Dеfendant appeals from a judgment of conviction for one count of harassment, ORS 166.065(1), and one count of harassment by touching the sexual or intimate parts of another. ORS 166.065(4). 1 Defendant assigns error to the trial court’s refusal, under OEC 404(2)(a), to allow him to present evidence of his character for sexual propriety. We agree with defеndant that the court erred in excluding the proffered character evidence and that the error was not harmless. Accordingly, we reverse and remand for a new trial.
This prosecution arose from interactions between defendant and the complainant, D, on the evening of December 15,1998. Defendant, a recent immigrant from Moldаvia, was living with his family at an apartment complex in Washington County. D was also a tenant in the complex. On the evening of December 15, defendant was near the apartment complex’s garage facilities preparing to vacuum his car when D drove to her garage to retrieve Christmas decorations. The two began to talk, speаking briefly about their children.
At trial, D testified that she became uncomfortable during the conversation, which she said defendant initiated, because defendant “was asking * * * so many questions” and because his eyes dropped to her chest on a couple of occasions. D further testified that, when she went to the back of her garage to rеtrieve the holiday decorations, she heard the garage door start to close. Fearing the defendant was going to rape her, D went to the front of the garage and confronted defendant, telling him: “I have four people waiting for me right now.” D testified that, in response, defendant said, ‘You have nice breasts. I want to touch your breаsts” and reached out and grabbed her breast.
Defendant’s description of the encounter was different. At trial, defendant testified that D initiated the conversation, during which they talked about their children and *592 defendant’s ability to speak Russian. 2 According to defendant, while D was at the back of her garage, the light in her garage began to blink, indicating that the light, which operates on a timer, was about to go out. Consequently, D asked defendant to push a button to keep the light from shutting off, which he did. D then came from the back of the garage, and asked defendant to press the button again. As defendant turned to press the button, his shoulder brushed against D’s body. Defendant said he was sorry in Russian, and D said something to him in response, put some boxes in her car, and drove away.
Defendant was charged with harassment and harassment by touching the sexual or intimate parts of another under ORS 166.065. 3 At trial, defendant sought to put on testimony from six witnesses—defendant’s wife, the pastor of his church, the pastor’s wife, the associate pastor, a male friend of defendant, and a young woman who had known defendant before he immigrated from Moldavia— each of whom would testify as to defendant’s character for sexual propriety. The trial court, citing OEC 404(2)(a), excluded the testimony.
“It’s my opinion and I’ve held under (2)(a) before that a pertinent trait of character is one for peaceful, law-abiding, honest, truthful, temperate, not beyond that. So [to] bring it in to show that he’s of a good moral character or wouldn’t do a thing like this, it does not come in.”
*593 In response, defendant made an offer of proof that each of the six witnesses would testify that he or she: (1) had known defendant for a period of years; (2) had observed defendant in social situations; (3) had had the opportunity to form an оpinion about defendant’s character with respect to sexual propriety; and (4) believed that defendant’s character in that respect is excellent. Ultimately, the jury found defendant guilty on both counts. The trial court merged the two counts and sentenced defendant to two years of probation.
On appeal, defendant аssigns error to the trial court’s exclusion of his proffered “sexual propriety” character evidence under OEC 404(2)(a). Defendant further argues that, because his credibility was central to his defense, the error was not harmless:
“This is a classic case of‘he said/she said.’ No evidence is in the record to corroborate [D’s] allegatiоns. Evidence concerning [defendant’s] excellent character in respect to sexual propriety, standing alone, would be enough to raise a reasonable doubt as to his guilt.”
The state, in response, concedes that it was error to exclude defendant’s “sexual propriety” evidence under OEC 404(2)(a), but argues that that error was harmless. In addition, the state suggests that, even if the error was not harmless, the evidence was nevertheless properly excluded under OEC 701—and that, while that ground for exclusion was not raised below, we should remand the case for the trial court to assess, in the first instance, the admissibility of the evidence under that rule.
