dissenting.
I agree with the opinion of Justice Tongue that the statement on the order of suspension that it "was in full effect on 4-30-78” is hearsay. I agree with both opinions that ORS 43.370 is not applicable because, as Justice Tongue points out, the statement is not an "entry” and because, as the Chief Justice points out, ORS 43.370 deals with the probative effect of evidence rather than its authenticity.
It is true, as the Chief Justice points out, that we can modify obsolete common law rules of evidence. It is arguable that this evidence is admissible because any evidence with inherent reliability should be admissible regardless of whether it is hearsay or if it fits snugly into a traditional exception to the hearsay rule. Professor Wigmore would have liked that, but there is no need for a change of law to dispose justly of this case. Hence, I do not concur in the remainder of the Chief Justice’s opinion.
I concur in part 1 of the majority opinion which holds the statement to be inadmissible hearsay and that it was error to admit it. Thereafter, however, the majority’s reasoning is tortuous, whereas the analysis should be straightforward.
The correct analysis
Once it is determined that evidence was wrongfully admitted, the next question is whether the error was prejudicial or harmless. We have construed Or Const, Art VII (Amended), § 3, and ORS 138.2301 to require that we affirm the judgment in a criminal case if there is substantial and convincing evidence of guilt and the error was unlikely to have changed the result of the trial. State v. Van Hooser, 266 Or 19, 511 P2d 359 *729(1973); State v. McLean, 255 Or 464, 468 P2d 521 (1970).
1 would hold simply that the error was harmless. The remaining evidence is that defendant was operating an automobile, that she produced an out-of-state operator’s license, but no Oregon license, and that eight months earlier her Oregon non-resident’s operating privilege had been suspended indefinitely. There was no defense. I find it inconceivable that the district judge would have found otherwise even if the notation had not appeared in the certification. This case is just that simple.
The first error
Part 2 of the majority opinion is not that simple. It errs in several respects. First, like the Court of Appeals opinion, it does not ask whether the error was harmless, but rather whether there was enough remaining evidence to support the finding of guilt. That is the wrong standard. Reversal is required if there is prejudicial error regardless of whether the remaining evidence is sufficient to go to the factfinder. Obviously, if there is not enough remaining evidence to go to the factfinder, the error was prejudicial, but, nevertheless, the majority misconceives the procedural framework and at least as a matter of form it is better to state the issue correctly.
The second error
The next misconception is in the discussion of presumptions. No issue of presumptions is presented. Even if we accept the majority’s premise that the preliminary issue is the sufficiency of the evidence to go to the factfinder, then the question is one of inferences, not presumptions2 If the evidence and all reasonable inferences therefrom are sufficient to prove the fact in issue, then the proof is sufficient to go to a factfinder regardless of whether those inferences are also embodied in presumptions. A presumption is an inference which the law requires to be made. ORS *73041.340.3 In determining the sufficiency of evidence, it does not matter whether the law directs the factfinder to make an inference or whether the factfinder can reasonably do so on his own. Juries make decisions every day based on inferences they draw without the law directing them to do so. Therefore, the discussion of the majority about presumptions is irrelevant even to the issue which it erroneously poses.
The third error
Assuming for argument that the issue is one of presumptions rather than inferences, I agree that the presumption of continuity depends on the permanent or transitory nature of the condition proved once to exist. That concept is embodied in ORS 41.360(32):
"A thing once proved to exist continues as long as is usual with things of that nature.”
The summary of our cases in footnote 11 of the majority opinion demonstrates that this court has adhered to that concept: e.g., marriage, partnership, insanity, life, title tend to continue, but money tends to get spent, cars possessed by dealers tend to get sold, illness tends to pass. These inferences are consistent with human experience.
Applying that principle to this case, it is consistent with human experience that, unlike temporary or 30-day suspensions of non-resident operator’s privileges, the duration of an indefinite suspension tends to be indefinite. In footnote 12 the majority brushes off the cases from elsewhere that have so held as based on "little analysis,” but I see no need for extended analysis of a proposition which is self-evident. The "rational connection” between the fact proved (that the license was suspended indefinitely) and the fact inferred (that thereafter the license was in a state of suspension) is obvious.
