State v. Robintree ( 2023 )

267
Argued and submitted January 26, affirmed April 19, petition for review denied
August 3, 2023 (371 Or 309)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATHAEL MALACHI ROBINTREE,
Defendant-Appellant.
Linn County Circuit Court
19CR50573; A175863
528 P3d 1207
Defendant appeals a judgment of conviction for one count of first-degree
sexual abuse, ORS 163.427. On appeal, he contends that the trial court erred
in prohibiting defendant from cross-examining the victim about her pending
juvenile adjudications for the purpose of establishing bias. Held: The Court of
Appeals concluded that the trial court erred in prohibiting defendant from cross-
examining the victim about her pending juvenile adjudications for the purpose
of establishing bias. The court further concluded that, in view of the evidence in
the record and the parties’ strategies at trial, including defendant’s strategy of
acknowledging that he had inappropriate contact with the victim, any error was
harmless. Consequently, the court affirmed.
Affirmed.
Brendan J. Kane, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Benjamin Gutman, Solicitor General, argued the cause
for respondent. Also on the brief was Ellen F. Rosenblum,
Attorney General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
268 State v. Robintree
EGAN, J.
Defendant appeals a judgment of conviction for one
count of first-degree sexual abuse, ORS 163.427. On appeal,
he contends that the trial court erred “in prohibiting defen-
dant from cross-examining [the victim, M,] about her pend-
ing juvenile adjudications for the purpose of establishing
bias.” The state concedes that the trial court erred but con-
tends that the error was harmless. As explained below, we
accept the state’s concession. Further, in view of the trial
record as a whole, we agree with the state that the error was
harmless. Consequently, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Regarding the alleged evidentiary error, “we describe
the challenged evidence in context.” State v. Deshaw, 309
Or App 535, 536, 483 P3d 34 (2021). As to the harmless-
ness of any error, “we look to the trial record as a whole.”
Id. Because it is essential to our conclusion that the eviden-
tiary error in this case was harmless, we provide a detailed
overview of the background facts, the evidence presented at
trial, and the parties’ theories of the case.
A. Background and the Evidence at Trial
In the summer of 2019, M was 12 years old, and M’s
mother had been in a three-year intimate relationship with
defendant. M lived with her brother, her mother, and defen-
dant. M’s mother had asked M not to sleep on the couch in
the living room of their apartment, but at around 5:00 a.m.
one morning, she was sleeping on that couch. There is no
dispute that M awoke to defendant touching her inappropri-
ately on or near her buttocks.
According to M’s trial testimony, the events trans-
pired as follows: She was sleeping on her family’s couch,
where she was not supposed to sleep, and she woke up with
defendant’s hand “in my pants,” “inside my clothes,” towards
her “butt” and “closer to my thigh” and vagina. She got up
and went to her room. Defendant later told M, with regard
to the touching, that he was “sorry” and “ashamed” for what
he did.
Defendant did not cross-examine M regarding the
details of the inappropriate contact during his trial. During
Cite as 325 Or App 267 (2023) 269
cross-examination, M testified that she, her mother, and her
brother, would tickle each other sometimes. M also testified
that there were occasions when defendant was living with
her when defendant tried to tickle her, which made her feel
uncomfortable. Additionally, defendant elicited testimony
from M’s mother that there was an incident before the con-
duct that led to the charges in this case where M was “run-
ning around the house, and [defendant] kept, like, smacking
her butt.” M told her mother that M was “uncomfortable with
that,” and, according to M’s mother, “that activity stopped.”
Over the next month, M disclosed the incident when
defendant inappropriately touched her while she was sleep-
ing on the couch to several individuals, including her mother
and older brother. One of those individuals—the mother of
one of M’s friends—testified at defendant’s trial that shortly
after the inappropriate contact was disclosed to her, but
prior to the police being notified, M told her that she was
“scared to go home” because she was worried that she would
“be touched” by defendant. M’s mother confronted defendant
about the touching.1
As a result of M’s disclosures, M’s older brother con-
tacted another family member who contacted the police, and
the police began investigating defendant’s conduct.2
During the police investigation of defendant’s con-
duct, M participated in two interviews with law enforcement
that were recorded on video. Those recordings were admitted
as substantive evidence of defendant’s conduct during defen-
dant’s trial under OEC 803(18a)(b), which provides a hear-
say exception for statements concerning acts of abuse when
the declarant testifies and is subject to cross-examination.
