inline"> 140 21 368 Orv. Naudain State 2021 May 20, 2021 Argued and submitted September 16, 2020; decision of Court of Appeals affirmed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings May 20, 2021 STATE OF OREGON, Petitioner on Review, v. DAMON JAMES NAUDAIN, Respondent on Review. (CC 080432001) (CA A160380) (SC S067229) 487 P3d 32

In a prosecution for aggravated murder, defendant, a Black man, sought to
elicit information about a witness’s potential racial bias on cross-examination.
The witness had lived with the victim, was engaged to be married to him, and had
a child with him. Defendant wanted to ask the witness questions that touched
on the victim’s racial prejudice, including his refusal to allow Black people in the
home, arguing that the questions were relevant to show the witness’s own bias.
The trial court ruled that evidence of the victim’s views was irrelevant and, in
the alternative, inadmissible under OEC 403. Defendant was convicted of two
counts of aggravated murder. The Court of Appeals reversed, concluding that
the trial court erred because defendant’s proffered evidence of bias was relevant
and not unfairly prejudicial. Held: (1) The trial court erred in concluding that
the evidence was irrelevant, as the proffered evidence bore a logical relationship
to the witness’s potential racial bias; and (2) the trial court erred in excluding
the evidence under OEC 403 because, under the circumstances of this case, the
probative value of the evidence was significant, while the risk of unfair prejudice
was low.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.

En Banc
On review from the Court of Appeals.*
Susan G. Howe, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
David O. Ferry, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
______________
* On appeal from the Multnomah County Circuit Court, Thomas M. Ryan,
Judge.

452 P3d 970

 (2019).
Cite as

368 Or 140

(2021) 141

brief for respondent on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
Anna Belais and John Evans, Portland, filed the brief for
amicus curiae Oregon Justice Resource Center.
GARRETT, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
142 State v. Naudain

GARRETT, J.
In this aggravated murder case, the issue is whether
the trial court erred by ruling that defendant, a Black man,
could not pursue a line of questioning on cross-examination
that was intended to show that the witness was racially
biased against Black people. Defendant sought to ask about
the witness’s relationship with the victim, who was the witness’s fiancé at the time and with whom the witness had
a child and shared a home. Specifically, defendant wanted
to ask questions that touched on the victim’s racial prejudices and refusal to allow Black people in the home that the
couple shared. The trial court granted the state’s motion in
limine to prevent such questioning, ruling that information
about the victim’s racial bias was not probative of the witness’s own bias and, to the extent it had any relevance, it
was unfairly prejudicial and inadmissible under OEC 403.
Defendant was convicted and appealed. The Court
of Appeals reversed, holding that the trial court erred in
its ruling on the evidentiary issue because defendant’s proffered evidence of bias was relevant and not unfairly prejudicial. State v. Naudain,

300 Or App 222

452 P3d 970

 (2019)
(Naudain II). We allowed the state’s petition for review, and,
for the reasons that follow, we affirm the decision of the
Court of Appeals, reverse the judgment of the circuit court,
and remand to the circuit court for further proceedings.
                    I. BACKGROUND
         The parties agree on most of the relevant facts. In
1998, defendant joined a group of people, including a white
man named Michael Jump, in a robbery at the home of Jerry
Hartman, a methamphetamine dealer. Hartman lived with
his fiancé, Julie Beachell, and their infant son. When defendant and his associates arrived at the home, defendant
knocked on the door and yelled “police.” Jump then kicked in
the front door, and defendant and Jump headed to the bedroom, where they expected to find a safe containing drugs
and cash. Hartman, Beachell, and their baby were in the
bedroom. Defendant asked Hartman where the drugs and
money were, and someone hit Hartman. It is undisputed
that defendant then shot and killed Hartman.
Cite as

