State v. Lulay, 414 P.3d 903

Background

Defendant was tried in consolidated proceedings on multiple counts of first‑degree sexual abuse and attempted sexual abuse involving two child victims (A and C).
Before trial, defendant sought to admit evidence of a 2008 prosecution and acquittal on similar child sexual‑abuse charges; the State sought exclusion and the court initially reserved ruling.
During voir dire a juror referenced awareness of the 2008 matter; defendant then moved to introduce the 2008 case to show witness bias and to support a defense theory that the prior prosecution caused him to take special precautions around children.
The trial court ruled the 2008 prosecution/acquittal was collateral and excluded any mention of it, refusing to allow the defense to make an initial showing of bias from that prior matter; defendant was convicted on most counts and appealed.
The appellate court held defendant preserved the bias argument, found the trial court erred by foreclosing an initial showing of bias (and by excluding the evidence relevant to the precaution theory), and concluded the error was not harmless — reversing and remanding.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of objection to exclusion of prior prosecution evidence	State: defendant failed to preserve by not offering proof during witness testimony	Defendant: timely raised admissibility pretrial and on multiple occasions; exclusion was categorical so further offers were futile	Preserved — defendant adequately presented the bias theory and need for the evidence to trial court
Admissibility of prior prosecution/acquittal to show witness bias (OEC 609‑1 and OEC 403)	State: evidence is collateral, confusing, unfairly prejudicial, and would require retrying prior case	Defendant: knowledge of 2008 prosecution could show family witnesses were biased and prejudiced against him; also supported defense that he acted cautiously around children after the earlier accusation	Error to exclude: court prevented the defense from making even an initial showing of bias; evidence had at least a mere tendency to show bias and should have been allowed for initial inquiry
Admissibility of prior prosecution/acquittal to support defendant's precaution theory (relevance OEC 401/403)	State: irrelevant and confusing; probative value substantially outweighed by prejudice	Defendant: prior experience with accusation/acquittal made it more likely he would be cautious, undermining State's allegations	Court erred in excluding; evidence bore on defendant's state of mind and had probative value; exclusion affected both victims' cases
Harmless‑error analysis	State: any error was harmless because evidence would be confusing and other testimony supported convictions	Defendant: exclusion impaired jury's ability to assess credibility of key family witnesses	Not harmless: credibility was central, no alternative evidence of bias or corroboration; error likely affected verdicts — convictions reversed and remanded

Key Cases Cited

Peeples v. Lampert, 345 Or. 209 (preservation rule purposes and requirement to present issue to trial court)
State v. Haugen, 349 Or. 174 (offer of proof and preservation guidance)
State v. Hubbard, 297 Or. 789 (bias evidence admissible; cross‑examiner entitled to initial showing to infer bias)
State v. Muldrew, 229 Or. App. 219 (initial showing requirement for bias under OEC 609‑1 and OEC 403)
State v. Olmstead, 310 Or. 455 (ruling excluding entire class of evidence renders further offers futile)
State v. Tyon, 226 Or. App. 428 (prior belief that defendant "escaped conviction" can support inference of witness bias)
State v. Davis, 336 Or. 19 (harmless‑error approach relating error to jury's verdict)