Argued and Submitted March 25, 2014.
Lane County Circuit Court. 211201203. Mustafa T. Kasubhai, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[270 Or.App. 196] HADLOCK, J.
After a jury trial, defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, resisting arrest, ORS 162.315, interfering with a peace officer, ORS 162.247, harassment, ORS 166.065, and refusing an intoxicant test, ORS 813.095. The latter four convictions arose from defendant's interactions with Springfield police officer Burke after the officer told defendant that she was under arrest for DUII. At defendant's trial, another Springfield police officer, Douglas, testified about the events surrounding defendant's arrest; during that testimony, Douglas stated that he trusts Burke. On appeal, defendant argues that Douglas's statement was inadmissible " vouching" evidence and the trial court erred in admitting it. We conclude that any error was harmless and, therefore, affirm.
" [O]ne witness may not give an opinion on whether he or she believes another witness is telling the truth." State v. Lupoli, 348 Or. 346, 357, 234 P.3d 117 (2010). That principle requires courts to exclude a witness's statement " that he or she believes another witness, or that the other witness is honest or truthful," id.; the principle also requires courts to exclude less overtly vouching statements that are " tantamount to the same thing." State v. Milbradt, 305 Or. 621, 630, 756 P.2d 620 (1988). In this case, defendant contends that vouching occurred when Douglas testified as follows about defendant's conduct while Burke was searching her:
" [PROSECUTOR:] Okay. At some point during that search did you observe the defendant put her hands on Officer Burke's utility belt?
" [DOUGLAS:] I was concentrating on restraining her. I mean, she was flailing and--she had handcuffs on so her hands were behind her back, but, you know, I'm concentrating on holding her and restraining her against the car so Officer Burke can effectively search her.
" So I didn't necessarily see her put her hands on the belt, but I could hear Officer Burke yelling, 'Get your hands off of me.' And I trust Officer Burke, so."
Defendant objected at that point and asserted that Douglas was " vouching." The trial court overruled the objection.
[270 Or.App. 197] Defendant's single assignment of error on appeal challenges that evidentiary ruling. In defendant's view, Douglas's statement that he trusted Burke was an impermissible comment on Burke's truthfulness. We need not address that argument, however, because we conclude that, even if the trial court erred in admitting Douglas's testimony, the error was harmless.
We " must affirm a judgment, despite any error committed at trial, if, after considering all the matters submitted, [we are] of the opinion that the judgment 'was such as should have been rendered in the case.'" State v. Davis, 336 Or. 19, 28, 77 P.3d 1111 (2003) (quoting Or. Const, Art VII (Amended), § 3). That depends on " a single inquiry: Is there little likelihood that the particular error affected the verdict?" Id. at 32.
" [A] variety of considerations may properly inform that 'single inquiry,' including 'the nature of the error that occurred below' and the 'context of the legal error.' [In Davis, t]he court noted, for example, that the erroneous exclusion or admission of evidence would be harmless 'if the particular issue to which the error pertains has ...