State v. Davis

Filed: September 22, 2011.

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,
Petitioner on Review,
v.

TERRY DEAN DAVIS,
Respondent on Review.

(CC 02C45953, CA A134216, SC S058641)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 7, 2011.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for
petitioner on review. Rolf C. Moan, Assistant Attorney General, filed the briefs. With
him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams,
Solicitor General.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent on
review.

WALTERS, J.

The decision of the Court of Appeals is reversed in part and affirmed in part. The
judgment of the circuit court is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.

*Appeal from Marion County Circuit Court, Susan M. Tripp, Judge. 235 Or App
327, 230 P3d 987 (2010).
 1 WALTERS, J.

2 In this criminal case, the state argues that the Court of Appeals erred in

3 reversing one of the trial court's rulings excluding certain evidence. Defendant, in

4 response, challenges two of the trial court's other evidentiary rulings excluding evidence,

5 which the Court of Appeals had affirmed.1 Defendant was charged with murder and

6 manslaughter based on allegations that he shook the victim, his 15-month-old daughter,

7 and inflicted fatal abdominal and brain injuries on the night that she died. Defendant

8 contended that the victim's autopsy revealed that the victim had been injured at least

9 several days before the night of her death and that nothing that he intentionally did to the

10 victim on that evening caused the catastrophic brain hemorrhage that killed her. As

11 relevant to this case, defendant attempted to introduce evidence that the victim had been

12 subjected to physical abuse throughout her short life; that a friend of the victim's mother

13 saw the victim four days before her death and concluded that the victim looked like the

14 friend's own daughter, who had suffered a brain injury as a baby; and that that friend

15 relayed that conclusion to the victim's mother. In each instance, the trial court excluded

16 the evidence. Defendant was convicted of one count of murder and one count of

17 manslaughter.

18 Defendant appealed his convictions to the Court of Appeals and that court

1
Under ORAP 9.10(1), a party filing a response to a petition for review may
include a contingent request for review of any question properly before the Court of
Appeals.

1
 1 reversed the judgment of the trial court, concluding that the trial court erred in excluding

2 testimony that, four days before the child's death, a friend told the victim's mother that the

3 victim resembled the friend's child, who had suffered a brain injury. State v. Davis, 235

4 Or App 327, 230 P3d 987 (2010). However, the Court of Appeals affirmed without

5 discussion the trial court's rulings as to the evidence of the victim's prior physical abuse

6 and the statement of the mother's friend that, four days before she died, the victim

7 resembled the friend's own child, who had suffered a brain injury. Id. We granted the

8 state's petition for review and, for the reasons that follow, now affirm in part and reverse

9 in part the decision of the Court of Appeals,

10 Except where noted, the following facts are undisputed. Defendant's

11 daughter, the victim in this case, was 15 months old when she died on June 30, 2002.

12 The victim lived with her mother, Ecklund, and several of Ecklund's other children.

13 Ecklund and defendant were not married and lived apart. The victim stayed with

14 defendant overnight at his home from time to time.

15 The Court of Appeals described the events of the days preceding the child's

16 death as follows:

17 "Ecklund, the victim, and Ecklund's other children vacationed in
18 Mexico and California in the middle of June 2002. During the trip, the
19 victim fell off a motel bed. Ecklund told police later that she 'couldn't get
20 there fast enough' and that the victim hit the 'top of her head' in the fall.
21 Ecklund testified, however, that the victim exhibited no signs of distress
22 after the fall.

23 "Shortly after the family's return to Oregon, on June 24, the victim
24 had an overnight visit with defendant. She returned to Ecklund's care the
25 following day. On June 25, Ecklund noticed that the victim was not feeling
26 well; she was vomiting and her eyes were 'glassy.' Ecklund asked her

2
 1 friend Payne, a registered nurse, to stop by and examine the victim.[2]
2 Payne did so and noticed that the victim was unresponsive. The trial court
3 excluded as hearsay Payne's testimony that she had told Ecklund that the
4 victim's condition looked just like that of Payne's daughter when she had
5 suffered a traumatic brain injury years before. Payne tested the victim for
6 dehydration by pinching the victim's skin and noticed that the victim's eyes
7 were glassy and somewhat 'rolled up' in her head; Payne recommended that
8 Ecklund have the victim examined by a doctor. During her testimony at
9 trial, Ecklund did not recall Payne's visit or recommendation.

10 "Ecklund took the victim to Santiam Hospital a few hours after
11 Payne's examination. There, the victim was evaluated, treated for
12 dehydration and a viral infection, and given intravenous fluids. Her
13 symptoms resolved, and the victim returned home the next morning.

14 "Defendant testified that, on June 29, around 7:00 p.m., he picked up
15 the victim for an overnight visit. The victim was fussing and crying when
16 defendant arrived, but showed no other signs of illness or injury. Once they
17 arrived at defendant's home, defendant gave the victim a bath and changed
18 her diaper. He then began doing some household chores while the victim,
19 another child of defendant, and defendant's small dog played together in the
20 garage. When defendant returned to the garage, he found the victim lying
21 on her side on the floor. Defendant testified that the other child told him
22 that the small dog had knocked over the victim. Defendant picked up the
23 victim, but decided that she seemed unhurt.

24 "Later that evening, defendant ordered a pizza, which was delivered
25 after 10:00 p.m. The victim was uninterested in the pizza, but ate a few
26 pieces of pineapple. The victim spat up or vomited, and defendant testified
27 that he noticed that the victim had a blank affect and had become limp. He
28 called Ecklund at 10:58 p.m. to tell her that something was wrong with the
29 victim and asked Ecklund to come to his house to help. A few minutes
30 later, when Ecklund arrived, she found the victim limp and unresponsive
31 and told defendant to call 9-1-1. Defendant made the call and told the
32 dispatcher that the victim had recently eaten pineapple and spat up and that
33 he was concerned about a possible allergic reaction.

34 "Paramedics arrived at defendant's home around 11:00 p.m. They

2
Ecklund testified that she did not recall calling Payne, Payne coming over
to her home to look at the victim, or anything Payne may have said to her that day.

3
 1 found the victim lying on the floor with defendant, Ecklund, and
2 defendant's other child nearby. Defendant told the paramedics that the
3 victim had not suffered any trauma, but had been sitting on the couch and
4 went suddenly limp. The paramedics found the victim unresponsive but
5 breathing, with a body temperature of 92.7 degrees. The paramedics also
6 noticed a small bruise on her forehead and some bruising on her abdomen.
7 The paramedics testified that Ecklund did not tell them about the victim's
8 visit to Santiam Hospital several days previously. The paramedics decided
9 to transport the victim to Salem Hospital after determining that she rated
10 extremely low on a scale measuring brain functioning."

11 Davis, 235 Or App at 330-31.

12 Defendant and Ecklund followed the ambulance in a car to Salem Hospital.

13 At Salem Hospital, doctors questioned Ecklund and defendant. Defendant told the

14 emergency room physician that the child had not suffered any trauma or injury that

15 evening, and had not experienced any vomiting or other illness. Ecklund did not mention

16 her discussion with Payne, the victim's visit to the hospital four days earlier, or the

17 victim's treatment for dehydration. Testing revealed that the victim had a subdural

18 hematoma3 and needed surgery to relieve the resulting pressure on the brain. Because

19 Salem Hospital does not have pediatric neurosurgeons on staff, the treating physicians

20 decided to transport the victim to Oregon Health Sciences University Hospital (OHSU) in

21 Portland. At OHSU, doctors performed surgery to relieve the pressure on the victim's

22 brain. Subsequent testing showed that the victim's brain was no longer functioning, and

23 she was taken off life support on June 30, 2002.

