808	                           June 30, 2016	                           No. 43

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                  STATE OF OREGON,
                  Respondent on Review,
                             v.
         JUSTIN JAMES SCHILLER-MUNNEMAN,
                   Petitioner on Review.
          (CC 11CR0002, CA A152061, SC S063526)

    On review from the Court of Appeals.*
    Argued and submitted March 4, 2016.
   Anne Fujita Munsey, Deputy Public Defender, Salem,
argued the cause and filed the brief for the petitioner. With
her on the brief was Ernest G. Lannet, Chief Defender, Office
of Pubic Defense Services.
   Peenesh Shaw, Assistant Attorney General, Salem,
argued the cause and submitted the brief for the respondent.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Paul L. Smith, Deputy Solicitor General.
  Before Balmer, Chief Justice, Walters, Landau, Baldwin,
Brewer, Justices, and Hadlock, Justice pro tempore.**
    WALTERS, J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.




______________
	**  Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 270 Or
App 22, 346 P3d 636 (2015).
	   **  Nakamoto, J., did not participate in the consideration or decision of this
case.
Cite as 359 Or 808 (2016)	809

     Case Summary: Defendant objected to the introduction of two text messages
sent by the victim to defendant and defendant’s nonresponse on both constitu-
tional and evidentiary grounds. The trial court concluded that neither objection
was well-taken, and the jury found defendant guilty. Defendant appealed to the
Court of Appeals, and the Court of Appeals affirmed, holding that the state had
offered the messages for the non-hearsay purpose of arguing “inferences to the
jury regarding defendant’s choice in not responding to the messages.” In a unani-
mous opinion written by Justice Martha L. Walters, the Supreme Court reversed
the decision of the Court of Appeals. Considering the text messages and defen-
dant’s nonresponse in combination, the court held that the messages were “state-
ments” for purposes of the hearsay rule, and that the evidence was not admissi-
ble for the non-hearsay purpose of demonstrating the effect on defendant, as the
state argued on review. Because the state had offered the evidence to prove the
truth of the matter asserted—that defendant had raped the victim—the evidence
should have been excluded as hearsay. The court explained that if a party offers
evidence to demonstrate that the listener intended to adopt or approve the con-
tents of statements to which the listener did not respond, the evidence must meet
the requirements of an adoptive admission. Here, the state offered defendant’s
silence in response to the victim’s messages to show that defendant did not react
to the messages as an innocent person would have been expected to react. The
trial court found that the evidence was not admissible as an adoptive admission
or for its “effect on the listener.” The court did not reach defendant’s argument,
under Article I, section 12, of the Oregon Constitution, that the admission of the
text messages and his nonresponse violated his right to remain silent.
    The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
810	                               State v. Schiller-Munneman

	       WALTERS, J.
	        Defendant was charged with first-degree rape of
the victim, a friend who had spent the night on defendant’s
couch after an evening of drinking. The victim contacted
the police following the incident, and Detective Myers
asked the victim if she would send defendant text mes-
sages to “try to get [defendant] to make a comment about
what had happened between the two of them.” The victim
agreed, and Myers instructed her on the content of the
messages. The victim sent defendant two text messages.
The first said, “I don’t understand how this happened[.]
[W]e’ve been friends for [a long] time[.] [W]hy did [you]
do that to me?” The second message said, “I really want
to know why? [I don’t know] what to do but I was passed
out[.] [W]hat made what [you] did ok?” Defendant did not
respond to either message.
	        At trial, defendant challenged the admissibility of
the text messages and his nonresponse on both constitu-
tional and evidentiary grounds. The trial court concluded
that neither objection was well taken, and the jury found
defendant guilty. The Court of Appeals affirmed. State v.
Schiller-Munneman, 270 Or App 22, 24, 346 P3d 636 (2015).
For the reasons that follow, we do not reach defendant’s
constitutional challenge, but we conclude that the text mes-
sages and defendant’s nonresponse constituted inadmissible
hearsay, and that the trial court erred in admitting them.
We reverse and remand for further proceedings.
                              I.
	        We allowed defendant’s petition for review to address
his argument that admission of the text messages and his
nonresponse at trial violated his right to remain silent under
Article I, section 12, of the Oregon Constitution. Article I,
section 12, provides: “No person shall be * * * compelled in
any criminal prosecution to testify against himself.”
	       Defendant argues that, because the victim sent the
text messages at the request of the police, the questions con-
tained in those messages constituted police interrogation.
Thus, defendant contends, when he did not respond to the
messages, he was exercising his Article I, section 12, right
Cite as 359 Or 808 (2016)	811