1
During defendant’s trial, M’s mother testified, among other points, that on
or about July 29, 2019, M disclosed that defendant “touched me on the couch when
I was sleeping,” that the touching was “kind of the buttocks, private area,” that
it was “inside of her underwear,” and that defendant had made various admis-
sions to the mother, including that he was sexually attracted to M. Defendant
argued that M’s mother was not a credible witness because she was worried about
involvement by the Department of Human Services based on her failure to report
the sexual abuse to police and that the police had “implanted in her mind” ideas
about what defendant and M had said to her.
2
There was conflicting information at trial concerning who contacted the
police. M testified that she believed it was her older brother who contacted the
police.
270 State v. Robintree
The first recording was made on July 31, 2019—
the day police initially made contact with M. It was made
by Albany Police Officer Bell, who went to M’s apartment
because of a report of “some sort of physical abuse or sex
abuse.” Bell made contact with M, and her interactions
with M were recorded on Bell’s body camera. M told Bell
that she believed that Bell was at the apartment because
defendant had “violated her” and explained that defendant
had “touched her inappropriately.” When asked for specif-
ics, M explained to Bell that she was sleeping on the couch
face down and defendant touched her under her underwear
“right in the middle of my butt and my vagina.” When asked
whether defendant was doing anything with his hand, M
replied that he was “just holding it there,” and that defen-
dant did not put “anything inside of [her].” M explained that
she moved away from defendant. M also told Bell that she
had told defendant not to touch her and stated, “you can’t
do that,” and that defendant had said, “Hi [M]” and “you
shouldn’t be on the couch.” M told Bell that defendant had
later apologized to her and told her that he was “ashamed”
of himself.
The second video was recorded on August 21, 2019,
during a forensic interview of M by Albany Police Detective
Lovejoy. During the forensic interview, M told Lovejoy that
she was sleeping on the couch “face down” and woke up to
defendant “having his hand in my pants” on “my butt” by
the “[i]nner thigh.” M said that defendant’s hand was not
“doing anything” or “moving at all.” Later in the video, M
noted that defendant apologized to her for his conduct and
said that “it would never happen again.”3
As a result of the police investigation, defendant
was arrested and charged with first-degree sexual abuse,
ORS 163.427. A person commits first-degree sexual abuse
if they “subject[ ] another person to sexual contact and * * *
[t]he victim is less than 14 years of age.” Sexual contact is
defined in ORS 163.305(5) as “any touching of the sexual or
other intimate parts of a person or causing such person to
3
We note that there were some minor potential discrepancies in M’s recorded
statements: For example, during one of the recorded statements, M described
herself as wearing shorts when defendant touched her, and in the other state-
ment she described herself as wearing pants.
Cite as 325 Or App 267 (2023) 271
touch the sexual or other intimate parts of the actor for the
purpose of arousing or gratifying the sexual desire of either
party.”
During defendant’s incarceration, but before his
trial, he called M’s mother from the jail. A recording of
that call was admitted during defendant’s trial. On that
recording, defendant acknowledged that he had made “bad
choices.” Defendant also wrote M’s mother a letter, which
was also admitted into evidence, in which he stated that he
was sorry and that he had “failed her.”
After defendant’s release from jail, but prior to his
trial, he lived with his stepfather and the stepfather’s wife
for about two weeks. At defendant’s trial, the stepfather’s
wife testified that, while defendant was living with them,
with regard to the criminal charges against him, defendant
said that “he did it and he was guilty.” Defendant’s step-
father testified that he asked defendant why he engaged
in the alleged misconduct and what he was thinking, and
defendant replied that “he wasn’t thinking.” During defen-
dant’s trial, defendant did not dispute that he made those
statements to his stepfather and the stepfather’s wife.
