¶1dissenting.
¶2Defendant appeals a judgment of conviction of four counts of menacing, assigning error to the trial court’s exclusion of evidence of the Coos County Sheriffs Office’s and Bandon Police Department’s use-of-force policies. For the reasons explained below, I would conclude that, even if the trial court erred in excluding that evidence, the error was harmless. Therefore, I respectfully dissent.
¶3Because I believe the majority omits key facts from the historical and procedural background in this case, I recount them here.
¶4On December 25, 2013, defendant called 9-1-1 for medical assistance. He requested an ambulance because his “health was deteriorating.” Officer Garrett of the Bandon Police Department was the first to arrive at defendant’s residence, which was a trailer located in a wooded area. To reach defendant’s trailer, Garrett drove down a narrow dirt road—about one vehicle wide—that opened up to four trailers. When he was close to the first trailer, he stopped his patrol car. At that point, Garrett attempted to notify dispatch that he was at defendant’s trailer; however, he had no reception.
¶5Garrett then stepped out of his patrol car and noticed that defendant was standing to the left of the first trailer and was holding a “shiny, silver object.” Garrett identified himself as “Officer Garrett, Bandon Police Department,” and defendant turned around and walked away. Garrett retreated to his patrol car. He backed out of the dirt road “several hundred yards” to an area where he was able to get reception, called dispatch, described what he had observed, and requested backup.
¶6While Garrett waited for backup to arrive, defendant called 9-1-1 again and told the dispatcher:
“All the sudden the cops showed up.
*566«‡‡‡‡‡
“I’m sorry they’re not supposed to be here. I wanted an ambulance.
«… ⅝ …
“… If I die tonight, it’s on you.”
¶7Dispatch then called Garrett to report that defendant had called 9-1-1 again, “wanting to know why the police had responded when he asked for an ambulance.” By that time, the ambulance had arrived, as well as Coos County Sheriffs deputies Mitchell and Wilson, and Bandon Police Department Officer Byrd. Mitchell ran a records search on defendant and discovered that defendant had an outstanding arrest warrant.
¶8Garrett, Mitchell, Wilson, and Byrd then drove down the dirt road toward defendant’s trailer in two patrol cars. The officers stopped their patrol cars about 300 yards from the clearing where the trailers were located and started to walk toward defendant’s trailer armed with tactical rifles. Mitchell and Wilson knocked on defendant’s trailer door, and no one answered. There were no lights on in defendant’s trailer. Smith, defendant’s neighbor, came out of his trailer and told Mitchell that he believed that defendant had walked away on foot.
¶9As the officers were getting ready to leave, Garrett heard noises coming from defendant’s trailer. Garrett alerted Mitchell, and Mitchell turned toward defendant’s trailer. The trailer door swung open and the officers saw that defendant was holding what they believed was a rifle; it is undisputed that defendant was actually holding an air rifle that shoots pellets. Garrett testified that he saw “a person standing there and the barrel of a rifle come up”—“as soon as the door came open I could see the gleam of [the] barrel.” Mitchell testified that when the door opened he saw that defendant was holding a rifle in his right hand. Mitchell commanded defendant several times to drop his weapon. Instead, defendant “started to point the rifle up as to aim or as you would hold it with both hands” towards Mitchell. All *567four officers fired their weapons at defendant. Defendant did not fire a single shot.
¶10After the firing stopped, Mitchell asked defendant if he was hit, and defendant responded, “Yeah, I’m hit.” Defendant had been shot in the right arm and the hat he had been wearing had a bullet hole through it. The officers arrested defendant and put him in the ambulance. Byrd rode with defendant in the ambulance to the hospital. Defendant asked Byrd “why [the officers] shot him in the arm” and told Byrd that he should have shot him “right here” and pointed to his forehead.
¶11Karcher, a deputy medical examiner and forensic nurse, examined defendant at the hospital. Karcher described defendant’s arm injury as a “graze type gunshot wound” underneath his right forearm and a direct gunshot wound that resulted in a “big avulsion” in the right bicep of defendant’s arm—“[t]he bullet went through the skin, came out the other side, and then it went in the arm again.” After Karcher examined defendant’s injuries, she participated in an attempt with Detectives Schwenninger and Sparks to reconstruct the trajectory of the bullet that hit defendant. Through that reconstruction, they found that the “slight upward direction, trajectory” of the bullet angle indicated that defendant’s arm had been raised to a “level” shooting position at the time that he was shot.
¶12Smith, who was in a neighboring trailer at the time of the shooting, told Schwenninger that he had spoken with defendant earlier that day and defendant had told him that he would rather die than be there right now. Smith also said that defendant is usually “happy-go-lucky,” but, on the night of the incident, he was in a lot of pain.
¶13The following day, detectives investigated the crime scene at defendant’s trailer. Detectives discovered that the officers had fired more than 50 rounds of ammunition into defendant’s trailer. Detectives also found a collection of photographs in defendant’s trailer, which Karcher believed could have been a “shrine” made in preparation for committing suicide. The state charged defendant with four counts of menacing, ORS 163.190.
