State v. Ramirez

                                       62

     Submitted December 17, 2020, reversed and remanded March 17, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                ISAIAH ISADORE RAMIREZ,
        aka Isaiah Isadore Ramirez-Archuleta-Salinas,
                     Defendant-Appellant.
               Multnomah County Circuit Court
             18CR47531, 18CR30349, 18CR30728;
             A170122 (Control), A170123, A170124
                                  

     In this consolidated case, defendant appeals from a judgment of conviction for
third-degree sexual abuse, ORS 163.415, and the revocation of his probation. He
argues that the trial court erred in prohibiting him from offering extrinsic evidence of the complaining witness’s prior inconsistent statement for the purposes
of impeachment. The state concedes that the trial court erred, but argues that we
should nevertheless affirm because either defendant’s offer of proof was insufficient, or the error was harmless. Held: The state’s concession is accepted, and the
trial court erred in excluding the evidence. On this record, the Court of Appeals
could not conclude that defendant’s offer of proof was insufficient, as defendant
explained at trial how the anticipated testimony tracked the tenor of defendant’s
cross-examination of the complaining witness. Nor could the court conclude that
the error was harmless, as the excluded evidence revealed an inconsistency that
went to core issues under the defendant’s theory of the case.
    Reversed and remanded.



    Christopher J. Marshall, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
    JAMES, J.
    Reversed and remanded.
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           JAMES, J.
         In this consolidated case, defendant appeals from
a judgment of conviction in Multnomah County Case No.
18CR47531 for third-degree sexual abuse (ORS 163.415),
and the revocation of his probation in Multnomah County
Case No. 18CR30349. On appeal, defendant argues that the
trial court erred in prohibiting him from offering extrinsic evidence of the complaining witness’s prior inconsistent
statement for the purposes of impeachment. The state concedes that the trial court erred but argues we should nevertheless affirm because either defendant’s offer of proof was
insufficient, or the error was harmless. We disagree on both
points, accept the concession on the merits, and reverse and
remand.1
         We review the trial court’s evidentiary ruling for
errors of law. State v. Arellano, 

, 

 (1997), rev dismissed, 

, 

 (1998).
Evidentiary error is not presumed to be harmful, and we
will affirm a defendant’s conviction if “there [is] little likelihood that the particular error affected the verdict[.]” State v.
Davis, 

, 

 (2003). Because defendant
was convicted after a jury trial, we state the pertinent facts
in the light most favorable to the state. State v. Johnson,

, 

 (2007), cert den, 

(2008).
         The complaining witness in this case, T, worked at
the Sisters of the Road Café, an establishment that primarily serves the homeless population. Defendant and T knew
each other from T’s work there.
         On June 30, 2018, T encountered defendant while
walking to work. At trial, T described that defendant
approached her, greeted her, then started forcibly kissing
her. T testified that she responded by telling defendant to
stop. T testified that defendant did not stop, but instead put
his hands in her shirt, through her sports bra and touched
her breast, and then put them down her pants to touch her
    1
      This is one of two cases we issue today addressing the evidentiary harm of
the improper exclusion of impeachment evidence, the other being State v. Rashad,

