State v. Leinweber

No. 685              September 25, 2024                     257

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
             ROBERT MARTIN LEINWEBER,
                 Defendant-Appellant.
              Umatilla County Circuit Court
                  CR150847; A179163

   Daniel J. Hill, Judge.
   Submitted August 29, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
   TOOKEY, P. J.
   Affirmed.
258                                                   State v. Leinweber

             TOOKEY, P. J.
         Defendant appeals a judgment of conviction, after a
jury trial, for one count of driving while under the influence
of intoxicants (DUII), ORS 813.010. He raises one assignment of error, in which he contends that the trial court erred
in admitting parts of a police report as a recorded recollection under the hearsay exception in OEC 803(5),1 and that
that error was not harmless. The state concedes that the
trial court erred in admitting the report but argues that that
error was harmless. We agree with and accept the state’s
concession. But we also conclude that the erroneous admission of the evidence was unlikely to have affected the verdict
and, therefore, was harmless. Consequently, we affirm.
         This case arises from a 2015 incident in which
defendant struck the rear bumper of another car with his
truck, agreed to perform field sobriety tests (FSTs) at the
scene, and was arrested for DUII. In a pretrial hearing
and during trial, defendant objected to the admission of the
police report made by the responding officer as a recorded
recollection under the hearsay exception in OEC 803(5).
That report, although written within two days of the incident, contained edits made by the officer’s sergeant that the
officer did not adopt at a time when the incident was fresh
in his memory. Over defendant’s objection, the trial court
admitted portions of the report that described defendant’s
performance of FSTs.
         On appeal, defendant challenges the trial court’s
admission of the report under OEC 803(5), arguing that the
report did not have the “indicia of reliability” of a recorded
recollection, because the state did not prove either that the

   1
       OEC 803(5) provides:
       “The following are not excluded by ORS 40.455, even though the declarant is available as a witness:
         “…
        “A memorandum or record concerning a matter about which a witness
   once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by
   the witness when the matter was fresh in the memory of the witness and to
   reflect that knowledge correctly. If admitted, the memorandum or record
   may be read into evidence but may not itself be received as an exhibit unless
   offered by an adverse party.”
Nonprecedential Memo Op: 

 (2024)             259

officer had adopted the edited report within the necessary
time frame or that the edited report correctly reflected the
officer’s recollection of the incident. See State v. Miller, 

, 

 (2017) (explaining that hearsay evidence that is a recorded recollection has “indicia of
reliability” that make it admissible). The state concedes
that the trial court erred in admitting the edited report. As
noted above, we agree with and accept that concession.
         Defendant further contends that the error was not
harmless, because the evidence in the report “went toward
the centrally disputed issue at trial”; “was qualitatively different from the state’s other evidence of intoxication”; and
“the case was close.” The state, however, maintains that the
error was harmless, because the evidence in the report was
cumulative of and not substantially different from other
evidence presented at trial pertaining to the same issue—
whether defendant was intoxicated—and because the state
did not rely on the report in presenting its case to the jury.
         “Evidentiary error does not require reversal if it
is harmless—that is, if it had little likelihood of affecting
the verdict.” State v. Edmonds, 

, 

 (2019) (internal quotation marks omitted). “In assessing whether erroneously admitted … evidence affected the
verdict, we consider the nature of the evidence in the context
of the trial as a whole.” State v. Simon, 

, 

 (2018), rev den, 

 (2019). That
context includes “whether the evidence was cumulative of
other evidence admitted”; whether the evidence was different in “quality” from “other evidence on the same issue”; and
“the extent to which the disputed evidence was or was not
emphasized by the parties and central to their theories of
the case.” 

         Here, we have reviewed the report “in the context of
the trial as a whole,” 

 and conclude that the trial court’s
error in admitting the report had little likelihood of affecting the verdict. The admitted parts of the report describe
defendant’s physical presentation and conduct, which the
jury then observed in the officer’s body camera video, which
was also admitted into evidence in the trial court: The
body camera video reflects that the officer explained and
260                                       State v. Leinweber

demonstrated each FST for defendant; defendant was not
able to follow instructions; and defendant struggled with
coordination and balance while performing the tests. The
information in the report was cumulative of and not qualitatively different from the evidence in the body camera video
related to defendant’s physical presentation and conduct.
         In reaching our conclusion, we also note that the
state did not mention the report in its closing argument.
Instead, the state relied on the body camera video, as well as
the officer’s testimony, to support its argument that defendant had been intoxicated while driving. Thus, we do not
understand the report to have been central to the state’s
case against defendant.
         In sum, the trial court erred as a matter of law in
admitting the report as a recorded recollection under OEC
803(5). But “in the context of the trial as a whole,” Simon,

, that error was unlikely to have affected
the verdict.
        Affirmed.