Date: 02-25-2015

Case Style: State of Oregon v. Ramiro Quiroz Hernandez

Case Number: A150027

Judge:

Court: Oregon Court of Appeals on appeal from the Circuit Court, Washington County

Plaintiff's Attorney: Susan G. Howe, Senior Assistant Attorney General,
argued the cause for respondent. With her on the brief were
Ellen F. Rosenblum, Attorney General, and Anna M. Joyce,
Solicitor General.

Defendant's Attorney: Ryan Scott argued the cause and filed the brief for
appellant.

Description: In this criminal case, defendant appeals a judgment
convicting him of harassment, ORS 166.065(4), and sexual
abuse in the third degree, ORS 163.415. On appeal defendant
raises two assignments of error. In his first assignment,
he asserts that “the trial court erred by allowing the
prosecutor to reference the [complainant] as ‘victim’ in both
her opening statement and closing argument[.]” We reject
that assignment without written discussion. In his second
assignment, defendant asserts that the trial court erred by
“prohibiting [him] from asking the [complainant] whether
she intended to seek a U-Visa, which would allow an otherwise
illegal resident to stay in the United States if she
were shown to be a victim of a crime[.]” See 8 CFR § 214.14
(describing U visas). We agree that the trial court erred by
limiting defendant’s cross-examination of the complainant,
and, because the error was not harmless, we reverse and
remand.
The state charged defendant with two crimes:
harassment and sexual abuse in the third degree. The
charges were based on allegations by defendant’s former
employee, Carranza. Defendant’s defense was that Carranza
had fabricated the allegations. At trial, he argued that
Carranza had made the charges in order to obtain money
from him and to secure a U visa. He presented evidence that,
after Carranza made the charges, an attorney acting on her
behalf presented a demand to defendant for $25,000 based
on the alleged crimes. In addition, defendant presented evidence,
through cross-examination of Carranza herself, that
Carranza was in the country illegally, was subject to deportation,
and was aware that, if she was a crime victim, she
could apply for a U visa.1 When the state objected, on relevancy
grounds, to defendant’s questions about Carranza’s
immigration status and awareness that she could apply for
a U visa, defendant told the court that the purpose of the
questioning was to establish the “benefits that [Carranza]
1 Exactly when Carranza learned of the U visa program was disputed at trial.
Carranza and her attorney testified that Carranza had learned of the program
in January or February 2011, after she had reported defendant to the police. In
contrast, defendant’s wife testified that she had told Carranza about the program
in March or April 2010, prior to Carranza’s allegations against defendant.
Cite as 269 Or App 327 (2015) 329
gets by considering herself a victim of a crime.” Defendant
subsequently asked Carranza if she was “planning” to
get a U visa. The state objected, and the court sustained
the objection. Defense counsel then asked Carranza if she
“hope[d] to get” a U visa. Again, the state objected, and the
court sustained the objection.
In closing argument, the prosecutor argued that the
jury should reject defendant’s arguments that Carranza’s
allegations were motivated by a desire to obtain money from
defendant and a desire to obtain a U visa. The prosecutor
contended that Carranza “had absolutely nothing to gain by
coming in here. Her civil case, her immigration case, that’s
separate from what we’re doing here today.”
The jury convicted defendant of both counts. This
appeal followed.
On appeal, defendant asserts that the trial court
erred by prohibiting him from asking Carranza whether
she intended to get a U visa. He contends that the evidence
he sought to obtain in response to the questioning
was relevant and admissible under the Oregon Evidence
Code. Specifically, he contends that the evidence was relevant
and admissible to impeach the complainant. See OEC
403 (defining relevant evidence); OEC 609-1 (providing for
admission of impeachment evidence); State v. Valle, 255 Or
App 805, 809, 815, 298 P3d 1237 (2013) (evidence that complainant
had applied for a U visa was relevant and admissible
impeachment evidence).2
The state does not defend the trial court’s ruling; it
does not dispute defendant’s assertion that the court erred
in limiting defendant’s cross-examination. Instead, the
state argues that defendant’s argument that the court erred
is not preserved because defendant failed to make an offer
of proof and that, even if defendant’s argument is preserved,
any error was harmless.
2 Defendant also argues that the trial court’s exclusion of the evidence violated
his rights, under the state and federal constitutions, to confront the witnesses
against him. Or Const, Art I, § 11; US Const, Amend VI. Because we
conclude that the trial court’s exclusion of the evidence violated the evidence
code, and we reverse and remand on that ground, we do not reach defendant’s
constitutional arguments.
330 State v. Hernandez