3
A subdural hematoma is bleeding under the dura, the membrane that
encases the brain.

4
 1 A medical examiner performed an autopsy the next day. The autopsy

2 revealed, among other things, that the victim had about a quart and a half of blood in her

3 abdomen, which was due to tear in the mesentery, the lining of the abdominal cavity that

4 connects to parts of the small intestine. In addition, the victim's brain was swollen, the

5 subdural hematoma on the right side of the victim's head had been removed by the

6 surgeons who had tried to save her, and the victim had retinal hemorrhaging and bleeding

7 at the base of the optic nerve. The medical examiner later testified that the retinal

8 hemorrhage and brain injury were caused by acceleration and deceleration of the victim's

9 head, which would have been caused either by violent shaking, a violent shake followed

10 by a slam, or a single slam. The medical examiner also stated that the injuries were

11 "acute" and had to have occurred within 24 to 36 hours of the victim's death; according to

12 him, the microscopic evidence was not consistent with an older abdominal injury.

13 Finally, he concluded that the cause of the victim's death was homicide.

14 In addition to those findings related to the cause of death, the autopsy and a

15 radiology test revealed that the victim had suffered other injuries in the weeks and

16 months before her death. Among other things, the victim had healing fractures to three

17 ribs and a healing fracture on the femur, as well as possible old fractures on her tibia and

18 fibula.

19 Defendant was initially charged in 2002 with various crimes arising out of

20 the victim's death, including murder by abuse and manslaughter. To support the murder-

21 by-abuse charge, the state relied on, among other things, the healing leg and rib fractures

22 and an expert's opinion that the victim had suffered child abuse. The case went to trial in

5
 1 2003. At that trial, the victim's entire medical history was admitted into evidence. The

2 jury found defendant guilty of manslaughter but could not reach a decision on the

3 remaining charges, including murder by abuse. After that trial ended, the trial court

4 declared a mistrial due to juror misconduct in that case. Defendant was reindicted in

5 2005; the state dropped the murder by abuse charge. Instead, at the criminal trial at issue

6 here, the state's theory of the case was that the victim died on June 30, 2002, due to head

7 and abdominal injuries that defendant intentionally inflicted on the victim on a particular

8 date -- on or between June 29 and 30, 2002.

9 At a pretrial hearing about a year before the second trial, the trial court

10 informed the parties that it intended to try a narrow case, given the new charges, and

11 stated that defendant had agreed that, at that point, he did not intend to offer evidence of

12 the victim's prior physical abuse unless he could establish that that physical abuse was

13 directly related to the cause of the victim's death. However, at a pre-trial hearing closer

14 to the trial date, defendant told the trial court that he intended to argue that evidence of

15 the victim's prior physical abuse was relevant for a different purpose. Defendant reported

16 that his experts had reached the conclusion that the fatal abdominal and brain injuries had

17 been inflicted not on June 29 or 30 but at least several days before the victim's death, and

18 that the victim died on June 30 as a result of a rebleed of the earlier injuries. Defendant

19 told the trial court that, in reaching that conclusion, the experts had reviewed and relied

20 on the victim's medical record, including the autopsy and radiologist's reports showing

21 healing rib and leg fractures, demonstrating that the victim had been subjected to physical

22 abuse throughout her life. Evidence of that abuse, defendant contended, was admissible

6
 1 to explain the basis for the experts' conclusions.

2 The state objected, arguing that the parties had agreed not to delve into the

3 details of the victim's prior physical abuse, and that the defense experts could testify

4 about their conclusions as to when the injuries that caused the victim's death occurred

5 without talking about all the details that they had relied on to reach them. Further,

6 although the state agreed that the victim had been abused, the state argued that, because it

7 was not clear when the victim was abused or who had abused her, evidence of the prior

8 abuse would be confusing and misleading to the jury and would distract the jury from the

9 real issues in the case -- what injury caused the victim's death and when it happened.

10 The trial court excluded the evidence of the prior physical abuse. The trial

11 court first explained that that evidence was not relevant because the defense could not tie

12 the prior abuse, including the healing fractures, to the abdominal and brain injuries that

13 caused the victim's death. Further, the court explained, even if evidence of prior physical

14 abuse were relevant, it would be inadmissible under OEC 403,4 because the probative

15 value of the prior abuse was outweighed by the danger of confusion of the issues for the

16 jury. The court also concluded that the evidence of the abuse was inadmissible under

4
OEC 403 provides:

"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or
needless presentation of cumulative evidence."

7
 1 OEC 404(3),5 because there was no indication of who had inflicted the prior injuries or

2 whether the prior injuries were the result of an improper act. And, even if there were, the

3 court stated, the evidence would not be admissible to show that the person who inflicted

4 the injuries that led to the victim's death acted in conformity with his or her prior conduct,

5 and there was no suggestion that defendant was offering the evidence for any of the

6 permissible reasons under OEC 404(3): to show motive, opportunity, intent, preparation,

7 plan, knowledge, identity, or lack of mistake or accident. Finally, the court ruled that

8 none of the evidence of prior injuries was admissible to support the opinions of either the

9 state's or defendant's experts, unless the experts could tie a particular past injury to the

10 cause of the victim's death:

11 "They are not going to say that this was a battered child, and that's not
12 going to come up in their diagnosis, they're not going to talk about that in
13 their testimony, they're not going to talk about other injuries unless they can
14 tie them to the death."6

15 During the trial, various state witnesses testified that the victim appeared

5
OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show that the person acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident."
6
The court also ruled that evidence of any particular hospital visit or medial
contact may be admissible to the extent that the defense could "tie it to your rebleed
theory or * * * to your abdominal injury theory." At trial, defendant did not attempt to
show that the victim died as a direct result of any of the particular injuries evidenced in
the victim's medical records.

8
 1 normal during the day before defendant picked her up from her mother's home -- that she

2 ate and drank normally, and that she did not seem to be in any pain. The state presented

3 the testimony of the doctors who treated the victim, the medical examiner, and other

4 experts who viewed the victim's records, to the effect that the abdominal and brain

5 injuries that the victim suffered were not accidental and that it would have taken severe

6 blunt force trauma to inflict them.7 Those witnesses also testified that the abdominal

7 injury would have been quite painful, the victim would not have been able to eat

8 afterward, and that the head injury would have produced immediate and obvious

9 symptoms -- the victim would have lost coordination and she would not have been able to

10 eat or swallow. Those facts led the medical examiner to conclude that the abdominal

11 injury occurred after the victim ate pieces of pineapple on the pizza that was delivered

12 after 10:00 pm on June 29 and that the head injury occurred at some time thereafter.8

13 As noted, defendant's theory of the case was that the victim's injuries were

14 intentionally inflicted, but that the injuries occurred at least several days before the

15 evening of her death. Defendant's experts testified that the abdominal injury showed

16 microscopic signs of healing that would not have been evident unless the injury were at

7
The medical examiner testified that it was possible that the abdominal
injury occurred accidentally, from, for example, falling off a bed or couch onto a
protruding toy.
8
The radiologist at Salem Hospital agreed that there had been a recent brain
injury, but he also testified that there might have been an additional, existing subdural
hematoma, which could have been up to three weeks old.

9
 1 least several days old. Moreover, those experts testified that CT scans and x-rays showed

2 evidence of an older trauma to the dura around the brain and that photos taken at the

3 autopsy revealed that clotting had begun to occur there. In that regard, one expert

4 testified that the brain injury was at least five days old. Defense witnesses opined that the

5 abdominal injury worsened over time, with the mesentery rupturing and the bleeding

6 consequently accelerating, causing coagulopathy, or an inability of the body to clot

7 properly. That, in turn, caused the existing subdural hematoma to rebleed, leading,

8 ultimately, to the victim's death.