368 Or 140

 (2021)                                                    143

         Defendant was charged with two counts of aggravated murder with a firearm. As explained in more detail
below, the defense theory at trial was that defendant had
accidentally fired the gun and lacked the requisite mental
state for aggravated murder.
         Defendant was tried in 2015.1 At a pretrial hearing,
the state informed the court that it planned to call Beachell
as a witness. And, citing a police report that described certain statements made by Beachell to police, the state also
moved to preclude defendant from questioning Beachell
about Hartman’s “opinions of African-Americans or his
inclination to not have friends that were African-American.”
A.    The Police Report
         According to the police report, Beachell had said
that, when the two men entered the bedroom, the “male black
subject immediately walked up to [Hartman,] and started
asking him, ‘Where the fuck is your money, where’s the
money.’ ” Then the “male black subject slugged [Hartman]
and immediately asked him again, ‘Where the fuck is the
money.’ ” Beachell explained that, after being hit, Hartman
fell back against a cupboard and, when he came “back off of
the cupboard he sort of hunched over and the male black subject then shot him.”2 The police asked Beachell if it appeared
that one person was in charge, and she explained that “she
definitely thought the male black subject was in charge of
what happened,” and the “male white subject appeared to be
very nervous and did not say much.”
         The police then asked Beachell whether she had
any “male black” friends or acquaintances who had recently
been to the home. Beachell explained that Hartman “did
not associate with” and “did not like black people and would
not allow them in his residence.” Beachell went on to tell
police about the couple’s former housemate, a white woman

    1
       This appeal arises from a retrial, after the Court of Appeals reversed and
remanded defendant’s first conviction for reasons that are not pertinent to the
issue now on review. See State v. Naudain,

254 Or App 1

292 P3d 623

 (2012),
rev den,

353 Or 788

 (2013) (Naudain I).
    2
       Although the police report indicated that Beachell said the “male black subject” shot Hartman, she testified at trial that, because her view was obstructed,
she did not see the shooting of Hartman.
144                                         State v. Naudain

named Melissa Sparks, whom Beachell thought might have
had something to do with the crime. Beachell explained that
Sparks “liked to run with black people[ ] and hung around
with black gangsters” and “had brought some male black
subjects to the house in the past and they had tried to break
in before.” Beachell further explained that Sparks was
“aware of how [Hartman] felt about black people, and knew
that she was not supposed to bring black subjects to the residence” but “did not respect the rules of the house” and was
asked to move out.

B.    Evidentiary Ruling

         As noted, the state made an oral motion at a pretrial
hearing to preclude defendant from questioning Beachell
about Hartman’s “opinions of African-Americans or his
inclination to not have friends that were African-American.”
Defendant opposed that motion, asserting that the evidence of what Beachell told police was relevant to whether
Beachell herself had a racial bias. According to defendant,
the fact that Beachell was engaged to and lived with someone who had strong racist views and would not allow Black
people in the home suggested that she “at least [was] tolerant of those views or okay with them,” which was relevant to
show Beachell’s own bias. Defendant argued that Beachell’s
racial bias was a potentially significant issue given her
characterization of the “male Black subject” as the aggressor in an incident where the other perpetrator was white.
Defendant indicated that he wished to use the evidence
of Hartman’s racist views to impeach Beachell through
cross-examination; he did not intend to admit the police
report.

         In response, the state argued that none of the information cited by defendant suggested that Beachell herself
had “any biases or prejudice against people of color.” The
state argued that the statements from the police report were
not relevant because there was not a “logical connection”
between Hartman’s racial views and Beachell’s potential
bias; in the alternative, even if the evidence was relevant, it
should be excluded under OEC 403 because it is “far more
prejudicial than it is probative in this case.”
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(2021) 145

The trial court then made the following comment:
“I don’t think it’s relevant that [Hartman] had * * * the
views described.
“But I think it is relevant if [Beachell] had those views.
I don’t think you can infer the adoption of those views. But
I do think you can ask * * * something along the lines of, did
your fiancé have discriminatory views. And then did you
adopt those views? Did you share those views?”