Defendant’s only witness at trial was a psychologist
who was retained after defendant’s arrest to evaluate and
“provide a diagnosis” of defendant. She conducted a clinical
interview with defendant and diagnosed him with autism
spectrum disorder. She also testified that “mind blindness”
is a term used to describe some people with autism spectrum
disorder who “are unable to form an awareness of other peo-
ple’s thoughts or beliefs or intentions,” and that “the function
of mind blindness[ ] would cause someone to assign blame
regardless of a person’s intent.” That is, they assign “blame
to individuals who intended no harm, failing to distinguish
between intent and outcome.” She did not, however, as part
of her diagnosis, “assess [defendant’s] mind blindness,” but
she noted that “most people with autism have difficulty” in
that area.
To briefly recap, at defendant’s trial, the only person
who had personal knowledge of defendant’s conduct and tes-
tified before the jury was M. The jury also saw video of the
statements that M made to Bell and Lovejoy. M’s description
272 State v. Robintree
of defendant’s sexually abusive conduct was materially con-
sistent in both her testimony and the video recordings.
Additionally, uncontroverted evidence reflected that
defendant apologized for his conduct, said he was ashamed
of his conduct, and said that he was guilty of the charges
against him. And he wrote a letter to M’s mother, his former
intimate partner, after the charges were pending against
him, in which he stated that he had “failed her.”
The record also contained evidence that defendant
has autism spectrum disorder and at times engaged in
conduct—specifically, slapping M’s buttocks and tickling
her—that made M feel uncomfortable.
B. The Theories at Trial
The state’s theory of the case was relatively straight-
forward: Defendant touched M while she was sleeping for
his own sexual gratification in violation of ORS 163.427. In
support of that theory, the state called, among others, the
witnesses described above (other than the psychologist), who
provided the foregoing testimony. The state argued that M
was credible, highlighting for the jury the “consistencies of
the core details” of M’s description of defendant’s touching in
her recorded statements and her trial testimony, and argu-
ing that she did not “express an axe to grind against defen-
dant” and, in fact, had some positive things to say about
him. The state highlighted that, during her interviews with
the police, M never “aggravate[d]” the situation by claiming
there was “penetration” or “force used” against her.
Defendant did not contest that he had inappro-
priately touched M while she was sleeping on the couch.
Instead, he argued that he had touched her inappropriately
in an effort to get her to move off of the couch, rather than
for a sexual purpose. Accordingly, in his opening statement,
defendant acknowledged to the jury that “there’s no ques-
tion [defendant] touched M inappropriately.” But defendant
argued that he knew M did not like being “slap[ped] on the
butt” and, therefore, his admittedly inappropriate touching
of her as she slept was to “try[ ] to get her off the couch.”
Defendant further explained to the jury during his
opening that he has “high-functioning autism,” is “socially
Cite as 325 Or App 267 (2023) 273
awkward,” “socially inept,” and “doesn’t pick up on social
cues.” Defendant argued that that diagnosis and those fea-
tures of his personality explained the seemingly inculpatory
comments that he made. Defendant argued that the jury
should view his inculpatory statements as an acknowledge-
ment by defendant that “I probably should not be touching
[M] at this particular location,” rather than an admission
regarding sexual purpose. Defendant similarly noted that
his apology and statement that he felt ashamed reflected
that he “obviously” knew that the “kind of contact” he had
with M was “bad,” but again argued that that did not mean
the contact he had with M was for the purpose of his own
sexual gratification.
Defendant also advanced a theory that the police
investigation of M’s allegations was insufficient. As defen-
dant pitched it to the jury, police were “so focused on [an]
adult male touching [a] teenager’s butt” in response to M’s
disclosure of defendant’s conduct that they had “blinders
on” and did not figure out the circumstances surrounding
the contact. Defendant noted, for example, that police did
not appropriately follow up with the first person to whom
M reported the abuse, seize the blanket that was on the
couch where M had been sleeping, search for semen, or ask
M to demonstrate how she had been lying on the couch or
how the couch’s pillows were arranged. Defendant also at
one point highlighted that the police never tried to confirm
with M what she was wearing at the time of the alleged
abuse to understand the precise nature of what occurred
and whether M’s description was physically possible:
“But when they have a description from the girl about
what happened, wouldn’t you want to know that the type of
clothing that she has on, that that would actually have been
physically been able to do it? Do you even know as you’ve
heard all the statements today on video, testimony exactly
what happened as far as his hand? Was it down—would it
come from the top of those pants or was it under? Was it
like this leg, was it the thigh and then he touched her butt
area a little bit coming up that way, or was it through the
pants? You don’t know. It was that they never clarified that.
