dissenting.
The majority holds that encompassed within defendant’s sixteenth assignment of error is the trial court’s ruling that admitted into evidence the testimony of Marvin Troseth regarding his conversation with defendant at 9:54 p.m. on September 21, 1986. I disagree with that conclusion for the reasons that follow.
*310The assignment of error states,
“[Defendant] assigns error to the ruling allowing two September 21,1986 oral hearsay statements and one handwritten note by Cheryl Cunningham into evidence under an excited utterance exception to the hearsay rule, OEC 803(2). [Defendant’s] objections occurred at CR 175. The court’s ruling occurred at [CR 196, p. 4-5]. The improper evidence was admitted at TR Vol 8: p. 58, (line 23) through p. 59 (line 19); p. 61 (line 13) through p. 61 (line 6); p. 90 (line 3) through p. 91 (line 5), and State’s Exhibit 7 (TR Vol 8 at 158).”
Pursuant to his assignment of error, defendant argues,
“The two alleged September 21, 1986 phone conversations between Cheryl Cunningham and her family members, as well as the note she purportedly penned on the same date, do not qualify as excited utterances under OEC 803(2), and were also not relevant to prove [defendant’s] conduct on the night his wife was killed.”
(Emphasis omitted.)
Defendant’s assignment of error and argument under the assignment could not be more precise.1 The first sentence of the assignment of error refers to two oral statements and a handwritten note made by Cheryl Cunningham, the victim. The sentence makes no reference to evidence of a conversation between Troseth and defendant. Moreover, the sentence asserts that the ruling admitting that evidence was error under OEC 803(2), the excited utterance exception to the prohibition against hearsay. The state does not contend that the conversation between Troseth and defendant constituted an excited utterance. The following sentences in the assignment of error inform the reader where in the record the objection occurred, where in the record the court’s ruling occurred, and where in the record the evidence was admitted. Those references, as the majority correctly concedes, do not include a transcript reference to Troseth’s testimony. For all of those reasons, the majority’s attempt to include Troseth’s testimony within the language of the sixteenth assignment of *311error amounts to nothing more than a legal fiction. Consequently, the majority errs when it holds that the sixteenth assignment of error encompasses the ruling regarding Troseth’s testimony.
There is another issue lurking in this case that the majority does not address and which, I think, presents a closer question. That issue is whether, under the rules of appellate procedure, it is permissible for the state to raise for the first time in a petition for reconsideration the issue of whether the admission of the evidence of the 7:59 conversation was harmless. The state did not rely on Troseth’s testimony as the basis of its harmless error argument in its response brief on appeal. Instead, the state argued, in part:
“Defendant finally argues that the admission of this evidence could not be harmless error because the hearsay statements were the focal point of the trial. (App Br 112-13). The state agrees. If the trial court erred in admitting this evidence, reversal is required because this evidence was the most compelling introduced against defendant.”
This court can hardly be faulted for taking the state at its word when it conceded that if the trial court erred in admitting the evidence, reversal is required.
There is some authority that suggests that the state should not be permitted to raise an issue for the first time on reconsideration, particularly, when it has conceded to the contrary on appeal. In Ailes v. Portland Meadows, Inc., 312 Or 376, 380, 823 P2d 956 (1991), the Supreme Court held that the failure of the plaintiff to raise an issue until his reply brief on appeal violated the version of ORAP 5.45(2) that was then in effect. The rule provided that a claim of error would not be considered by an appellate court unless the error was raised in the complaining party’s opening brief. Ailes, 312 Or at n 4. The purpose of the rule is to ensure that the opposing party has an opportunity to submit a written response to the claim of error. Presently, ORAP 6.25(1) implicitly has the same limitation when it provides for purposes of this case that a “petition for reconsideration shall be based on[, among other things, a] claim that the Court of Appeals erred in construing or applying the law.” It is arguable under the language of the rule that a claim of harmless error made for the *312first time on reconsideration is not cognizable for purposes of review because it is not a claim that the Court of Appeals has previously “erred in construing or applying the law.” If the rule is construed as its language suggests, the majority’s result is correct; only its reasoning is wrong-headed.
The state is candid in its position regarding these concerns:
“As argued in detail below, the evidence in question was admissible under both the excited-utterance and state-of-mind exceptions to the hearsay rule, and its admission, even if it had been erroneous, was patently harmless.
