566
Argued and submitted May 31, 2019, affirmed April 15, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON COOPER STRASSER,
aka Jason C. Strasser,
Defendant-Appellant.
Multnomah County Circuit Court
17CN05957, 16CN04382;
A166944 (Control), A166951
464 P3d 497
In this consolidated appeal, defendant appeals from a judgment of contempt
for violating a restraining order and a separate judgment continuing defendant’s probation that converted defendant’s bench probation to formal probation.
Defendant assigns error to the trial court’s exclusion of certain witness testimony at the contempt hearing, arguing that the testimony was admissible under
OEC 613(2) as extrinsic evidence of the victim’s prior inconsistent statement
for the purpose of impeaching the victim’s credibility. Held: Assuming without
deciding that there was error, the Court of Appeals concluded that any error in
excluding the testimony was harmless. The testimony defendant sought to elicit
was cumulative of the witness’s previous testimony because it added nothing
qualitatively different to the record. Moreover, the trial court, acting as the factfinder, explained that it understood defendant’s argument regarding the victim’s
prior inconsistent statements and that it found the victim’s testimony credible
regardless. Therefore, any error in excluding the testimony had little likelihood
of affecting the verdict.
Affirmed.
Patricia L. McGuire, Judge.
Matthew Blythe, 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.
Hannah K. Hoffman, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
Cite as 303 Or App 566 (2020) 567
SHORR, J.
Affirmed.
568 State v. Strasser
SHORR, J.
In this consolidated appeal, defendant appeals from
a judgment of contempt for violating a restraining order and
a separate judgment continuing defendant’s probation that
converted defendant’s bench probation to formal probation.1
Defendant assigns error to the trial court’s exclusion of certain witness testimony at the contempt hearing, arguing
that the testimony was admissible for impeachment purposes as prior inconsistent statements under OEC 613.2 As
explained below, we affirm the trial court’s ruling, because
the testimony at issue was cumulative of other evidence in
the record and any presumptive error was harmless.
“[W]hen we are assessing the harmlessness of
evidentiary error, we look at all pertinent evidence.” State
v. Blaylock, 267 Or App 455, 456 n 1,
341 P3d 758 (2014),
rev den,
357 Or 299 (2015) (citing State v. Cunningham,
179 Or App 359, 361 n 2,
40 P3d 1065 (2002), rev’d on other
grounds,
337 Or 528,
99 P3d 271 (2004)). The victim in this
case had obtained a restraining order against defendant,
who was her former boyfriend. While that restraining order
was in force, the victim called 9-1-1 to report that defendant came to her house in violation of the restraining order.
Defendant was arrested and charged with punitive contempt, ORS 33.065, for violating a restraining order under
ORS 107.718.3 The court held a contempt hearing.
The state called only the victim as a witness. She
testified that, early in the morning on the day in question,
defendant came to her house, tapped on her bedroom window, and then stood at her front door asking to talk. She
testified that “I opened the door, I saw him, I slammed the
door and I went and called 911.” She testified that she “did
not see him leave” and that she assumed he left on a bicycle.
1
That separate judgment continuing probation was entered after defendant
was found in contempt; defendant then stipulated that he had not obeyed all laws
in violation of his probation.
2
OEC 101(2) provides that the Oregon Evidence Code applies to, among
other things, “contempt proceedings except those in which the court may act
summarily.”
3
Contempt of court is defined as, among other things, the willful “[d]isobedience of … the court’s … orders or judgments.” ORS 33.015(2)(b).
Cite as 303 Or App 566 (2020) 569
The victim then testified that an officer responded to her
house and that she told the officer that defendant might be
found at Dotty’s, a video poker establishment.
After the state had presented its case, defense counsel began with an opening statement, presenting defendant’s
theory of reasonable doubt:
“You will also hear from Officer Chong specifically that
the victim said that [defendant] left on a bike and that’s
why Officer Chong went to investigate the—whether or
not [defendant’s] bike was in working condition, and you’ll
[hear] from [defendant’s roommate] that the bike wasn’t
working in good condition, that the night before the incident, the bike—the chain had come off, and that [defendant] walked home, and that—that same bike was shown
to Officer Chong. Officer Chong took photos of that bike
as well, and he’ll be able to testify to that, and it wasn’t in
working condition, and I believe after all of that you will
find that there is reasonable doubt and the State hasn’t met
its burden.”
Defense counsel then called Officer Chong to testify. Chong
testified that he had been dispatched to the victim’s house
for a violation of a restraining order. Defense counsel asked
Chong about whom he spoke to on the date of the incident:
“[DEFENSE COUNSEL]: Okay, so first you spoke
with [the victim]?
“[CHONG]: The caller, yes.”
Chong then testified that, after speaking with the victim—
who he identified as “the caller”—he went to Dotty’s,
arrested defendant, and then went to the residence where
defendant was staying at the time to interview defendant’s
roommate about “[t]he bike in question.” The prosecutor
objected on the basis of relevance, asserting that “the testimony we have from [the victim] is that she assumed he had
a bike but didn’t see one.” Defense counsel explained to the
court that Chong was “going to testify to the facts that the
victim told him that she saw [defendant] leave on a bike, and
what color the bike was, and his investigation goes to that
bike. It’s all relevant.” The prosecutor responded that “that
would be hearsay, because we did not hear that on direct.”
Defense counsel responded that it was “for the purpose of
570 State v. Strasser
impeachment at this point.” The court overruled the prosecutor’s relevance and hearsay objections.
The following testimony then ensued:
“[DEFENSE COUNSEL]: But you said that you went
to—there was a bike in question. Why did you think there
was a bike in question?