9 Defendant's experts testified that the child could have appeared normal after

10 suffering the earlier abdominal injury and the brain injury, including eating, drinking, and

11 eliminating normally. In addition, witnesses stated that the abdominal injury might not

12 have caused constant pain, after the initial blow, because the mesentery tear was in the

13 back of the abdomen, and, if the mesentery had ruptured on the night of the victim's

14 death, the victim would have experienced unquenchable thirst, which would have driven

15 her to eat the pineapple from the pizza. Finally, one of defendant's witnesses testified

16 that the early symptoms of a deteriorating abdominal trauma were exactly the same as the

17 symptoms with which the victim presented at Santiam Hospital four days earlier, on June

18 25, leading that expert to conclude that the victim already had the abdominal injury at

19 that time.

20 Defendant also attempted to offer testimony by Ecklund's friend, Payne,

21 that, on June 25, Payne thought that the victim looked like her own daughter, who had

22 suffered a brain injury when she was a child, when she had pressure on the brain or was

10
 1 dehydrated, and that Payne had relayed that belief to Ecklund. Defendant made an offer

2 of proof that Payne would have testified that she had known Ecklund for about 10 years

3 and that, on June 25, Ecklund called her over to her house to look at the victim, who was

4 not well. In the offer of proof, Payne testified that, on that afternoon, the victim was

5 lying on a cushion on the floor, lethargic. She described the victim as looking off to one

6 side, her eyes rolled back to the right and bulging and her pupils enlarged. Payne

7 testified that she thought that the victim resembled her own daughter when she was the

8 victim's age, when her daughter was suffering from swelling in the brain or was

9 dehydrated. Payne explained that her daughter, at three months of age, had suffered a

10 traumatic brain injury as a result of a car accident and had been hospitalized many times

11 and had undergone many brain surgeries. Payne acknowledged that she could not tell

12 whether her daughter was suffering from brain swelling or dehydration when her child's

13 eyes were bulging, rolled back, and non-reactive, but she recognized that those symptoms

14 were triggered by one of the two conditions. In addition, Payne testified that she told

15 Ecklund that the victim reminded her of her daughter when she was that age, and she

16 recommended that Ecklund take the victim to the hospital to be examined. Finally, Payne

17 testified that Ecklund knew that her daughter had been in a car accident as an infant and

18 had suffered a serious brain injury.

19 The trial court ruled that Payne could testify that she came to Ecklund's

20 house as a family friend at around 4:00 in the afternoon, could describe how the victim

21 looked when Payne saw her that afternoon, and could testify that she told Ecklund that

22 she thought that the victim might be dehydrated. However, the court excluded the

11
 1 remainder of Payne's proffered testimony. In particular, the court ruled that Payne's

2 statements to Ecklund that the victim reminded her of her daughter were hearsay, and, to

3 the extent that that testimony might have been admissible nonetheless to show its effect

4 on the listener, the court found that it was unclear what Ecklund might have understood

5 Payne to mean. In addition, the court ruled that any testimony regarding Payne's

6 daughter was irrelevant. Finally, it rejected defendant's argument that Payne's statement

7 that the victim looked like her daughter when her daughter's brain was swelling was

8 admissible as lay opinion testimony under OEC 701, which permits opinion testimony by

9 lay witnesses if it is rationally based on the perception of the witness and is helpful to the

10 determination of a fact in issue.9 In that regard, the court ruled,

11 "I think that there is far too much possibility for the fact that it really was
12 speculation or conjecture or -- and she was not certain. And, for that
13 reason, I am not going to allow it in."

14 As noted, the Court of Appeals rejected without discussion defendant's

15 challenges to the trial court's rulings respecting the victim's prior injuries and hospital

9
OEC 701 provides:

"If the witness is not testifying as an expert, testimony of the witness
in the form of opinions or inferences is limited to those opinions or
inferences which are:

"(1) Rationally based on the perception of the witness; and

"(2) Helpful to a clear understanding of testimony of the witness or
the determination of a fact in issue."

12
 1 visits and Payne's lay opinion that the victim looked like she may have been suffering

2 from a brain injury on June 25. State v. Davis, 235 Or App at 334. The court, however,

3 reversed the trial court's ruling excluding Payne's testimony that she told Ecklund on June

4 25 that the victim reminded her of her daughter. In evaluating that issue, the Court of

5 Appeals began by observing that, although the trial court excluded that testimony as

6 hearsay, it was not hearsay, because it was not offered to prove the truth of the matter

7 asserted, viz., that the victim reminded Payne of her daughter. Id. at 335. Rather, it was

8 offered to show that Payne told Ecklund, in effect, that the victim looked like she was

9 suffering from a brain injury and that Ecklund did not report that concern to hospital staff

10 at Santiam Hospital later that day, or to the paramedics who were called to defendant's

11 house on June 29, or to any of the doctors at Salem Hospital or OHSU who treated the

12 victim on the night of her death. Defendant had argued that the victim's injuries occurred

13 several days before June 29, when the victim was not in his care, and that Ecklund knew

14 something about those injuries and had hidden that information from care providers.

15 Defendant argued that Payne's testimony supported that contention.

16 The Court of Appeals agreed with defendant. The court stated:

17 "Payne's testimony about Ecklund's knowledge of the victim's
18 potential brain injury was relevant under OEC 401. That fact had a
19 tendency to make more probable the existence of deliberate nondisclosures
20 by Ecklund of that condition to treatment providers. Those deliberate
21 nondisclosures, in turn, were of consequence to the defense theory that the
22 victim's injuries had been previously incurred. Thus, the proffered
23 evidence assists in establishing the relevance of other evidence, namely, the
24 testimony of the paramedics and emergency room doctors who said that
25 Ecklund never told them about the possibility of an earlier brain injury.
26 That evidence supports the inference that Ecklund was hiding her
27 knowledge about the victim's prior injuries. The evidence is relevant, and

13
 1 the court erred in ruling that it should be excluded."

2 Id. at 336.

3 The Court of Appeals noted that the exclusion of relevant evidence does not

4 require reversal if there is little likelihood that the error affected the verdict, that is, if the

5 error is harmless. Id. The court then characterized the proper inquiry for evaluating

6 harmlessness as follows: "where there is convincing evidence of the defendant's guilt in

7 the record as a whole, and little, if any, likelihood that the error affected the jury's verdict,

8 then the error is harmless." Id. Applying that standard to the facts of the case, the court

9 concluded that the error was not harmless:

10 "The record, in short, did not contain evidence of guilt that was so
11 substantial and convincing that evidentiary error could be presumed to be
12 harmless. Instead, the jury was required to discern whether the state's
13 evidence concerning the timing of the victim's injuries constituted proof
14 beyond a reasonable doubt of defendant's guilt, in light of the contradictory
15 scientific explanation offered by defendant's experts. Any evidence of prior
16 injury to the victim's brain might have tipped the balance in defendant's
17 favor. The evidence that Ecklund hid information suggesting an earlier
18 injury was significant."

19 Id. at 337.

20 The state seeks review of that decision, arguing that evidence of Payne's

21 statement to Ecklund on June 25 and Ecklund's reaction to that statement were not

22 offered for their truth -- that is, that the victim, in fact, had a brain injury on June 25,

23 2002 -- and, therefore, were not relevant to the crucial factual question before the jury,

24 viz., whether the victim's brain injury was inflicted on June 29, 2002. In addition, the

25 state contends that Court of Appeals misapplied the standard for harmless error; properly

26 considered, the state contends, the excluded evidence in this case was unlikely to have

14
 1 affected the verdict, and any error, therefore, was harmless.

