PENDLETON — A former Pilot Rock man is getting another shot at defending himself against sexual abuse charges after the Oregon Court of Appeal overturned verdicts against him.

Hussein Ibrahin Hassan, 68, is out of state prison and again in the Umatilla County Jail, Pendleton, awaiting a new trial.

A jury in 2019 convicted Hassan on two counts of first-degree sexual abuse of a 13-year-old girl. He appealed, and the higher court heard the arguments in the case on Jan. 26, and issued its ruling Oct. 27.

The appeals court found two reasons to remand the case back to Umatilla County.

The jury voted 10-2 to convict on one count. That meant the case was coming back to the county in the wake of the U.S. Supreme Court ruling against nonunanimous verdicts.

The jury on the second count was unanimous. But the appeal court found Circuit Judge Jon Lieuallen erred during the trial when he did not allow the defense to posit a theory that would have cast doubt on the actuations.

According to the 12-page ruling, Hassan and the 13-year-old girl lived in different halves of a duplex in Pilot Rock, and the duplex shared a backyard, according to the ruling. The girl accused Hassan of kissing her and touching her right breast while they were alone in a yard.

During the trial, the girl testified to Hassan kissing her and touching her right breast. She also told the jury this prompted her to move from Pilot Rock back to Pendleton where she had lived for “pretty much (her) whole life,” because “we didn’t feel safe at home anymore.”

The forensic evaluator who conducted the abuse assessment of the girl also testified. During cross-examination, the defense asked the evaluator about why the girl was not living with her mother. The prosecutor objected on the basis of relevance, and the defense responded, “Goes to bias.”

Lieuallen allowed the defense to pursue the line of questioning outside the presence of the jury to determine whether to sustain the objection. The defense asked the evaluator if it was correct the child said she was not living in Pendleton due to allegations of theft. The evaluator confirmed that.

The defense explained its theory of relevance: That after getting into trouble for stealing a phone, then moving to a different town, the girl made up the sexual abuse claim to get out of trouble with her parents.

The prosecutor continued to object on the ground that the two matters were not related. After further testimony, including from the mother and the girl, the judge sustained the prosecution’s objection. Lieuallen explained, “I don’t think there’s sufficient relevance, relevance to that. She’s not under any further restrictions, punishment at the time of the incident. While it may be 30 days, it’d come and gone. … There may have been lots of choppy stuff earlier some but (it had) all been worked out and smoothed out. .. I guess it doesn’t appear (to) me there was anything to avoid at that time, and therefore no reason to make up, fabricate a story, anything of that nature, so.”

The jury ultimately convicted Hassan on the two counts of first-degree sexual abuse.

But the appeals court found the judge should have allowed the defense to explain its theory of why the girl may have fabricated the account, even if the theft of the cellphone had little effect on the girl by the time she made the accusations.

The general rule, the appeals court explained, is all relevant evidence is admissible, and 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.” To meet the test of relevance, the ruling stated, “bias or interest evidence ‘need only have a mere tendency to show the bias or interest of the witness.’”

The court’s error in not allowing the defense theory also was not harmless.

“This case involved a credibility contest in which there was no physical evidence of abuse and no eyewitnesses who testified other than (the girl). The evidence regarding the phone incident and subsequent move would have been defendant’s only evidence of (her) motive to fabricate the allegations, and he was denied the opportunity to advance that theory and to meet the prosecutor’s closing argument that (the girl) had no bias, motive or interest in falsely accusing defendant of abuse.”

Hassan has a pretrial conference Tuesday morning, Nov. 30, at the Umatilla County Courthouse, Pendleton. Lieuallen is presiding.