Argued and Submitted June 23, 2014.
D122291M. Washington County Circuit Court. Gayle Ann Nachtigal, Judge.
Elizabeth Daily, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Brandon Cobb, Certified Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin K. Galli, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[268 Or.App. 285] NAKAMOTO, J.
Defendant appeals a judgment convicting him of fourth-degree assault constituting domestic violence, ORS 163.160, and harassment, ORS 166.065, assigning error to the trial court's exclusion of a defense witness's testimony concerning the victim's character for truthfulness under OEC 608(1). We conclude that the trial court did not err in excluding the testimony, and affirm.
The facts are procedural and not in dispute. The state charged defendant with the above-mentioned offenses following an altercation between defendant and his ex-girlfriend, Jones, the victim in this case. At trial, Jones and defendant testified to different versions of the altercation.
Jones testified that, on the evening in question, she and defendant were outdoors arguing about defendant stealing her bicycle when defendant grabbed her by the shoulders and shook her, and told her to " shut up." Jones testified that she pushed defendant away and, when he tried to grab her, she kicked defendant in the groin and walked away, heading toward a friend's house. On the way, Jones stopped to talk to a different friend. Jones testified that defendant caught up with her and started yelling at her and eventually started swinging at her. Ultimately, defendant punched her in the chest and right arm. Jones was the only witness to testify that defendant had punched her.
Defendant's testimony was to the contrary. He admitted to having stolen Jones's bike, but testified that Jones had been the aggressor in the ensuing encounter and that she had punched and kicked at him, one kick having hit him in the groin. Defendant stated that, after Jones kicked him in the groin, he walked away, and Jones said, " You're going to regret it." Defendant testified that he never touched Jones.
Several witnesses to the altercation testified. Jones's friend testified that he had seen defendant swing at Jones but had not seen defendant hit her. Rebitzke was a [268 Or.App. 286] friend of defendant and had been involved in the altercation by threatening Jones with a switchblade knife. He testified that defendant had not punched Jones.
Defendant sought to impeach Jones's credibility through the testimony of Rebitzke and two other witnesses, Sullivan and Shaw. The trial court permitted Rebitzke and Sullivan to testify to their opinions that Jones was not a truthful person. The state impeached Rebitzke by eliciting testimony that he had lied to the police about his involvement in the altercation and by eliciting an admission that he had lied during his testimony. Sullivan did not testify as to his relationship with defendant or Jones and stated only that he had known Jones for six months to a year. The state impeached Sullivan's testimony with his prior conviction for theft of services.
Later in the trial, defense counsel was preparing to call Shaw as his final witness. Outside the presence of the jury, the prosecutor objected to Shaw testifying as a character witness, arguing that her testimony
would be cumulative given that Rebitzke and Sullivan had already testified as to Jones's character for truthfulness. The court did not rule on the state's objection but noted that defense counsel had to demonstrate that Shaw knew Jones on a personal basis and that she had had " sufficient contact with [Jones] in the last period of time to have the opinion." Defense counsel told the court that he thought that he could establish those things. The court then called the jury back into the courtroom and defense counsel called Shaw to testify.
Shaw testified that she had known Jones for four years. Defense counsel asked Shaw whether, in those four years, she had formed an opinion as to whether Jones was a truthful person. Before Shaw could answer, the prosecutor objected that defense counsel had failed to lay a foundation for that testimony, and the court agreed, stating, " You need to have more than she's known her." In response, defense counsel sought to lay the foundation through the following line of questioning:
" [DEFENSE COUNSEL:] How do you know her?
" [SHAW:] I was introduced to her two weeks after I met my boyfriend.
[268 Or.App. 287] " Q How long ago was ...