Defendant replied that that was the line of questioning he planned to pursue, and the state reiterated its
objection. The state explained that it would be “one thing”
if defendant wanted to ask the witness “do you have discriminatory views against Black people? Do you have—are
you racist, or whatever, a question along those lines.” In
contrast, the state argued, asking about Hartman’s views
would tarnish the reputation of the victim while serving
no relevant purpose. The state then noted that Beachell
had not said or implied in the police report that she shared
Hartman’s racial views, which prompted the trial court to
ask defendant’s counsel if he had any evidence to the contrary. Counsel responded that he did not have direct evidence that Beachell shared Hartman’s views, but that that
was an inference that could be drawn from her statements
to the police.
The trial court deferred ruling at the pretrial hearing and invited the parties to submit additional briefing. The
state then filed a written motion in limine to exclude “hearsay evidence of deceased victim [ ] Hartman’s racial bias.”
The state reiterated its position that, in the absence of an
established link between Hartman’s views and Beachell’s,
any inference of Beachell’s bias would be impermissibly
speculative. The state again emphasized that, other than
Beachell’s “association with [Hartman], no evidence ha[d]
been produced indicating any racial bias by [ ] Beachell.”
The state also reiterated its OEC 403 argument,
reasoning that any probative value was low because, at the
moment of the shooting, Beachell’s view was obstructed and
she did not actually see defendant fire the shot; thus, even
assuming that she was racially biased against Black people,
146 State v. Naudain

the relevance of that fact would be “exceedingly low” as to
the issue in dispute, which was whether defendant had the
requisite mens rea. On the other hand, the state argued, the
prejudice would be significant, given the “highly inflammatory effect an accusation of racism has to any witness.”
In response, defendant argued that he intended to
ask Beachell whether “she lived with a man who was racially
biased and had a rule against African Americans being
allowed in the house, and if she shared any of those sentiments in any way.” According to defendant, evidence that
Beachell agreed to live with and marry Hartman would permit an inference that Beachell shared his racial views, “or
was at least willing to acquiesce to them.” Thus, defendant
argued, the proposed line of questioning was a permissible
exploration of Beachell’s possible prejudices as a reason why
she described defendant in “more menacing terms” than the
“male white subject” in her statements to police.
Following a second hearing, the trial court ruled:
“All right. I find that the proposed line of questioning is not
relevant. It doesn’t have any tendency to prove or disprove
[a fact] that is of consequence to the determination of this
case. It’s not 609 material. If it had any probative value,
and I don’t think it does, I believe that probative value is
substantially outweighed by its prejudicial impact. And I
don’t believe it’s constitutionally required. So therefore, it
will be excluded.”
C. The Trial
At trial, Beachell testified about the incident as follows. Two men—one Black and one white—entered the bedroom.3 She was standing next to the bed holding the baby,
and Hartman was standing on the other side of the bed. The
white man approached her and pointed a gun, but she did
not recall if he was speaking. “The Black guy went over [to
Hartman] and was yelling for drugs and money,” Hartman
said he did not have any, and “the Black guy called him a
fucking punk and hit him.” At that point, Hartman lost his

3
In her trial testimony, Beachell frequently described actions taken by “the
Black guy” or “the Black man” when referring to defendant. When quoting her
testimony, we use those terms.
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(2021) 147

balance and “the Black man” pointed a gun at his head. In
a “very threatening” manner, “the Black guy” then ordered
Hartman and Beachell to get on the floor. Beachell did so,
then heard a gunshot. She looked up at the white man, whom
she described as looking “shocked to see a baby there.” She
did not see the gunshot and could not see Hartman. “The
Black man” then ordered her to “open the safe” in a “yelling,” “angry,” and “terrifying” tone. The white man also
told Beachell to open the safe and grabbed her by the arm
in a way that “didn’t hurt” her, but “physically moved” her.
Beachell opened the safe and someone took the contents.
“The Black man” “yelled” “let’s go, let’s go.”
Beachell further testified that “the Black guy”
seemed to be “in charge” because “he was the one that was
yelling and demanding and hit [Hartman] and told [her] to
open the safe,” and because he also seemed to be in charge
of the exit strategy. When asked if “the Black male” told her
not to worry and that he would not hurt her, she said he did
not.
On cross-examination, defendant did not ask
Beachell any questions related to her own racial views,
Hartman’s views of Black people, or a rule prohibiting Black
people from entering the couple’s house.
Defendant testified at trial and gave a different
account of the incident. He testified that, when he entered
the room, he pointed his gun at Hartman’s feet and asked
Hartman where the money and safe were. When Hartman
did not answer, Jump “lunged” and hit him. As Hartman
fell to the ground, defendant yelled “[s]tay down” and
“[g]et your hand out from under the bed.” At that point, he
was confused, turned to look at Jump, and heard a “pop.” He
was in shock, did not recall pulling the trigger, and did not
see where the bullet hit Hartman. However, defendant saw
Jump turn to Beachell, so defendant told her he would not
hurt her and asked her to open the safe. She did, and Jump
took the contents. The group then left the house.
Defendant admitted that he shot Hartman, but he
testified that he did so accidentally while looking at Jump.
He theorized that, when Hartman was falling, Hartman
148 State v. Naudain

