State v. Perez

Court of Appeals of Oregon

State v. Perez

899 P.2d 722, 135 Or. App. 433, 1995 Ore. App. LEXIS 994

CourtCourt of Appeals of Oregon

DecidedJuly 12, 1995

Docket92C-21509; CA A80058

StatusPublished

Cited by2 cases

This text of 899 P.2d 722 (State v. Perez) 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. Perez, 899 P.2d 722, 135 Or. App. 433, 1995 Ore. App. LEXIS 994 (Or. Ct. App. 1995).

Pincite

Opinion

RIGGS, J.

Defendant appeals his convictions for first degree burglary and second degree sexual abuse. ORS 164.225; ORS 163.425. He assigns error to the court’s exclusion of his witnesses as a sanction for discovery violations. He argues that the prosecution failed to demonstrate that it would be prejudiced if his witnesses were allowed to testify. We reverse.

Defendant and the alleged victim, Lewis, gave very different accounts of what occurred on the night of July 17, 1992. Lewis testified that, after she got off work, she stopped by a neighbor’s apartment for a soda and then went home and to bed at about 1:00 a.m. It was a hot night, so she left her front door open and the fan on in front of her door. She testified that she was awakened by kisses from defendant, who had climbed into her bed. Defendant said, “It’s me, Armando” and, “Do you want me to do this?” Lewis testified that she told defendant to stop but he continued kissing her and tried to put his hands in her panties and bra. Lewis testified that defendant eventually stopped after she continued to say no and push his hands away.

Defendant admits that he was in Lewis’s apartment that night and that there was some sexual activity. Defendant testified, however, that the encounter was consensual. He testified that, earlier in the evening, Lewis invited him over for a small get-together.¹ When he arrived at her apartment, she invited him in, they went to a couch and kissed for awhile until Lewis said she was tired. He then left and went home.

At trial, defendant attempted to call Dan Perez, his cousin, and two others as witnesses. The state objected to the testimony of the witnesses, because they were not disclosed to the state until the day of the trial. Defendant’s counsel told the court that he was unaware that the witnesses existed until 5:00 p.m. the day before trial and that he disclosed the witnesses as soon as practicable, thus complying with ORS 135.835 and ORS 135.845.² The court then stated its inclination to exclude the witnesses, but allowed defendant to put on [436]*436an offer of proof. The court refused to permit the witnesses to testify, relying on ORS 134.865.³ The trial continued and defendant was convicted.

On appeal, defendant argues that the trial court erred in precluding his witnesses from testifying. As a threshold issue, we consider the state’s argument that the error was not preserved. In this case, the propriety of excluding the witnesses was before the trial court and defendant made a proper offer of proof. In these circumstances, and without further discussion, we are satisfied that the error was sufficiently preserved for our review.

Once we reach the error, the state concedes that the court erred. Under State v. Mai, 294 Or 269, 277, 656 P2d 315 (1982), and State v. Ben, 310 Or 309, 317, 798 P2d 650 (1990), constitutional concerns require the prosecution to demonstrate that it would be prejudiced before a court may exclude defense witnesses for discovery violations. The prosecution made no such showing here. Therefore, the court erred by excluding defendant’s witnesses.

Nevertheless, the state argues that the error was harmless. The harmless error rule, which arises from Article VII (amended), section 3, of the Oregon Constitution,⁴ requires us to affirm a defendant’s conviction, even though a trial court committed error,

[437]*437“whenever there is (1) substantial and convincing evidence of guilt and (2) little, if any, likelihood that the error affected the verdict.” State v. Parker, 317 Or 225, 233, 855 P2d 636 (1993).

We cannot say that there is little likelihood that this error affected the verdict. There was no physical evidence; the case boils down to a swearing match between defendant and Lewis. Defendant contends that the excluded witnesses would have directly contradicted Lewis on a critical matter: whether defendant was invited to Lewis’s apartment that evening. That testimony would have been directly probative of an element of the burglary charge and additionally it would have impeached the state’s main witness on a noncollateral matter. The witnesses should have been allowed to testify and the error was not harmless.