“And so wouldn’t that be better to have the information
say, oh, these are the kind of pants that it is so I can say,
274 State v. Robintree
yeah, okay, I can figure out how it was done, I can say, yes,
that is really possible or, no, because if you’re talking tight
pants, where are the hands gonna be? And can they go
whatever direction in doing that?
“So that’s the lack of police investigation. They are like
oh, no, we don’t really need that information. We have her
word. They just basically look at the girl’s word, and they’re
like just gonna go with that. And I’m not saying, oh, that
she’s wrong in telling the police or that she’s wrong or any-
thing like that. That’s not our argument here. Our argu-
ment for what the purpose is. But when they’re making
that determination, it’s the officer and the government’s
job to provide the information that you can make a decision
beyond a reasonable doubt. Not speculation, not probably
but beyond a reasonable doubt.”
Defendant also noted the evidence regarding other
incidents where defendant had slapped M’s buttocks or tick-
led M and asked the jury to consider that that was all that
defendant had been doing during the incident in question—
that is, to infer from the evidence of prior touching that
defendant’s conduct was not sexually motivated:
“The State has the burden to prove the case, every sin-
gle element by beyond a reasonable doubt. What the main
element here is the crux of this case, is that it was for a sex-
ual purpose. At the end of the day, you’re gonna hear that
there is evidence that he wanted to - - he told her to get off
the couch, that she needed to go to bed. You’re gonna hear
evidence that Mother had told her in the past, ‘You need
to go to bed.’ You’re gonna hear evidence in the past that
they’ve said, hey, she’s bothered by being pinched, being
slapped on the butt. And so when you pinch and slap some-
body on the butt, it makes her annoyed so that she would
get up. And so we’re gonna be asking you to consider that
that’s a possibility, that’s it’s not necessarily proven that it’s
for a sexual purpose. And if you don’t find that, then you
have to find him not guilty of these charges.”
To recap, during defendant’s trial, the state’s theory
was that, consistent with M’s recorded statements and her
trial testimony, defendant touched M on or near the but-
tocks under her clothes while she was sleeping for his own
sexual gratification. Defendant’s theory was that he had
touched M inappropriately, which explained his inculpatory
Cite as 325 Or App 267 (2023) 275
statements, but the state had not proven that the contact
was for a sexual purpose. Defendant suggested to the jury
that M was perhaps incorrect about the nature of the touch-
ing. But he told the jury that it was not wrong for M to tell
the police about what occurred, and he never argued that
M was lying or intentionally exaggerating with respect to
defendant’s conduct.
C. The Claimed Evidentiary Error
With that understanding of the case and the par-
ties’ theories, we turn to the asserted evidentiary error.
After M disclosed defendant’s conduct and provided
the recorded statements to Bell and Lovejoy regarding
defendant’s conduct, but prior to defendant’s trial, in sep-
arate and unrelated juvenile delinquency proceedings, the
state alleged that M had committed acts that, if committed
by an adult, would constitute crimes.
During defendant’s trial, prior to defendant’s cross
examination of M, defense counsel argued that she should
be allowed to introduce evidence of M’s pending juvenile
adjudications to show that M had a motive to testify favor-
ably on behalf of the state. Specifically, defendant argued
that the pending juvenile adjudications “provide a basis to
argue that [M] is being influenced to give this kind of testi-
mony and a possibility that that would help her in her dispo-
sition on her juvenile cases.” The state agreed that defense
counsel should be able to use those pending adjudications to
establish bias.4
The trial court noted that the legal problems fac-
ing M occurred “substantially after the accusations [against
defendant] were made,” and it failed to “see how [it] could
have been preordained by [M] * * * 21 months ago that she
was going to be adjudicated and would need to curry favor
from the state” with her testimony. The court stated regard-
ing “bias as to bringing the allegations in the first place
against the defendant, the fact that she’s now subsequently
* * * been adjudicated is not relevant and is more prejudicial
than probative.”
