STATE OF OREGON, Plаintiff-Respondent, v. JOHN RASHAD, Defendant-Appellant.
Jackson County Circuit Court 18CN05965; A170525
Jackson County Circuit Court
March 17, 2021
310 Or App 112 (2021); 483 P3d 1223
Laura A. Cromwell, Judge.
Argued and submitted October 20, 2020
Defendant appeals from a judgment finding him in contempt for contacting the victim at work in violation of a restraining order. He argues that the trial court erred in excluding as not relеvant cross-examination as to whether the victim thought defendant was having an affair with the victim‘s wife in order to show thе victim‘s bias. Held: The trial court erred in excluding the cross-examination because a witness‘s bias is always relevant. Nеvertheless, the error was harmless because the court‘s speaking verdict demonstrated that it had relied оn the testimony of another witness rather than the victim in reaching its verdict.
Affirmed.
John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offiсe of Public Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Prеsiding Judge, and James, Judge, and Kamins, Judge.
KAMINS, J.
Affirmed.
Defendant purchased condoms at a convenience store where the victim—who had an active restraining order against defendant—was working at a cash register. The victim claimed that defendant approached him and insulted him, while defendant testified that he did not even recognize the victim. Defendant was found in contempt for violating the terms of the restraining order.
We review evidentiary decisions, and, specifically, the determination of whether evidence is relevant under OEC 401, for legal error. State v. Pitt, 352 Or 566, 576, 293 P3d 1002 (2012). In determining whether an evidentiary error is prejudicial, we review the record in light of the error at issue and ask whether “there [was] little likelihood that the *** error affected the verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
The trial court erred in excluding the evidence. Evidence that has a “mere tendency” to show the bias or interest of a witness is relevant. State v. Crum, 287 Or App 541, 553, 403 P3d 405 (2017) (internal quotation marks omitted). Indeed, it is “always permissible” to attempt to show bias, and courts should afford “[w]ide discretion in cross-examination” to demonstrate such bias. State v. Kennedy, 308 Or App 651, 656, 480 P3d 986 (2021) (internal quotation marks omitted). That the victim thought defendant was hаving an affair with his wife has some tendency to show that the victim is biased against defendant.
However, the trial court‘s еxclusion of the testimony was harmless on this record. Defendant‘s theory of the case was that he did not willfully violate the restraining order
The manager of the convenience store testified that she was able to view the events from her оffice on closed-circuit video surveillance. Although that video did not have sound, so she was unable to heаr what defendant said, she was able to see the encounter. She testified that the victim, a very tall man, was standing at the front of the counter when defendant entered the store and that someone entering the store would see the victim “immediately.” She further testified that defendant approached the counter and was standing “face-to-face” with the victim. Although she could not hear “exactly what he said,” she “[knew] that it intimidated and taunted [the viсtim]” because the victim backed all the way up into a corner away from defendant. The reaction was so dramatic that the manager left her office to approach the register and see what the рroblem was. When asked whether the manager could tell if defendant had made eye contact with the victim, she testified, “Absolutely. He was face-to-face with him.” In its speaking verdict, the trial court noted that, based on the manager‘s testimony, “it was clear that based on body language that there was some interaction. Though she couldn‘t hear what it was, there was some interaction between the two people.”
In contrast, defendant testified that he noticed a man “sitting in the corner” but he “didn‘t interact with him at all.” This was inconsistent with the manager‘s testimony that dеfendant and the victim stood face to face, some form of interaction transpired between the twо, and the victim physically backed up after it occurred. On this record, we are confident that, even if defendant had been allowed to present evidence that the victim believed his wife was having an affair with defendant, it would not have affected the court‘s view of the manager‘s testimony, and the trial court would have reaсhed the same verdict based on the fact that defendant approached the victim and interacted with him in a way that amounted to a violation of the restraining order. Cf. State v. Ramirez, 310 Or App 62, 68, 483 P3d 1232 (2021) (concluding that error in excluding impeachment evidence was harmful where victim‘s credibility was a “core issue” in the case). Accordingly, the exclusion of additional evidence of bias was harmless.
Affirmed.