642
Submitted August 17; convictions on Counts 1, 2, 4, and 6 reversed and
remanded, remanded for resentencing, otherwise affirmed November 16, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CORNELIUS ANTHONY CUFFY,
Defendant-Appellant.
Marion County Circuit Court
19CR30281; A174647
521 P3d 516
Defendant appeals from a judgment of conviction for nine counts of various
crimes based on allegations that defendant injured and coerced his domestic
partner while they shared the same household. Among other things, defendant
argues on appeal that the trial court erroneously admitted evidence of defendant’s gang membership and activities in jail based on his opening the door to
that evidence during his testimony. Held: The disputed evidence was not relevant
for the purposes of impeaching defendant, nor were defendant’s statements contradictory, specific and sweeping, or precise enough to be rebutted. Accordingly,
the state was not entitled to introduce the evidence of defendant’s gang membership and activities in jail. The trial court’s error in admitting the evidence was
not harmless as to Counts 1, 2, 4, and 6, but was harmless as to Count 9.
Convictions on Counts 1, 2, 4, and 6 reversed and remanded; remanded for
resentencing; otherwise affirmed.
Audrey J. Broyles, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the briefs for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Convictions on Counts 1, 2, 4, and 6 reversed and
remanded; remanded for resentencing; otherwise affirmed.
Cite as 322 Or App 642 (2022) 643
ORTEGA, P. J.
Defendant appeals from a judgment of conviction for
two counts of misdemeanor fourth-degree assault (Counts
1 and 7), one count of second-degree assault (Count 2),
two counts of strangulation (Counts 4 and 10), two counts
of coercion (Counts 3 and 6), and one count of felony fourth-degree assault (Count 9).1 Those charges arise from injuries
that the state alleged defendant caused to his domestic partner, K, between 2018 and 2019 while they shared the same
household. Defendant first raises four assignments of error
on appeal and then two supplemental assignments.
In his first assignment, challenging the denial of
his motion for judgment of acquittal on Count 2, defendant
argues that the state adduced insufficient evidence that
“Timberland boots” are a dangerous weapon under ORS
161.015(1). We summarily reject that assignment without extended discussion, as the evidence was sufficient
for a rational factfinder to find beyond a reasonable doubt
that the boots were used as a weapon. Defendant’s second
assignment was unpreserved and does not constitute plain
error, so we reject it without discussion. We likewise reject
defendant’s third assignment without further discussion,
because we agree with the state that defendant’s testimony
that assaulting a woman is not something that he did “regularly” opened the door to the disputed evidence of his assault
of a prior romantic partner.
In his fourth assignment, defendant claims that the
trial court erred in admitting evidence of defendant’s gang
membership and activities in jail based on his opening the
door to the evidence during his testimony and argues that
the evidence was prejudicial only as to Counts 1, 2, 4, 6, and 9.
As we discuss below, we agree that the court erred and that
the error was prejudicial with respect to Counts 1, 2, 4, and 6,
but not as to Count 9.
Finally, we do not reach defendant’s two supplemental assignments of error challenging the jury instructions
on Counts 1 and 2 because our disposition on Counts 1 and 2
based on the evidentiary error obviates the need to do so.
1
The jury found that Counts 1, 2, 4, 7, 9, and 10 constitute domestic violence.
644 State v. Cuffy
As a result, we reverse and remand Counts 1, 2, 4, and 6,
remand for resentencing as required by ORS 138.257(4)(a)(A),
and otherwise affirm.
We write only to address defendant’s fourth assignment of error. We summarize the testimony relevant to the
trial court’s decision to admit the disputed evidence and
review the admission of evidence for legal error. State v.
Apodaca, 291 Or App 268, 269,
420 P3d 670 (2018). “However,
in our assessment of whether the erroneous admission of
disputed evidence was harmless, we describe and review all
pertinent portions of the record, not just those portions most
favorable to the state.” State v. Maiden,
222 Or App 9, 11,
191 P3d 803 (2008), rev den,
345 Or 618 (2009). With those
standards in mind, we provide the following background
facts, and to the extent we must consider other facts or standards of review, we do so in the analysis of the respective
issues.