We begin by determining whether, as a matter of law, evidence of defendant’s “sexual propriety” was properly admissible under OEC 404(2)(a). 4 See ORS 136.310 (construction of rules of evidence is a question of law). OEC 404, which governs the admissibility of character evidence offered by a criminally accused, states, in relevant part:
*594 “(1) Evidence of a person’s character or trait of character is admissible when it is an essential element of a charge, claim or defense.
“(2) Evidence of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
“(a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same[.]”
The form of evidence offered under OEC 404(2)(a) is governed by OEC 405(1):
“In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On сross-examination, inquiry is allowable into relevant specific instances of conduct.”
Thus, in instances where character is not “an essential element of a charge, claim or defense,” character evidence proffered by the defense under OEC 404(2)(a) is admissible only if: (1) the evidence concerns a “trait of charactеr”; (2) that trait is “pertinent” to the crime charged; (3) the evidence is offered in the proper form under OEC 405, and (4) the evidence was not of “specific instances of conduct.”
See State v. Reeder,
In
State v. Marshall,
“Character evidence, therefore, is evidence of a particular human trait, such as truthfulness, honesty, temperance, carefulness, or peacefulness, etc. A person’s character with respect to truthfulness means that person’s propensity to tell the truth in all the varying situations of life. A person’s character with respect to carefulness means that person’s propensity to act with care in all the varying situations of life.” Id. at 372.
Defendant, relying on Marshall, suggests that “sexual propriety” is just such a trait:
*595 “Is ‘sexual propriety’ a character trait? Looking at the non-exclusive list of character traits mentioned in Marshall, it would certainly seem that ‘sexuаl propriety would fit within that category. ‘Truthfulness’ has to do with speaking the truth; ‘honesty,’ assuming it is not merely redundant of truthfulness, has to do with not stealing or cheating others, see State v. Bailey,87 Or App 664 , 667-68,743 P2d 1123 (1987); ‘temperance’ has to do with moderation and self-control, particularly in respect to the use of alcohol or other intoxicants; ‘carefulness’ implies the exercise of care and attention in all of one’s activities, and interestingly, has only slight positive moral connotations; and ‘peacefiilness’ has to do with tranquility and non-violence. ‘Sexual propriety’ has positive moral connotations much like truthfulness and honesty, it suggests self-control relative to sexual matters much like temperance suggests sеlf-control relative to intoxicants, and it implies sexual non-aggressiveness and consideration for others much like peacefulness suggests these qualities in respect to the use of physical force. ‘Sexual propriety is a character trait.”
See also OEC 405 Commentary (1981) (describing permissible methods of proving character; noting that historicаlly “character has been regarded primarily in moral overtones susceptible of proof by reputation evidence (is the person chaste, peaceable, truthful?)”) (emphasis added).
We agree. Evidence of a person’s character with respect to sexual propriety evinces that person’s propensity to act in a sexually proper manner “in all thе varying situations of life.”
Marshall,
Evidence of defendant’s sexual propriety is admissible, however, only if it is “pertinent.” OEC 404(2)(a). As used in OEC 404(2)(a), a “pertinent” character trait is one that is relevant to the offense charged.
State v. Bailey,
87 Or App
*596
664, 667,
Here, defendant was accused of harassment “by touching the sexual or intimate parts” of another. ORS 166.065. Defendant argues that, given the nature of those charges, evidence of his “sexual propriety” was directly probative of a fact of consequence: “To grab the breast of a neighbor without her consent is simply not an act a person of excellent sexual propriety would be likely to commit.” We agree. Evidence of defendant’s character fоr excellent “sexual propriety” certainly would tend to show that, on the particular occasion in question, defendant did not act in a sexually improper manner. Consequently, evidence of defendant’s “sexual propriety” is pertinent evidence under OEC 404(2)(a). 6
Finally, the evidence that defendant sought to present-testimony from six witnesses as to their belief that defendant’s character for sexual propriety is excellent—was in the proper form and did not constitute specific instances of conduct,
jReeder,
The state nevertheless contends that the error was hаrmless. We disagree. The result in this case turned, unavoidably, on credibility. If the jury believed D’s rendition of the facts, as it apparently did, it would convict defendant. Conversely, if the jury believed defendant’s version of the facts, it would acquit him. Thus, as defendant suggests, this was a classic swearing match in which evidence of defendant’s propensity to act in a sexually proper manner could have raised a reasonable doubt in the minds of the jury as to defendant’s guilt regarding both the harassment by touching the sexual or other intimate parts of another count
and
the simple harassment count against defendant.
