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. Now

Court of Appeals of Oregon

December 5, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MacKENZIE BENTON NOW, Defendant-Appellant.

          Argued and submitted November 5, 2018

          Deschutes County Circuit Court 16CR70995 Walter Randolph Miller, Jr., Judge.

          Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Christopher Page, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for four offenses committed against his mother, M. He assigns error to the admission of evidence that, while he was incarcerated pending trial, he directed another inmate to contact M regarding her testimony, arguing that that evidence should have been excluded as hearsay. M's initial statements to police differed from her later statements to the defense investigator. Consequently, at trial, the key dispute centered over which version of events should be believed. To encourage the jury to credit M's first statement, the state sought to prove M's change in story was attributable to defendant's conduct and, to that end, introduced the evidence at issue. On appeal, the state contends that the evidence was properly admitted to show its effect on the listener, M.

         Held:

         The trial court erred. There was no indication that the trial court admitted the evidence for any other purpose than to prove the truth of the fact that defendant directed the phone call and that defendant had influenced M to change her statements about the incident. The error was not harmless; the evidence that defendant had contacted M was central to the state's [295 Or.App. 170] theory that M had changed her statements from an initial, accurate version to an inaccurate one because of defendant's influence.

         Reversed and remanded.

         [295 Or.App. 171] LAGESEN, P.J.

         A jury found that defendant committed several acts of violence against his mother, with whom he lived, and convicted defendant of four offenses for those acts. On appeal, defendant assigns error to the admission of evidence that, while he was incarcerated pending trial, he directed another inmate to contact his mother regarding her testimony. He contends that the evidence was hearsay and should have been excluded for that reason. We agree and, because we conclude that the erroneous admission of the evidence was not harmless, we reverse and remand.

         The pertinent facts are not disputed. Defendant was charged with two counts of felony strangulation (Counts 1 and 3), ORS 163.187; one count of felony fourth-degree assault (Count 2), ORS 163.160; and one count of menacing (Count 4), ORS 163.190, after defendant's mother, M, told police that defendant had hit her in the head twice, tried to strangle her twice, and threatened to kill her.[1] But, before trial, M retreated from her initial version of events, indicating in an interview with a defense investigator that her initial statements were not accurate and giving a version of events that called into question defendant's culpability on the charges against him. M's trial testimony was fairly vague, in contrast with her statements during the initial investigation and the defense investigation. Consequently, at trial, the key dispute centered on which one of M's versions of events should be believed: her initial statements to police, or her later statements to the defense investigator.

         To encourage the jury to credit M's initial description of the incident over her later description, the state sought to prove that M's change in story was attributable to defendant's conduct. To that end, the state sought to introduce evidence that defendant had directed another inmate with whom he was incarcerated to contact M regarding her testimony; M herself testified about the phone call, explaining that somebody called her and asked her what she was going to do, but she did not attribute the call to defendant. The [295 Or.App. 172] call had been recorded, and the state's proposed evidence that defendant was behind the call initially took the form of a recorded out-of-court statement by the other inmate to M that he was telling ...


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.