Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Mackey

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
BRENDAN SCOTT MACKEY, Defendant-Appellant.

          Argued and submitted November 22, 2016

         Multnomah County Circuit Court 15CR21746; Beth A. Allen, Judge.

          Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.[*]

         Case Summary:

         Defendant appeals a judgment of conviction entered after a jury found him guilty of strangulation and harassment. Defendant assigns error to the trial court's ruling excluding his father's testimony regarding the victim's character for untruthfulness. Held: The trial court erred in excluding the character evidence after defendant established a sufficient foundation for his father's testimony under OEC 608(1). The error was not harmless.

          [290 Or. 273] DEHOOG, P. J.

         Defendant appeals a judgment of conviction entered after a jury found him guilty of strangulation and harassment. Defendant raises four assignments of error. We discuss only defendant's first assignment of error, in which he challenges the exclusion of his father's testimony regarding the alleged victim's character for untruthfulness.[1] We conclude that the trial court erred in excluding that character evidence, because defendant established a sufficient foundation for his father's testimony under OEC 608(1). That error was not harmless. Accordingly, we reverse and remand.

         Because defendant was convicted following a jury trial, we view the evidence presented at trial in the light most favorable to the state. State v. Park, 140 Or.App. 507, 509, 916 P.2d 334, rev den, 323 Or. 690 (1996). In assessing whether any erroneous evidentiary ruling was harmless, however, we describe and review all pertinent parts of the record. State v. Eckert, 220 Or.App. 274, 276, 185 P.3d 564, rev den, 345 Or. 175 (2008).

         Defendant and the victim were in a relationship for about three years. On the day in question, defendant and the victim spent the afternoon at the Sandy River with a friend. About 45 minutes after their arrival, the victim became concerned that defendant-who was their designated driver-had become too intoxicated to drive. When the victim told defendant to stop drinking and tried to take a drink from him, defendant grabbed her by the throat, saying, "I'll drink if I want to, " and shoved her backward. As he grabbed the victim, defendant put pressure on both sides of her throat, making it difficult for her to breath and causing her to panic.[2]

         Following that struggle, the group stayed at the river in an effort to make the best of the day. But, after the victim injured her knee swimming, they decided that she should [290 Or. 274] go to urgent care. When the group reached defendant's car, the victim suggested that her friend drive. Defendant again became angry and yelled at the victim. The victim tried to grab defendant's keys, and he shoved her on the shoulder in response. Defendant ultimately drove to the urgent care clinic, dropping the friend off along the way.

         Upon arriving at the urgent care clinic, the victim entered alone. Once inside, she called a different friend and asked her to call the police. Although she was treated only for her injured knee, the victim reported that her throat was sore. A couple of hours after she returned home, the victim saw a faint bruise on her neck that, to her, "looked like a finger mark."

         While the victim was receiving treatment, Officers Snider and Durbin of the Gresham Police Department arrived to investigate her allegations of assault. The victim told Snider that her throat and neck were sore, making it painful to talk, but the officer did not observe any visible injuries or red marks on the victim's throat or shoulder. Durbin found defendant in the parking lot, appearing to be asleep in the rear cargo area of his car. Durbin and Snider opened the hatch and attempted to remove defendant from the car. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.