State v. Richen

Based on York v. Bailey, 159 Or App 341, 347-48, 976 P2d 1181, rev den, 329 Or 287 (1999), modification of a judgment on a basis of evidentiary error requires affirmatively established prejudice in the record; without that record, no reversal will occur.

Defendant appealed a conviction for misdemeanor driving under the influence of intoxicants and reckless driving.  Defendant assigned error to the court's ruling excluding witnesses and to the denial of a request to reconsider. Defendant argued that the judge in the trial was asked to rule that he could call his witnesses if the state did not move to exclude them at that moment.  The State argued that the defendant "did not preserve any challenge" to the judge's rule and did not provide an adequate record to allow review of the ruling. Based on York v. Bailey, 159 Or App 341, 347-48, 976 P2d 1181, rev den, 329 Or 287 (1999), modification of a judgment based on evidentiary error requires affirmatively established prejudice in the record; without that record, no reversal will occur.  The Court held that while the defendant's failure to raise the issue earlier was reasonable and preserved the issue, the errors preserved did not warrant reversal. Affirmed.