Defendant and K became romantic partners and
shared the same household for several months before the
relevant events in this case, which occurred during separate
occasions between December 2018 and May 2019.
At trial, K testified to four occasions on which
defendant acted violently towards her. In December 2018,
defendant “kick[ed]” K in her face “super hard” with “his big
Timberland boots,” causing K’s lips to “bust[ ].” Defendant
also “chucked” K’s phone at her, “hit[ting]” her “in the arm
so … hard” that it caused a “big ball and welt” and became
“colored.” Then, he accompanied K to the hospital to treat
the injuries. On a second occasion, in January 2019, defendant used his hands to “push[ ]” K’s “windpipe,” so that she
was unable to breathe or see. On a third occasion, defendant “grab[bed]” K’s phone and her keys and “told” K to “get
undressed,” to prevent her from leaving the home. On the
last occasion, in May 2019, defendant “slammed” K “against
the door” in the presence of K’s child. For that conduct, defendant was charged with 10 counts, including fourth-degree
assault, second-degree assault, strangulation, and coercion.
Defendant called K several times while in jail
awaiting trial, attempting to convince her not to testify
against him. In one of those calls, he asked K, “[D]id they
Cite as 322 Or App 642 (2022) 645
grab those boots?” In another he asked, “[D]id you tell them
when I kicked you with the boots? Did you tell them that
you went to the hospital …?” After the court issued an
order forbidding defendant from calling K, defendant wrote
K letters that made references to a gang of which he was a
member. Upon defendant’s request, the state redacted the
gang references before submitting the letters as evidence.
Defendant also communicated via jail phone with another
woman, A, with whom he had previously been romantically
involved. He asked A’s help with convincing K not to testify against him. In a separate case that was consolidated
with this one for trial, defendant was charged with several
counts of tampering with a witness. That case is not part of
this appeal, but the evidence related to that case is relevant
to the evidentiary issues presented here.
At trial, defendant disputed the first and third incidents of violence. Concerning the December incident, he
testified that there were “boots in the house that belonged
to either [K’s] brother or someone” else. According to defendant, K was injured when she “tripped over the doorway”
and “fell” while they “were moving [a Christmas] tree” that
“dropped and hit [K’s] arm.” Defendant denied that his question from jail about whether K told the police about “when”
he “kicked” her “with the boots” and that she “went to the
hospital” constituted an admission. He explained that it was
a question based on his reading of the indictment. He admitted that he “slammed” K “against the door” in May 2019,
but denied that her child was present within the meaning of
ORS 163.160(3)(a).2
Concerning his efforts to convince K not to testify,
defendant testified on direct about his phone communication with A:
“[Defense Counsel:] … [T]hose conversations, we have
multiple counts of tampering with a witness. What was
your intention in talking to [A]?
“[Defendant:] My intention was [to] try to get [K] not
to show up or participate with the DA, with the court …
2
ORS 163.160(3)(a) provides, in relevant part: “Assault in the fourth degree
… is a Class C felony if the person commits the crime … in the immediate
presence of [ ] or is witnessed by … the victim’s minor child.”
646 State v. Cuffy
because … I was scared of my situation[.] I knew I was
facing … serious charges, and I didn’t know what else to
do.
“[Defense Counsel:] Well, you’re—during those conversations, you’re talking, you know, kind of tough, kind of
bold in there—
“…
“[Defendant:] I was just trying to be a tough guy, jail
is not something that you want to show a weakness in, it’s
not—people get taken advantage of in jail, and so I had to
put on a false front, fake a personality.”
Before making these statements, defendant made a reference to being raised in a “rough,” “dangerous,” and “violen[t]” area of Chicago, where there are a lot of gangs.
On cross examination, defendant did not depart
from the testimony above. By that point, he had admitted to
tampering with a witness and to two counts of fourth-degree
assault (Counts 7 and 9). However, he denied the allegations
related to Counts 1, 2, 4, and 6. He also denied that K’s child
witnessed the incident involved in Count 9.
