dissenting.
The trial court excluded defendant’s proffer of evidence that the victim, his stepdaughter M, was an undocumented alien and had a pending application for a U visa with immigration authorities. The majority holds that the trial court improperly excluded impeachment evidence based on relevance under OEC 401. 255 Or App at 809. Although evidence of bias or interest on the part of a witness is always relevant, the experienced trial judge did not say that evidence of the victim’s bias or motivation to lie based on her interest in obtaining a U visa was irrelevant or exclude the evidence on OEC 401 grounds. Rather, the trial court considered the evidence of impeachment to be “speculative” after a discussion with counsel and an offer of proof from defendant regarding the foundation for the evidence. I conclude that the trial court’s ruling was based on conditional relevance under OEC 104(2), and I would affirm.
Under OEC 104(2), if “the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” In other words, conditional relevance means that one fact is relevant only if another fact—the conditional fact—is first proved. State v. McNeely, 330 Or 457, 462 n 5, 8 P3d 212, cert den, 531 US 1055 (2000). If “the trial court concludes that a reasonable jury could not find that the preliminary condition of fact has been proven, the court must exclude the evidence.” Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444, 467, 61 P3d 257 (2002), rev den, 335 Or 479 (2003).
The majority assumes that OEC 401 was the basis for the court’s ruling, not OEC 104(2). See 255 Or App at 809 (stating that the trial court appeared to have excluded evidence because defendant failed to establish that evidence of the victim’s application was relevant). Yet the trial court’s colloquy with trial counsel concerning the evidence of the U visa to impeach the victim does not refer to OEC 401 or relevance at all. Instead, as the majority acknowledges, it initiated a discussion with trial counsel, once the trial court *821learned that the victim had applied for a U visa, that was focused on a predicate for the alleged impeachment evidence, which the majority describes as “information about the eligibility requirements of the U visa.” Id.
More specifically, the whole of the court’s discussion with counsel and then defendant’s offer of proof explored whether there was evidence of a predicate condition of fact, namely, that the victim understood that she had to establish herself as a victim of abuse to obtain that visa. Defense counsel told the trial court that he “believe [d]” that U visas last as long as the victims are in the country if it is “established that they’re actually a victim.” Thus, defense counsel was arguing that there was a basis for the evidence because M had to establish that she actually was a victim of abuse to obtain the U visa. When the trial court expressed skepticism about counsel’s knowledge as to the permitted length of stay on such a visa, defense counsel admitted that he did “not know the end day of it.” At that point, the trial court stated that it would not permit defendant to go into it, observing that the court did not know enough and that counsel did not, either. Defense counsel then made an offer of proof, asking the victim questions about the U visa and her understanding of what was needed for the U visa to be granted. After the offer of proof, the trial court excluded the evidence, explaining that “none of us seem[s] to understand [the U visa] quite well enough to allow it in or out. *** I guess another way to put it is based upon what I’ve heard the visa is—the cause of the visa is speculative, at best.” The trial court’s ruling indicated that defendant had failed to establish evidence of what the victim believed (or could have believed) about the requirements for a U visa (“none of us seem[s] to understand [the U visa] quite well enough to allow it in or out”).
Thus, in contrast to the majority, I consider the issue to turn on conditional relevance and review the evidence using the analytical framework of conditional relevance under our case law. When the trial court excludes evidence based on conditional relevance, we review the court’s ruling to determine “whether there was sufficient evidence for the trial court to have submitted the issue to the jury; that *822is, whether the foundation evidence was sufficient for the jury reasonably to have found that the condition on which relevance depended was fulfilled.” Benjamin, 185 Or App at 467-68. In doing so, we view the record “as consistent with the trial court’s ruling, accepting reasonable inferences and reasonable credibility choices that the trial judge could have made.” Id. at 468.
For defendant’s evidence to be relevant to his claim that the victim had reason to fabricate her testimony at trial, defendant had to provide evidence of the conditional fact, namely, the victim’s belief or understanding that her eligibility for a U visa depended on her testimony that she was an abuse victim. When defense counsel asked the victim whether she understood and believed that her receipt of the visa “hinges on whether or not you are a victim of sexual abuse,” she testified, ‘Yes. It’s not really like if it’s I’m a victim, it’s like what happened in [this] case and if I was abused.” It is unclear from the victim’s testimony what she understood as the requirements for a U visa. At first, the victim agreed with defense counsel that her receipt of a U visa depended on whether she is a victim of sexual abuse, but then her explanation was to the contrary, stating that her belief was that she did not have to be a victim. And the victim’s later statement—a U visa requires “what happened in [this] case and if I was abused”—is also ambiguous. The victim could have meant that, for her to obtain a U visa, there needed to be a criminal case pending for sexual abuse, irrespective of whether she was actually found to be a victim of sexual abuse. Given that view of the record, the trial court was entitled to draw the conclusion that defendant had failed to establish sufficient evidence of what the victim believed about the requirements for a U visa to submit the issue of conditional relevance to the jury due to the confusing testimony.
The majority concludes that defendant did lay a sufficient foundation to show that the evidence was relevant because M would have testified that she had applied for the U visa on the ground that she was a victim of abuse. 255 Or App at 814. From that testimony alone, the majority concludes, a jury could infer that the victim could believe *823that testifying in a manner consistent with her application for the U visa was in her interest, which was enough of “an initial showing of M’s self-interest [.]” Id. at 815. Again, however, what the victim was testifying to is not very clear: She agreed with defense counsel’s propositions that she had applied for permission to stay in the United States and that “the nature of that application was under this domestic violence or sexual abuse violence victims.” There was no other evidence concerning U visas besides M’s testimony during the offer of proof, and the trial court did not accept defense counsel’s assertions about U visas during the discussion outside the jury’s presence.1
Based on the record in light of Benjamin, I would affirm the trial court’s exclusion of the victim’s testimony of her immigration status and her application for a U visa because the court was entitled to conclude that M’s testimony was confusing and insufficient for the jury reasonably to have found the predicate fact that leads to defendant’s contention that the victim was motivated to fabricate her testimony against him to obtain a U visa. Accordingly, I respectfully dissent.
Wollheim and Schuman, JJ., join in this dissent.I respectfully disagree that the statements about the U visa by counsel—• about which the trial court expressed some skepticism—were part of the offer of proof. See 255 Or App at 814 n 2. Although an offer of proof can be made by describing the evidence the proponent wishes to offer, in this case, defendant actually made his offer by question and answer, and defendant did not tell the trial court that he would provide additional evidence about U visas or about what the victim understood or believed through any other witness. I also disagree with the majority’s conclusion that a jury can be relied on to understand the potential impact of a U visa application on a prosecution witness’s testimony in the same way that it would understand the potential impact of the witness’s spousal relationship with the defendant, a witness’s own pending criminal charges, or a witness’s employer’s hostility toward the defendant. See 255 Or App at 817. In my view, it is beyond reasonable dispute that the average juror lacks knowledge about U visas.