if someone
accused me of exposing myself.”
        Before trial, defendant moved to exclude Taylor’s
testimony as to how she would have acted under the circumstances. According to defendant, Taylor’s testimony as
to what an appropriate reaction might be effectively implied
that defendant “must be guilty because he didn’t act in a
way an innocent person would act[.]” In defendant’s view,
    1
      The state charged defendant with that offense under the municipal code for
the City of Portland, which we abbreviate as PCC.
248                                            State v. Carter

Taylor’s opinion was simply not relevant. The state argued
that Taylor’s opinion was the product of “her experience
and [ ] training regarding conducting investigations of this
nature[.]” Thus, the state reasoned, “it would be relevant as
to a part of her investigation.”
         On appeal, defendant essentially reprises the argument that he made to the trial court. The state, on the
other hand, makes a new argument. After first contending
that defendant has not adequately preserved the issue he
advances on appeal, the state argues that the trial court did
not err in admitting the evidence, because it provided context for defendant’s own statements during the police interview. The state further contends that, in any event, if the
trial court erred, that error was harmless. We turn to those
arguments.
         Addressing the state’s preservation argument first,
we conclude that defendant’s pretrial motion to exclude
evidence adequately preserved the issue that he raises on
appeal. Although defendant’s argument to the trial court
focused on Taylor’s opinion about defendant’s responses
rather than Taylor’s statements to him about those
responses, we do not see a material difference between the
two arguments in this case; at a minimum, we are satisfied
that both the state and the trial court would have understood defendant’s argument to have referenced both. As a
result, defendant’s argument at trial satisfied the purposes
of preservation. See, e.g., State v. Pitt, 

, 

 (2012) (“An objection to evidence in a motion in
limine preserves the issue of admissibility, noting that the
moving party made ‘a sufficient offer of proof of what would
happen in the trial to permit the court to rule intelligently
on the propriety of the offered evidence.’ ”).
         Proceeding to the merits, we review a trial court’s
relevance rulings for errors of law. State v. Titus, 

, 

 (1999) (Evidence is either “relevant or it is
not.”). Under OEC 401, “ ‘relevant evidence’ means evidence
having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
We recognize that this standard reflects a “low bar.” State v.
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Davis, 

, 

 (2011). Nonetheless, we
conclude that the disputed evidence was not relevant for any
purpose that the state identified in response to defendant’s
motion.
         In the course of its ruling, the trial court correctly
concluded that the officer had not been qualified as an
expert to testify regarding what sort of reaction is “normal”
for a person falsely accused of a crime. The court erred,
however, in concluding that Taylor’s lay opinion, couched in
terms of how she, herself, would have reacted under the circumstances, was relevant. To be admissible as lay opinion
evidence under OEC 701,2 the opinion itself must be relevant. And a witness’s opinion as to whether another person
is being truthful is not relevant to prove that the person’s
statement is, in fact, true or false. See State v. Chandler,

, 

 (2016) (“When a person makes
an out-of-court statement about the credibility of a witness
or nonwitness complainant, that statement is subject to the
categorical prohibition against vouching evidence … if the
statement is offered for the truth of the credibility opinion
that it expresses.”). In this case, the state did not contend
at trial that Taylor’s statement did not express an opinion
regarding the credibility of defendant’s denial. Nor did the
state, at that time, contend that the evidence was being
offered to prove something other than that opinion. As a
result, we agree with defendant that the evidence was not
relevant for any purpose advanced by the state in response
to defendant’s motion.
         As noted, the state does advance a new argument
on appeal in support of the trial court’s ruling. According
to the state, Taylor’s testimony provided relevant context
regarding her interview of defendant. See 

(discussing permissible use of an officer’s opinion that a suspect is not being truthful as relevant context). Whether or
   2
     OEC 701 provides:
       “If the witness is not testifying as an expert, testimony of the witness in
   the form of opinions or inferences is limited to those opinions or inferences
   which are:
       “(1) Rationally based on the perception of the witness; and
       “(2) Helpful to a clear understanding of testimony of the witness or the
   determination of a fact in issue.”
250                                           State v. Carter

not that argument has merit, however, we are not persuaded
that it is an appropriate basis for affirmance. Although the
state does not couch its argument as such, we understand
it to be contending that the trial court’s ruling was “right
for the wrong reason.” See Outdoor Media Dimensions Inc.
v. State of Oregon, 

, 

 (2001).
It is the state’s burden to establish that the requirements
for affirmance on an alternative basis are satisfied, and it
has not attempted to satisfy that burden here. See State v.
Booth, 

, 

 (2015) (discussing Outdoor Media Dimensions Inc. and requirements for
affirmance on an alternative basis). Accordingly, we do
not further consider the state’s newly advanced relevance
argument.
         The state’s final argument in support of affirmance
is that any error was harmless. When deciding whether a
trial court’s erroneous admission of evidence was harmless,
we review all pertinent portions of the record. State v. Goff,

, 

 (2013). Evidentiary error
is not presumed to be prejudicial; rather, a defendant has
the burden of showing that the error affected a substantial
right. State v. Nguyen, 

, 

(2018) (“If there is little likelihood that the error affected
the verdict, we will not reverse on the basis of that error.”).
In determining whether a defendant has met that burden,
we consider, among other things, “whether the evidence was
cumulative of other evidence admitted without objection,
which includes assessing any difference in the quality of the
erroneously admitted or excluded evidence as compared to
the other evidence on the same issue.” State v. Simon, 

, 

 (2018). “We also consider how
the case was tried and the extent to which the disputed evidence was or was not emphasized by the parties and central
to their theories of the case.” 

 In assessing harmlessness,
“[w]e 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, 

, 

(2021) (internal quotation marks omitted). Stated another
way, we do not “usurp the role of the factfinder and determine if defendant is guilty or reweigh the evidence.” 

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         In this case, the state produced no physical evidence
of defendant’s alleged conduct, and there were no witnesses
to the incident other than the Uber driver and defendant
himself. In large part, therefore, the outcome of this case
hinged on the jury’s assessment of the relative credibility of
those two individuals. And in its closing argument, the state
emphasized Taylor’s testimony when asking the jury to view
defendant’s demeanor as an indication of his guilt. Under
those circumstances, we cannot conclude that the erroneous
admission of Taylor’s opinion regarding defendant’s denial
had little likelihood of affecting the verdict. Accordingly, we
reverse and remand for further proceedings.
        Reversed and remanded.