DeBORAH B. BARNES, Vice-Chief Judge.
¶ 1 Plaintiffs/Appellants Jack Miller and Dorothy Miller (collectively, the Millers) appeal the trial court's Judgment memorializing a jury verdict in favor of Defendants/Cross-Claimant/Appellees Ameristate Bank of Atoka, Inc. (Ameristate Bank), and Bruce W. Smith (Smith) (collectively, Defendants). On appeal, the Millers assign error to two of the trial court's evidentiary rulings. They argue the trial court erred (1) by admitting a report prepared by the Oklahoma State Bureau of Investigation (OSBI), and (2) by excluding the testimony of a rebuttal witness. Based on our review of the record on appeal and applicable law, we affirm.
¶ 2 This case arose out of an automobile accident involving multiple vehicles that occurred on October 6, 2008, on a highway in Atoka County, Oklahoma. The highway has one eastbound lane, and one westbound lane. Just prior to the accident, Jack Miller was traveling in the westbound lane, and three vehicles were traveling in the eastbound lane: a road grader, followed by a car driven by Smith, followed by a car driven by Toby L. Evans (Evans). The parties dispute what occurred as Smith, followed by Evans, approached the road grader. The Millers assert
¶ 3 A jury trial was held in September 2011, and the jury rendered a general verdict in favor of Defendants.
¶ 4 As stated, the Millers assign error to two of the trial court's evidentiary rulings. The Oklahoma Supreme Court has stated:
Myers v. Mo. Pac. R.R. Co., 2002 OK 60, ¶ 36, 52 P.3d 1014, 1033 (footnotes and internal quotation marks omitted). See also 12 O.S.2011 § 2402 ("All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Oklahoma, by statute or by this Code. Evidence which is not relevant is not admissible."). An abuse of discretion occurs when a trial court bases its decision on an erroneous conclusion of law, or where there is no rational basis in the evidence for the ruling. Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608.
¶ 5 However, no judgment shall be reversed or affected by reason of any error or defect in the proceedings which does not affect the substantial rights of the adverse party, 12 O.S.2011 § 78, and only "[w]hen a party is prevented from having a fair trial as a result of an error which materially affects the substantial rights of the party [is] a new trial ... required," Taliaferro v. Shahsavari, 2006 OK 96, ¶ 13, 154 P.3d 1240, 1244 (footnote omitted). See also 12 O.S.2011 § 2104(A) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected...."). "Reversible error has been held to be an error that creates a probability
¶ 6 At the scene of the accident, bulb filament evidence was collected from the taillight of the vehicle driven by Smith. This evidence was then provided to a forensic sciences unit of the OSBI where the evidence was analyzed and a report generated. The OSBI employee who analyzed the bulb filament evidence and who created and issued the report, J. Douglas Perkins (Perkins), was called as a witness by Defendants to authenticate the OSBI report. On direct examination by counsel for Defendants, Perkins confirmed that the OSBI report was the report he created and issued "for the evidence pertaining to this case."
¶ 7 At the conclusion of Defendants' direct examination of Perkins, counsel for the Millers asked the trial court, "I get to cross examine the witness before you admit it, right?" The trial court responded in the affirmative, and further stated it would allow the Millers' counsel "to go into some areas to better explain it to the jury so that we all understand what it is that [Perkins] actually did."
¶ 8 Regarding the confidentiality of this OSBI report, 74 O.S. Supp.2010 § 150.5(D)(1) provides, in pertinent part, as follows:
"The Legislature has directed in ... § 150.5... that all OSBI records shall be confidential and not open to the public." Amos v. Dist. Ct. of Mayes Cnty., 1991 OK CR 74, ¶ 3, 814 P.2d 502, 503.
¶ 9 In the context of a discovery dispute in a civil lawsuit the Oklahoma Supreme Court in State ex rel. Hicks v. Thompson, 1993 OK 57, 851 P.2d 1077, concluded as follows regarding the applicability of § 150.5(D): "Having reviewed the files and arguments of counsel we find that the OSBI-procured evidence and reports concerning its investigation are privileged and confidential records under 74 O.S. § 150.5(D)." Thompson, ¶ 1, 851 P.2d at 1077. Furthermore, although § 150.5(D)(1) provides that "[a]ll records relating to any investigation being conducted by the [OSBI] ... shall be confidential," id. (emphasis added), the Thompson Court concluded as follows regarding the applicability of the confidentiality provision to investigations no longer "being conducted": "The fact that the investigation is closed does not alter the confidential nature of those records." Thompson, ¶ 1, 851 P.2d at 1077. Consequently, the Supreme Court issued a writ (1) prohibiting the enforcement of the trial court's order permitting discovery of the OSBI evidence and reports, and (2) prohibiting enforcement of the trial court's order "allowing parties in [this] civil lawsuit to take the deposition of [an OSBI agent] by notice and subpoena." Id.
¶ 10 We conclude § 150.5(D) clearly applies to the "bulb filament" report in this case and that it was, therefore, privileged and confidential. However, we further conclude
¶ 11 Here, the OSBI initially objected to the admission of the bulb filament report by filing, on September 1, 2011, a special appearance and motion to quash the subpoena served on Perkins, and a request for a protective order barring discovery.
¶ 12 The Millers argue the trial court erred by excluding the testimony of Brent Henry (Henry). The Millers admit that Henry was not listed on the pretrial conference order. However, they argue Henry's testimony was offered as rebuttal evidence.
¶ 13 At trial, and outside the presence of the jury, the trial judge and counsel for the parties discussed the Millers' request to call Henry as a rebuttal witness.
¶ 14 Counsel for the Millers then made an offer of proof stating that Henry would have testified that while he and Evans were on a hunting trip and in a "calm environment," Evans told Henry "that the car in front of him started to pass and so he started to pass too and that the crash happened in the westbound lane."
¶ 15 We conclude the trial court erred by excluding the rebuttal testimony of Henry. Henry's testimony was proper rebuttal testimony and was relevant to show Evans made inconsistent statements generally. However, because the error did not affect the substantial rights of the Millers or create a probability of change in the outcome of the lawsuit,
¶ 16 Based on our review, we conclude the trial court did not err by admitting the OSBI "bulb filament" report, and the exclusion of Henry's rebuttal testimony does not constitute reversible error. Finding no reversible error, we affirm the trial court's Judgment memorializing the jury's verdict in favor of Defendants.
¶ 17
FISCHER, P.J., and WISEMAN, J., concur.
R. at 1544.
Tr. vol. IV at 678-79.
Tr. vol. IV at 679-80.
We note that the 2011 version of this portion of the statute is the same.