to remain silent, and the use of that silence as substantive
evidence of guilt at trial was therefore an impermissible
comment on his exercise of that right. See State v. Larson,
325 Or 15, 22, 933 P2d 958 (1997) (stating that “the Oregon
Constitution does not permit a prosecutor to draw the jury’s
attention to a defendant’s exercise of the right to remain
silent”); State v. Smallwood, 277 Or 503, 505-06, 561 P2d
600, cert den, 434 US 849 (1977) (“There is no doubt that it
is usually reversible error to admit evidence of the exercise
by a defendant of the rights which the constitution gives him
if it is done in a context whereupon inferences prejudicial to
the defendant are likely to be drawn by the jury.”).

	        The state responds that State v. Davis, 350 Or 440,
256 P3d 1075 (2011), provides contrary controlling author-
ity. Davis, the state contends, stands for the proposition that
a defendant does not have a constitutionally protected right
to remain silent when the defendant is not in custody or
otherwise in compelling circumstances at the time that the
defendant is questioned.

	In Davis, a police detective told the defendant
that his stepdaughter had accused him of sexual abuse.
Id. at 442. Although the defendant had not been arrested,
he hired an attorney. Id. at 442-43. The attorney sent the
detective a letter invoking the defendant’s right to remain
silent. Id. at 443. Eight months later, the defendant con-
tacted the victim through her instant messaging service.
Id. The detective asked the victim to engage in monitored
instant message conversations with the defendant, and
the victim agreed. Id. The detective directed the victim to
say things that might elicit incriminating statements. Id.
During three instant message conversations and two moni-
tored phone calls, the defendant made incriminating state-
ments, which the detective used to obtain a search warrant.
Id. The defendant moved to suppress the evidence obtained
through the monitored conversations as well as the evidence
gained during the warranted search, arguing that, “because
he had invoked his constitutional rights to counsel and to
remain silent eight months earlier, the police thereafter
were obligated not to communicate with him except through
counsel.” Id. at 443-44.
812	                                      State v. Schiller-Munneman

	        Thus, in Davis, the court’s task was to determine
whether the invocation of the right to remain silent “at a
time that [the suspect] is not in custody or in compelling cir-
cumstances precludes the police from nevertheless attempt-
ing to obtain incriminating information from that suspect.”
Id. at 446-47 (emphasis omitted). Recognizing that “[a]n
individual always may invoke a ‘right to remain silent’ and
refuse to speak with police without the presence of counsel,”
id. at 446, the court held that an invocation of that right
in noncompelling circumstances does not preclude police
from attempting to obtain incriminating information from a
defendant at a later time when the defendant again is not in
custody or compelling circumstances, id. at 459.
	        Our task in this case is different. Unlike the defen-
dant in Davis, defendant in this case did not answer the
questions asked; he remained silent. Neither Davis nor any
other case from this court expressly addresses whether,
absent custody or compelling circumstances, a defendant’s
invocation of the right to silence may be introduced at trial
as substantive evidence of the defendant’s guilt. Nor has the
United States Supreme Court answered that question under
the Fifth Amendment.1 However, some federal circuit courts
have considered the admissibility of a defendant’s invocation
of the right to silence in the circumstance in which that evi-
dence is otherwise admissible under the rules of evidence.
Some courts have held that, even in the absence of cus-
tody or compelling circumstances, a defendant’s invocation
of the right to silence may not be admitted as substantive
evidence of the defendant’s guilt. See U.S. ex rel Savory v.
Lane, 832 F2d 1011, 1017-18 (7th Cir 1987) (right to remain
silent attaches pre-arrest, pre-Miranda and not admissible
in prosecution’s case-in-chief); Coppola v. Powell, 878 F2d
1562, 1568 (1st Cir 1989) (same); U.S. v. Burson, 952 F2d
	1
      In Salinas v. Texas, __ US __, 133 S Ct 2174, 2180, 186 L Ed 2d 376 (2013),
the Supreme Court concluded that the defendant had not invoked the Fifth
Amendment privilege against self-incrimination, and, therefore, the Court did
not reach the question of whether defendant’s silence would be admissible if
defendant had invoked the right to silence. In that case, the defendant “[l]ooked
down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in
his lap, [and] began to tighten up” in response to police questioning. Id. at 2178
(internal quotation marks omitted). In Jenkins v. Anderson, 447 US 231, 240,
100 S Ct 2124, 65 L Ed 2d 86 (1980), the Supreme Court decided that pre-arrest
silence may be admitted to impeach a defendant who takes the stand.
Cite as 359 Or 808 (2016)	813