4
The state also noted that it planned to attempt to rebut the cross-examination
for bias, explaining its view that there was “literally no evidence of” bias.
276 State v. Robintree
The court ruled that, if M’s testimony was consis-
tent with her earlier statements, defendant could not use
the delinquency proceedings to impeach her in-court testi-
mony, but left open the possibility that defendant could do so
if M’s testimony differed from her prior statements regard-
ing defendant’s conduct.
II. ANALYSIS
As noted, on appeal, defendant contends that the
trial court erred “in prohibiting defendant from cross-
examining [M] about her pending juvenile adjudications
for the purpose of establishing bias.” The state concedes
that the trial court erred but contends that that error was
harmless. For the reasons that follow, we accept the state’s
concession, and we conclude that the trial court’s error was
harmless.
A. The trial court erred in excluding evidence of M’s pend-
ing juvenile adjudications.
Under OEC 609-1(1), “a party is entitled to make
an initial showing of bias that presents sufficient facts
from which the factfinder may infer bias, and, if the court
attempts to curtail that inquiry before the initial eviden-
tiary threshold is met, the court commits legal error.” State
v. Lulay, 290 Or App 282, 292, 414 P3d 903, rev den, 363
Or 283 (2018) (internal quotation marks omitted). Further,
“in a criminal case, the right to impeach a witness for bias
or interest is secured to criminal defendants by the Oregon
and United States constitutions as part of the right to con-
front witnesses.” State v. Nacoste, 272 Or App 460, 467-68,
356 P3d 135 (2015).
“One well-recognized category of bias evidence is
evidence that a witness has a reason to curry favor with
the prosecution, or is under the influence of the prosecution,
because of the witness’s own criminal conduct * * *.” Id. at
468. Such evidence “includes evidence that the witness is on
probation, has pending charges, or is the subject of a crimi-
nal investigation.” Id. at 469.
Here, the state concedes that, by precluding defen-
dant from eliciting any evidence regarding M’s pending juve-
nile adjudications, the trial court prevented defendant from
Cite as 325 Or App 267 (2023) 277
making an initial threshold showing of the reasons that
M would have for currying favor with the state at the time
of her testimony at trial. Although we agree with the trial
court that the pending juvenile adjudications would have no
independent probative value as to the veracity of M’s ini-
tial allegations against defendant, those adjudications could
potentially establish that her trial testimony was biased. It
was error to exclude them.
B. Excluding evidence of M’s pending juvenile adjudica-
tions was harmless.
Under Article VII (Amended), section 3, of the
Oregon Constitution, a reviewing court must affirm a judg-
ment “notwithstanding any error committed during the
trial” if the court concludes “that the judgment of the court
appealed from was such as should have been rendered in the
case[.]” Under that provision, “we must affirm a defendant’s
conviction despite evidentiary error if there is little likeli-
hood that the particular error affected the verdict.” State
v. Jones, 274 Or App 723, 728, 362 P3d 899 (2015) (brackets
and internal quotation marks omitted). Whether an eviden-
tiary error is harmless is a legal question. State v. Ramoz,
367 Or 670, 703, 483 P3d 615 (2021).
In conducting our harmless error analysis, “we
focus on the possible influence of the error on the verdict
rendered, not whether this court, sitting as a factfinder,
would regard the evidence of guilt as substantial and com-
pelling.” State v. Ramirez, 310 Or App 62, 67, 483 P3d 1232
(2021) (internal quotation marks omitted). That is, “we do
not usurp the role of the factfinder and determine if defen-
dant is guilty or reweigh the evidence.” Id. at 68.
