State v. Hernandez

344 P.3d 538, 269 Or. App. 327, 2015 Ore. App. LEXIS 230
CourtCourt of Appeals of Oregon
DecidedFebruary 25, 2015
DocketD105565M; A150027
StatusPublished
Cited by8 cases

This text of 344 P.3d 538 (State v. Hernandez) 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. Hernandez, 344 P.3d 538, 269 Or. App. 327, 2015 Ore. App. LEXIS 230 (Or. Ct. App. 2015).

Opinion

DUNCAN, R J.

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] [329]*329gets 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.

[330]*330We 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(l)(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 [331]*331Carranza 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Tennessee v. Baeho Shin
Court of Criminal Appeals of Tennessee, 2025
State v. Houston
511 P.3d 51 (Court of Appeals of Oregon, 2022)
State v. Alvarez-Lopez
501 P.3d 1141 (Court of Appeals of Oregon, 2021)
State v. Smith
482 P.3d 174 (Court of Appeals of Oregon, 2021)
State v. Shepherd
468 P.3d 487 (Court of Appeals of Oregon, 2020)
State v. Perez-Garcia
433 P.3d 443 (Court of Appeals of Oregon, 2018)
State v. Crum
403 P.3d 405 (Court of Appeals of Oregon, 2017)
State v. Nacoste
356 P.3d 135 (Court of Appeals of Oregon, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
344 P.3d 538, 269 Or. App. 327, 2015 Ore. App. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-orctapp-2015.