We first turn to the issue of preservation. Generally,
in order to successfully appeal the exclusion of evidence,
a party must make an offer of proof in the trial court to
establish the substance of the evidence. State v. Affeld, 307
Or 125, 128, 764 P2d 220 (1988). An offer of proof serves
two purposes: It provides an outline of the evidence so that
(1) the trial court can rule on the admissibility of the evidence
and (2) the appellate court can determine whether the
ruling was erroneous, and if so, whether it prejudiced the
proponent of the evidence. State v. Busby, 315 Or 292, 298,
844 P2d 897 (1993) (in order to preserve a challenge to the
exclusion of evidence, “a defendant must at least * * * sufficiently
outline the nature of his testimony so that the trial
court, and the reviewing court, can intelligently consider
the ruling.” (internal quotation marks omitted)).
Given the purposes of an offer of proof, we have
held that a party is not required to make an offer of proof in
order to preserve a challenge to a trial court’s limitation on
cross-examination when the nature of the sought-after testimony
was apparent from the party’s questioning and argument.
State v. Strickland, 265 Or App 460, 462, 335 P3d
867, rev den, 356 Or 517 (2014) (“In the absence of an offer
of proof, a challenge may still be preserved if the questions
asked and the arguments presented to the court on the issue
were adequate to inform the trial court of the substance of
the evidence and its error in excluding it.” (internal quotation
marks omitted)); see also OEC 103(1)(b) (to establish
that a trial court’s exclusion of evidence constitutes reversible
error, a party must show that “the substance of the evidence
was made known to the court by offer or was apparent
from the context within which questions were asked”).
As described, at trial, defendant questioned Carranza
about her immigration status, her desire to remain in the
country, and her awareness of the fact that, if she was a
crime victim, she could apply for a U visa to stay in the
country. And, defendant told the trial court that the purpose
of that questioning was to establish the “benefits that
[Carranza] gets by considering herself a victim of a crime.”
Nevertheless, when defendant subsequently asked Carranza
if she was “planning” to get a U visa, the state objected, and
the court sustained the objection. Defendant then asked
Cite as 269 Or App 327 (2015) 331
Carranza whether she “hope[d] to get” a U visa, and, again,
the state objected, and the court sustained the objection.
We conclude that, given the context of defendant’s questions
and the questions themselves, the trial court was on notice
that defendant sought to elicit evidence regarding whether
Carranza intended to apply for a U visa and his purpose
in doing so was to impeach Carranza. Thus, the trial court
had sufficient information to rule on the admissibility of the
evidence.
Further, notwithstanding the state’s contrary contention,
the record in this case is sufficient—even without
an offer of proof—for us to determine whether the trial court
erred, and if so, whether the error prejudiced defendant. We
address each of those two issues in turn.
First, we can determine whether the trial court
erred. The issue before the trial court was whether evidence
regarding whether Carranza had applied for a U visa was
relevant and admissible as impeachment evidence. The trial
court ruled that it was not, and we review that ruling for
legal error. State v. Tyon, 226 Or App 428, 440, 204 P3d
106 (2009). Thus, our task is to determine whether, as a
matter of law, the evidence was relevant and admissible as
impeachment evidence. We can do that on this record.
A witness may be impeached by evidence that the
witness is biased or has a personal interest in the outcome
of the case. OEC 609-1. As the Supreme Court has observed,
it is “always permissible” to show the bias or interest of a
witness because such evidence goes to the witness’s credibility.
State v. Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984)
(internal quotation marks omitted). “Thus, unless there
is reason to exclude evidence of bias or interest, it must
be received.” Valle, 255 Or App at 809 (internal quotation
marks omitted); see also Hubbard, 297 Or at 798 (typically,
“wide latitude [must] be given to the cross-examiner to ask
[for] and receive answers to questions sufficient to demonstrate
to the jury the nature of the bias or interest of the
witness”).
“To be relevant, evidence introduced to impeach a
witness for bias or interest need only have a mere tendency
to show the bias or interest of the witness.” Hubbard, 297 Or
332 State v. Hernandez
at 796. Accordingly, we have held that “it is error for a trial
court to exclude evidence from which a jury could reasonably
infer that [a] witness has a motive to testify in a certain
manner.” Valle, 255 Or App at 811. And, we have specifically
held, in a case similar to this one, that it was error
for a trial court to exclude evidence that the complainant
in a criminal case had applied for a U visa. Id. at 809, 811;
see also Hubbard, 297 Or at 801 (where the defendant’s testimony