bumped his head on defendant’s gun and defendant twitched
in response, pulling the trigger.
Defendant’s testimony that Jump, not defendant,
was the one who hit Hartman before the shooting was corroborated by an investigator, who testified that Jump had
told her that he was the one who struck Hartman.
The jury found defendant guilty of two counts of
aggravated murder with a firearm. The trial court merged
the two convictions.
D. The Court of Appeals Decision
On appeal, defendant assigned error to the trial
court’s ruling on the state’s motion in limine. The Court of
Appeals first concluded, contrary to the trial court, that the
proffered evidence of Hartman’s bias was relevant to show
Beachell’s bias under OEC 401 because, given Hartman and
Beachell’s relationship and shared household, it was a reasonable inference that “Beachell tolerated Hartman’s very
negative racist views and agreed to abide by his rule about
not allowing African-Americans in the house.” Naudain II,

300 Or App at 232

. The court then addressed the trial
court’s alternative rationale for granting the state’s motion
in limine—that, to the extent the evidence was relevant,
any probative value was outweighed by the danger of unfair
prejudice.

Id. at 232-35

. The Court of Appeals rejected that
rationale, stating that the “relevant evidence of bias which
defendant sought to introduce had no unfairly prejudicial
effect.”

Id. at 233

. The court explained that, contrary to the
state’s argument, a “ ‘smear’ against Hartman that he held
racially biased views does not result in unfair prejudice”
because the sole question at trial was whether defendant
killed Hartman with the necessary mens rea.

Id. at 234-35

.
Concluding that the trial court’s error was not harmless,
the court reversed and remanded the case to the trial court.

Id. at 235

.
        The state petitioned for review, which we allowed.
                     II. DISCUSSION
        On review, the state reprises the legal arguments
it made below, challenging both relevance and the Court of
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 (2021)                                                  149

Appeals’ rationale under OEC 403. The case before us thus
poses two questions: (1) whether the proffered evidence of
Beachell’s bias that the trial court excluded was relevant;
(2) if so, whether the trial court nonetheless permissibly
excluded the evidence under OEC 403 on the ground that its
probative value was substantially outweighed by the risk of
unfair prejudice.
A.   Relevance
         Under OEC 402, “[a]ll relevant evidence is admissible.” Relevant evidence is “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. Thus,
relevance is a “ ‘very low threshold’ for the admission of evidence.” State v. Titus,

328 Or 475, 481

982 P2d 1133

 (1999)
(quoting State v. Hampton,

317 Or 251

, 255 n 8,

855 P2d 621

(1993)).
          As this court has explained, a “principle of evidence
law in Oregon is that[ ] it is always permissible to show the
interest or bias of an adverse witness” because a witness’s
bias or interest is relevant to his or her credibility. State v.
Hubbard,

297 Or 789, 796

688 P2d 1311

 (1984) (internal
quotation marks omitted). Thus, a witness can be impeached
with evidence of “conduct” or “statements” that are relevant
to the witness’s bias or interest. OEC 609-1(1).4 To meet the
test of relevance, bias or interest evidence “need only have a
mere tendency to show the bias or interest of the witness.”
Hubbard,

297 Or at 796

.
         The Court of Appeals concluded that the evidence of
Hartman’s racial bias was relevant to Beachell’s credibility
because it tended to show that Beachell was racially biased
against defendant. Naudain II,

