State v. Miller, 358 P.3d 301

Defendant and complaining witness (C) lived together with children; dispute arose after defendant’s extramarital affair and C later learned she had an STD she attributed to defendant.
On Jan 12 the parties had an argument; C later reported multiple physical altercations and was diagnosed with a nasal fracture on Jan 22; defendant disputed C’s account and described a single altercation in self-defense.
C reported the Jan 12 incident to police on Jan 31 after restraining-order and custody filings; state charged defendant with fourth-degree assault (domestic violence) and harassment.
At trial defendant sought to impeach C under OEC 609-1 with evidence that, a few days before Jan 12, C had physically attacked him in the front yard in front of a witness (Johnston); C denied the prior attack.
Trial court excluded the proffered bias evidence as not showing bias; jury acquitted on assault but convicted on harassment; defendant appealed based on exclusion of bias evidence (and a jury-size claim later rejected).
The Court of Appeals held the excluded evidence was admissible impeachment under OEC 609-1, that exclusion was error, and the error was not harmless; reversed and remanded for new trial.

Issue	State's Argument	Defendant's Argument	Held
Admissibility of prior physical attack as bias evidence under OEC 609-1	The proffered incident was not bias evidence (trial court); state concedes error on appeal but argued harmlessness	The prior attack shows C’s bias/hostility and is admissible impeachment under OEC 609-1; testimony and a third-party witness should be allowed	Evidence was relevant to bias and admissible under OEC 609-1; trial court erred by excluding it
Harmlessness of evidentiary error	Any error was harmless: jury already discredited C on assault and defendant essentially admitted the conduct underlying harassment; admitted evidence showed bias so excluded evidence was cumulative	Excluded evidence was qualitatively different (showed actual pre-report hostility and a specific violent incident) and could have affected credibility; error was not harmless	Error was not harmless: exclusion denied jury an adequate opportunity to assess C’s credibility; reversal and remand required
Jury-size challenge to conviction	State relied on Sagdal precedent	Defendant argued six-person jury verdict invalid	Court rejected defendant’s jury-size assignment of error as foreclosed by State v. Sagdal

State v. Tyon, 226 Or. App. 428 (Or. Ct. App. 2009) (standard of review for admissibility under OEC 609-1)
State v. Nguyen, 222 Or. App. 55 (Or. Ct. App. 2008) (bias evidence always permissible for impeaching an adverse witness)
State v. Hubbard, 297 Or. 789 (Or. 1984) (exclusion of bias evidence reversible if it denies adequate opportunity to assess credibility)
State v. Prange, 247 Or. App. 254 (Or. Ct. App. 2011) (hostility evidence relevant to witness credibility)
State v. Davis, 336 Or. 19 (Or. 2003) (harmless-error standard: little likelihood the error affected the verdict)
State v. Sallinger, 11 Or. App. 592 (Or. Ct. App. 1972) (harassment requires specific intent to annoy or harass)
State v. Sagdal, 356 Or. 639 (Or. 2015) (governs the jury-size claim)