State v. Alvarez-Lopez , 316 Or. App. 106 ( 2021 )

106
Argued and submitted October 7, affirmed December 1, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
OSCAR GUADALUPE ALVAREZ-LOPEZ,
aka Oscar Guadalupe Alvarez,
aka Oscar Alvarez-Lopez,
aka Oscar G. Alvarez-Lopez,
aka Oscar G. Alvarezlopez,
Defendant-Appellant.
Multnomah County Circuit Court
19CR54543; A173541
501 P3d 1141
Angela F. Lucero, Judge.
Nora Coon, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
E. Nani Apo, 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, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
Cite as 316 Or App 106 (2021) 107
PER CURIAM
Defendant appeals a judgment of conviction for one
count of fourth-degree assault. On appeal, he assigns error
to the trial court’s denial of his motion for a judgment of
acquittal, arguing that the state failed to offer sufficient evi-
dence that the victim suffered substantial pain as a result
of defendant’s conduct. We reject that assignment of error
without discussion.
Defendant also assigns error to the court’s denial of
his pretrial motion to allow him to question the victim about
her familiarity with U visas. According to defendant, based
on his offer of proof, he should have been permitted to ask
the victim about “her knowledge regarding the existence of
a U visa and that the victims of domestic violence qualify for
a U visa.” See State v. Del Real-Galvez, 270 Or App 224, 346
P3d 1289 (2015) (holding that the defendant should have
been allowed to offer evidence that the victim’s noncitizen
mother had applied for a U visa to remain in the United
States and based her application on the defendant’s alleged
crimes against the victim, and that the victim knew about
her mother’s immigration status and knew that alleging
sexual abuse could help her mother obtain a U visa); State
v. Valle, 255 Or App 805, 298 P3d 1237 (2013) (holding that
the defendant laid a sufficient foundation for the admission
of evidence that the victim, who was not a United States
citizen, had applied for a U visa on the ground that she had
been abused).
We affirm the trial court’s ruling. We acknowl-
edge that the record suggests that the trial court may have
accepted the prosecutor’s incorrect argument that, under
our case law, a party cannot inquire about a witness’s
knowledge of and eligibility for a U visa unless the appli-
cation for the visa has already been filed. That is not what
our case law holds. See State v. Hernandez, 269 Or App 327,
332, 344 P3d 538 (2015) (concluding that “evidence regard-
ing whether [the witness] intended to apply for a U visa was
relevant to whether she had a particular personal interest
in the outcome of the case. Therefore, defendant was entitled
to ask her whether she intended to apply for a U visa.”); Del
Real-Galvez, 270 Or App at 230 (“ ‘[A]ll defendant had to do
108 State v. Alvarez-Lopez
to lay a sufficient foundation was show that the evidence was
relevant, and, to do that, all he had to show was that the evi-
dence had a tendency, however slight, to demonstrate that
[the witness] had a personal interest in testifying against
him.’ ” (Quoting Valle, 255 Or App at 814.)).
Ultimately, though, the court ruled that defendant
had failed to establish a sufficient foundation to show that
the victim’s knowledge of the U visa had any bearing on her
credibility in this case, and that ruling was correct. Because
of the way that defendant limited his offer of proof, the record
does not include even basic facts about the victim’s potential
eligibility for a U visa. Without those minimal foundational
facts, the record does not allow for the nonspeculative infer-
ence that the victim’s knowledge about U visas would supply
a motive for the victim to testify in a particular way. The
trial court, therefore, did not err in excluding the evidence.
Affirmed.