300 Or App at 232

. The court
explained that, although it required “some inferences” to
connect the evidence of Hartman’s views to Beachell’s possible bias, it was a “reasonable inference that, given their
    4
      OEC 609-1 was amended since the events giving rise to this criminal case.
See Or Laws 1999, ch 100, § 1. However, because those amendments apply “to trials commenced on or after [October 23, 1999],” which included defendant’s trial,
the amendments are applicable here. See id. § 2. Accordingly, we cite the current
version of OEC 609-1.
150                                         State v. Naudain

relationship and shared household, at a minimum, Beachell
tolerated Hartman’s very negative racist views and agreed
to abide by his rule about not allowing African-Americans
in the house.” Id. From that, the jury could infer that the
witness’s testimony was less credible “because those views
could have biased her perceptions of the actions of defendant, an African-American.” Id.
         On review, the state argues that the Court of
Appeals erred because the “mere fact that a witness has an
intimate relationship with someone who has a racial bias”
is not a “logical basis” for inferring that the witness has the
same bias.
         The state is correct that relevance “requires a
rational relationship between the evidence offered and the
substantive issues properly provable in the case.” State v.
Turnidge (S059155),

359 Or 364, 450

374 P3d 853

 (2016),
cert den, ___ US ___,

137 S Ct 665

 (2017) (internal quotation marks omitted). The rational relationship can be based
on an inference, so long as the inference is a “logical connection.” Id. “Evidence is relevant so long as the inference
desired by the proponent is reasonable, even if the evidence
also could support a contradictory inference.” Titus,

328 Or at 481

. We review determinations of relevance for errors of
law.

Id.

         Here, the substantive issue to be proven was whether
Beachell had a racial bias that affected the credibility of her
testimony. Thus, the question is whether there is a rational
relationship between that issue and the proffered evidence.
Like the Court of Appeals, we conclude that there is.
         Defendant sought to introduce evidence that Hartman
had racist attitudes that manifested in a refusal to associate
with Black people or to allow them in his home. The state
does not dispute the general idea that that sort of evidence
could be relevant to impeach the credibility of a witness who
held those views. The state argues only that that evidence is
not relevant to show the bias of someone else. According to
the state, “[w]ithout an evidentiary nexus, the mere fact that
a witness closely associates with someone who holds racist
views is not evidence that the witness personally shares the
same specific bias.”
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 (2021)                                  151

         In many situations, evidence of one person’s bias
will have no rational relationship to the question of whether
a different person is also biased, even if the two people are
close associates. Here, however, the evidence that defendant
sought to introduce showed that Hartman and Beachell were
in the most intimate of relationships: they lived together,
had a baby together, and were engaged to be married. It also
showed that Hartman’s views led to a rule regulating conduct in a house that Beachell shared. And finally, it showed
that Beachell did not separate her own views from those
of the “house” when she spoke about that rule: The police
report reflects that Beachell brought up the house rule in
response to the officer’s seemingly innocuous question about
whether “she had any male black friend or people that had
been over to the house recently.” (Emphasis added.) Beachell
again brought up the house rule in recounting how Sparks
was asked to leave because Sparks did not “respect the rules
of the house,” including the rule that prohibited Black people from entering the house. The evidence thus logically supports an inference that Beachell shared Hartman’s racial
bias at least to some degree. The evidence does not compel
that inference, but it clears the low bar of demonstrating
a rational relationship between the partners’ views. Thus,
the trial court erred in concluding that the evidence of
Hartman’s racial attitudes and practices was not relevant
to the issue of Beachell’s bias.
B.   OEC 403 Balancing
         Having concluded that the evidence was relevant,
we must consider whether the trial court erred by preventing defendant from using it as a basis to question Beachell.
As noted above, the trial court determined that the evidence
was irrelevant, and that, to the extent it had any probative
value, that value was substantially outweighed by the risk
of unfair prejudice.
         While relevant evidence is generally admissible, a
trial court has discretion to exclude relevant evidence “if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay or needless presentation of cumulative evidence.” OEC 403; State v. Knight,
152                                         State v. Naudain

