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FILED: November 24, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANTHONY JAMES FISH,

Defendant-Appellant,

Josephine County Circuit Court
07CR0486
A139664

Pat Wolke, Judge.

Argued and submitted on July 29, 2010.

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Denis M. Vannier, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.

BREWER, C. J.

Reversed and remanded.

BREWER, C. J.

Defendant, who was convicted of second degree assault, ORS 163.175, two counts of fourth-degree assault, ORS 163.160, and menacing, ORS 163.190, argues on appeal that the trial court erred in admitting evidence of a statement that he made about one of the victims during trial. He further asserts that the trial court committed plain error in instructing the jury that it could return a nonunanimous jury verdict. We reject the latter argument without discussion. See State v. Bowen, 215 Or App 199, 168 P3d 1208 (2007), adh'd to as modified on recons, 220 Or App 380, 185 P3d 1129, rev den, 345 Or 415 (2008), cert den, ___ US ___ (2009). With respect to defendant's first argument, we conclude that the trial court erred in admitting the challenged evidence and further conclude that, despite the state's assertions to the contrary, the erroneous admission of the evidence was not harmless. Accordingly, we reverse and remand.

Because the issue on appeal pertains to the second-degree assault conviction, we recite the facts concerning that offense. And, because defendant was convicted after a jury trial, we state those facts in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007), cert den, 552 US 1113 (2008).

The pertinent events occurred during the early hours of July 14, 2007, outside a tavern that had just closed for the night. Defendant had been in the tavern, accompanied by friends and his parents, celebrating his birthday. They left the tavern near closing time, and one of defendant's female friends and defendant's mother began brawling with several women who also had just left the tavern. The brawl soon attracted a fairly large number of combatants on both sides. Several doormen from the tavern attempted to break up the fight, with limited success.

Before that evening, defendant and the victim, Cummings, had had no contact with each other. Cummings testified that he had observed defendant when they were both outside the tavern and defendant was standing on top of a taxicab, yelling and waving his arms. A crowd of 15 to 20 people were in front of the cab, including defendant's family and friends who were involved in the brawl. Defendant jumped from the cab into the crowd, and people in the crowd began hitting and pushing defendant. Defendant and the crowd moved closer to the victim, who attempted to push defendant away. Defendant then swung at the victim with a box-cutter, cutting his chin, neck, and chest. The victim then advanced on defendant, who was trying to retreat, and, with the assistance of others, the victim hit and kicked defendant. Defendant fled and was apprehended nearby by police officers who had been called to the scene of the brawl.

Although we view the evidence in the light most favorable to the state, we note that there is conflicting evidence in the record concerning (1) the extent to which defendant and the victim had engaged in physical combat with each other before defendant cut the victim and (2) the identity, as between defendant and the victim, of the initial aggressor. Defendant did not deny that he inflicted the wounds that Cummings suffered that evening, but defendant's theory was that Cummings was the initial aggressor, and defendant acted in self-defense.

After the state's case-in-chief, during which Cummings testified, defendant testified in his own defense. On cross-examination, the prosecutor elicited from defendant testimony about a telephone conversation that defendant had had with his mother the previous night in which they discussed the events of the trial and, during which, defendant told his mother that he was going to "catch [Cummings] on fire when I get out."(1) Defense counsel objected to that testimony on the ground that the evidence was irrelevant and unfairly prejudicial. The prosecutor responded that the evidence showed that defendant was biased against the victim and, therefore, the evidence was admissible without regard to its prejudicial effect. In response to the court's observation that the very nature of the case indicated "a bias between" the victim and defendant, the prosecutor posited that the evidence "show[ed] the degree of animosity, the degree of violence. It also shows potentially his state of mind at the time that it actually happened." The prosecutor added that "[i]t certainly shows his bias as to why he's testifying today in the fashion that he's testifying." The court noted the minimal relevance of evidence that defendant was angry with a witness who had testified against him, but concluded that the evidence nevertheless was admissible on the ground that "bias of a witness is never a collateral matter and matters that would otherwise be irrelevant are allowed to impeach a witness for bias." Laird C. Kirkpatrick, Oregon Evidence