Regarding the erroneous exclusion of evidence rel-
evant to bias or interest, in State v. Hubbard, 297 Or 789,
800, 688 P2d 1311 (1984), the Supreme Court explained
that such error is reversable error “if it denies the jury an
adequate opportunity to assess the credibility of a witness
whose credibility is important to the outcome of the trial.”
Thus,
“if numerous other witnesses testified to a given fact, then
the exclusion of evidence of a witness’ bias or interest who
278 State v. Robintree
testified to the same fact might be ‘harmless error’ in the
context of a given trial. But where the impeached witness
is the sole witness on a given issue and there is no corrobo-
rating evidence, the interests of a fair trial require that the
adverse party be given ample opportunity to establish the
witness’ bias or interest.”
Id.; see also State v. Titus, 328 Or 475, 482, 982 P2d 1133(1999) (“[U]nder Hubbard, the trial court’s error in this case
would be harmless if either: (1) despite the exclusion, the
jury nonetheless had an adequate opportunity to assess [the
witness’s] credibility; or (2) [the witness’s] credibility was
not important to the outcome of the trial.”).
In assessing harmlessness, the Supreme Court
and this court have considered, among other points, how
the excluded evidence of potential bias fits with the defen-
dant’s theory of the case; whether anything in the con-
text of the legal error indicates that the jury, in deciding
whether the state had carried its burden of proof, would
have regarded the excluded evidence as duplicative or
unhelpful to its deliberations; the defendant’s admissions;
and whether other witness testimony corroborated the
allegedly biased witness’s testimony. See, e.g., Titus, 328
Or at 482 (“Based upon that independent evidence of defen-
dant’s guilt and the testimony corroborating [the witness’s]
allegations, we conclude that the erroneous exclusion of the
impeachment evidence concerning [the witness] was not
likely to have affected the outcome of this case below.”);
State v. Tyon, 226 Or App 428, 443, 204 P3d 106 (2009)
(error not harmless where erroneously excluded evidence of
witness’s alleged bias went “directly to the heart of defen-
dant’s factual theory of the case,” and “nothing about the
context of the legal error here indicates that the jury, in
deciding whether the state had carried its burden of proof,
would have regarded the excluded evidence as duplicative
or unhelpful to its deliberations” (internal quotation marks
omitted)); State v. Najibi, 150 Or App 194, 207, 945 P2d 1093(1997), rev den, 326 Or 464 (1998) (erroneously excluded
evidence of a witness’s potential bias was harmless where
two other witnesses, physical evidence, and defendant’s
admissions corroborated the allegedly biased witness’s
testimony).
Cite as 325 Or App 267 (2023) 279
In this case, viewed in the context of the record as a
whole, we conclude that there is little likelihood that the par-
ticular error—preventing defendant from cross-examining
M about her pending juvenile adjudications—affected the
verdict. That is because, given the evidence in the record
and defendant’s theory at trial, impeaching M’s trial testi-
mony for bias when that testimony was consistent with her
prior statements would have had minimal, if any, probative
value as to the live factual issue in the case—viz., whether,
when defendant inappropriately touched M, he did so with a
sexual purpose as the state contended (and the jury found)
or whether he did so merely to get M to move from the couch
(as he argued).
As noted, M’s recorded interviews, in which M pro-
vided a detailed account of defendant’s sexually abusive con-
duct, and which were admitted as substantive evidence of
defendant’s conduct under OEC 803(18a)(b), were conducted
prior to the pendency of the juvenile adjudications. M’s
accounts of defendant’s sexually abusive conduct in those
recordings were materially consistent with her trial tes-
timony. And, although M’s pending juvenile adjudications
would support an argument that M was biased in favor of
the state in giving her testimony at trial, as the trial court
observed, when M made the allegations against defendant
and provided the recorded statements to the police, she
could not have been influenced by a motive to curry favor
with the state due to the adjudications because they were
not yet pending.
Further, given defendant’s trial strategy, the evi-
dence of potential bias during M’s trial testimony would
not have been relevant to whether the jury should find M’s
account of defendant’s conduct credible. As noted, defen-
dant’s trial strategy—which was perhaps a necessity due
to his numerous inculpatory statements, such as that he
was “guilty”—was to admit to having touched M inappro-
priately while she was asleep but deny any sexual purpose.