343 Or 469, 483-84

173 P3d 1210

 (2007) (explaining that a
court’s exclusion of evidence under OEC 403 is an exercise
of discretion).
         In deciding whether to exclude evidence under OEC
403, a trial court should engage in four steps, the first step
being assessing the proponent’s need for the evidence. State
v. Mayfield,

302 Or 631, 645

733 P2d 438

 (1987). At that
step, a trial court must “analyze the quantum of probative
value of the evidence” by considering the weight or strength
of the evidence and the alternative ways the proponent of
the evidence could pursue the substantive issue it seeks to
prove with the evidence in question.

Id. at 645-46

 (considering the alternative ways the state could have rehabilitated the witness). At the second step, “the trial judge must
determine how prejudicial the evidence is, to what extent
the evidence may distract the jury from the central question
whether the defendant committed the charged crime.”

Id. at 645

. The trial court then balances the need for the evidence
against the danger of unfair prejudice.

Id.

 Finally, the trial
court must decide whether to admit or exclude the evidence.

Id.

 A trial court’s exclusion of evidence under OEC 403 is
reviewed for abuse of discretion. State v. Williams,

313 Or 19, 29

828 P2d 1006

, cert den,

506 US 858

 (1992).
         Here, the Court of Appeals concluded that the
trial court abused its discretion under OEC 403 because
the proffered evidence “had no unfairly prejudicial effect.”
Naudain II,

300 Or App at 233-35

. To the extent that that
court reasoned that the evidence posed no danger of unfair
prejudice, we disagree, for the reasons explained below.
Nonetheless, we conclude that the danger of unfair prejudice
was low under the circumstances of this case, and that the
trial court could not permissibly find that that danger substantially outweighed the probative value of the evidence.
Accordingly, we agree with the Court of Appeals’ ultimate
conclusion under OEC 403.
        As noted above, the first factor to consider in the
OEC 403 analysis is proponent’s need for the evidence. Here,
defendant sought to use the evidence to establish Beachell’s
bias. As we have discussed, although defendant’s theory of
bias would have required the jury to infer Beachell’s bias
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 (2021)                                 153

from indirect evidence, that is a permissible inference on
this record. And such an inference, if drawn, would be valuable to the defense. Beachell’s credibility was important to
the state’s case; she was a victim of the criminal conduct
and, other than defendant, was the only eyewitness to testify about defendant’s conduct immediately before Hartman
was killed. And Beachell’s testimony conflicted with other
evidence on key points probative of defendant’s mens rea—
the only issue in dispute at trial. Beachell’s characterization
of defendant as the primary aggressor—including her testimony that defendant hit Hartman—supported a finding
that defendant was acting intentionally when he pulled the
trigger. However, that testimony was contradicted not only
by defendant’s testimony but by the investigator’s testimony
that Jump admitted being the one who hit Hartman. Those
contradictions demonstrate that Beachell’s recollection
could have been mistaken. If defendant had been allowed
to demonstrate that Beachell was biased against him based
on his race, that could have led the jury to question the reliability of Beachell’s testimony, in particular the aspects of
her testimony that emphasized defendant’s aggression in
contrast to that of his white accomplice Jump. Thus, defendant’s need for the evidence was significant.

         The state suggests that defendant’s need for the
evidence was diminished because he could have elicited evidence of the same bias in other ways that did not implicate
Hartman. Defendant disagrees with that suggestion, principally because he disagrees with the state about the scope of
the trial court’s order, and specifically about whether defendant would have been permitted to ask Beachell a question
like “was there a rule prohibiting Black people from entering
your home?” as long as the question did not directly mention
Hartman.