Reversed and remanded for a new trial.

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RIGGS, J.

Defendant appeals his convictions for first degree burglary and second degree sexual abuse. ORS 164.225; ORS 163.425. He assigns error to the court’s exclusion of his witnesses as a sanction for discovery violations. He argues that the prosecution failed to demonstrate that it would be prejudiced if his witnesses were allowed to testify. We reverse.

Defendant and the alleged victim, Lewis, gave very different accounts of what occurred on the night of July 17, 1992. Lewis testified that, after she got off work, she stopped by a neighbor’s apartment for a soda and then went home and to bed at about 1:00 a.m. It was a hot night, so she left her front door open and the fan on in front of her door. She testified that she was awakened by kisses from defendant, who had climbed into her bed. Defendant said, “It’s me, Armando” and, “Do you want me to do this?” Lewis testified that she told defendant to stop but he continued kissing her and tried to put his hands in her panties and bra. Lewis testified that defendant eventually stopped after she continued to say no and push his hands away.

Defendant admits that he was in Lewis’s apartment that night and that there was some sexual activity. Defendant testified, however, that the encounter was consensual. He testified that, earlier in the evening, Lewis invited him over for a small get-together.¹ When he arrived at her apartment, she invited him in, they went to a couch and kissed for awhile until Lewis said she was tired. He then left and went home.

At trial, defendant attempted to call Dan Perez, his cousin, and two others as witnesses. The state objected to the testimony of the witnesses, because they were not disclosed to the state until the day of the trial. Defendant’s counsel told the court that he was unaware that the witnesses existed until 5:00 p.m. the day before trial and that he disclosed the witnesses as soon as practicable, thus complying with ORS 135.835 and ORS 135.845.² The court then stated its inclination to exclude the witnesses, but allowed defendant to put on [436]*436an offer of proof. The court refused to permit the witnesses to testify, relying on ORS 134.865.³ The trial continued and defendant was convicted.

On appeal, defendant argues that the trial court erred in precluding his witnesses from testifying. As a threshold issue, we consider the state’s argument that the error was not preserved. In this case, the propriety of excluding the witnesses was before the trial court and defendant made a proper offer of proof. In these circumstances, and without further discussion, we are satisfied that the error was sufficiently preserved for our review.

Once we reach the error, the state concedes that the court erred. Under State v. Mai, 294 Or 269, 277, 656 P2d 315 (1982), and State v. Ben, 310 Or 309, 317, 798 P2d 650 (1990), constitutional concerns require the prosecution to demonstrate that it would be prejudiced before a court may exclude defense witnesses for discovery violations. The prosecution made no such showing here. Therefore, the court erred by excluding defendant’s witnesses.

Nevertheless, the state argues that the error was harmless. The harmless error rule, which arises from Article VII (amended), section 3, of the Oregon Constitution,⁴ requires us to affirm a defendant’s conviction, even though a trial court committed error,

[437]*437“whenever there is (1) substantial and convincing evidence of guilt and (2) little, if any, likelihood that the error affected the verdict.” State v. Parker, 317 Or 225, 233, 855 P2d 636 (1993).

We cannot say that there is little likelihood that this error affected the verdict. There was no physical evidence; the case boils down to a swearing match between defendant and Lewis. Defendant contends that the excluded witnesses would have directly contradicted Lewis on a critical matter: whether defendant was invited to Lewis’s apartment that evening. That testimony would have been directly probative of an element of the burglary charge and additionally it would have impeached the state’s main witness on a noncollateral matter. The witnesses should have been allowed to testify and the error was not harmless.

Reversed and remanded for a new trial.

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Bluebook (online)

899 P.2d 722, 135 Or. App. 433, 1995 Ore. App. LEXIS 994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perez-orctapp-1995.

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