State v. Partain

“Evidentiary error is not presumed to be prejudicial, OEC 103(1), and we will affirm despite an evidentiary error if there is ‘little likelihood that the particular error affected the verdict.’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

Defendant appealed a conviction of Theft in the Second Degree. Defendant assigned error to the trial court’s ruling which prohibited Defendant from vouching for his own testimony. On appeal, Defendant argued that since his credibility was the central issue at trial, preventing his ability to state “I’m not lying” at the end of his testimony likely affected the verdict. In response, the State concedes that the prohibition against vouching does not extend to a witness commenting on his credibility, however, the State argued that this error was harmless. “Evidentiary error is not presumed to be prejudicial, OEC 103(1), and we will affirm despite an evidentiary error if there is ‘little likelihood that the particular error affected the verdict.’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The Court held that the error was harmless because, in order to testify, defendants are required to take an oath to testify truthfully, and therefore, whether the Defendant stated “I’m not lying” at the end of a testimony is inconsequential. The Court also found that it is unlikely, given the video evidence provided, that the trial court’s determination of Defendant’s credibility would have been affected had Defendant been able to say “I’m not lying.” Affirmed.