2 Defendant counters that the Court of Appeals was correct to reverse the

3 trial court's ruling on that point. Additionally, defendant repeats his argument that the

4 trial court erred in excluding evidence of the victim's past injuries and evidence of

5 Payne's lay opinion that the victim looked on June 25 as if she were suffering from a

6 brain injury.

7 All of the parties' arguments in this court require a determination of

8 whether each piece of evidence was relevant. As this court often has stated, the relevance

9 standard for admissibility is a low bar. State v. Salas-Juarez, 349 Or 419, 427, 245 P3d

10 113 (2010); State v. Sparks, 336 Or 298, 307, 83 P3d 304 (2004). Under OEC 401,

11 "'relevant evidence' means evidence having any tendency to make the
12 existence of any fact that is of consequence to the determination of the
13 action more or less probably than it would be without the evidence."

14 That means that evidence is relevant "so long as it increases or decreases, even slightly,

15 the probability of the existence of a fact that is of consequence to the determination of the

16 action." State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999). And, as the court recently

17 stated in Salas-Juarez, "the inference that the proponent of the evidence wishes to be

18 drawn from the evidence need not be the necessary, or even the most probable, one." 349

19 Or at 428. Our review of the trial court's decision to exclude evidence on relevance

20 grounds is for errors of law. Sparks, 336 Or at 307-08.

21 Evidence Concerning Payne's Observation of the Victim

22 We turn first to the trial court's rulings concerning Payne's testimony.

23 Because the two issues are related, we consider the state's argument that the Court of

15
 1 Appeals erred in reversing the trial court's exclusion of Payne's testimony concerning

2 what she told Ecklund on June 25, 2002, together with defendant's argument that the

3 Court of Appeals erred in affirming the trial court's exclusion of Payne's lay opinion

4 testimony.

5 It is helpful to our analysis to set out the relevant part of Payne's testimony

6 from defendant's offer of proof. In response to defendant's question about what Payne

7 saw when she first arrived at Ecklund's home on June 25, Payne responded,

8 "[Payne:] Well, the thing that I observed was [the victim] was laying on
9 the floor on the pallet, down sort of in front of the couch, sort of back by a
10 coffee table, and [Ecklund] was there and she was down there by her, and
11 one of [Ecklunds's] friends, I do believe her name was Kelly, was there.
12 And [the victim] I remember laying there on her back. And as a mother of
13 somebody that's had a child that's had 15 brain surgeries, my instant
14 thought by looking at her is, Oh, my gosh, there's [Payne's daughter] when
15 she was young, when she had pressure on the brain or else she was
16 dehydrated.

17 "* * * * *

18 "She was laying there on her back with her arms sort of up and she looked
19 lucid [sic]. She was looking off to one side, and her eyes were sort of rolled
20 up to the right and they were sort of bulgy and the pupils were dilated --
21 excuse me, they were enlarged."

22 (Emphasis added.) Defendant then asked Payne to explain her daughter's injury, to put

23 her observations of the victim in context. Payne answered,

24 "[Payne:] When [Payne's daughter] was three months old, I had a car
25 wreck which caused a skull fracture. She has a shunt. Her first surgery
26 was done probably within the first two weeks of her skull fracture, and
27 before that her signs were her eyes would roll up and go up, and all I could
28 see was mainly a lot of the white part. But after her first brain surgery, we
29 ran into problems with dehydration as she was still with the bottle and she
30 didn't talk * * *. She had multiple hospitalizations for dehydration. * * *
31 [O]ne minute she would look just fine and then the next minute she was just

16
 1 lucid [sic]. * * * And of course, as [Payne's daughter] got older, it was
2 easier for me to pick up the signs of her not feeling well.

3 "[Defense Counsel:] Okay. What would those signs be?

4 "[Payne:] Some of the signs would be her eyes being bulgy and not
5 reacting, the size of her pupils not being equal, the way that she would just
6 lay around.

7 "* * * * *

8 "[Defense Counsel:] And in your taking care of your daughter * * * over
9 that period of time, did you come to understand that those very signs and
10 symptom were triggered by either brain swelling or problems that needed to
11 be relieved?

12 "[Payne:] Well, over time -- it's hard to tell because with having a shunt, if
13 you're dehydrated, the shunt is going to collapse and it's going to stick to
14 the side of the brain, and so there's no fluid in there for the shunt to go
15 across. And you think of dehydration * * *.

16 "So for me to say to look at [the victim] and say she was dehydrated
17 versus a head injury, I could not do that because it was hard for me to
18 distinguish the two because she -- my daughter always had multiple things
19 going on."

20 Later in the offer of proof, Payne also testified that she told Ecklund that the victim's

21 condition that day reminded her of her daughter. The trial court attempted to clarify

22 what, exactly, Payne had said to Ecklund:

23 "THE COURT: What I heard you say, and I -- and so I want to make sure
24 that I understand what you're saying, is that you told her that it reminds you
25 of [Payne's daughter].

26 "[PAYNE]: Correct.

27 "THE COURT: Did you say anything more than that? Did she -- when
28 you said it reminds you of [Payne's daughter], would she know what that
29 meant?

30 "[PAYNE]: Yes."

31 On redirect examination, defendant's lawyer asked Payne to elaborate on the foregoing.

17
 1 Defense counsel asked Payne whether she had shared her daughter's history with

2 Ecklund, including the facts that Payne's daughter had been in a motor vehicle accident,

3 that she had suffered a brain injury, and that she had been hospitalized many times.

4 Payne answered in the affirmative, and added that Ecklund knew that her daughter had

5 impaired intellectual and motor functioning. Payne concluded,

6 "[Payne:] I think she -- I assumed as when I said that, she reminded me of
7 [Payne's daughter], as when [Payne's daughter] was in the state of being
8 really sick."

9 As noted, with respect to Payne's testimony that she told Ecklund that the

10 victim reminded her of her own daughter, the trial court erroneously first ruled that that

11 statement was hearsay. The court then added that, even if defendant were offering the

12 statement for its effect on Ecklund,

13 "it's speculative as to what that could have meant to her. And so that, I
14 think, causes * * * the Court the concern about whether or not I should let it
15 in at all, the fact that -- that Ms. Ecklund may or may not have known what
16 that really meant. The witness' statement was that -- [']I assume that she
17 understood I meant she was really sick.['] 'Really sick' isn’t what I think
18 the defense is trying to get it in for."

19 The trial court also ruled that, "[i]f that testimony is out," then Payne's testimony

20 concerning her daughter also was inadmissible, because it was not relevant to any issue

21 before the jury. In addition, the court ruled that Payne's testimony that the victim looked

22 like she may have been suffering from a brain injury was inadmissible as lay opinion

23 under OEC 701, because Payne was not certain about her opinion that the victim might

24 have been suffering from a brain injury. At the same time, the trial court permitted Payne

25 to testify that she believed that the victim may have been suffering from dehydration.

18
 1 The court also permitted Payne to testify about her observations of the victim's condition

2 when Payne arrived at Ecklund's home on June 25.

3 The Court of Appeals reversed the trial court's ruling concerning Payne's

4 statement to Ecklund, but affirmed the ruling on Payne's lay opinion. Davis, 235 Or App

5 at 337.

6 The state argues that the Court of Appeals' decision respecting Payne's

7 statements to Ecklund is incorrect because it relies on several attenuated and cumbersome

8 inferential steps that lack a factual predicate. The state argues that, at best, one could

9 infer from Payne's statement to Ecklund that the victim reminded her of her own daughter

10 that Ecklund believed that, on June 25, the victim showed symptoms of brain injury.

11 However, the state contends, that inference does not support the further inference that, on

12 June 25, the victim in fact had a brain injury. And, in any event, the fact that Ecklund

13 believed that the victim showed symptoms of brain injury on June 25 was not relevant,

14 because it would not have helped to establish that any June 25 injury played a role in the

15 victim's death.

