State v. Rashad ( 2021 )

112
Argued and submitted October 20, 2020, affirmed March 17, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN RASHAD,
Defendant-Appellant.
Jackson County Circuit Court
18CN05965; A170525
483 P3d 1223
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 relevant cross-examination as to whether the vic-
tim thought defendant was having an affair with the victim’s wife in order to show
the victim’s bias. Held: The trial court erred in excluding the cross-examination
because a witness’s bias is always relevant. Nevertheless, the error was harmless
because the court’s speaking verdict demonstrated that it had relied on the testi-
mony of another witness rather than the victim in reaching its verdict.
Affirmed.
Laura A. Cromwell, Judge.
John Evans, 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.
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, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
Cite as 310 Or App 112 (2021) 113
KAMINS, J.
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. ORS 33.015;
ORS 33.065. On appeal, defendant argues that the trial
court erred in excluding as irrelevant cross-examination
as to whether the victim thought defendant was having an
affair with the victim’s wife. Defendant contends that that
information is relevant to establish the victim’s motive to
lie and get defendant in trouble with the law. Because there
was little likelihood that exclusion of the evidence of bias
affected the trial court’s verdict, we conclude that the error
was harmless and affirm.
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 omit-
ted). 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 quota-
tion marks omitted). That the victim thought defendant was
having an affair with his wife has some tendency to show
that the victim is biased against defendant.
However, the trial court’s exclusion of the testimony
was harmless on this record. Defendant’s theory of the case
was that he did not willfully violate the restraining order
because he did not recognize the victim at all. See State v.
114 State v. Rashad
Welch, 295 Or App 410, 416-17, 434 P3d 488 (2018) (defin-
ing what it means to willfully violate an order). The court’s
speaking verdict in this case demonstrates that its credibil-
ity determination turned on the testimony of a third-party
witness, which corroborated the victim’s version of events
and flatly contradicted defendant’s. See State v. Reed, 299 Or
App 675, 694, 452 P3d 995 (2019), rev den, 366 Or 382 (2020)
(concluding that evidentiary error was harmless where the
trial court’s speaking verdict made clear that the court’s
credibility determination was not affected by that error).
The manager of the convenience store testified that
she was able to view the events from her office on closed-
circuit video surveillance. Although that video did not have
sound, so she was unable to hear 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 testi-
fied that defendant approached the counter and was stand-
ing “face-to-face” with the victim. Although she could not
hear “exactly what he said,” she “[knew] that it intimidated
and taunted [the victim]” 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 problem 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 inter-
action 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 defendant and the victim stood face to face, some form
of interaction transpired between the two, 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 hav-
ing an affair with defendant, it would not have affected the
Cite as 310 Or App 112 (2021) 115
court’s view of the manager’s testimony, and the trial court
would have reached 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.