“Before turning to those arguments, however, the state must acknowledge that the court’s errors were not entirely of its own making. First, the state did not argue that the admission of the evidence, if erroneous, was harmless. To the contrary, the state concluded that it was not. * * *
* * * *
“None of those explanations makes it easier for the state to come to the court now and assert that the court erred on both of those grounds. But as this court knows without being reminded, reversing a murder conviction is serious business under any circumstances. And this court has a constitutionally imposed responsibility to uphold the judgment of conviction unless the trial court erred and that error prejudiced defendant. Consequently, the state can do no more than submit this petition, accept its share of responsibility, and trust that the court will find its way to the correct legal answer.”
(Emphasis added.)
The state is correct about this court’s constitutional responsibility. This court has a mandatory constitutional obligation to uphold defendant’s conviction in this case in the absence of prejudicial error. Article VII (Amended), section 3, of the Oregon Constitution provides, in relevant part,
“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[.]”
*313“No discretion is permitted by the mandate of the amendment.” State v. Van Hooser, 266 Or 19, 24, 511 P2d 359 (1973). If there is substantial and convincing evidence of guilt and the error committed was unlikely to have changed the result of the trial, Van Hooser, 266 Or at 25-26, the public interest in affirmance of a criminal conviction as expressed under section 3 trumps any violation of a procedural rule. In other words, we are charged by the constitution to give effect to section 3’s mandate, even though the state has asserted that the error was harmless for the first time on reconsideration.2
In this case, there is substantial and convincing evidence of guilt without the admission of the evidence of the 7:59 phone call from the victim to her family members, and the error was unlikely to have affected the result of the trial. Troseth testified that he informed defendant that the victim told him and the victim’s mother that the victim was “supposed to meet [the defendant] down at that Mobil station.” Defendant responded, according to Troseth, “No, she was suppose to come up here.” Detective Ayers testified to a similar response by defendant when he talked with him. Because Troseth’s and Ayers’s testimony evidenced the same statement made by the victim that was also established by the inadmissible evidence of the 7:59 phone call, i.e, that the victim had said that she contemplated meeting defendant at the Mobil station, that testimony was the equivalent of the erroneously admitted evidence.
In addition, the other evidence supporting defendant’s guilt is extensive. Defendant and the victim were in the midst of a bitter divorce in which both parties wanted custody of their children. State v. Cunningham, 179 Or App 359, 363, 40 P3d 1065 (2002). Defendant told friends that the victim had lied during depositions and that she was not a fit mother, and he had even informed one friend that he would kill her. Id. at 364. He also told the victim herself that she would pay for her statements during a deposition and that he *314would get her. Id. Defendant also informed his then-girlfriend that, “when somebody killed one parent but the other parent wasn’t convicted of something” it was better for the children. Id. at 365. Moreover, the written notations made by the victim on the night of the murder indicated that she had talked to defendant about the children and that she was going to the Mobil station near where she was found murdered. Id. at 366. Defendant was not in his apartment at the time of the murder and later told inconsistent stories as to his whereabouts. Id. at 367-69. When all of the evidence is considered, including Troseth’s and Ayers’s testimony, there is substantial and convincing evidence of defendant’s guilt and there is little likelihood that the admission of the evidence of the 7:59 p.m. phone call affected the jury’s resulting verdict.
In summary, the majority errs when it holds that defendant’s sixteenth assignment of error encompasses Troseth’s testimony. The assignment refers only to statements made by the victim and admitted as excited utterances. Although the state’s argument first made on reconsideration violates ORAP 6.25(l)(e), Article VII (Amended), section 3, of the Oregon Constitution compels that we grant reconsideration and affirm defendant’s conviction for murder.
For the above reasons, I dissent.
ORAP 5.45(3) provides that “[e]ach assignment of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged.”
The state’s earlier concession is troubling. On balance, however, there is no obligation on our part to accept it. Rather, our duty is to uphold the constitution and laws of this state. State v. Wyatt, 331 Or 335, 15 P3d 22 (2000) (Court of Appeals did not have the authority to consider an unpreserved claim notwithstanding the states concession that defendant had preserved the claim).