Argued and Submitted November 8, 2013.
Washington County Circuit Court D105565M. Thomas W. Kohl, Judge.
Ryan Scott argued the cause and filed the brief for appellant.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[269 Or.App. 328] DUNCAN, P. J.
In this criminal case, defendant appeals a judgment convicting him of harassment, ORS 166.065(4), and sexual abuse in the third degree, ORS 163.415. On appeal defendant raises two assignments of error. In his first assignment, he asserts that " the trial court erred by allowing the prosecutor to reference the [complainant] as 'victim' in both her opening statement and closing argument[.]" We reject that assignment without written discussion. In his second assignment, defendant asserts that the trial court erred by " prohibiting [him] from asking the [complainant] whether she intended to seek a U-Visa, which would allow an otherwise illegal resident to stay in the United States if she were shown to be a victim of a crime[.]" See 8 CFR § 214.14 (describing U visas). We agree that the trial court erred by limiting defendant's cross-examination of the complainant, and, because the error was not harmless, we reverse and remand.
The state charged defendant with two crimes: harassment and sexual abuse in the third degree. The charges were based on allegations by defendant's former employee, Carranza. Defendant's defense was that Carranza had fabricated the allegations. At trial, he argued that Carranza had made the charges in order to obtain money from him and to secure a U visa. He presented evidence that, after Carranza made the charges, an attorney acting on her behalf presented a demand to defendant for $25,000 based on the alleged crimes. In addition, defendant presented evidence, through cross-examination of Carranza herself, that Carranza was in the country illegally, was subject to deportation, and was aware that, if she was a crime victim, she could apply for a U visa. When the state objected, on relevancy grounds, to defendant's questions about Carranza's immigration status and awareness that she could apply for a U visa, defendant told the court that the purpose of the questioning was to establish the " benefits that [Carranza] [269 Or.App. 329] gets by considering herself a victim of a crime." Defendant subsequently asked Carranza if she was " planning" to get a U visa. The state objected, and the court sustained the objection. Defense counsel then asked Carranza if she " hope[d] to get" a U visa. Again, the state objected, and the court sustained the objection.
In closing argument, the prosecutor argued that the jury should reject defendant's arguments that Carranza's allegations were motivated by a desire to obtain money from defendant and a desire to obtain a U visa. The prosecutor contended that Carranza " had absolutely nothing to gain by coming in here. Her civil case, her immigration case, that's separate from what we're doing here today."
The jury convicted defendant of both counts. This appeal followed.
On appeal, defendant asserts that the trial court erred by prohibiting him from asking Carranza whether she intended to get a U visa. He contends that the evidence he sought to obtain in response to the questioning was relevant and admissible under the Oregon Evidence Code. Specifically, he contends that the evidence was relevant and admissible to impeach the complainant. See OEC 403 (defining relevant evidence); OEC 609-1 (providing for admission of impeachment evidence); State v. Valle, 255 Or.App. 805, ...