1196, 1200 (10th Cir 1991) (same); Combs v. Coyle, 205 F3d
269, 283 (6th Cir 2000) (same). Others have reached the
opposite result. See U.S. v. Rivera, 944 F2d 1563, 1568 (11th
Cir 1991) (self-incrimination clause inapplicable to ques-
tioning that occurs pre-arrest and pre-Miranda); U.S. v.
Zanabria, 74 F3d 590, 593 (5th Cir 1996) (same); U.S. v.
Oplinger, 150 F3d 1061, 1066-67 (9th Cir 1998) (same). 2
	        As noted, this court has not addressed whether,
absent custody or compelling circumstances, a defendant’s
invocation of the right to silence in response to police ques-
tioning may be admitted as substantive evidence at trial.
This court also has not addressed whether a defendant who
remains silent must expressly invoke the right to silence, or
whether, and under what circumstances, an invocation may
be implied. Nor has this court decided whether invocation,
express or implied, is necessary to trigger the protections of
Article I, section 12. However, this is not the case in which
to address those questions. As noted, those questions arise
only in the circumstance in which a defendant’s silence is
otherwise admissible under the rules of evidence. For that
reason, and because this court’s practice is to construe and
apply statutory sources of law before turning to constitu-
tional provisions, Rico-Villalobos v. Guisto, 339 Or 197, 203,
118 P3d 246 (2005), we turn to defendant’s evidentiary chal-
lenge to the admission of the text messages and his non-
response. In this case, defendant’s evidentiary challenge is
dispositive.
                                        II.
	       At trial, defendant objected to the victim’s text mes-
sages and defendant’s nonresponse on hearsay grounds.
The state responded that the evidence was admissible as an
“adoptive admission” under OEC 801(4)(b)(B).
	2
      For an in-depth discussion of the circuit split and the arguments on
both sides (pre-Salinas), see Stefanie Petrucci, The Sound of Silence: The
Constitutionality of the Prosecution’s Use of Prearrest Silence in Its Case-in-Chief,
33 UC Davis L Rev 449 (2000); Meaghan Elizabeth Ryan, Do You Have the Right
to Remain Silent?: The Substantive Use of Pre-Miranda Silence, 58 Ala L Rev 903,
914 (2007). For a discussion of the state of the federal law after Salinas, see Anna
Strandberg, Asking for It: Silence and Invoking the Fifth Amendment Privilege
Against Self-Incrimination After Salinas v. Texas, 8 Charleston L Rev 591, 614
(2014).
814	                                      State v. Schiller-Munneman

	        An adoptive admission is a “statement of which the
party has manifested the party’s adoption or belief in its
truth[.]” OEC 801(4)(b)(B). “If a party manifests an adop-
tion of a statement of another, the party is in the same posi-
tion as if the party had personally made the statement. The
party becomes the declarant, and the statement of the other
person becomes the party’s.” State v. Carlson, 311 Or 201,
206-07, 808 P2d 1002 (1991) (emphasis in original) (footnote
omitted). Whether a party’s silence constitutes an adoptive
admission presents a preliminary question of fact for the
trial court. OEC 104(1); Carlson, 311 Or at 211. The court
must examine the totality of the circumstances to deter-
mine, by a preponderance of the evidence, whether the party
intended to adopt or approve the contents of the declaration.
Id. at 207-09.
	        In this case, the trial court proceeded accordingly
and found, as a matter of fact, that defendant’s silence did
not constitute an adoptive admission. The court reasoned
that there were many possible explanations for defen-
dant’s failure to respond to the text messages. Having
made that preliminary finding, the trial court should have
ruled that the text messages and defendant’s nonresponse
were not admissible as an adoptive admission under OEC
801(4)(b)(B). Instead, however, the court told the parties
that it would admit the evidence. Apparently not under-
standing the court’s thinking, defendant inquired as to
the relevance of the evidence and the basis on which it
could be admitted. Defendant asked, “What’s it being
offered for?” “If the [s]tate’s not offering it as an admis-
sion, then what’s the grounds for offering it?” The state
did not respond to that question; the state did not inform
the trial court that the evidence was not hearsay for some
other reason, such as that the evidence was not offered for
its truth, or that the evidence fit within an exception to
the hearsay rule.3 Instead, the court responded. The court
said that it would permit both sides to argue the meaning