¶14*568Before trial, defendant moved to admit evidence of the “Coos County Sheriffs Office General Order 4.03 on ‘Use of force’ effective 5/01/09,” “General Order 4.04 effective 5/01/09,” and “any comparable policy or directive of the Bandon Police Department.”
“It would be important for the jury to know whether these multiple discharges were in compliance with the policies of the applicable department in determining whether the defendant in fact menaced the officers, or whether the charges were filed as a means to justify the use of deadly force by the officers.”
¶15The state responded that the use-of-force policies were irrelevant under OEC 401
“[THE COURT]: So, I don’t see how the use-of-force policies have any bearing on the case at all.
«⅜ ⅜‡‡⅜
“[DEFENSE COUNSEL]: I think it kind of ties in with our related argument regarding the civil suit that [the officers] did in fact violate the use of force policies in this situation ….
“[THE COURT]: … But, we’re not going to try the civil case here.
*569“[DEFENSE COUNSEL]: Correct. … I understand that … there’s going to be a claim that [defendant] menaced them to justify the use of force. That’s essentially the story.
“[THE COURT]: So, they made up a story, phonied up a call to 9-1-1 so they could go shoot him?
“[DEFENSE COUNSEL]: Negative. Or rather, it was more that they made a claim that [defendant] was threatening them with a firearm when [defendant] was not, to justify their use of force in this case.
“[THE COURT]: But that’s still a question this jury will never get to because if they agree with him that he didn’t menace anybody, they find him not guilty and we’re done. So, use of force question has no bearing on it.”
¶16Thus, the trial court found that the use-of-force policies were not relevant.
¶17Before trial, defendant also filed a motion to allow evidence that “defendant ha[d] retained counsel for filing a civil lawsuit against the State, its various subdivisions and agencies, as well as the four individual officers, and that the counsel ha[d] filed a Tort Claim Notice under ORS 30.275 as a step in pursuit of the lawsuit.” Defendant explained that “[t]his evidence is admissible as a basis to show the jury that the officers have an interest or bias in claiming that the defendant had menaced them, since, if true, that would defeat the civil lawsuit.” The state argued that that evidence did not go to bias “because the departments have already determined, at least for their purposes and thus for purposes of indemnification, that the officers acted in a justified manner.” The trial court disagreed with the state and granted the motion to admit that evidence as evidence of bias with the limitation that it be used only “[t]o the extent that … [defendant] sent them a tort claim and consulted with a lawyer. And that’s been made known to [the officers’] respective employing jurisdictions.”
¶18At trial, the state presented a theory that defendant had attempted to commit “suicide by cop.” To support that theory, the state relied on defendant’s 9-1-1 call warning the operator “[i]f I die tonight, it’s on you,” defendant’s statement in the ambulance that the police should have shot him in *570the head, and the potential suicide “shrine” found in defendant’s trailer. All four officers also testified that defendant had pointed the air rifle at Mitchell before they fired their weapons. The state presented evidence that defendant’s testimony had been inconsistent and that he had had a reason to change his testimony after consulting with a lawyer about his tort claim and sending the tort claim notice to the officers’ employers. Defendant testified that, at the time he was shot, the pellet gun he was holding was “[flacing the floor” and that “[i]t might have been coming up just a little bit.” Defendant’s counsel refuted the state’s “suicide by cop” theory by, among other things, pointing out the inconsistency of that theory with defendant calling 9-1-1 for medical help.
¶19Defendant was convicted by a jury of all four counts of menacing. On appeal, he challenges the trial court’s exclusion of the use-of-force policies as evidence of the involved officers’ bias or interest. Defendant contends that “[t]he use-of-force policy was admissible to impeach the truthfulness of the officers’ testimony with their motive to avoid a civil lawsuit.” On the merits of that argument, I would conclude that any error committed by the trial court in excluding that evidence was harmless and affirm. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003); see also OEC 103 (eviden-tiary error is not reversible “unless a substantial right of the party is affected”).
¶20The Supreme Court has stated that a trial court’s “decision to exclude evidence relevant to bias or interest which is error, is reversible 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.” State v. Hubbard, 297 Or 789, 800, 688 P2d 1311 (1984). “Thus, under Hubbard, the trial court’s error … 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.” State v. Titus, 328 Or 475, 482, 982 P2d 1133 (1999).
¶21With regard to whether the jury had an adequate opportunity to assess the officers’ credibility, here, the jury heard evidence of possible officer bias against defendant *571in that defendant had retained an attorney to file a civil action against the state agencies and officers, and that that information was made known to the officers’ respective employers. That evidence, as defendant argued in his pretrial motion, was admissible “to show the jury that the officers have an interest or bias in claiming that the defendant had menaced them, since, if true, that would defeat the civil lawsuit” (Emphasis added.) Similarly, at the pretrial hearing on defendant’s motion, defendant argued that the use-of-force policies were admissible because they “kind of tie [d] in with [defendant’s] related argument regarding the civil suit that [the officers] did in fact violate the use of force policies in this situation.” (Emphasis added.) Defendant also argued in his pretrial motion that the use-of-force policies were admissible because
“ [i]t would be important for the jury to know whether these multiple discharges were in compliance with the policies of the applicable department in determining whether the defendant in fact menaced the officers, or whether the charges were filed as a means to justify the use of deadly force by the officers.”
