564
Submitted September 24, 2020, affirmed January 21, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRIAN DALE MOSLEY,
Defendant-Appellant.
Tillamook County Circuit Court
18CR32534; A170593
480 P3d 1023
Defendant appeals from a judgment convicting him of violating a stalking
protective order (SPO), ORS 163.750. He assigns error to the trial court’s exclusion of evidence regarding the dismissal of a different SPO that a witness had
pursued against defendant. The state argues that the Court of Appeals cannot
reach the assignment of error because defendant failed to preserve his argument
or make an offer of proof as to the excluded evidence. Held: Defendant did not
make a record sufficient to permit review of his challenge to the trial court’s
order.
Affirmed.
Jonathan R. Hill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 308 Or App 564 (2021) 565
ORTEGA, P. J.
Defendant appeals from a judgment convicting him
of violating a stalking protective order (SPO), ORS 163.750.
On appeal, defendant assigns error to the trial court’s
exclusion of evidence regarding the dismissal of a different
SPO that a witness had pursued against defendant. The
state argues that we cannot reach the assignment of error
because defendant failed to preserve his argument or make
an offer of proof as to the excluded evidence. We agree that
defendant did not make a record sufficient to permit review
of his challenge to the trial court’s order. Accordingly, we
affirm.
We recount only those facts necessary to frame the
trial court’s ruling. D and defendant had been neighbors
for around 20 years. Their properties shared an easement
over the driveway of another neighbor, B. A few years ago, D
obtained an SPO against defendant because of defendant’s
“past threatening behavior.” D had also filed a civil suit
against defendant, in which B was also involved.
At defendant’s trial, the state sought to prove that
he violated the SPO by recklessly coming into D’s physical presence while on B’s property. Before trial, the court
resolved various evidentiary issues in chambers, which the
court addressed on the record as follows:
“So the first issue is the issue of bias, and the parties are
wanting to explore, I guess, the relationship or the basis of
the bias between the parties. And I believe in chambers,
the parties were agreeable to—that there is an ongoing
civil suit between [defendant] and both [D] and [B].
“That [D] and [B] … don’t like [defendant]. And they
have a—I can’t remember if you said tense or emotional
relationship. Something like that. …
“…
“Okay. And then, so those I think were the issues that
the parties had at least agreed upon.
“The details of the civil suit, the bridge dispute, and I
guess the well dispute, aren’t really relevant as far as they
aren’t really probative towards bias after you get past—
that there is this thing that’s ongoing. And I think as far
566 State v. Mosley
as the prejudicial, it could, you know, mislead or misdirect
the jury into other issues.”
At trial, D testified that he was talking with B on B’s
property when defendant drove his car back down B’s long
driveway, “slowed way down to almost a crawl,” and gave D
and B a “nasty look.” Defendant contested that account.
B also testified about the incident, consistently with
D’s testimony. After that testimony, the prosecutor had the
following exchange with B:
“Q. And just briefly, at some point after this, you ended
up getting a stalking order against [defendant] also; right?
“A. Yes, sir. I did.
“Q. And you are currently involved in a—in a civil suit
that’s against [defendant]; right?
“A. Yes, sir, I am.”
Defendant did not object during that testimony regarding
the stalking order that B had obtained.
After the prosecutor completed direct examination
of B, and before beginning cross-examination, defense counsel asked to approach the bench and the trial court convened
a discussion in chambers. Upon returning, the court simply
stated that “[t]he objection is overruled,” and when defense
counsel stated that no objection was made, the court stated,
“Well, you had started to make an objection, and then we
talked about it.” The state rested its case and defendant
moved for a judgment of acquittal, which the court denied.
After denying that motion, the court made the following statement:
“We do need to put one thing on the record. In chambers,
[defendant] raised—or had an objection for clarification of
the [c]ourt’s ruling regarding whether or not the State had
opened the door by examining [B] regarding bias regarding
that he had had a stalking order. And [defendant] wanted
to inquire regarding the fact that that stalking order was
dismissed.
“The court did not allow that. The ruling that we
had done pretrial was based on prejudice [and] probative
Cite as 308 Or App 564 (2021) 567
balance. And the State had offered what the [c]ourt had
said … would be admissible, as we talked in chambers.
“Going into the facts of the underlying … stalking
order that [B] had against [defendant] … I think isn’t particularly probative and it could be misleading. And it isn’t
very probative. So[,] we didn’t allow that in.”