	3
       Earlier in the proceeding, the state had argued that the photographs of the
text messages were admissible not for their truth, but “to show that the messages
were sent, period, and not the content.” However, the state did not reiterate that
argument later in the proceeding, in response to defendant’s question regarding
the relevancy of the evidence, including defendant’s nonresponse.
Cite as 359 Or 808 (2016)	815

of defendant’s nonresponse to the jury: The state could
ask the jury to infer that defendant’s silence was evidence
of guilt; defendant could argue counter-inferences. Thus,
although the trial court made a preliminary finding indi-
cating that defendant did not intend to adopt the content
of the messages, the court apparently admitted the evi-
dence to permit the jury to infer that he did just that.
	        Defendant appealed and argued, as he had below,
that the evidence was inadmissible hearsay. In response,
the state did not contend that the evidence was admissible
as an adoptive admission or that the trial court was correct
to permit the jury to determine its probative value on the
issue of defendant’s guilt. Instead, the state contended that
the victim’s messages were not hearsay because they lacked
assertive content and therefore were not “statements” for
purposes of the hearsay rule. As to defendant’s nonresponse,
the state argued that even if defendant’s nonresponse was a
statement, it constituted an admission by a party opponent
under OEC 801(4)(b)(A).
	        The Court of Appeals affirmed. Schiller-Munneman,
270 Or App at 24. As to defendant’s nonresponse, the court
agreed that even if defendant’s nonresponse was a state-
ment, it constituted an admission by a party opponent. Id.
at 36. As to the messages, however, the court concluded
that, even if they were “statements,” they were admissible
because the state had offered them, not for their truth, but
to “argue inferences to the jury regarding defendant’s choice
in not responding to the messages.” Id. at 35.
	        Before this court, defendant argues, as he did
below, that the evidence at issue—both the messages and
his nonresponse—constitutes inadmissible hearsay. The
state, however, reframes its argument somewhat. As to the
admissibility of defendant’s nonresponse, the state reprises
its argument in the Court of Appeals. But as to the mes-
sages, the state contends that the messages either included
no assertive content or were offered, not for their truth, but
to demonstrate “their effect on defendant.”
	        Before we turn to the parties’ arguments, we think
it necessary to explain how we view the evidence—the vic-
tim’s text messages and defendant’s nonresponse. In these
816	                                       State v. Schiller-Munneman

circumstances, we conclude that the evidence must be con-
sidered in combination and as a whole. The reason is that
neither aspect of the evidence is relevant without the other.
Without the messages, defendant’s lack of response is simply
the absence of evidence. Without defendant’s nonresponse,
the messages have no probative value; the only evidentiary
value that the state claims for the messages is to demon-
strate their effect on defendant, and the only effect it claims
is defendant’s nonresponse.4
	        We begin with defendant’s argument that the
proffered evidence is inadmissible hearsay and the state’s
response that the evidence is not hearsay because the vic-
tim’s messages have no assertive content. Hearsay is a
“statement,” other than one made by the declarant while tes-
tifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. OEC 801(3). A “statement”
is “[a]n oral or written assertion,” or “[n]onverbal conduct of
a person, if intended as an assertion.” OEC 801(1).
	        The state’s first argument is that the victim’s mes-
sages contain questions, and that questions by definition
are not assertions. The state contends that this court should
adopt that categorical approach and that doing so would be
consistent with the decisions of a number of federal appellate
courts. The state cites U.S. v. Love, 706 F3d 832, 840 (7th Cir
2013), for the proposition that “overwhelming” federal prec-
edent supports the conclusion that questions are not “state-
ments.” However, neither Love nor the other federal cases
to which the state cites draw the bright line rule for which
the state argues. Rather, those cases distinguish questions
designed to elicit information and a response from questions
intended as assertions. Id. Kirkpatrick likewise explains
that a communication may be found to be an assertion even
though phrased as a question “if it contains—expressly or
impliedly—factual content that amounts to an assertion.”
Laird C. Kirkpatrick, Oregon Evidence § 801.01[3] [b], 699
(6th ed 2013). We therefore reject the state’s argument that
	4
      We caution that that will not always be the case. There are instances in
which statements to which there is no response have independent probative
value. See, e.g., State v. Hren, 237 Or App 605, 607-08, 241 P3d 1168 (2010) (state-
ment admissible to show that defendant reasonably believed she could take item
from store).
Cite as 359 Or 808 (2016)	817