*731In sum, where it is proved that a non-resident operator’s privilege has been suspended indefinitely, then, in the absence of evidence of a change in that condition, it is reasonable for a factfinder to infer that the indefinite suspension is still in effect eight months later. That is true whether the inference is discretionary with the factfinder or whether it is directed by law in the form of a presumption.
The fourth error
Next, the majority opinion reasons that the presumption that the indefinite suspension still existed is too weak to go to the jury because (1) defendant told the officer that she had appeared in court after her initial nonappearance, and (2) the effect of ORS 484.210(2), which the majority terms "the controlling substantive statute in this case” (288 Or at 720; see also 288 Or at 721-722), is that the suspension order must be automatically terminated if the defendant, having failed to appear in court, appears thereafter. Both prongs of this conclusion are wrong.
First, the majority refers repeatedly to defendant’s statement to the officer that she appeared in court on a citation after her suspension. It is unclear, however, what legal significance the majority attaches to this evidence. No legal effect (as opposed to factual effect) is evident.
(a) The statement is not offered for its truth.
(b) It does not specify which citation it applies to.
(c) The majority seems to say that the evidence weakens the effect of the state’s other evidence, but the weight of evidence is a matter for the factfinder, not the appellate court. If the defendant had so testified, the evidence would go to the factfinder to resolve the factual conflict. The majority holds, however, that because the state proved defendant’s statement, it was error for the case to have gone to *732the factfinder. This gives to defendant’s unsworn, uncross-examined out-of-court declaration a legal effect greater than her sworn testimony would have had. By the majority’s fallacious reasoning, an acquittal would be required by law wherever the state proves that the defendant, upon being caught red-handed, protested his innocence.
This convoluted reasoning has no precedent or persuasive logic and, moreover, its statutory basis is erroneous.
Contrary to the assertion of the majority, ORS 484.210 is not the controlling statute, for at least the reason that there is another statutory requirement for the reinstatement of a suspended license. The majority fails to mention it, but the requirement appears on the face of the suspension order. ORS 482.505(1) requires, without exception, payment of a license reinstatement fee of $8.4 There is no suggestion that this statutory requirement has occurred.
The majority cites what appears to be loose language in Musgrave et ux v. Lucas et ux, 193 Or 401, 414, 238 P2d 780 (1951), for the proposition that
"* * * It cannot be presumed that they knowingly persisted in performing unlawful acts.”
There is nothing unlawful about not paying $8. Therefore, the Musgrave theory of not presuming continuing illegality (whatever that double negative may mean) has no application to this case. There is no evidence that defendant has paid the fee, no reason to so infer or presume, and certainly no basis for us to conclude as a *733matter of law that the state’s evidence should not have gone to the factfinder.
The concluding error
The conclusion mixes up all the errors into one big error: it decides a factual dispute as a matter of law. But see State v. Krummacher, 269 Or 125, 523 P2d 1009 (1974).
The evidence is that:
(1) defendant’s non-resident operator’s privilege was suspended indefinitely;
(2) that eight months later she was driving an automobile;
(3) that she said she had appeared in court on a citation during the year before.
The majority concludes as a matter of law that no "rational person” could find that defendant’s privilege was suspended at the time of her apprehension. This conclusion leaves me and probably most of the trial judges in this state outside that favored category.
This case demonstrates anew that the right answer is usually straightforward and that tortuous reasoning is usually erroneous. Accordingly, I dissent.
ORS 138.230 provides:
"After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties.”
This distinction was erroneously not made in State v. Garrett, 281 Or 281, 574 P2d 639 (1978).
ORS 41.340 provides:
"A presumption is a deduction which the law expressly directs to be made from particular facts.”
OES 482.505(1) provides:
"The division shall charge a fee of $25 for reinstatment of any license that has been suspended or revoked. Except as provided in subsectin (2) of this section, no reinstatement shall be made until the fee is paid to the division. * * *”
The $8 fee required in this case was later changed to $25. Or Laws 1977, ch 392, § 1.