        In considering whether defendant had other meaningful opportunities to elicit evidence of Beachell’s bias, we
review the context of the trial court’s ruling. As explained
above, the state initially made an oral motion in limine
to exclude evidence of Hartman’s “opinions of African-Americans or his inclination to not have friends that were
African-American.” Defendant then said that he planned to
154                                         State v. Naudain

ask Beachell questions such as, “did your fiancé have discriminatory views?”, “did you adopt those views?”, and “[d]id
you share those views?” The state responded that it would
object to those questions but suggested that it would be permissible for defendant to ask Beachell whether she had “discriminatory views against Black people.”
         The trial court deferred ruling and invited briefing. The state then filed a written motion seeking to exclude
“hearsay evidence of deceased victim [ ] Hartman’s racial
bias.” In that motion, the state noted that, “[o]ther than her
association with [Hartman], no evidence ha[d] been produced indicating any racial bias by [ ] Beachell.”
         In his own memorandum, defendant specified that
he intended to ask Beachell whether “she lived with a man
who was racially biased and had a rule against African
Americans being allowed in the house, and if she shared
any of those sentiments in any way.”
         Although the trial court ultimately ruled that “the
proposed line of questioning is not relevant,” the state contends that defendant still could have elicited evidence of
Beachell’s bias by asking her, without reference to Hartman,
whether she willingly lived in a home that excluded Black
people, whether Sparks was asked to move out because
she did not follow the “house rules,” and whether Beachell
associated with Black people. At oral argument, the state
acknowledged that “the record is cursory and the court’s
ruling is cursory” and that “a person could understand [the
trial court’s] ruling to be more expansive than it was.” Still,
according to the state, the questions it has identified on
appeal would have been allowed.
         We disagree. In support of its motion to exclude
“hearsay evidence of deceased victim [ ] Hartman’s racial
bias,” including that Hartman had a house rule that Black
people were not allowed in his home, the state attacked defendant’s theory of relevance, which was that, “by agreeing to
marry a man with strong racial biases and living in a house
in which there was a rule against African Americans being
in the house, [ ] Beachell has engaged in conduct which could
show bias.” According to the state, that theory of relevance
was meritless because there was no evidence that Beachell
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 (2021)                                155

shared Hartman’s views. Notably, the state did not argue
then what it argues now, which is that defendant could have
asked Beachell, without mentioning Hartman, whether she
lived in a home that excluded Black people. Rather, it is
apparent that the state sought to exclude any questioning
that was intended to urge an inference of Beachell’s bias
based on Hartman’s racial attitudes and practices, including
the fact that he refused to allow Black people in the house.
The trial court granted the state’s motion, finding that “the
proposed line of questioning is not relevant.”
         With that context in mind, it is difficult to see how
defendant would have understood at the time that he could
ask Beachell whether she lived in a home that excluded Black
people, or whether Sparks was asked to move out for violating the “house rules,” as the state now says defendant could
have done. Beachell’s statements to police about Hartman
in 1998 were the only source of information on that subject, and the jury had heard other evidence that Hartman
and Beachell shared the home. Given that, and in light of
the state’s position below that evidence of Hartman’s views
and practices including his rule prohibiting Black people in
the home was irrelevant—which the trial court appeared
to accept—defendant likely would have seen any question
about a race-based rule in the home as veering into the territory that the trial court had placed off limits. Defendant
would reasonably have doubted that Beachell could provide truthful and contextually meaningful answers without alluding to Hartman’s views, which the trial court had
prohibited.
         Some of the questions that the state now suggests
were available might not have fallen within the scope of the
trial court’s orders. However, those suggestions do not represent serious alternatives to the line of questioning that
defendant intended to pursue. The state suggests that defendant could have asked Beachell whether she had any Black
friends or associates. But by the time of trial, defendant’s
only information on the subject was 17 years out of date;
thus, the state effectively proposes that defendant should
have asked Beachell “Did you have any Black friends or associates in 1998?”—at the risk of being unable to impeach a
“yes” answer. And even an answer in the negative, standing
156                                         State v. Naudain

alone, would have done little to suggest racial bias of the
kind disclosed by defendant’s proposed line of questioning.
         The state also argues that defendant could simply have asked Beachell directly whether she was biased
against defendant because of his race. But such a question
would have been of little use to defendant without the ability
to impeach a “no” answer. Moreover, and especially because
Beachell was not only a witness but also another victim
of the crime, such a question would have carried the risk
that the “jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack
on the credibility of an apparently blameless witness.” See
Davis v. Alaska,

415 US 308, 318

94 S Ct 1105

39 L Ed 2d 347

 (1974). That alternative, therefore, did not diminish defendant’s need for the evidence that he wished to
present.
         Having considered the probative value of the evidence, we now consider its potential for unfair prejudice.
On this point, the Court of Appeals concluded that the evidence of Hartman’s racism was not unfairly prejudicial to
the state. Naudain II,

300 Or App at 233-35

. In doing so,
the court first rejected the state’s argument that “asking if
someone holds racist views will always raise a large specter
of unfair prejudice because it is simply too inflammatory to
even ask the question.”

