State of Oregon v. Ramiro Quiroz Hernandez

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.

Reversed and remanded.