Consistent with that strategy, defendant never argued to the
jury that M was lying, that she intentionally exaggerated
when she described defendant’s conduct, or that she should
not have reported his conduct to the police. In fact, during
280 State v. Robintree
closing argument, he told the jury: “I’m not saying, oh, that
she’s wrong in telling the police or that she’s wrong or any-
thing like that. That’s not our argument here.” In short,
given defendant’s trial strategy, we do not think that evi-
dence of potential bias during defendant’s trial, bias which
arose after M accused defendant, would have had probative
value for the jury as to M’s veracity when she described the
abusive conduct in the two recorded interviews or described
it materially consistently with those interviews at trial.
Therefore, we conclude that the evidentiary error had little
likelihood of affecting the verdict.
On appeal, defendant contends that the “nature
and scope” of defendant’s touching of M was a contested
issue at trial. To support that argument, he points to,
among other things, his statement that the state failed to
prove what clothing M was wearing to show that he “would
actually have been physically been able to do it” and his
statement that “when you pinch and slap somebody on the
butt, it makes her annoyed so that she would get up, * * *
so we’re gonna be asking you to consider that that’s a pos-
sibility, that’s it’s not necessarily proven that it’s for a sex-
ual purpose.” Considering the record as a whole, we do not
understand defendant to have made an effort to impugn
that M actually believed what she told the police and the
jury: As noted, defendant expressly told the jury he was not
saying “she’s wrong or anything like that,” nor did he cross-
examine M regarding the “nature and scope” of the inappro-
priate contact. Given that trial strategy, on this record, we
do not think impeaching M’s trial testimony for bias would
have been helpful to defendant in contesting the “nature
and scope” of the touching.
We also note that recorded statements provided the
jury with a means of assessing M’s credibility in describing
defendant’s abusive conduct by allowing it to observe first-
hand M’s demeanor and the manner in which the interviews
where she disclosed the abuse to the state were conducted.
See State v. Simon, 294 Or App 840, 854, 433 P3d 385 (2018),
rev den, 365 Or 502 (2019) (CARES interview that “described
in detail the precise conduct to which defendant subjected”
the victim to “not only corroborated [the victim’s] in-court
Cite as 325 Or App 267 (2023) 281
testimony, but provided the jury with a direct means of
assessing [the victim’s] credibility by observing firsthand
her demeanor and the manner in which the interview was
conducted”); State v. Jasperse, 310 Or App 703, 712, 487
P3d 402, rev den, 368 Or 787 (2021) (noting the “jury had
a significant quantity of evidence from which to assess
[the victim’s] credibility in disclosing the abuse” where the
jury “could assess [the victim’s] credibility from her grand-
mother’s description of the [abuse] disclosure, from [the vic-
tim’s] testimony at trial (including her detailed descriptions
of the abuse), and from [the victim’s] statements during the
two CARES interviews”).
For the above reasons, we conclude that there is lit-
tle likelihood that the error affected the verdict in this case.
We do note that we think it will be a rare case where we
can conclude that the erroneous exclusion of evidence rel-
evant to a victim’s bias is harmless where the victim and
the defendant are the only witnesses to a crime, and the
defendant does not testify. But here, in view of the timing of
M’s recorded statements to police (i.e., before the potential
bias arose), that those recordings were materially consistent
with her trial testimony as to defendant’s conduct and were
admitted as substantive evidence, and that defendant’s trial
strategy—perhaps due to the numerous inculpatory state-
ments he made—was to acknowledge that he had inappro-
priate contact with M’s buttocks and was not to argue that
M was lying or had intentionally exaggerated during her
statements to police, we conclude that the error was harm-
less. Put another way, given those features of this case, we
do not think the error “denie[d] the jury an adequate oppor-
tunity to assess the credibility of a witness whose credibility
is important to the outcome of the trial,” Hubbard, 297 Or at
800; M’s credibility during her testimony was not important
to the outcome of the trial.
Affirmed.