Later, the state sought to introduce evidence of
defendant’s gang activity, arguing:
“[H]e talked about how … he’s afraid in jail, that it’s a
tough, dangerous place. There are letters and … phone
calls where he ran … references that he’s a gang chief,
that that’s how he’s been classified, that he is Black Peace
Stone, which is a Chicago southside gang primarily, he
even writes on the side of a letter Stone run this, makes
other comments about how powerful he is in the jail, and
even talks about ‘I’m in the hole for calling a shot,’ meaning
having somebody hit. So I believe he’s opened the door to
that.”
Defendant argued that the evidence was irrelevant
and unfairly prejudicial. He asserted that he was “not downplaying that he’s in a gang” or that he “[came] from a world
of violence” and that the “jury [was] not going to give him a
fair trial” if the evidence was admitted.
Concluding that defendant had “opened the door”
by his testimony about “his conduct in jail or his fear of jail”
Cite as 322 Or App 642 (2022) 647
and that the evidence was probative and not unduly prejudicial, the court allowed the state to question defendant
about his gang activities. The state then elicited testimony
from defendant about his membership in a “powerful southside Chicago gang,” as indicated by a tattoo on his throat,
and that he had written in one of the letters to K, “Even in
this jail, my reputation precedes itself,” and about his gang
activity inside the jail.
The jury instructions included the following limiting instruction: “The state has entered into evidence statements relating to gang activity …. The statements are
admissible only for the context of defendant’s statement and
should not be considered as evidence of defendant’s guilt.”
The jury convicted defendant of misdemeanor fourth-degree assault, second-degree assault, strangulation, coercion, and felony fourth-degree assault (respectively Counts
1, 2, 4, 6, and 9 of the indictment). The jury also convicted
defendant of tampering with a witness, in addition to other
convictions not relevant to defendant’s claims before us.
On appeal, defendant makes two arguments. First,
he contends that his statements that he was “just trying
to be a tough guy” and that he “had to put on a false front”
because he did not want to show weakness in jail are neither
specific enough nor sweeping enough to warrant the introduction of impeachment evidence of his involvement with a
gang. Second, he argues that admitting the disputed evidence was not harmless as to his convictions on Counts 1,
2, 4, 6, and 9. He asserts that, because the case was a credibility contest between K and himself, allowing the state to
introduce the disputed evidence was highly prejudicial to
his credibility with the jury.
The state argues that the evidence of defendant’s
association with a gang was relevant to impeach his testimony as to why he tampered with a witness.3 It insists that
defendant’s testimony was specific and sweeping enough to
3
The state is referring to evidence that defendant had been labeled a gang
chief, claimed to have power even when he was in jail, and had ordered a hit on
another inmate.
648 State v. Cuffy
be rebutted, given that it concerned the charged offenses
and why he did what he did and therefore was relevant to
the circumstances of the crimes, entitling the state to introduce contrary evidence.
Alternatively, the state argues that any error was
harmless, for two reasons. First, it asserts that “the evidence was cumulative of other evidence, some of which was
elicited and presented by defendant,” and which referred to
defendant’s admission that, during his upbringing, he was
surrounded by gangs and violence. Second, the state asserts
that “the evidence was not prejudicial in light of defendant’s
theory of the case because the defense had [used] the fact
that [he] had been in a gang all of his life … as part of his
defense.”
In addressing defendant’s challenge, we begin by
framing our inquiry. First, we must address whether the
evidence of defendant’s gang membership and activities was
relevant to impeach and to rebut his testimony that he was
“just trying to be a tough guy” and that he “had to put on a
false front [or] fake a personality” because he was “scared
of [his] situation.” Second, if defendant’s testimony did not
warrant impeachment, we must address whether the trial
court’s error in admitting evidence of defendant’s association with a gang was harmless.
Concerning the first question, we disagree with the
trial court’s assessment that defendant’s statements were
relevant to the jury’s assessment of his credibility.
“ ‘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.”
