State v. Del Real-Galvez

346 P.3d 1289, 270 Or. App. 224, 2014 Ore. App. LEXIS 1937
CourtCourt of Appeals of Oregon
DecidedApril 1, 2015
DocketC112306CR; A153489
StatusPublished
Cited by15 cases

This text of 346 P.3d 1289 (State v. Del Real-Galvez) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Del Real-Galvez, 346 P.3d 1289, 270 Or. App. 224, 2014 Ore. App. LEXIS 1937 (Or. Ct. App. 2015).

Opinion

TOOKEY, J.

Defendant, who was convicted of two counts of sexual abuse in the first degree (Counts 1 and 3), ORS 163.427,1 and one count of coercion (Count 5), ORS 163.275,2 appeals the resulting judgment of conviction, raising four assignments of error. We reject without discussion defendant’s first assignment of error related to a CARES Northwest recorded interview with defendant’s niece, X, and whether that recording constitutes “uncharged misconduct evidence” under OEC 404(3). We write only to address defendant’s second assignment of error, in which he argues that the trial court improperly excluded certain impeachment evidence as not relevant—that is, evidence that X’s mother, who was not a United States citizen, had applied for a U visa to remain in the United States and based her application on X’s allegations that defendant had sexually abused and coerced X, and evidence that X knew about her mother’s immigration status and knew that alleging sexual abuse could help her mother obtain a U visa. See 8 CFR § 214.14 (describing U visas). We review for legal error, conclude that the trial court erred in excluding that evidence, and further conclude that that error was not harmless. See State v. Valle, 255 Or App 805, 809, 298 P3d 1237 (2013) (“Whether evidence is relevant is a question of law, which we review for errors of law.”). Accordingly, we reverse and remand on Counts 1, 3, and 5, and otherwise affirm.3

[226]*226When X was 15 years old, she alleged that defendant had sexually abused her when she was younger and had threatened to kill her parents if she told. Based on X’s allegations, defendant was subsequently charged with four counts of first-degree sexual abuse and one count of coercion.

As defendant’s case proceeded to trial, X’s mother applied for a U visa to remain in the United States and based her application on X’s allegations that defendant had sexually abused and coerced X. In support of X’s mother’s U visa application, Catholic Charities Immigration Legal Services wrote a letter to the Washington County District Attorney’s Office. That letter stated that X’s mother “may be eligible for immigration benefits through the U visa” as an “indirect victim” of sexual abuse, based on X’s status as a victim of sexual abuse and X’s mother’s cooperation with law enforcement officials on X’s behalf. The prosecutor in this case also signed a certification form in support of X’s mother’s U visa application. That certification form lists the name of X’s mother under “Part 1. Victim Information.” It also states that X’s mother had “been helpful” in the case, noting that “[s]he reported the crime to the police and DHS, she ha[d] spoken with and answered investigating officer’s questions, taken her daughter to CARES Northwest for evaluation, provided her daughter’s medical records, and ha[d] been subpoenaed for and testified at grand jury.” It further states that X’s mother’s “continued assistance and availability will be helpful for the case.”

Before trial, the state moved to exclude evidence that X’s mother had applied for a U visa, arguing that that evidence was not relevant. See OEC 401 (defining “relevant evidence”). At a pretrial hearing on the state’s motion, defendant argued that the proffered evidence was relevant [227]*227to show X’s motives for disclosing the abuse and for testifying at trial. Defense counsel argued that he was entitled to “ask [X] if she knew her mom’s immigration status, and if she knew about the U visa application, and if she wanted to help her mother.” Defense counsel further stated:

“I do believe that [X] knows about the U visa application. I do believe that she knows that that U visa application will allow her mother to stay in the country, and I do believe that she knows that the testimony today will benefit that application. And I think that I’m allowed to ask leading questions to gain those answers.”

The trial court deferred making a ruling at that time, but stated that defendant would be allowed to raise the issue at trial, outside the presence of the jury.

At trial, during the cross-examination of X, defendant asked X if she was aware that her “mom was undocumented [,]” and the prosecutor objected. Outside the presence of the jury, defendant conducted an offer of proof, eliciting X’s testimony that she knew that both of her parents were “undocumented.” The trial court ruled that that evidence was not relevant and sustained the prosecutor’s objection.

After the state rested its case, defense counsel called a witness, Arellano, to make another offer of proof regarding the U visa evidence. Arellano had worked with X’s mother, cleaning houses. Arellano testified that a few years earlier, she was riding in a truck with other people, including X’s mother and X, and listening to a radio program called “Piolín Por La Mañana.” According to Arellano, a woman on that program began “talking about her case. She said that her husband had touched her daughter and that she had gotten him put in jail. And thanks to that—well, probably not thanks to that, but with that, she obtained her visa and her house [.]”

Arellano further testified that, later that day, as she and others were cleaning a particular house, she heard X’s mother tell X, “‘Little girl, we’re going to say that your father touched you, so that way I can have my visa and we’ll put the house in your name and I will give you a truck as a gift.’” According to Arellano, X’s mother also told X that nothing would happen to her because she was born in the [228]*228United States. That conversation occurred in October or November 2009.

The state argued that that testimony was not relevant because the purported conversation occurred well before X’s disclosure of abuse in 2011 and involved a plan to accuse X’s father of sexual abuse, not defendant, who was her uncle. Defendant responded that that testimony was relevant because it established that X knew about her mother’s immigration status and knew that alleging sexual abuse could help her mother obtain a U visa.

The court then ruled that that testimony was not relevant and excluded it, stating, “I’m not going to allow that testimony. * * * [D] o you have anything else * * * in regard to that issue then, [defense counsel]?” Defendant then offered into evidence the letter from Catholic Charities Immigration Legal Services, as well as the U visa certification form. The trial court also excluded that evidence, and defendant, who was convicted as noted above, now appeals.

On appeal, defendant contends that the trial court erred when it excluded evidence that X’s mother had applied for a U visa to remain in the United States and based her application on X’s allegations that defendant had sexually abused and coerced X, and evidence that X knew about her mother’s immigration status and knew that alleging sexual abuse could help her mother obtain a U visa. Defendant argues that that evidence was relevant and that its improper exclusion was not harmless.

The state responds that the trial court correctly excluded that evidence as not relevant.

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Cite This Page — Counsel Stack

Bluebook (online)
346 P.3d 1289, 270 Or. App. 224, 2014 Ore. App. LEXIS 1937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-del-real-galvez-orctapp-2015.