16 The state asserts that the indictment charged defendant with causing the

17 victim's death on or between June 29, 2002, and June 30, 2002, and, therefore, the

18 dispositive issue for the jury was whether the symptoms that the victim displayed on June

19 29 and 30 necessarily reflected fatal injuries that must have been inflicted on June 29 or

20 30, when the victim was in defendant's care. According to the state, at most, the

21 excluded statement could have established what Ecklund was told about the victim's

22 symptoms on June 25 and what Ecklund believed about those symptoms on that date; it

19
 1 would not have assisted the jury in deciding, as a medical matter, whether any June 25

2 injury contributed to the victim's death.

3 Although the trial court concluded that it was not clear what Payne's

4 statement to Ecklund that the victim reminded her of her own daughter would have meant

5 to Ecklund, the Court of Appeals paraphrased Payne's statement as "testimony about

6 Ecklund's knowledge of the victim's potential brain injury." Davis, 235 Or App at 336.

7 As is evident from our description of the state's argument to this court, the state appears

8 to accept that paraphrase as accurate. We agree. It is clear from Payne's testimony that

9 she and Ecklund had known each other for a long time, that Payne had told Ecklund

10 about her daughter's medical history, and that anyone talking to Payne's daughter would

11 recognize her intellectual and motor limitations. We think it is reasonable to infer from

12 those facts that Ecklund would have understood that, when Payne said that the victim

13 reminded her or her own daughter, she meant that the victim looked like someone with a

14 brain injury.

15 However, we also agree with the state that evidence that Ecklund was told,

16 on June 25, that her child looked like someone with a brain injury was not relevant to the

17 jury's determination whether defendant inflicted fatal injuries on June 29 or 30 or

18 whether, rather, on June 25, the victim already was suffering from the injuries that caused

19 her death a few days later. Assuming, arguendo, that, based on Payne's statement to her

20 on June 25, Ecklund had reason to fear, or even believed, that the victim was suffering

21 from a brain injury that day, we do not think that Ecklund's knowledge of that possibility

22 is relevant to the jury's determination whether the child, in fact, was then suffering from

20
 1 the injuries that ultimately killed her. It is undisputed that Ecklund took the victim to the

2 hospital that day, and that, over the course of several hours, the victim was fully

3 examined and subjected to testing to determine what was wrong with her. Ecklund's

4 "deliberate withholding" of her fear (or belief) on that day does not make it more likely

5 that the victim actually was then suffering from a brain injury. Even under the low

6 threshold for relevance, Ecklund's belief in the possibility of a brain injury on June 25

7 does not, even slightly, either increase the probability that the defense rebleed theory was

8 the correct one, or decrease the probability that the fatal injuries occurred on June 29 or

9 30, while the victim was in defendant's care.

10 The doctors who examined the victim on June 25 concluded that she was

11 dehydrated. They treated her for that condition and the victim appeared to respond

12 favorably to that treatment. Once Ecklund was informed of that medical diagnosis of her

13 daughter's condition, Ecklund had no further reason to report Payne's observations to

14 trained paramedics or emergency room doctors. It follows that nothing at all can be

15 inferred from Ecklund's failure to relay Payne's statement to those who examined the

16 victim on June 29.

17 For those reasons, we hold that the trial court did not err in excluding

18 Payne's statement that she told Ecklund that the victim reminded her of her own daughter.

19 The Court of Appeals erred in holding to the contrary.

20 We turn to the related issue: whether the trial court erred in excluding the

21 remainder of Payne's testimony, in which she explained her daughter's condition and

22 stated that the victim looked like her daughter when she was the victim's age and when

21
 1 she was suffering from her brain injury or was dehydrated. Defendant argues that that

2 testimony is admissible as lay opinion under OEC 701 and that the trial court erred in

3 excluding it. For convenience, we set out that rule again here:

4 "If the witness is not testifying as an expert, testimony of the witness
5 in the form of opinions or inferences is limited to those opinions or
6 inferences which are:

7 "(1) Rationally based on the perception of the witness; and

8 "(2) Helpful to a clear understanding of testimony of the witness or
9 the determination of a fact in issue."

10 OEC 701 provides a "liberal standard for the admissibility of lay opinion"

11 and permits a "shorthand" description of what the witness perceived, which is, in reality,

12 an opinion. State v. Lerch, 296 Or 377, 383, 677 P2d 678 (1984). As Justice Unis

13 explained in his concurring opinion in State v. Tucker, 315 Or 321, 340, 845 P2d 904

14 (1993), the requirement in subsection (1) that lay opinion must be "rationally based on

15 the perception of the witness" has two limitations. The first comes from OEC 602: the

16 witness must have personal knowledge of the facts from which the opinion or inference is

17 derived.10 The second is that

10
OEC 602 provides:

"Subject to the provisions of [OEC 703] [dealing with expert opinion
testimony], a witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but
need not, consist of the testimony of the witness."

OEC 703 provides an exception to that rule for expert testimony, which does not need to
be based on personal knowledge. That rule provides:

22
 1 "there must be a rational connection between the opinion or inference and
2 the perceived factual basis from which it derives. The rational connection
3 requirement means only that the opinion or inference advanced by the
4 witness is one which a normal person could form on the basis of observed
5 facts."

6 Id. Subsection (2) provides that, to be admissible, lay opinion must be "helpful" to the

7 jury. As this court stated in State v. Wright, 323 Or 8, 17, 913 P2d 321 (1996), "[t]he

8 concept of 'helpfulness' in OEC 701 subsumes a relevancy analysis." That is, as OEC

9 701 itself provides, lay opinion evidence is helpful only if it is relevant either to "clear

10 understanding of testimony of the witness or the determination of a fact in issue."

11 As the court explained in Lerch,

12 "[a]n essential difference between opinion testimony by a lay witness and
13 an expert witness is that the lay witness is restricted to his personal
14 perceptions while an expert witness may also testify from facts made
15 known to him at or before the hearing."

16 296 Or at 384 (internal quotation marks omitted).

17 Lay opinion is commonly admissible on a variety of topics. For example,

18 the Commentary to the Oregon Evidence Code officially approves lay opinion on the

19 following subjects: (1) the speed of an automobile, (2) the identity of a person, (3) the

20 appearance of another person, (4) the sound of footsteps, (5) footprints, (6) distance, (7)

21 uncomplicated illness or injury, and (8) apparent age. 1981 Conference Committee

"The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence."

23
 1 Commentary to the Oregon Evidence Code. In addition, Oregon case law recognizes that

2 "lay witnesses are capable of offering an opinion as to whether a person is intoxicated."

3 State v. Wright, 315 Or 124, 132, 843 P2d 436 (1992). See also State v. Clark, 286 Or

4 33, 38-40, 593 P2d 123 (1979) (lay testimony that a defendant lacked signs of

5 intoxication admissible to impeach result of chemical breath test even absent any

6 foundation laid by expert testimony). Further, a lay witness may give an opinion that a

7 stain on the floor was fecal matter. Lerch, 296 Or at 384.

8 A lay witness and an expert may testify as to the same subject matter:

9 "'The testimony of the chemist who has analyzed blood, and that of
10 the observer who has merely recognized it by the use of the senses belong
11 to the same legal grade of evidence, and though the one may be entitled to
12 greater weight than the other with the jury, the exclusion of either is not
13 sustainable.'"

