Defendant appeals a judgment of conviction for indecent exposure, PCC 14A.40.030.
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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 officers statement provided relevant context for defendants statements, and (3) even if the trial court did err in admitting the officers 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 Taylors report and testimony, defendant maintained a flat affect throughout Taylors 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 didnt, 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 Taylors testimony as to how she would have acted under the circumstances. According to defendant, Taylors testimony as to what an appropriate reaction might be effectively implied that defendant “must be guilty because he didnt act in a way an innocent person would act[.]” In defendants view, Taylors opinion was simply not relevant. The state argued that Taylors 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 defendants 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 states preservation argument first, we conclude that defendants pretrial motion to exclude evidence adequately preserved the issue that he raises on appeal. Although defendants argument to the trial court focused on Taylors opinion about defendants responses rather than Taylors 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 defendants argument to have referenced both. As a result, defendants argument at trial satisfied the purposes of preservation. See, e.g., State v. Pitt, 352 Or. 566, 574, 293 P.3d 1002 (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 courts relevance rulings for errors of law. State v. Titus, 328 Or. 475, 481, 982 P.2d 1133 (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. Davis, 351 Or. 35, 48, 261 P.3d 1197 (2011). Nonetheless, we conclude that the disputed evidence was not relevant for any purpose that the state identified in response to defendants 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 Taylors 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
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, the opinion itself must be relevant. And a witnesss opinion as to whether another person is being truthful is not relevant to prove that that the persons statement is, in fact, true or false. See State v. Chandler, 360 Or. 323, 334, 380 P.3d 932 (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 Taylors statement did not express an opinion regarding the credibility of defendants 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 defendants motion.
As noted, the state does advance a new argument on appeal in support of the trial courts ruling. According to the state, Taylors testimony provided relevant context regarding her interview of defendant. See id., 360 Or. at 335, 380 P.3d 932 (discussing permissible use of an officers opinion that a suspect is not being truthful as relevant context). Whether or 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 courts ruling was “right for the wrong reason.” See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001). It is the states 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, 272 Or. App. 192, 199, 355 P.3d 181 (2015) (discussing Outdoor Media Dimensions Inc. and requirements for affirmance on an alternative basis). Accordingly, we do not further consider the states newly advanced relevance argument.
The states final argument in support of affirmance is that any error was harmless. When deciding whether a trial courts erroneous admission of evidence was harmless, we review all pertinent portions of the record. State v. Goff, 258 Or. App. 757, 765, 311 P.3d 916 (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, 293 Or. App. 492, 498, 429 P.3d 410 (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, 294 Or. App. 840, 849, 433 P.3d 385 (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.” Id. 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, 310 Or. App. 62, 67, 483 P.3d 1232 (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.” Id.
In this case, the state produced no physical evidence of defendants 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 jurys assessment of the relative credibility of those two individuals. And in its closing argument, the state emphasized Taylors testimony when asking the jury to view defendants demeanor as an indication of his guilt. Under those circumstances, we cannot conclude that the erroneous admission of Taylors opinion regarding defendants denial had little likelihood of affecting the verdict. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
FOOTNOTES
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. The state charged defendant with that offense under the municipal code for the City of Portland, which we abbreviate as PCC.
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. 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.”
DeHOOG, J.