The court then asked defendant if he had anything “to add
to the objection” and defendant answered, “[n]o, I think that
covered it, Your Honor.” Defendant made no offer of proof,
then or later, as to what B’s testimony would have been in
response to an inquiry “regarding the fact that [B’s] stalking
order was dismissed.” A jury found defendant guilty of violating the SPO as to D.
On appeal, defendant asserts that the trial court
erred when it excluded evidence that B’s SPO against defendant had been dismissed. Defendant argues that the dismissal of that SPO was relevant for impeachment purposes,
because it permitted inferences about B’s bias or interest.
See State v. Hubbard, 297 Or 789, 796,
688 P2d 1311 (1984)
(“To be relevant, evidence introduced to impeach a witness
for bias or interest need only have a mere tendency to show
the bias or interest of the witness.”); OEC 401 (defining “relevant evidence”). Specifically, defendant argues that the
dismissal of B’s SPO supports three inferences: (1) defendant’s prosecution gave B an opportunity to hold defendant accountable because defendant had escaped the consequences of his actions through the dismissal of the SPO;
(2) the fact that the SPO had been dismissed put B in a position where he stood to gain from the prosecution if defendant were convicted and placed on probation or in jail; and
(3) if the jury knew that B’s allegations underlying the SPO
were disproved or disbelieved by a judge, a jury could reasonably infer D’s bias to lie about defendant. Further, defendant contends that the error warrants reversal because the
evidence would have undermined B’s credibility, which was
important to the verdict.
The state contends that defendant failed to preserve
his assignment of error, because the record does not reflect
whether he made the same arguments in the trial court that
he now makes on appeal with regard to impeachment and
568 State v. Mosley
bias evidence. Furthermore, the state contends that defendant’s failure to make an offer of proof is fatal to his assignment of error because the trial court did not have an opportunity to consider its ruling in light of the evidence being
offered, which in turn prevents us from evaluating whether
the trial court erred and whether any error was prejudicial.
We agree with the state.
In general, a claim of error that has not been raised
in the trial court will not be considered on appeal. State v.
Parkins, 346 Or 333, 338,
211 P3d 262 (2009); see also OEC
103(1)(b) (a party can assign error to a trial court’s exclusion of evidence “if the substance of the evidence was made
known to the court by offer or was apparent from the context
within which questions were asked”). Requiring a party to
preserve an issue in the trial court serves several purposes.
It permits a trial court to consider and rule on a contention,
thereby possibly avoiding an error altogether or correcting one already made. Peeples v. Lampert,
345 Or 209, 219,
191 P3d 637 (2008). Also, it “fosters full development of the
record, which aids the trial court in making a decision and
the appellate court in reviewing it.”
Id. at 219-20. In addition, in determining whether an evidentiary error is prejudicial, we must determine whether there was more than a
little likelihood that the error affected the verdict. State v.
Davis,
336 Or 19, 32,
77 P3d 1111 (2003). That assessment
requires that we consider the nature of the proffered evidence in the context of the trial as a whole.
Id.
Because of those requirements for appellate review,
development of the record sufficient to permit review
includes ensuring that off-the-record discussions are adequately reflected on the record so that we can determine
if an error has been preserved. See, e.g., State v. Y. B., 296
Or App 781, 785,
439 P3d 1036 (2019) (explaining the obligation a party opposing a ruling has to “put on the record
any account of any critical proceedings occurring off of the
record”).
Here, defendant failed to preserve his assignment of
error. The jury heard evidence of B’s bias against defendant
when it heard about the existence of the civil suit involving B and B’s SPO against defendant. Thus, defendant’s
Cite as 308 Or App 564 (2021) 569
argument essentially reduces to a contention that there are
additional inferences about B’s bias toward defendant that
can be drawn from the dismissal of the SPO that it could not
infer from the existence of the SPO and civil suit. However,
the record does not reflect that defendant raised below the
ways in which the dismissal would be relevant to support the
additional inferences about B’s bias or interest that defendant now raises on appeal. Further, the trial court’s ruling
appeared to focus on OEC 403. Despite being afforded the
opportunity to “add to the objection” on the record, defendant did not do so, nor did he provide an offer of proof as to
what B’s testimony would be or ask questions that would
have aided the trial court to evaluate any potential error
in excluding the evidence. That is also important because
defendant’s specific theories of relevance and the reasonable
inference he sought to draw from the evidence depended on
the circumstances underlying the SPO’s dismissal, such as
whether B voluntarily withdrew the SPO petition or whether
a judge disbelieved B’s allegation. Without an adequate
record, we are unable to assess whether an error occurred
or was likely to be prejudicial.
Affirmed.