OEC 401. Evidence is relevant “so long as it increases or
decreases, even slightly, the probability of the existence of
a fact that is of consequence to the determination of the
action.” State v. Gibson, 338 Or 560, 569,
113 P3d 423, cert
den,
546 US 1044 (2005) (quoting State v. Barone,
329 Or
210, 238,
986 P2d 5 (1999), cert den,
528 US 1086 (2000)).
A “witness may be impeached by evidence that contradicts
the witness’s testimony on any independently relevant fact,
Cite as
322 Or App 642 (2022) 649
although the witness cannot be impeached as to merely collateral matters.” Gibson,
338 Or at 572. However, impeachment by contradiction requires a precise fact statement to
which the rebuttal evidence is contradictory. State v. Hayes,
117 Or App 202, 205-06,
843 P2d 948 (1992), rev den,
316 Or
528 (1993). A “precise statement of fact is only susceptible
to impeachment by contradiction with evidence that contradicts that same precise fact.” State v. Stapp,
266 Or App 625,
630,
338 P3d 772 (2014).
The “state [is] entitled to introduce … contradictory testimony [that] relate[s] to the circumstances of the
crime.” Gibson, 338 Or at 572. In Gibson, the state was entitled to introduce contradictory testimony that the defendant had fired a gun at least once before to impeach the
defendant’s assertions that he never had fired the murder
weapon.
Id. The Gibson court concluded that the evidence
was relevant because it “related to the circumstances of the
crime and to whether [the] defendant fired the shot that
killed [the victim].”
Id.
Similarly, in State v. Tiner, 340 Or 551, 564-65,
135 P3d 305 (2006), cert den,
549 US 1169 (2007), the state
was entitled to introduce evidence of the defendant’s gang
associations to impeach evidence that he was a “model prisoner” and “was not involved with troublemakers.” The Tiner
court had concluded that the disputed evidence had “some
tendency to controvert defendant’s evidence of his prior conduct as a prisoner” which had “suggest[ed] that he was not
involved with prison gangs.” Id. at 565.
Here, the specific evidence of defendant’s gang associations that the state elicited was not relevant to impeach
his testimony as to why he attempted to tamper with witnesses. Evidence of defendant’s association with a gang does
not increase or decrease the probability that he felt vulnerable in jail. Indeed, that evidence is not of consequence to
the determination of whether defendant was trying to be
“tough,” to whether he had to put up a “false front,” or to
whether he was “scared of [his] situation,” and thus is not
relevant to impeach his testimony regarding whether he
attempted to tamper with witnesses.
650 State v. Cuffy
Additionally, defendant’s statements were neither
contradictory nor specific and sweeping, or precise enough
to be rebutted. This case is distinguishable from the situation in Tiner, in which the defendant’s claim to be a “model
prisoner” and “not involved with troublemakers” was contradicted by his involvement with prison gangs. Id. at 564-65.
Here, evidence of defendant’s gang activity does not impeach
his testimony regarding how he perceived his situation in
jail—his need to be “tough” and put on a “false front.” In
fact, the state’s theory for impeachment of defendant’s credibility is based on a false premise that persons associated
with gangs have no concerns about their circumstances
while in custody. The state’s evidence did not establish that
necessary fact, either directly or inferentially. As a result,
the state was not entitled to introduce the evidence.
Furthermore, even if it had any relevance, the probative value of the evidence was low and outweighed by its
prejudicial effect. Defendant made those statements in the
context of admitting to the offense in question, which was
tampering with a witness. Indeed, the state was accusing
defendant of an element that he has ceded, so the disputed
evidence has low probative value, while its potential prejudicial effect is high because it is meant to convey to the jury
that defendant is a dangerous person. Thus, the state is not
entitled to introduce the disputed evidence under Gibson.
Accordingly, neither Tiner nor Gibson supports the
state’s position. We turn to whether that error was harmless
and, as explained below, conclude that it was not harmless
to Counts 1, 2, 4, and 6 but was harmless to Count 9.