and the arresting officer’s testimony about the circumstances
of the defendant’s arrest conflicted, evidence of
the arresting officer’s knowledge of police disciplinary procedures
was relevant and admissible to show that the officer
had a personal interest in testifying in a certain manner
in order avoid departmental discipline for using excessive
force).
Applying that precedent to the facts of this case,
we conclude that evidence regarding whether Carranza
intended to apply for a U visa was relevant to whether she
had a particular personal interest in the outcome of the
case. Therefore, defendant was entitled to ask her whether
she intended to apply for a U visa. The trial court erred in
concluding otherwise.
Second, we can also determine whether defendant
was prejudiced by that error even though defendant did not
make an offer of proof. Here, regardless of whether Carranza
answered “yes” or “no” when asked whether she intended to
apply for a U visa, defendant could have used her answer for
his benefit. As the state itself observes, if Carranza testified
that she intended to apply for a U visa, defendant could have
argued that her testimony was evidence of a motive to fabricate
the allegations against defendant; on the other hand,
if Carranza testified that she did not intend to apply for a
U visa, defendant could have argued that her testimony was
not credible, given her immigration status and expressed
desire to stay in the country. Thus, although defendant did
not make an offer of proof, we can ascertain the effect of
the trial court’s ruling. It deprived defendant of evidence
upon which he could argue either that Carranza had a personal
interest in the outcome of the case that the jury should
consider when assessing her credibility or that she was not
being forthright in her testimony.
Cite as 269 Or App 327 (2015) 333
Having concluded that defendant’s appellate contentions
were preserved, even in the absence of an offer of
proof, and that the trial court erred, we turn to the state’s
alternative contention that the error was harmless. See Or
Const, Art VII (Amended), § 3 (an appellate court shall
affirm the judgment of the lower court, despite trial error,
if the appellate court is of the opinion “that the judgment
* * * was such as should have been rendered”); OEC 103(1)
(an evidentiary error “is not presumed to be prejudicial”);
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (an error is
harmless only if there is “little likelihood that the * * * error
affected the verdict”). The exclusion of evidence of a witness’s
bias or personal interest is not harmless if, as a result of the
exclusion, the jury is “not fully informed of matters relevant
to an assessment of [the witness’s] credibility[.]” Valle, 255
Or App at 815.
The state argues that the trial court’s limitation of
defendant’s cross-examination was harmless because defendant’s
question regarding Carranza’s intent to apply for a
U visa was rhetorical. According to the state, it did not matter
how Carranza answered the question. We agree that,
as discussed above, either a “yes” or a “no” answer would
have benefitted defendant. But that does not mean that the
trial court’s exclusion of an answer was harmless. The trial
court’s ruling deprived defendant of evidence that defendant
could have used to argue that the jury should draw particular
inferences about Carranza’s credibility. (Indeed, on
appeal, the state contends that, without an answer in the
record, any finding regarding whether Carranza intended
to apply for a U visa would be speculative.)
The state also argues that exclusion of the evidence
was harmless because defendant presented other evidence
of Carranza’s personal interest in the outcome of the case.
In support of that argument, the state points out that defendant
presented evidence that Carranza had demanded
$25,000 from defendant based on the alleged incident. That
is true, but evidence regarding a personal interest based
on the possibility of securing a money judgment is qualitatively
different from evidence regarding a personal interest
based on the possibility of securing legal immigration
status. Admission of evidence of one type of bias does not
334 State v. Hernandez
render exclusion of evidence of another type of bias harmless.
The state also points out that defendant was able to
introduce some evidence regarding Carranza’s immigration
status and U visas. But, as defendant correctly argues, the
excluded evidence was different:
“The complainant’s intent to actually seek a U-Visa implicates
a level of bias and incentive that is greater than the
fact that at some point she merely learned she had the ability
to do so. * * * Such an intent would indicate a greater
motive to fabricate than a mere unrealized and hypothetical
possibility.”
In sum, we conclude that the trial court erred in
excluding evidence regarding Carranza’s intent to apply for
a U visa and that the error was not harmless. Therefore, we
reverse and remand for a new trial.

Outcome: Reversed and remanded.

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