State v. Thompson

"Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling." State v. Davis, 336 Or 19, 32 (2003).

Defendant was convicted of first-degree robbery, unlawful use of a weapon, and identity theft. On appeal, Defendant assigned error to the court’s denial of (1) a motion to exclude evidence from a seized cell phone and (2) a demurrer of the robbery charge. First, Defendant argued that the police search and seizure of his phone was unreasonable because the search occurred without a warrant. See Or Const, Art I, §9. The State argued that the search was harmless error. Harmless error means that, even if the lower court erred, the error did not affect the outcome and thus is not sufficient to overturn a conviction. See Or Const, Art 7, §3. "Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling." State v. Davis, 336 Or 19, 32 (2003). Here, the Court found that the search did not affect the outcome because the phone was neither admitted into evidence nor produced incriminating derivative evidence. Second, Defendant argued that he was entitled to demur the robbery charge because the State amended the indictment language without knowledge of the jury. The State argued that the objection was moot because Defendant waived jury presentment in order for charges to have the same case number. The Court found that the waiver meant that Defendant was “instrumental in bringing about” the error. State v. Kammeyer, 226 Or App 210, 214 (2009). Therefore, the Court held that reversal was not appropriate. Affirmed.