Argued and Submitted May 29, 2014
Multnomah County Circuit Court. 130242497. Adrienne C. Nelson, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.
[268 Or.App. 610] DUNCAN, P. J.
In this criminal case, defendant appeals his conviction for second-degree criminal mischief, as defined by ORS 164.354(1)(b), asserting that the trial court erred by admitting evidence in violation of the " best evidence" rule, OEC 1002, which, as relevant here, provides that, " [t]o prove the content of a * * * recording * * *, the original * * * recording is required[.]"  The state concedes that the trial court erred but argues that the error was harmless. We agree with the parties that the trial court erred, and we conclude that, because the erroneously admitted evidence was the state's strongest evidence regarding the central factual issue in the case, the error was not harmless. Therefore, we reverse and remand.
Because the dispositive issue in this case is whether the erroneous admission of evidence was harmless, we begin by describing the procedural facts and the evidence and arguments the parties presented at trial. The state charged defendant with second-degree criminal mischief for damaging the window of a Tri-Met MAX train. There are two ways a person can commit second-degree criminal mischief: by recklessly damaging property of another in an amount exceeding $500 or by intentionally damaging the property of another. Initially, the state charged defendant with " recklessly damag[ing], in the amount exceeding five hundred dollars, the property of Tri[-M]et[.]" On the day of the trial, the state moved to amend the information to charge defendant with " intentionally [damaging] the property of Tri[-]Met." The state made the motion to amend the information because the damage to the window did not exceed [268 Or.App. 611] $500. Defendant objected to the amendment, arguing that the amendment was a substantive change. The trial court overruled defendant's objection, granted the state's motion, and made the requested amendment to the information by interlineation. Thus, at trial, the state had to prove that defendant intentionally damaged the window.
Defendant waived his right to a jury, and the state tried its case to the court. As framed by the parties' opening statements, the state's evidence, and the parties' closing
arguments, the issue at trial was whether defendant intentionally damaged the window. There was no dispute that defendant had damaged the window; the only dispute was whether he had done so intentionally.
As its only witness, the state called Bowen, the transit officer who investigated the incident. Bowen testified that, on the night of the incident, he and two other transit officers boarded a MAX train to check whether passengers had paid their fares. Defendant was riding the train with a group of his friends. Although defendant had paid his fare, one of his friends, Gonzalez, had not, and the officers asked Gonzalez to exit the train to pay the fare in lieu of receiving a citation. Defendant, Gonzalez, and another companion exited the train while the rest of the group remained onboard. The train began to leave before defendant and the others could reboard.
As the train was pulling away, Bowen heard a loud bang against the side of the train, but did not see what caused the noise. Bowen noticed a spider web crack in the window that was approximately one and a half feet in diameter. Later that night, Bowen viewed the platform surveillance video ...