questions can never be assertions, and turn instead to the
state’s alternative argument that the questions in the text
messages at issue in this case lack sufficient factual content
to amount to assertions.
	      Again, as noted, the victim sent defendant two text
messages. The first said,
   “I don’t understand how this happened[.] [W]e’ve been
   friends for [a long] time[.] [W]hy did [you] do that to me?”
The second message said,
   “I really want to know why? [I don’t know] what to do but I
   was passed out[.] [W]hat made what [you] did ok?”
Although the messages do not use the word rape, in context
they assert that defendant did something wrongful to the
victim against her wishes while she was “passed out.” In the
context of the state’s argument that defendant raped the vic-
tim and defendant’s concession that he and the victim had
consensual sexual contact, the first message asserts that
that contact was nonconsensual. The second message explic-
itly asserts that the victim was “passed out” at the time of
the encounter, and implicitly asserts that defendant was
the actor and that the victim was not a willing participant.
We agree with defendant that the victim’s text messages
expressly or impliedly include assertions and therefore are
“statements” for purposes of the hearsay rule.
	        The state’s alternative argument is that, to the
extent that the messages contain assertions, they were
admissible, not for their truth, but to demonstrate their
effect on the listener. See OEC 801(3) (defining hearsay
as statement offered to prove truth of matter asserted).
An out-of-court statement is not hearsay if it is offered to
show the statement’s effect on the listener, and the effect
on the listener is relevant. Kirkpatrick, Oregon Evidence
§ 801.01[3] [d] at 705; see State v. Hren, 237 Or App 605,
607-08, 241 P3d 1168 (2010) (defendant’s testimony that
store attendant stated that she allowed defendant to keep
item that defendant was charged with stealing not hear-
say because offered to show defendant reasonably believed
she could take disputed item); State v. Smith, 194 Or App
697, 704-05, 96 P3d 1234 (2004) (statement by defendant
818	                                         State v. Schiller-Munneman

that his father told defendant that detective claimed father
would lose home if defendant contested charges admissible
to show defendant had strong motive to make false confes-
sion). Here, the state argues that the text messages were
offered to show their effect on defendant. That effect, the
state argues, is relevant: An innocent person “would not
have simply ignored those messages.”
	         The problem with that argument is two-fold. First,
if the state offered the evidence to prove that defendant was
guilty, then the evidence was offered to prove the truth of the
matter asserted—that defendant raped the victim. Second,
if the state did not offer the evidence to prove that defendant
was guilty, then the effect on defendant is not relevant.5 Or,
at the very least, the state does not explain another effect
that the messages could have had on defendant, as a lis-
tener, that would be relevant in this case.
	         Another way of explaining our reasoning is that if
silence is offered to show that the listener did not respond
to statements in a way that a listener would be expected
to respond if the listener disagreed with the statements,
then it is offered to show, in effect, that the listener agreed
with the statements. In that circumstance, the evidence
must meet the requirements of an adoptive admission. If
the party offering such evidence cannot demonstrate that
the listener intended to adopt or approve the contents of the
statements to which the listener did not respond, then the
evidence is inadmissible. In this case, the state offered defen-
dant’s silence in response to the victim’s messages to show
that defendant did not react to the messages as an innocent
person would have been expected to react. The trial court
found that that evidence was not admissible as an adoptive
	5
      In a footnote in its brief, the state asserts that defendant did not argue
at trial that his failure to respond to the text messages was not relevant, and
that that argument is not preserved. We disagree. Defendant objected to the
evidence—the texts and his nonresponse—on hearsay grounds. As we have
explained, the state argued in response that defendant’s silence was admissible
as an adoptive admission. After the trial court found that defendant’s silence
was not an adoptive admission, defense counsel inquired as to the relevance of
the evidence, asking, “What’s it being offered for? If the [s]tate’s not offering it as
an admission, then what’s the grounds for offering it?” In these circumstances,
defendant’s question was sufficient to raise the point we find dispositive: If the
message and nonresponse were not being offered as an adoptive admission, what
was the relevance of the evidence?
Cite as 359 Or 808 (2016)	819

