State v. Otis

No. 670            December 20, 2023                  685

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
                 JOSEPH LEE OTIS,
                 Defendant-Appellant.
               Lane County Circuit Court
                 20CR28321; A176889

  Charles M. Zennaché, Judge.
  Submitted June 20, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Peenesh Shah, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Affirmed.
686                                                              State v. Otis

          ORTEGA, P. J.
          Defendant appeals from a judgment of conviction
for first-degree robbery, ORS 164.415.1 In a single assign-
ment of error, defendant contends that the trial court erred
by excluding evidence impeaching the victim. We conclude
that defendant’s proposed cross-examination of the victim
was not relevant impeachment evidence because it would
not have contradicted her testimony. We therefore affirm.
          The facts relevant to this appeal are few and undis-
puted. Defendant took $2,500 cash from the victim’s bed-
room while he was at her house to retrieve his cell phone.
After the victim pursued defendant in her car, defendant
threatened to kill her if she did not stop following him. At
trial, defendant attempted to discredit the victim’s narra-
tive of events. On cross-examination, defense counsel asked
the victim whether she thought it “was a good idea” to follow
him. She responded that she thought she “knew” defendant
and she “loved” him but that he “just couldn’t get sober” and
that “that wasn’t him.” Counsel asked the victim if she was
sober, and she responded that she “was fighting [her] own
battle as well,” meaning that she was “[s]taying away from
people that use” but that she “was sober.”
          Defendant then asked the victim about a search
warrant that police had served on her house where drugs
were found “within months” of the incident. The state
objected to any further questioning on the matter as irrele-
vant. Defendant contended that he was entitled to impeach
the victim’s credibility by contradicting her testimony that
she was sober and staying away from people who use drugs.
The trial court ruled that defendant’s proposed cross-
examination was irrelevant impeachment on a collateral
matter. On appeal, defendant challenges that ruling.
          We review the admissibility of evidence for legal
error. State v. Apodaca, 

, 

(2018). “[A] witness may be impeached by evidence that con-
tradicts the witness’s testimony on any independently rel-
evant fact, although the witness cannot be impeached as
    1
      Before trial, defendant also pleaded guilty to felon in possession of a fire-
arm, ORS 166.270, and first-degree theft, ORS 164.055. He does not challenge
those convictions on appeal.
Nonprecedential Memo Op: 

 (2023)             687

to merely collateral matters.” State v. Gibson, 

, 

 (2005). A subject of cross-examination
is independently relevant and not collateral if “the cross-
examining party would have been entitled to prove it as a
part of and tending to establish its case.” 

 (internal
quotation marks omitted).
         Here, we need not determine whether defendant’s
proposed cross-examination of the victim related to an
independently relevant fact because we conclude that the
proposed cross-examination would not have contradicted
her testimony. Defendant asserts that his proposed cross-
examination would have contradicted the victim’s testimony
that she was sober and was staying away from people who
use drugs because it would have shown that she was not, in
fact, sober or avoiding people who use drugs. We disagree.
In context, the victim’s testimony could be understood to
assert that she was sober at the time of the incident even as
she was “fighting [her] own battle” to maintain sobriety and
not associate with drug users. Thus, defendant’s proposed
cross-examination relating to whether the victim was using
drugs or associating with drug users “within months” of the
incident would not have been relevant to contradict her testi-
mony because it was not inconsistent with any facts tending
to show her drug use or contact with drug users. See State
v. Stapp, 

, 

 (2014) (holding
that evidence that the defendant had previously threatened
someone with a knife was not relevant to discredit his testi-
mony that he had not stabbed anyone).
        Affirmed.