A trial court’s error is harmless if there is “little
likelihood that the error affected the verdict.” State v. Davis,
336 Or 19, 32,
77 P3d 1111 (2003). If we find so, we will
not reverse and remand a conviction based on evidentiary
error. Id.; see also State v. Schiller-Munneman,
359 Or 808,
820-21,
377 P3d 554 (2016) (concluding that evidence of text
messages that “addressed the only contested issue in the
case and were not duplicative of the other evidence” was
erroneously admitted and not harmless because it led to the
inference that defendant was guilty; because that inference
added significant support to the theory that the defendant
Cite as
322 Or App 642 (2022) 651
was guilty, there was a likelihood that the trial court’s error
affected the verdict).
Here, we are unpersuaded by the state’s arguments
that the evidence was cumulative of other evidence and that,
because the jury was aware of defendant’s upbringing in a
“world of violence,” any error would have been harmless. The
jury’s awareness of defendant’s upbringing does not help the
state. The record shows that the evidence introduced prior to
the disputed evidence, including that defendant was “raised
[around] a lot of gangs, a lot of violence” does not indicate
that he was involved in gangs. Nor does the record show
that evidence as cumulative of other evidence.
On the contrary, letting the jury hear the specific
evidence could have caused the jury to infer that defendant is a more dangerous person than the jury might have
in the absence of that evidence. First, like the evidence in
Schiller-Munneman, the references to defendant being a
gang member, labeled as “a gang chief” of a “powerful gang,”
added significant, if indirect, support to the state’s theory
that defendant was trying to hurt, terrorize, and control K.
See id. at 821. Second, that evidence had the potential to
change the jury’s impression about the likelihood of defendant’s guilt on an improper basis. See State v. Mayfield, 302
Or 631, 644,
733 P2d 438 (1987) (“Evidence is prejudicial
under OEC 403 if it tempts the jury to decide the case on an
improper basis,” such as the belief that the defendant is a
bad person.). Consequently, the evidence could have affected
the jury’s assessment of defendant’s guilt.
More specifically, analyzing the prejudicial effect
of the disputed evidence on each of defendant’s convictions
that defendant asserts should be reversed, we explain our
conclusion as to why that evidence was prejudicial to Counts
1, 2, 4, and 6 but harmless to Count 9. With respect to
Counts 1, 2, 4, and 6, the jury decision was largely based on
a credibility contest between defendant and K as to whether
the events occurred as testified by K. As a result, the jury’s
decision to give credibility to the state’s theory versus defendant’s theory in assessing defendant’s guilt of each of these
counts could have been tainted by the impression caused
by the disputed evidence. Ultimately, the trial court’s error
652 State v. Cuffy
was not harmless as to those counts because it potentially
affected the outcome of defendant’s case by negatively affecting defendant’s credibility with the jury.4
As for Count 9, we agree with the state that there
is little likelihood that the error affected the verdict on
that count. Despite defendant’s dispute as to whether K’s
child was present within the meaning of ORS 163.160(3)(a),
defendant admitted that he pushed K, and K’s child testified about seeing defendant “push[ ] [K] hard.” Thus, it is
unlikely that the jury’s decision could have been prejudiced
by the image of defendant as a gang member in assessing
that count.
Convictions on Counts 1, 2, 4, and 6 reversed and
remanded; remanded for resentencing; otherwise affirmed.
4
The state does not assert that the limiting instruction here was sufficient
to remove any prejudice, and we note that the instruction, far from curing the
potential prejudice of the evidence, added more confusion. The court instructed
the jury that the “statements” relating to gang activity were “admissible only
for the context of the defendant’s statements and should not be considered as
evidence of the defendant’s guilt.” That instruction does not identify a purpose
for the evidence, but rather tells the jury not to convict defendant based solely on
“statements” relating to gang activity but to consider those statements only for
the “context” of the defendant’s other statements. Thus, the instruction neither
cured the trial court’s error nor mitigated the prejudicial effect of the evidence.
See State v. Turnidge (S059155), 359 Or 364, 384,
374 P3d 853 (2016), cert den, ___
US ___,
137 S Ct 665 (2017) (identifying the purpose of a limiting instruction).
