State v. Hernandez, 344 P.3d 538

Background

Defendant was convicted of harassment (ORS 166.065(4)) and third-degree sexual abuse (ORS 163.415) based on accusations by his former employee, Carranza.
Defendant’s defense was that Carranza fabricated allegations to obtain money and to secure immigration relief (a U visa).
At trial defendant elicited from Carranza that she was undocumented, knew that crime victims could apply for U visas, and that her lawyer later demanded $25,000 from defendant.
The trial court sustained state objections when defendant asked Carranza whether she was "planning" or "hoping" to get a U visa; the court excluded testimony about her intent to apply.
The jury convicted; defendant appealed, arguing the exclusion of evidence about Carranza’s intent to seek a U visa violated the Oregon Evidence Code and deprived him of impeachment material.
The state did not defend admissibility but argued lack of preservation (no offer of proof) and harmless error. The court rejected those defenses, found error, and reversed and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of testimony about complainant’s intent to seek a U visa was preserved for appeal	State: defendant failed to make an offer of proof, so the issue isn’t preserved	Defendant: the nature of the testimony was apparent from questioning and counsel’s argument, so no formal offer was required	Preserved — trial court had sufficient notice from questions and argument; appellate review allowed
Whether evidence of intent to apply for a U visa is relevant and admissible as impeachment (bias/interest)	State: does not defend trial court ruling (but later argued harmlessness)	Defendant: intent to seek a U visa shows personal interest/motive to fabricate and is admissible impeachment under OEC 609-1 and related precedent	Error to exclude — such evidence is relevant to bias and must be admitted absent reason to exclude
Whether the exclusion was harmless	State: question was rhetorical; either answer would help defendant, so exclusion was harmless; also defendant introduced other evidence of bias (demand for $25,000, some immigration evidence)	Defendant: excluded testimony was qualitatively different and could have produced specific inferences about motive/credibility; exclusion deprived defense of impeachment tool	Not harmless — exclusion deprived jury of information relevant to assessing credibility; reversal and remand required
Whether exclusion implicated confrontation clause or state constitutional rights	State argued harmlessness; court noted constitutional claim	Defendant raised confrontation clause claim	Court did not decide constitutional claim because it reversed on evidentiary grounds

Key Cases Cited

State v. Valle, 255 Or App 805 (2013) (evidence that complainant applied for a U visa is relevant and admissible impeachment evidence)
State v. Hubbard, 297 Or 789 (1984) (bias or personal interest of a witness is always permissible impeachment; broad latitude for cross-examination)
State v. Strickland, 265 Or App 460 (2014) (an offer of proof is not required where the substance of the excluded testimony is apparent from questions and arguments)
State v. Affeld, 307 Or 125 (1988) (general rule requiring offer of proof to preserve exclusion-of-evidence claims)
State v. Busby, 315 Or 292 (1993) (offer of proof serves to outline excluded evidence for trial and appellate review)
State v. Tyon, 226 Or App 428 (2009) (review standard for trial court rulings on admissibility of evidence)
State v. Davis, 336 Or 19 (2003) (harmless error standard: reversal required unless little likelihood the error affected the verdict)

Reversed and remanded for a new trial.