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State v. McNair

Court of Appeals of Oregon

January 31, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
TIMOTHY LUTHER McNAIR, Defendant-Appellant.

          Submitted October 10, 2017

         Multnomah County Circuit Court 15CR24428 Leslie M. Roberts, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Timothy Luther McNair fled the supplemental brief pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for burglary in the first degree, coercion, and assault in the fourth degree, asserting that the trial court erred in denying his motion for a judgment of acquittal with respect to the burglary and coercion counts. Defendant went to the victim's house despite her objections, entered the house, and violently assaulted her. He then told her that he had her phone so she could not call the police and instructed her to sit on the couch. When she later left the couch to find her phone, defendant assaulted her again. Defendant argues that there was insufficient evidence that he used a threat of violence to coerce the victim to remain on the couch and not call the police. Held: The trial court did not err in denying defendant's motion because, viewing the evidence in the light most favorable to the state, a reasonable juror could find that defendant coerced the victim to stay on the couch and refrain from calling the police through an implicit threat of violence.

         [290 Or. 56]

          AOYAGI, JUDGE.

         Defendant was convicted of one count of burglary in the first degree, ORS 164.225, one count of coercion, ORS 163.275, and one count of assault in the fourth degree, ORS 163.160, all constituting domestic violence, in connection with an incident involving his ex-girlfriend. At trial, defendant moved for a judgment of acquittal on the burglary and coercion counts. The trial court denied the motion, and defendant assigns error to that ruling on appeal. We reject defendant's argument, as to both counts, for the reasons stated below. We also reject without written discussion defendant's three pro se assignments of error. Accordingly, we affirm.

         We review the trial court's denial of a motion for judgment of acquittal to determine "whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989); see also State v. Morsan. 361 Or. 47, 61, 388 P.3d 1085 (2017) (same). Here, applying that standard, the facts are as follows.

         Defendant and the victim were in an intimate relationship for over a year. After they broke up, the victim obtained a restraining order, and defendant moved out of her apartment. A few weeks later, defendant and the victim spoke on the phone and exchanged text messages in which defendant stated that he did not have anywhere to stay and did not have any food or money. Around 9:00 or 10:00 p.m. that night, the victim sent a text message to defendant, saying, "Look, how about you-we not do this. I said it's too late." Defendant texted back, "Baby, I don't have anywhere to stay." The victim told him again that "it's too late." Nonetheless, around 1:00 a.m., defendant arrived at the victim's apartment and knocked loudly on her locked front door. The victim, who was still awake, opened the door and saw defendant. Leaving the screen door closed, she asked him what he was doing there. Defendant did not respond, but rather opened the screen door himself and walked into the apartment. The victim asked, "Well, are you just going to walk in?" She did not try to physically stop him [290 Or. 57] because, at that point, he "didn't seem like he was going to be aggressive."

         Once in the apartment, defendant began drinking from an open wine bottle; the victim objected, but he ignored her. Thereafter, defendant and the victim were sitting on the couch talking when defendant took a "hard" therapeutic pillow and repeatedly hit the victim in the head. The victim testified that she did not know why defendant started hitting her with the pillow, other than he was "always just intimidating." The victim told defendant to stop and that she was going to call the police. She asked him to leave, but defendant refused, indicating that instead he would go to sleep.

         Defendant went into the bedroom and started making the bed. In the bedroom, however, he found a pair of the victim's underwear. He "got a little aggressive" and accused her of being with someone else. When she denied it, he "got a little more aggressive" and suddenly came out of the bedroom toward her. He ripped off her shorts and underwear, grabbed her, and tried repeatedly to twist her around and bend her over the couch, as she cried and told ...


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