14 Id., (quoting Clifford S. Fishman, 2 Jones on Evidence, § 14:4, 591-592 (6th ed 1972)).

15 In fact, if the requirements of OEC 701 are met, lay opinion on subjects well outside the

16 purview of most people is admissible. For example, in Lerch, a witness who had served

17 in an infantry unit with the United States Army for 13 months during the Korean conflict

18 was allowed to testify that he recognized the smell of decomposing human flesh in a

19 dumpster, notwithstanding that that smell would be a "rare experience to the average

20 person," because the witness's opinion was "rationally based on his perception in that he

21 had previously experienced and recognized" that smell. Id. at 387, 388.

22 Applying those standards, we conclude that Payne's testimony that the

23 victim looked like her own daughter when her daughter "had pressure on the brain or else

24 she was dehydrated," as well as the background information about her daughter's

24
 1 condition, which explained the basis for her opinion testimony about the victim, satisfied

2 the requirements of OEC 701.

3 At the outset, it is important to observe that defendant's offer of proof did

4 not include testimony by Payne that, in her opinion, the victim actually was suffering

5 from a brain injury on June 25. Only an expert could make that medical diagnosis.11

6 Rather, in the offer of proof, Payne was asked to describe what she saw when she arrived

7 at Ecklund's home. In addition to describing the victim's physical appearance, Payne

8 testified that her immediate thought was that the victim looked like her daughter when

9 she was young and "had pressure on the brain or else she was dehydrated." Thus, Payne

10 did not testify from the perspective of a physician who has diagnosed a patient, but from

11 the perspective of an observer describing a person's appearance by associating it with a

12 medical condition, much as a witness may describe a person's behavior and appearance

13 by saying that the person looks intoxicated.

14 Although a person without Payne's prior experiences may not have been

15 able to describe the victim's appearance in those terms, Payne was able to do so because,

11
As this court stated in Ritter v. Sivils, 206 Or 410, 413, 293 P2d 211 (1956),
"[i]f the issue turns upon some fact beyond the ken of laymen, expert testimony must be
produced." In the same vein, in Uris v. Compensation Department, 247 Or 420, 424, 427
P2d 753 (1967), this court quoted with approval the following, from Spivey v. Atteberry,
205 Okla 493, 494, 238 P2d 814 (1951):

"[W]here injuries complained of are of such character as to require skilled
and professional persons to determine the cause and extent thereof, the
question is one of science and must necessarily be determined by testimony
of skilled, professional persons."

25
 1 like someone who has seen blood or smelled decomposing human flesh, she often had

2 observed the appearance of her child when she displayed the effects of pressure on the

3 brain or dehydration. Payne's opinion that the victim resembled her daughter when her

4 daughter was suffering from one of those two conditions was rationally based on her

5 perceptions, in that she had a lifetime of previous experience with her own child suffering

6 those conditions.

7 Payne's testimony also was "helpful to a clear understanding of testimony

8 of the witness or the determination of a fact in issue." Payne's testimony was consistent

9 with and helpful to corroborate the testimony of defendant's expert witnesses, based on

10 their examination of the physical evidence, that the victim's brain and abdominal injuries

11 occurred at least several days before she died. The state's experts testified that the fatal

12 injuries had to have been inflicted on the night of her death.12 Payne's testimony that, on

13 June 25, the victim resembled her child when her child displayed the effects of a brain

14 injury or was dehydrated was relevant. It increased the probability, even if only slightly,

15 that the defense experts were correct and the state's experts incorrect.

16 The state argues that, given that Payne was allowed to testify as to her

17 observations of the victim's condition on June 25, the excluded evidence would not have

18 made it any more probable that the victim had a brain injury on June 25. However, we

12
However, as noted, one of the state's experts, the radiologist at Salem
Hospital, testified that the victim also had a preexisting brain injury, which might have
been inflicted as long as three weeks before her death.

26
 1 think that Payne's opinion that, on that date, the victim resembled her own child when her

2 child was suffering from pressure on the brain (or dehydration) is qualitatively different

3 from a description of the victim's symptoms, in much the same way that a witness's

4 opinion that a person looks intoxicated is qualitatively different from the simple

5 observation that a person is disheveled or flushed or glassy-eyed. In both cases, the

6 shorthand reference conveys a picture to the jury that is more complete than a mere list of

7 physical characteristics. Payne's opinion, on June 25, that the victim resembled her child

8 when she was suffering from a brain injury made it more probable that the victim did, in

9 fact, have a brain injury on June 25. And, if the victim already was suffering from a

10 brain injury on June 25, that fact, in turn, made it more probable that the victim died as a

11 result of an injury inflicted on or before that date and not on June 29 or 30, as the state

12 alleged.

13 In excluding Payne's lay opinion testimony, the trial court did not evaluate

14 that testimony in light of the requirements of OEC 701. That is, the court did not

15 consider whether that testimony was rationally based on Payne's perception or whether

16 she had personal knowledge of the facts on which she based her opinion.13 Rather, the

17 court excluded that testimony because "it really was speculative or conjecture or -- and

13
In fact, as discussed above, the trial court's only ruling concerning evidence
relating to Payne's experience with her daughter was that, in light of the court's ruling that
Payne's statement to Ecklund that the victim resembled her daughter was inadmissible
because the court believed it was unclear what that statement would have meant to
Ecklund, testimony about Payne's daughter was inadmissible because it was not relevant
to any issue before the jury.

27
 1 she was not certain."

2 We agree that Oregon's lay opinion rule precludes opinions based on

3 conjecture or speculation, because opinions based on speculation or conjecture generally

4 are not based on the perception of the witness or on the witness's personal knowledge.

5 Laird C. Kirkpatrick, Oregon Evidence § 701.03[3], Art VII-572 (5th ed 2007) (so

6 stating); see also Brown v. Spokane, P. & S. Ry. Co., 248 Or 110, 122, 431 P2d 817

7 (1967) (under pre-OEC law, guesses or conjecture not admissible testimony and would

8 not suffice as substantial evidence of a fact). However, OEC 701 does not require

9 certainty, as long as it is clear that the witness's opinion is based on personal knowledge

10 and not guesswork. Kirkpatrick, Oregon Evidence § 701.03[3] at 573.

11 Payne's opinion that the victim looked like her child when she "had

12 pressure on the brain or else she was dehydrated" was not based on "speculation or

13 conjecture." It was based on Payne's personal knowledge of her own daughter's

14 appearance when suffering from one of those two conditions. Payne was offering her lay

15 opinion concerning the victim's appearance as a mother of a brain-injured child; she did

16 not purport to be an expert or to diagnose the victim's condition. Payne's opinion was

17 rationally drawn from her perceptions, even though those perceptions were, as she herself

18 acknowledged, susceptible to more than one plausible interpretation. As this court stated

19 in Salas-Juarez, 340 Or at 428, "the inference that the proponent of the evidence wishes

20 to be drawn from the evidence need not be the necessary or even the most probable one."

21 Similarly, the inference that the victim was suffering from a brain injury on June 25 was

22 not the only inference that could be drawn from Payne's observations of the victim's

28
 1 condition. The jury could have inferred that the victim was suffering from dehydration

2 instead. However, Payne's complete observations were, nonetheless, helpful to the jury,

3 insofar as they increased the probability, even if slightly, that defendant's experts were

4 correct that, on June 25, 2002, the victim already had suffered the brain injury that

5 eventually killed her.

6 As is evident from the foregoing, we conclude that the trial court erred in

7 ruling that Payne's inability or unwillingness to state unequivocally that the victim looked

8 like she was suffering only from a brain injury showed that she was simply guessing or

9 speculating about the victim's condition. Because that was the sole reason that the trial

10 court gave for excluding Payne's lay opinion testimony, and because Payne's opinion was

11 relevant, rationally based on her perceptions, and helpful to the jury, we conclude that the

12 trial court erred in excluding Payne's lay opinion in which she stated that the victim

13 resembled her daughter when she was experiencing brain swelling.14 The trial court also

14 erred in excluding Payne's testimony explaining her daughter's injury and resultant

15 condition, because that testimony was essential to the jury's understanding of Payne's

16 qualifications to offer her lay opinion.