Id. at 234

 (emphasis in original). The
court then concluded that, because “the sole question at trial
was whether defendant killed Hartman with the necessary
mental state,” the chance that the evidence would show that
Hartman had racist views “could not have damaged the
state’s case, either unfairly or fairly.”

Id. at 234-35

.
         “In the context of OEC 403, unfair prejudice does
not mean that the evidence is harmful to the opponent’s
case—a central reason for offering evidence.” State v. Lyons,

324 Or 256, 280

924 P2d 802

 (1996) (internal quotation
marks omitted). Evidence is unfairly prejudicial when it has
an “undue tendency to suggest a decision on an improper
basis, commonly, although not always, an emotional one.”

Id.

         Here, the evidence that defendant sought to introduce would tend to impeach Beachell’s credibility. Any prejudice to the state’s case caused by simply demonstrating the
Cite as

368 Or 140

 (2021)                                   157

bias of its witness would not be “unfair” under OEC 403. The
state has a stronger argument, however, that the evidence
would unfairly prejudice the state’s case by causing the jury
to take a negative view of Hartman, thus implicating the
risk that “the preferences of the trier of fact are affected by
reasons essentially unrelated to the persuasive power of the
evidence to establish a fact of consequence.” Lyons,

324 Or at 280

. Evidence that would cause the jury to develop antipathy toward the victim for reasons unrelated to the issues
in dispute does present a risk of unfair prejudice, in that, as
with other forms of character evidence, it “can detract from
the factfinder’s ability to neutrally and thoroughly assess
the evidence in the case.” State v. Skillicorn,

367 Or 464, 479

479 P3d 254

 (2021).
          Thus, to the extent the Court of Appeals’ analysis
could be understood to mean that the proffered evidence
posed no risk of unfair prejudice, we disagree. However, we
believe the risk of unfair prejudice was not high under these
circumstances. Defendant admitted to killing Hartman in
his home, in front of his fiancé and infant child, and did not
assert self-defense or argue that Hartman acted provocatively or aggressively in any fashion. As such, any negative
views of Hartman based on his racial prejudice are unlikely
to have seriously detracted from the jury’s ability to resolve
the sole question at trial, which was whether defendant
acted with the necessary mental state for aggravated murder. Moreover, the exclusion of the evidence prevented defendant from exposing the facts necessary for the jury to draw
inferences about Beachell’s potential bias and, thereby, prevented defendant from making an initial showing of bias
and impaired his right of effective cross-examination. See
Davis,

415 US at 318

 (by depriving the defendant of the
opportunity to make a record from which to argue the witness’s bias, the trial court denied the right of effective cross-examination, a “constitutional error of the first magnitude
and no amount of showing of want of prejudice would cure
it” (internal quotation marks omitted)).
        In short, while the probative value of the evidence
was significant, the risk of unfair prejudice was relatively
low. OEC 403 permits exclusion of evidence only if its “probative value is substantially outweighed by the danger of
158                                                        State v. Naudain

unfair prejudice.” For the reasons we have explained, the
trial court could not permissibly reach that conclusion here.5
        The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.




    5
      The Court of Appeals also concluded that the trial court’s error was not
harmless. Naudain II,

300 Or App at 235

. The state did not seek review of that
issue and has not argued that the Court of Appeals’ conclusion as to harmlessness was erroneous. As such, that issue is not before us and we do not consider it.
See ORAP 9.20(2) (providing that the issues before this court ordinarily include
“questions properly before the Court of Appeals that the petition or the response
claims were erroneously decided by that court”).

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