State v. Zaldana-Mendoza

"[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. Scott, 265 Or App 542, 335 P3d 1283 (2014).

Defendant appealed from a judgment of conviction for burglary, sexual abuse, and unlawful sexual penetration. Defendant assigned error to the trial court's decision to exclude his testimony under the rape shield statute, OEC 412. On appeal, Defendant argued the evidence that showed he and A had consensual sex days before the incident was admissible under OEC 412 and by excluding the evidence, Defendant's right to a jury trial was violated. In response, the State argued that Defendant failed to preserve the argument that his constitutional rights to a jury trial were violated. Additionally, the State argued even if there was an error, it was harmless. "[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. Scott, 265 Or App 542, 335 P3d 1283 (2014). The Court held Defendant's testimony would require the Court to make additional determinations on the OEC 412 issues, so a new trial would be necessary. Reversed and remanded.