¶22Thus, defendant sought to admit the use-of-force evidence to establish the officers’ bias based on the same theory of bias as the evidence of the civil lawsuit, viz., that the officers had a motive to lie to avoid liability for excessive use-of-force as a basis for tort liability. As a result, the exclusion of the use-of-force evidence did not deprive the jury of the opportunity to evaluate the officers’ bias that defendant alleged they held. Thus, I would conclude that the excluded use-of-force policies were cumulative of the evidence that was admitted at trial.
¶23In coming to the opposite conclusion, the majority ignores the purpose for which defendant offered the use-of-force policies. Defendant argued that he sought to demonstrate the officers’ bias based on the same theory for which he sought to admit the evidence of the tort claim notice— that is, the officers had a motive to lie or exaggerate because, if defendant was convicted of menacing the officers, then that would defeat the civil claim against the officers based on their use of excessive force against defendant. Based on that theory of the case, the use-of-force policies, which defendant sought to have admitted without any offer of proof of *572any expected testimony, are not qualitatively different from defendant’s tort claim notice.
¶24The majority claims that the use-of-force policies were “relevant to whether the officers had a motive to testify in a certain way in order to protect themselves from adverse employment consequences,” and thus were qualitatively different from the tort claims notice evidence. 287 Or App at 556. However, defendant never argued in the trial court that the use-of-force policies were relevant for that purpose, nor did he seek to put on an offer of proof that supported such an argument. In determining whether exclusion of evidence is harmless, I believe our role is to evaluate whether the erroneous exclusion of the evidence likely affected the jury’s verdict based on the theories presented by the parties—-not based on what we determine would have been a better theory to have presented to the trial court. Thus, I cannot agree with how the majority proceeds to evaluate whether exclusion of the use-of-force polices was harmless.
¶25I recognize that the credibility of the four officers was important to the outcome of the trial. However, as discussed above, the excluded use-of-force evidence was not qualitatively different from the admitted evidence of the civil action, because the excluded evidence was offered to establish officer bias based on the same theory as the evidence of the civil lawsuit. Consequently, the excluded evidence was not qualitatively different from the admitted evidence in the type or strength of the officer bias that defendant sought to demonstrate. Cf. State v. Valle, 255 Or App 805, 815, 298 P3d 1237 (2013) (concluding that the trial court’s exclusion of defendant’s proffered impeachment evidence was not harmless because “the jury did not have information that was relevant to whether [the witness] had motive to fabricate her allegations against defendant”); State v. Muldrew, 229 Or App 219, 230, 210 P3d 936 (2009) (concluding that the trial court’s exclusion of defendant’s proffered impeachment evidence—the statement in the officer’s report—was not harmless because it was the “crucial piece of evidence that the jury needed in order to evaluate [the officer’s] credibility”). Thus, I would conclude that the jury had an adequate opportunity to assess the officers’ credibility absent the consideration of evidence of the use-of-force policies.
¶26*573In determining if exclusion of bias evidence is harmless, we are also required to consider whether the particular evidence regarding the officers’ credibility was important to the outcome of the trial. See Titus, 328 Or at 482 (holding that, under Hubbard, a trial court’s error in excluding bias evidence “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” (emphasis added)). The majority does not address this necessary prong of the harmlessness analysis for bias evidence and thus fails to acknowledge that there was also evidence that corroborated the officers’ testimony, which strengthens my conclusion that the exclusion of the use-of-force policies was harmless.
¶27Here, there was evidence corroborating the four officers’ testimony that defendant had intended to place the officers in fear of imminent serious physical injury. That evidence included undisputed evidence that defendant was holding an air rifle, and testimony by a medical examiner and two detectives that the bullet trajectory of defendant’s right arm wounds indicated that defendant was holding the air rifle in his right arm in a “level” shooting position when the officers fired at him. The state also introduced evidence that corroborated the state’s theory that defendant was suicidal at the time of the incident—defendant told Byrd in the ambulance that the officers should have shot him in the head, he told Smith that he was in pain and wanted to die, and the investigators found a potential suicide “shrine” in defendant’s trailer.
¶28In sum, despite the excluded evidence, the jury had an adequate opportunity to assess the credibility of the officers, and the officers’ credibility was not solely determinative of the outcome of the trial. I would thus conclude that there is little likelihood that the exclusion of the use-of-force policies affected the verdict and would affirm. Accordingly, I dissent from the majority’s opinion reversing defendant’s convictions.
¶29Hadlock, C. J., and Tookey, J., join in this dissent.
¶30 The Coos County Sheriffs Office use-of-force policy provides, in pertinent part:
“Deadly force may be used only when a deputy sheriff reasonably believes that the action is in defense of human life, including the deputy’s own life, or in defense of any person in imminent danger of serious physical injury or death.
“The objective of the use of deadly force is to render that person incapable of continuing the activity which required the use of that deadly force.”
¶31 OEC 401 provides that “‘[Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”