, 

 (2021).
64                                               State v. Ramirez

vaginal area. T was able to push him away at that point. T
testified that, as he walked away, defendant said, “We’ll finish this later. We can get a motel room and we’ll finish this
later.” T estimated that the entire encounter took between
five and eight minutes.
         T called the police on July 12, 2018, to report the
incident. Officer Pahlke came to talk to her, but for a variety
of reasons, T did not feel that Pahlke responded appropriately to her complaint. Five days later, after noticing that
defendant had not been arrested, T called the police again
and was subsequently interviewed by Officer Walters. She
had a better experience with Walters because she “felt like
that officer listened more.” The facts just related correspond
to the facts T told Walters.
         At trial, the defense argued that the encounter
between defendant and T began as consensual kissing, and
that it was after the touching occurred, not before, that T
told defendant to stop. According to the defense theory of the
case, defendant stopped when T asked him to stop.
         Defendant’s counsel cross-examined the complaining witness, seeking to elicit her admission that her
earlier statements to Pahlke materially differed from her
statements to Walters, specifically concerning whether the
encounter began consensually and at what point T had indicated to defendant it was no longer consensual:
        “[DEFENSE]: So, again, it’s your testimony that—it’s
     your testimony that you did not tell Officer Pahlke that you
     and [defendant] began to kiss?
        “[WITNESS]:     Correct.
        “…
        “[DEFENSE]: Okay. So—so you and [defendant] were
     talking and he began to caress your breasts?
        “[WITNESS]: Yeah, after he started kissing on me.
        “[DEFENSE]: Okay. And it was at—so at that point
     [defendant] attempted to touch the vaginal area outside
     your pants? That’s what you told Officer Pahlke, correct?
        “[WITNESS]:     Correct.
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      “[DEFENSE]: And it was at that point that you told
   [defendant] to stop?
      “[WITNESS]: I kept telling him to stop more than
   once.
      “[DEFENSE]: You told Officer Pahlke it was at that
   point you told him to stop.
      “[WITNESS]: That’s not correct. I kept telling [defendant] to stop when he first started kissing on me.”
         Following that exchange, defendant sought to call
Pahlke. Defense counsel indicated that his intent was to call
Pahlke, not for the truth of the complaining witness’s prior
statements, but as impeachment, “just as prior inconsistent
statements, which again would be pivotal to our defense.”
The trial court expressed concern that the witness’s statements to Pahlke would be hearsay. The trial court ultimately
disallowed the testimony, ruling “it is inadmissible, because
it is not—it doesn’t meet the qualifications for a prior inconsistent statement, was not a statement made under oath. It
would be hearsay.”
         Defendant now challenges that ruling, asserting
that the trial court erred in concluding that the witness’s
prior inconsistent statement was inadmissible for impeachment through Pahlke. The state concedes the error, and that
concession is well taken.
         Confronting a witness with the witness’s own prior
inconsistent statements is not hearsay, but rather is a type
of impeachment evidence offered not for the truth of the
matter asserted but to cast doubt on the credibility of the
witness. See State v. Guzek, 

, 

(2004), vac’d and rem’d on other grounds, 

, 

, 

 (2006); see also Blue Ribbon Bldgs.
v. Struthers, 

, 

 (1976); State v.
Phillips, 

, 

 (1992) (so stating
in terms of a hearsay declarant who can be impeached in
the same way as a witness under OEC 806).
        OEC 613 provides:
     “(1) In examining a witness concerning a prior statement made by the witness, whether written or not, the
66                                                          State v. Ramirez

     statement need not be shown nor its contents disclosed to
     the witness at that time, but on request the same shall be
     shown or disclosed to opposing counsel.
        “(2) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is
     afforded an opportunity to explain or deny the same and
     the opposite party is afforded an opportunity to interrogate
     the witness thereon, or the interests of justice otherwise
     require. This provision does not apply to admissions of a
     party-opponent as defined in ORS 40.450[.]”

         Under OEC 613, extrinsic evidence of a prior inconsistent statement may be admissible if the witness is given
the opportunity to explain or deny it. OEC 613(2). A prior
statement is inconsistent if there is a “material variance”
between the prior statement and the testimony of the witness. State v. Shearer, 

, 

,
rev den, 

 (1990) (citing Rigelman v. Gilligan, 

, 

 (1973)).2
         Nevertheless, despite the error here, the state
asserts that reversal is not appropriate for two reasons.
First, the state argues that defendant’s offer of proof was
insufficient. Alternatively, the state argues that the value
of the impeachment evidence was de minimis and the error
therefore harmless. We disagree on both points.
         A party may make an offer of proof by summarizing
what the proposed evidence would show. Phillips, 

. An offer of proof need not be extensive. It suffices so
long as it “make[s] it possible for the trial judge to know the
nature of th[e] evidence and for a court on review to be able
to determine whether the judge’s ruling was a permissible
one.” State v. Wright, 

, 

 (1996).
           Here, defendant made an offer of proof, stating:

     2
       In Harper v. Washburn, 

, 

 (2020), we
recently noted that impeachment evidence, while often spoken of colloquially
and without grounding, is governed by specific rules of evidence that control its
categorization and admission. We also noted that “[e]vidence that undermines a
witness’s credibility comes in many forms, some more subtle than others. Such
evidence may also blur the line between substantive evidence and impeachment
evidence.” 