admission. Therefore, that evidence also was not admissible
for its “effect on the listener” and should have been excluded.
                              III.
	       The final question for our consideration is whether
the admission of that evidence requires that we reverse and
remand the case for a new trial. The state argues that rever-
sal is not permitted here, because, even if the trial court
erred in admitting the evidence, the error was harmless.
	       Article VII (Amended), section 3, of the Oregon
Constitution states the standard that governs whether we
must affirm a conviction despite the fact that legal error
occurred during the trial. That provision provides, in part:
   “If the supreme court shall be of opinion, after consider-
   ation 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, not-
   withstanding any error committed during the trial[.]”
Pursuant to that provision, we must affirm a judgment,
despite any error that occurred at trial, if, after reviewing
the record, we conclude that there was little likelihood that
the error affected the jury’s verdict. State v. Davis, 336 Or
19, 32, 77 P3d 1111 (2003). That conclusion is not a reflec-
tion of how we view the weight of the evidence of defendant’s
guilt, but rather a legal conclusion about the likely effect of
the error on the verdict. Id.
	        The state contends that the error in this case
was harmless because the messages and defendant’s non-
response had little probative value. The state argues that
the messages were vague and did not necessarily establish
criminal activity. According to the state, the messages did
little more than support defendant’s own testimony admit-
ting to sexual contact with the victim and the victim’s own
testimony that the sexual contact occurred when she was
passed out. Defendant responds that the evidence that the
court admitted was different in nature from the testimony
of the defendant and the victim; it could be understood as an
admission of the charged conduct. Defendant also contends
that the evidence was significant; the state referenced the
messages and defendant’s nonresponse during its opening
820	                            State v. Schiller-Munneman

statement and elicited testimony about the messages from
three different witnesses—the victim, Detective Myers, and
defendant.
	        We agree with defendant’s description of the role
that the evidence played in this case. The fact that defen-
dant and the victim had sex on the night in question was not
at issue at trial. Both defendant and the victim testified that
they had had sexual relations, and DNA evidence strongly
suggested that defendant’s sperm was present on the under-
wear and panty liner that the victim was wearing that night.
Whether the sexual relations were consensual was what
was debated. Both defendant and the victim testified, and
they were the only witnesses to what had occurred. Other
witnesses testified about what defendant and the victim had
reported to them about the incident. Defendant’s girlfriend,
his girlfriend’s father, and the mother of one of defendant’s
children all testified that defendant had maintained that he
did not rape the victim. Witnesses for the state testified that
defendant initially had stated that he had had no sexual
contact with the victim at all and then later admitted that
he and the victim had engaged in consensual sexual rela-
tions. No witnesses testified that defendant had admitted
that he raped the victim.
	        Therefore, the text messages and defendant’s non-
response addressed the only contested issue in the case
and were not duplicative of the other evidence of defen-
dant’s guilt. See id. at 33-34 (concluding that evidence was
not harmless in similar circumstances). Moreover, the text
messages and defendant’s nonresponse were not passed over
lightly. During the testimony of both defendant and the vic-
tim, the state repeatedly emphasized defendant’s failure
to respond to the text messages. While the victim was on
the stand, the prosecutor asked a variation of the question
“[d]id he respond to that?” five separate times. Even after
the prosecutor had moved on to topics unrelated to the text
messages, he returned to that evidence. At one point, the
victim explained that her family and defendant’s family
often shared holidays together. The prosecutor then asked,
“And no response to those text messages?” And while cross
examining the defendant, the prosecutor turned immedi-
ately to the topic of the text messages, asking defendant to
Cite as 359 Or 808 (2016)	821

again confirm his testimony on direct examination that he
had received the text messages.
	       The state’s theory of the case, as explained in its
opening statement, was that defendant had raped the victim
while she was “passed out.” The text messages and the infer-
ence that an innocent person would have responded to them
added significant support to that theory. We cannot conclude
that there was little likelihood that the trial court’s error in
admitting the proffered evidence affected the verdict, and
we therefore reverse and remand for further proceedings.
	       The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