“[CHONG]: Because I was told by the caller that he
had left on a bike.
“[DEFENSE COUNSEL]: So [the victim] told you that
he had left on a bike?
“[PROSECUTOR]: Objection to hearsay.
“[DEFENSE COUNSEL]: It’s for the purpose of an
impeachment, Your Honor, to be—
“[PROSECUTOR]: You could have asked her on
cross-examination.
“THE COURT: Objection sustained.”
Defense counsel then elicited testimony from Chong that
he had gone to defendant’s residence, interviewed his roommate, and was shown a bike that matched the description of
the bike that he was “under the impression” that defendant
had been riding when he left the victim’s house. Chong testified that that bicycle had a broken chain.
At the conclusion of the hearing, the court found
defendant in contempt. In explaining its ruling, the court
stated, “I understand where you were going with the—with
the bike argument, and I—I do have to tell you that—that
was not as credible to me as the testimony of [the victim]
with her testimony that she had seen him at her front door.”
Defendant now appeals, assigning error to the trial
court’s ruling excluding Chong’s answer to the question of
whether it was the victim who told him that defendant had
left on a bike. In defendant’s view, the testimony was admissible under OEC 613(2) as extrinsic evidence of the victim’s
prior inconsistent statement to Chong for the purpose of
impeaching the victim’s credibility. Defendant argues that
OEC 613(2) requires only that the witness be “afforded
an opportunity to explain or deny [the statement] and the
Cite as 303 Or App 566 (2020) 571
opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require.”
OEC 613(2). Defendant relies on commentary to OEC 613,
which observes that “[n]o particular time or sequence is
specified” for when a witness must be given the opportunity to explain or deny a prior inconsistent statement before
extrinsic evidence is admissible.4 OEC 613 Commentary
(1981). Defendant argues that, here, the record indicates
that the victim remained in the courtroom for the duration
of the hearing and could have been recalled as a witness
by the state to explain or deny her statement. Accordingly,
defendant argues, the trial court erred in excluding Chong’s
testimony.
The state first responds that the error is unpreserved and is unreviewable as plain error because the error
was not “obvious.” See Ailes v. Portland Meadows, Inc., 312
Or 376, 381,
823 P2d 956 (1991) (to qualify as plain error, the
error must be, among other things, “ ‘apparent,’ i.e., the point
must be obvious, not reasonably in dispute”). In the state’s
view, it is an open legal question whether a witness must
be given an opportunity to explain or deny a prior inconsistent statement before extrinsic evidence of that statement
is admissible under OEC 613(2), because no Oregon court
has examined the issue and the commentary to the rule is
not law. The state also asserts that any error was harmless
under the circumstances because the testimony that defendant sought to be admitted was cumulative of other testimony in the record.
We conclude that any error, assuming there was
error, in excluding Chong’s testimony was harmless. “We
must affirm a judgment, despite any error committed at
trial, if we determine that there is little likelihood that the
particular error affected the verdict.” State v. Lachat, 298
4
The commentary to OEC 613(2) states that
“[t]he traditional insistence that the witness’ attention be directed to the
statement on cross-examination is relaxed in favor of simply providing the
witness an opportunity to explain the statement and the opposite party an
opportunity to examine on the basis of it. No particular time or sequence is
specified.”
Legislative Commentary to OEC 613 reprinted in Laird C. Kirkpatrick, Oregon
Evidence § 613.02 (6th ed 2013) (emphasis added).
572 State v. Strasser
Or App 579, 589, 448 P3d 670 (2019), rev den,
366 Or 257
(2020) (internal quotation marks and citation omitted). In
conducting that harmless error analysis, we consider “the
nature of the error” and the “context” of that error. State
v. Davis,
336 Or 19, 32-33,
77 P3d 1111 (2003). The erroneous exclusion of evidence is harmless if a factfinder “would
have regarded the evidence as duplicative or unhelpful to its
deliberations.” Blaylock,
267 Or App at 472 (quoting State v.
Perkins,
221 Or App 136, 143,
188 P3d 482 (2008) (internal
quotation marks, citations, and ellipses omitted)).
Here, the trial court, sitting as factfinder, heard
from the victim that she had called 9-1-1 upon seeing defendant at her door. The court also heard from Chong that he
spoke with the victim, who Chong identified as “the caller,”
when Chong responded to the victim’s house. Chong further
testified that the “caller” told Chong that defendant had
left her house on a bicycle. There was no other 9-1-1 call
or caller alluded to during the hearing, and, thus, the only
available inference was that the caller and the victim were
the same person. Chong’s testimony that he spoke to the
“caller” when asked if he spoke with the victim further clarified that point. Thus, the testimony that defendant sought
to elicit from Chong—that it was the “victim” who told him
that defendant left on a bicycle—was merely cumulative of
his previous testimony that the “caller,” already identified
as the “victim,” told him the same thing. It “added nothing
‘qualitatively different’ to the record.” See Blaylock, 267 Or
App at 474 (quoting Davis,
336 Or at 34).
Moreover, the trial court explained that it understood where defendant was “going” with his argument
regarding the victim’s prior inconsistent statements regarding defendant leaving on a bicycle, and that the court found
the victim’s testimony that she saw defendant at her front
door credible regardless of the testimony about how defendant left the scene. We are confident that any error in
excluding the testimony, therefore, had “little likelihood of
affecting the verdict.”
In light of Chong’s testimony immediately prior
to the state’s hearsay objection, we conclude that the challenged testimony was merely cumulative of evidence already
Cite as 303 Or App 566 (2020) 573
in the record, and any error in its exclusion was harmless.
Accordingly, we affirm.
Affirmed.