 In light of the concession in this case, we leave a deeper exploration
of those issues for another day.
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   “If we were to call Officer Pahlke to the stand, [the defense]
   would want to elicit testimony that [the victim] stated
   that they began to kiss and[,] while kissing[,] [defendant]
   caressed [her] breasts. [Defendant] then attempted to
   touch her vagina on the outside of her pants and [the victim] told him to stop, but [defendant] stopped and told [the
   victim], ‘I’ll pick you up later and we can finish this.’ …
   [The victim] stated that she did not like that [defendant]
   touched her breasts, that she did not give him permission.”
That explanation of the anticipated testimony tracked the
tenor of defendant’s cross-examination of the complaining
witness. On this record, there is no confusion about the
nature of the excluded evidence or the inconsistency that it
would show.
          Neither can we conclude that exclusion of the
impeachment evidence was harmless. Under the harmlesserror doctrine, we will affirm despite the error if “there is
little likelihood that a particular error affected the verdict.”
Davis, 

 (quoting State v. Parker, 

,
234 n 10, 

 (1993)) (internal quotation marks,
brackets, and ellipses in Davis omitted); see also OEC 103
(stating that evidential error is not presumed prejudicial
and that error may not be predicated upon a ruling to
admit or exclude evidence unless a substantial right has
been affected). When deciding whether there was harmless
error, we review all pertinent portions of the record. State
v. Goff, 

, 

 (2013). In assessing harmlessness in this context, we consider the role that
the excluded evidence played in the proponent’s theory of
the case. State v. Hren, 

, 

(2010).
          In conducting our harmless error analysis, “we
focus on ‘the possible influence of the error on the verdict
rendered, not whether this court, sitting as a factfinder,
would regard the evidence of guilt as substantial and compelling.’ ” State v. Scott, 

, 

(2014) (quoting Davis, 

). As we have said, “we do
not usurp the role of the factfinder and determine if defendant is guilty or reweigh the evidence.” State v. Zaldana-Mendoza, 

, 

 (2019). Rather,
“if there is any evidence to support defendant’s theory, we
68                                                State v. Ramirez

accept that evidence and consider whether that evidence
would still have had little likelihood of affecting the verdict.” 

         Here, the excluded evidence showed an inconsistency
that, at least under defendant’s theory of the case, went to
a core issue—had the complainant previously reported that
upon first being told to stop, defendant stopped. Defendant’s
theory posited that the complaining witness had altered
her version of events upon frustration at law enforcement’s
response and defendant’s lack of arrest. As the defense counsel explained:
     “Defense’s theory is there are inconsistencies in both
     Officer Pahlke’s account and Officer Walter’s account. And
     given the inconsistencies, we can then shed light on the
     credibility issue with the allegations.
         “Now, we want to bring up the fact that an initial investigating officer did take down statements and then highlight that the State has chosen not to call Officer Pahlke
     and thereby failing to meet their burden to give the jury
     the full picture of what exactly happened during the course
     of the investigation. …
         “… [O]n Monday we just learned information that [the
     complaining witness] had spoken … [and] that she had
     these opinions about the first officer, that she felt that he
     didn’t take her seriously, wasn’t listening to her, wasn’t
     nice to her. And upon learning that—we didn’t find that
     out until morning[,] yesterday morning, and that’s when
     we discovered oh, you just revealed to us a motive that
     would have her change her story the second time around.
     If she felt that the first officer wasn’t paying attention to
     her, was misinterpreting her statements, wasn’t taking
     her seriously, that would then be motive to exaggerate and
     embellish the claims with the second officer to be taken
     more seriously the second time around.”
        It may not be a theory that this court, as factfinder,
would find persuasive, but we cannot conclude that it could
not have persuasive value to any factfinder in determining
how much to trust or distrust the complainant’s testimony
and, consequently, whether the state had proved its case
beyond a reasonable doubt. We cannot therefore confidently
say that the error had no likelihood of affecting the verdict.
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Accordingly, we accept the state’s concession of error, and
reverse and remand.
        Reversed and remanded.