17 It is axiomatic that not every evidentiary error requires reversal. Under

14
The trial court did not weigh the probative value of Payne's lay opinion
testimony against the danger of unfair prejudice resulting from its admission, under OEC
403, and we express no opinion about the proper result of any such weighing on retrial in
this case.

29
 1 Article VII (Amended), section 3, of the Oregon Constitution,15 error is "harmless" and

2 does not require reversal whenever the court is of the opinion "that the judgment of the

3 court appealed from was such as should have been rendered in the case." See State v.

4 Willis, 348 Or 566, 571, 236 P3d 714 (2010) (so defining harmlessness). Before we turn

5 to an analysis of the prejudicial effect of the trial court's error in excluding Payne's lay

6 opinion testimony, however, we consider the state's criticism of the Court of Appeals'

7 harmless error analysis.

8 In its opinion, the Court of Appeals cited this court's opinion in State v.

9 Walton, 311 Or 223, 809 P2d 81 (1991), as the standard for evaluating harmless error.

10 Davis, 235 Or App at 336. In Walton, this court stated that error is harmless if (1) there is

11 convincing evidence of the defendant's guilt in the record as a whole, and (2) there is

12 little, if any, likelihood that the error affected the verdict. 311 Or at 231. However, as

13 the state points out, this court's case law has evolved since Walton was decided. In State

14 v. Davis, 336 Or 19, 30, 77 P3d 1111 (2003), this court clarified that it had eliminated the

15 first of those two criteria as an independent consideration in the harmless error analysis.

15
Article VII (Amended), section 3, provides, in part:

"In actions at law, where the value in controversy shall exceed $750, the
right of trial by jury shall be preserved, and no fact tried by a jury shall be
otherwise re-examined in any court of this state, unless the court can
affirmatively say there is no evidence to support the verdict * * * If the
supreme court shall be of opinion, after consideration of all the matters thus
submitted, that the judgment of the court appealed from was such as should
have been rendered in the case, such judgment shall be affirmed,
notwithstanding any error committed during the trial[.]"

30
 1 In State v. Hansen, 304 Or 169, 743 P2d 157 (1987), this court acknowledged that OEC

2 103(1)16 and Article VII (Amended), section 3, of the Oregon Constitution permit

3 consideration of those two factors in determining whether a trial court's evidentiary error

4 warrants reversal, but held that there was no justification for analyzing those two criteria

5 separately, because the applicable constitutional and statutory standards are fully

6 expressed in the second criterion. 304 Or at 180. As the court in Hansen went on to

7 state,

8 "[w]hether there was substantial and convincing evidence of guilt is not the
9 issue; the issue is whether the error was likely to have affected the result.
10 Of course, the less substantial the evidence of guilt, the more likely it is that
11 an error affected the result, but that is an additional reason not to bifurcate
12 the standard so as to require two independent inquiries."

13 Id. The court in Davis noted that, in Walton and in another case decided after Hansen,

14 State v. Parker, 317 Or 225, 233, 855 P2d 636 (1993), this court repeated the erroneous

15 bifurcated test for affirmance despite error. Nonetheless, the Davis court emphasized that

16 "Oregon's constitutional test for affirmance despite error consists of a single
17 inquiry: Is there little likelihood that the particular error affected the
18 verdict? The correct focus of the inquiry regarding affirmance despite error
19 is on the possible influence of the error on the verdict rendered, not whether
20 this court, sitting as fact-finder, would regard the evidence of guilt as
21 substantial and compelling.

22 "In determining whether the error affected the verdict, it is necessary
23 that we review the record. However, in so doing, we do not determine, as a

16
OEC 103(1) provides:

"Evidential error is not presumed to be prejudicial. Error may not be
predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected[.]"

31
 1 fact-finder, whether the defendant is guilty. That inquiry would invite this
2 court to engage improperly in weighing the evidence and, essentially,
3 retrying the case, while disregarding the error committed at trial, to
4 determine whether the defendant is guilty. Rather, when we review the
5 record, we do so in light of the error at issue. We ask whether there was
6 little likelihood that the error affected the jury's verdict. We recognize that,
7 if the particular issue to which the error pertains has no relationship to the
8 jury's determination of its verdict, then there is little likelihood that the
9 error affected the verdict. However, that is not a finding about how the
10 court views the weight of the evidence of the defendant's guilt. It is a legal
11 conclusion about the likely effect of the error on the verdict."

12 336 Or at 32.

13 With the correct standard in mind, we conclude that the trial court's error in

14 excluding Payne's lay opinion testimony was not harmless. As discussed above, in

15 evaluating whether to affirm despite evidentiary error, "we review the record * * * in

16 light of the error at issue. We ask whether there was little likelihood that the error

17 affected the jury's verdict." Davis, 336 Or at 32. In so doing, we consider the nature and

18 the context of the error. Id. at 32-33.

19 In this case, the trial court erred in excluding Payne's lay opinion testimony,

20 which defendant offered to support his theory that the injuries that killed his daughter

21 occurred several days before she died, and that nothing that defendant intentionally did to

22 the victim on June 29 or 30 caused her death. Evidence that Payne thought that the

23 victim looked like her daughter when she was suffering from a brain injury (or

24 dehydration) on June 25 supported, but was not duplicative of, defendant's experts'

25 testimony that the victim already was suffering from a brain injury at least several days

26 before she died.

27 The effect of the error was prejudicial. As noted, Payne's testimony in the

32
 1 offer of proof was that the victim looked like her daughter when she was suffering either

2 from a brain injury or from dehydration on June 25. The trial court's ruling, under which

3 Payne was allowed to testify only that she thought that the victim "looked dehydrated,"

4 rendered her testimony misleading, and it effectively undermined defendant's case and

5 put the state in a better position than it otherwise would have been. That is so because

6 the jury had heard that, on the evening of June 25, doctors at Santiam Hospital diagnosed

7 the victim with dehydration. Testimony that the victim looked dehydrated on June 25

8 reinforced the innocuous dehydration explanation for her symptoms that day. The

9 stricken lay opinion, on the other hand, would have provided the jury with additional

10 evidence to support a finding that the victim already was suffering from a brain injury on

11 June 25, as defendant's experts contended. In that circumstance, we cannot say that there

12 is little likelihood that that error affected the verdict. Therefore, we reverse the ruling of

13 the trial court excluding Payne's lay opinion and the decision of the Court of Appeals

14 affirming that ruling.

15 Evidence of the Victim's Prior Injuries

16 We turn to defendant's argument that the Court of Appeals erred in

17 affirming the trial court's ruling excluding evidence that the victim earlier had been

18 subjected to physical abuse. As discussed above, defendant initially was charged with,

19 among other things, murder by abuse. During defendant's first trial, the state introduced

20 evidence that the victim had been physically abused as well as evidence of her prior

21 injuries. Before the second trial, the court stated that, given the fact that defendant no

22 longer was being charged with murder by abuse, it intended to try a narrower case and

33
 1 was not inclined to permit the introduction of evidence of the victim's prior abuse or

2 injuries, except to the extent that they related to the cause of her death. Defendant

3 responded, however, that, in addition to other purposes, he intended to offer evidence of

4 the victim's prior abuse and injuries to explain the basis for his experts' opinions that the

5 victim died from injuries that were inflicted at least several days before June 29, 2002.

