FILED: October 8, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERNESTO MASCORRO RAMIREZ,

Defendant-Appellant.

Washington County Circuit Court
C041787CR
A126788

Steven L. Price, Judge.

On respondent's petition for reconsideration filed July 9, 2008. Opinion filed May 7, 2008. 219 Or App 598, 184 P3d 1138.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, for petition.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.

PER CURIAM

Reconsideration allowed; former opinion adhered to.

PER CURIAM

The state petitions for reconsideration of our decision in State v. Ramirez, 219 Or App 598, 184 P3d 1138 (2008). We held that the trial court erred in refusing to allow defendant to cross-examine his codefendant, Garcia, about whether defendant was under the influence of methamphetamine when they committed an armed robbery, which was pertinent to defendant's assertion that he was voluntarily intoxicated and thus could not form the intent to commit the offense. In support of its petition, the state makes several arguments asserting that the trial court's error was harmless. We allow reconsideration to briefly address one of those arguments and reject the others without discussion. We adhere to our former opinion.

The state argues that any error in refusing to allow defendant to cross-examine Garcia was harmless because defendant could have called Garcia in his own case-in-chief and elicited the same information that he attempted to elicit through cross-examination. The state's argument is not well taken. A trial court error is harmless if there is little likelihood that it affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The availability of mitigating measures to the party against whom an erroneous ruling was made does not mean that the ruling was unlikely to have affected the verdict. In other words, the fact that defendant could have taken measures that would have rendered the trial court's error harmless does not mean that the error was harmless.

Reconsideration allowed; former opinion adhered to.


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