See State v. Kitzman,
Finally, the state suggests that, even if the error is not harmless, we should remand the case to the trial court to determine whether the evidence of defendant’s character for sexual propriety, while admissible under OEC 404(2)(a), should nevertheless be excluded under OEC 701. 7 The state argues particularly:
“Here, even assuming arguendo that the witnesses’ opinions were based on adequate personal knowledge and were rationally based on the witnesses’ perceptions, the trial court would not have abused its discretion in excluding the lay opinion testimony as not being helpful to the jury. * * * Nothing indicates that any of defendant’s witnesses *598 had ever been alone with him or knew anything about how he might behave when he was with a stranger, was not in a ‘social’ situation, and was not being observed by others. Therefore, defendant’s witnesses’ opinions had, at most, minimal relevance here, and they would have been of little, if any, help to the jury.”
The state acknowledges, however, that the issue of admissibility under OEC 701 was not raised to the trial court. The state further acknowledges that, if the objection had been raised, the record might have developed differently.
8
Given those circumstances, we decline to consider the state’s contention, which is, essentially, a variant of the “right for the wrong reason” doctrine.
9
See Outdoor Media Dimensions Inc. v. State of Oregon,
Reversed and remanded for new trial.
Notes
Harassment is a Class B misdemeanor. ORS 166.065(3). Harassment by touching the sexual or other intimate parts of another is a Class A misdemeanor. ORS 166.065(4).
Defendant speaks Russian, Romanian, Bulgarian, and some English. At trial, defendant testified through a Russian language interpreter.
ORS 166.065 provides, in part:
“(1) A person commits the crime of harassment if the person intentionally:
“(a) Harasses or annoys another person by:
“(A) Subjecting such other person to offensive physiсal contact; or
“(B) Publicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response;
“(3) Harassment is a Class B misdemeanor.
“(4) Notwithstanding subsection (3) of this section, harassment is a Class A misdemeanor if a person violates subsection (1) of this section by subjecting another person to offensive physical contact and the offensive physical contact consists of touching the sexual or other intimate parts of the other person.”
Notwithstanding the state’s concession of error, we review the trial court’s ruling as to the admissibility of defendant’s “sexual propriety” evidence for errors of law.
See State v.
Bea,
See also Laird C. Kirkpatrick and Christopher B. Mueller, 1 Federal Evidence § 101 at 551 (2nd ed 1994) (“character evidence means proof relating to commonly-recognized human qualities that might be called innate or essential to the person being described”).
Other jurisdictions have similarly construed and applied their analogues to OEC 404.
See State v. Anderson,
OEC 701 states:
“If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:
“(1) Rationally based on the perception of the witness; and
“(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.”
At oral argument, counsel for defendant suggested that, had the state raised an OEC 701 objection below, defendant might have refined his offer of proof by clarifying the “social” situations in which defendant’s character witnesses had observed defendant. The state, in response, candidly acknowledged that there was “some possibility” that defendant would have amplified his description of those social situations in the face of an OEC 701 objection.
In the classic “right for the wrong reason” scenario, a respondent urges us to affirm the judgment on grounds other than those adopted by the trial court. Here, the state’s cоntention is more aptly styled as “maybe right for the wrong reason.” That is, given that OEC 701 requires the trial court to exercise its discretion,
State v. Lerch,