6 He argued that his experts had reviewed the victim's medical records, including the

7 autopsy report and tests showing healing broken bones, and determined that the victim

8 had been subjected to chronic child abuse. Defendant explained that the experts would

9 testify that that determination supported their conclusions that the victim's fatal injuries

10 were inflicted in the period before June 29.

11 The trial court excluded that evidence, giving multiple alternative reasons

12 for its ruling. First, the trial court ruled that the evidence was irrelevant to defendant's

13 theory that the victim's preexisting abdominal injuries worsened on the night of her death,

14 causing her preexisting subdural hematoma to rebleed. Second, the trial court ruled that

15 the probative value of the evidence of prior injuries was outweighed by the danger of jury

16 confusion. Third, the trial court ruled that the evidence was not admissible under OEC

17 404(3), which provides:

18 "Evidence of other crimes, wrongs or acts is not admissible to prove the
19 character of a person in order to show that the person acted in conformity
20 therewith. It may, however, be admissible for other purposes, such as proof
21 of motive, opportunity, intent, preparation, plan, knowledge, identity, or
22 absence of mistake or accident."

23 In that latter connection, the court stated that the prior injuries could not be tied to any

24 particular person, and even if they could have been, they would not be admissible

34
 1 because the defense had not shown that they were being offered for any admissible

2 purpose under OEC 404(3). Finally, the court ruled that neither the defense's nor the

3 state's experts were permitted to allude to the fact that the victim had been abused or that

4 their diagnoses relied on the victim's previous injuries, except to the extent that they

5 could tie the prior injuries to the medical cause of the victim's death.

6 As noted, the Court of Appeals affirmed the trial court's ruling without

7 discussion. Defendant asks this court to reverse the Court of Appeals' decision in that

8 regard. Defendant contends that he did not offer evidence of the victim's prior injuries as

9 prior bad acts to prove anyone's character under OEC 404(3), nor did he contend that

10 anyone was acting in conformity with his or her character in inflicting the victim's fatal

11 injuries. Rather, he argues, the evidence is relevant because it tends to show that the

12 victim had suffered repeated abuse, either negligently or intentionally, that the abuse

13 began long before the victim died, and that that abuse may have included abdominal and

14 head injuries that were inflicted prior to June 29 but that eventually resulted in the

15 victim's death on June 30. According to defendant, his experts based their conclusions

16 that the victim's fatal injuries occurred at least several days before the date of her death,

17 in part, on the fact that the victim had been subjected to child abuse in the past.

18 Defendant argued that his experts were entitled to explain that they reached that

19 conclusion from their review of the victim's medical records and the autopsy and tests

20 showing healing rib and leg fractures.

21 We agree with defendant that the trial court erred in excluding the evidence

22 of the victim's prior physical abuse as a basis for the expert's testimony. Defendant did

35
 1 not offer that evidence to establish any particular person's conduct or character; he

2 offered it for another, permissible, purpose -- to establish the basis for his experts'

3 conclusions that the victim suffered the injuries that resulted in her death before June 29.

4 See OEC 703, 705 (expert may testify to reasons for opinion and facts on which opinion

5 is based). It is true that defendant's experts did not tie any particular prior abuse,

6 medically, to defendant's theory that, on the night she died, the victim suffered an

7 exacerbation of her abdominal injury and/or a rebleed of a preexisting subdural

8 hematoma. However, defendant did explain to the trial court that his experts concluded

9 that the fact that the victim repeatedly had been harmed in the past was one of the bases

10 for their opinions that the victim had suffered a brain and abdominal injury at least

11 several days before she died. That is, evidence that the victim had suffered frequent

12 serious injuries during the course of her life supported the experts' view that she also had

13 suffered serious injuries the week or so before her death. That, in turn, made it more

14 probable that, in the week before her death, the victim incurred the injuries that, in the

15 defense experts' view, ultimately killed her.

16 The state argues, on the contrary, that evidence of the victim's past injuries

17 was not relevant, because evidence that someone committed earlier child abuse is not

18 evidence that defendant did not commit the fatal injuries on June 29. The state contends

19 that there is no logical inferential connection between those two propositions. We think

20 that the state's argument misses the point. As we have discussed, defendant's experts

21 testified that the autopsy revealed that the victim died from injuries to her abdomen and

22 brain that were inflicted at least several days before her death. The experts would have

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 1 testified that the fact that the victim also suffered other repeated physical injuries before

2 June 29 supported those conclusions. The experts were entitled to explain the bases for

3 their opinions and were not barred from doing so by OEC 404(3).17

4 As noted, the trial court also concluded that, even if the evidence were

5 relevant, it should be excluded under OEC 403, because its probative value was

6 outweighed by the risk of jury confusion. Although the trial court did not explain its

7 ruling, the state argues that assessing who, if anyone, caused the prior injuries would

8 have been confusing and pointless. We agree that evidence of who caused the prior

9 injuries potentially would be confusing to the jury, and, more importantly, under the

10 particular circumstances presented in this case, it would not be relevant to any issue of

11 consequence to the jury's determination. Because the state elected to charge defendant

12 with intentional acts committed on or between June 29 or 30, it was not important who, if

13 anyone, injured to the victim before those dates.18 As the state acknowledges in its brief

17
If, on retrial, defendant again proffers and the trial court admits evidence
that the victim was subject to prior physical abuse to support the conclusions of his
experts, we recognize that the state may seek to use that evidence. We take no position
on whether such use would or would not be permitted under the applicable rules of
evidence.
18
Although the state generally is not required to prove the specific date that a
crime is committed, see, e.g., State v. Yielding, 238 Or 419, 423, 395 P2d 172 (1964) (so
holding), in this case, the date of the crime became a material element of the offense
when the prosecutor elected to amend the indictment to charge the defendant with
knowingly inflicting the fatal injuries on or between June 29 and 30, 2002, and the trial
court instructed the jury that, to prove defendant guilty of murder and or manslaughter,
the state was required to prove that "the act occurred on or between June 29th, 2002, and
June 30th, 2002."

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 1 to this court, if the fatal injuries were inflicted before June 29, even if they were inflicted

2 by defendant, defendant could not be convicted of the charged offenses. The jury

3 therefore had no need to determine who, if anyone, was responsible for injuries inflicted

4 before June 29.

5 That argument also misses the point, however. Defendant's experts testified

6 that the victim died from injuries inflicted before June 29 and that those injuries (and not

7 what occurred on June 29) were the precipitating cause of the victim's death. To support

8 their testimony, defendant's experts were entitled to testify that they based their opinions,

9 in part, on the fact that the child had been the victim of ongoing abuse throughout her

10 life, as evidenced by her medical records and prior injuries. The experts' reasoning and

11 the evidence on which they relied was not only relevant, it was necessary to aid the jury

12 to evaluate their conclusions. The trial court erred in precluding the experts from

13 testifying to the bases for their opinions.

14 Like the error in excluding Payne's lay opinion testimony, the trial court's

15 error was not harmless. The expert's conclusions went "directly to the heart of

16 defendant's factual theory of the case." Davis, 336 Or at 34. The trial court's erroneous

17 exclusion of the evidence that the experts used to reach their conclusions could have

18 affected the jury's determination of whether to believe the experts and whether there was

19 reasonable doubt that defendant fatally injured the victim on June 29 or 30, 2002. On this

20 record, we cannot say that there was little likelihood that the evidence of the victim's

21 prior injuries affected the jury's verdict.

22 Because we conclude that that error was not harmless, we reverse the ruling

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1 of the trial court excluding evidence of the victim's prior injuries, and we reverse the

2 decision of the Court of Appeals affirming that ruling.

3 The decision of the Court of Appeals is reversed in part and affirmed in

4 part. The judgment of the circuit court is affirmed in part and reversed in part, and the

5 case is remanded to the circuit court for further proceedings.

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