Argued and Submitted November 10, 2014.
Washington County Circuit Court. C112306CR. Thomas W. Kohl, Judge.
Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[270 Or.App. 225] TOOKEY, J.
Defendant, who was convicted of two counts of sexual abuse in the first degree (Counts 1 and 3), ORS 163.427, and one count of coercion (Count 5), ORS 163.275, appeals the resulting judgment of conviction, raising four assignments of error. We reject without discussion defendant's first assignment of error related to a CARES Northwest recorded interview with defendant's niece, X, and whether that recording constitutes " uncharged misconduct evidence" under OEC 404(3). We write only to address defendant's second assignment of error, in which he argues that the trial court improperly excluded certain impeachment evidence as not relevant--that is, evidence that X's mother, who was not a United States citizen, had applied for a U visa to remain in the United States and based her application on
X's allegations that defendant had sexually abused and coerced X, and evidence that X knew about her mother's immigration status and knew that alleging sexual abuse could help her mother obtain a U visa. See 8 CFR § 214.14 (describing U visas). We review for legal error, conclude that the trial court erred in excluding that evidence, and further conclude that that error was not harmless. See State v. Valle, 255 Or.App. 805, 809, 298 P.3d 1237 (2013) (" Whether evidence is relevant is a question of law, which we review for errors of law." ). Accordingly, we reverse and remand on Counts 1, 3, and 5, and otherwise affirm.
[270 Or.App. 226] When X was 15 years old, she alleged that defendant had sexually abused her when she was younger and had threatened to kill her parents if she told. Based on X's allegations, defendant was subsequently charged with four counts of first-degree sexual abuse and one count of coercion.
As defendant's case proceeded to trial, X's mother applied for a U visa to remain in the United States and based her application on X's allegations that defendant had sexually abused and coerced X. In support of X's mother's U visa application, Catholic Charities Immigration Legal Services wrote a letter to the Washington County District Attorney's Office. That letter stated that X's mother " may be eligible for immigration benefits through the U visa" as an " indirect victim" of sexual abuse, based on X's status as a victim of sexual abuse and X's mother's cooperation with law enforcement officials on X's behalf. The prosecutor in this case also signed a certification form in support of X's mother's U visa application. That certification form lists the name of X's mother under " Part 1. Victim Information." It also states that X's mother had " been helpful" in the case, noting that " [s]he reported the crime to the police and DHS, she ha[d] spoken with and answered investigating officer's questions, taken her daughter to CARES Northwest for evaluation, provided her daughter's medical records, and ha[d] been subpoenaed for and testified at grand jury." It further states that X's mother's " continued assistance and availability will be helpful for the case."
Before trial, the state moved to exclude evidence that X's mother had applied for a U visa, arguing that that evidence was not relevant. See OEC 401 (defining " relevant evidence" ). At a pretrial hearing on the state's motion, defendant argued that the proffered evidence was relevant [270 Or.App. 227] to show X's motives for disclosing the abuse and for testifying at trial. Defense counsel argued that he was entitled to " ask [X] if she knew her mom's immigration status, and if she knew about the U visa application, and if she wanted to help her mother." Defense counsel further stated:
" I do believe that [X] knows about the U visa application. I do believe that she knows that that U visa application will allow her mother to stay in the country, and I do believe that she knows that the testimony today will benefit that application. And I think that ...