State v. Mackey, 414 P.3d 443

Background

Defendant was convicted by a jury of strangulation (domestic violence) and harassment after an incident at a river where the victim said defendant grabbed her throat and later shoved her.
No independent eyewitness corroborated the victim; medical evidence was limited to a sore throat and a faint bruise observed hours later.
Defendant testified and denied strangling or touching the victim as alleged; the case largely turned on credibility of victim vs. defendant.
Defendant sought to admit OEC 608(1) opinion testimony from his parents that the victim had a character for untruthfulness; the trial court allowed the mother to testify but excluded the father.
At a pretrial OEC 104 hearing the father said he knew the victim for about two years, had her live with him for two months, had daily contact during that time, and had later employed her; on cross he described three specific incidents he believed showed dishonesty.
The trial court excluded the father’s testimony for insufficient foundation; on appeal the court reversed, finding exclusion an abuse of discretion and not harmless error, and remanded for a new trial.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether the trial court properly excluded father's OEC 608(1) opinion testimony on victim's character for untruthfulness for lack of foundation	Father’s testimony was cumulative of mother’s testimony and insufficiently founded	Father had sufficient recent, frequent contact (lived with and employed victim) to form an admissible opinion	Reversed: exclusion was an abuse of discretion and not harmless; testimony should have been admitted
Whether exclusion was harmless error	Any admitted testimony would be cumulative and not affect verdict	Case turned on credibility; excluded testimony was noncumulative and could affect jury	Error was not harmless because case depended on credibility and father added qualitatively different perspective
Whether court could evaluate witness credibility in deciding foundation	Court may assess admissibility under OEC 104 but cannot substitute its credibility determination for jury	Trial court improperly relied on its own credibility judgment about father’s hiring of victim	Court abused discretion by relying on erroneous premise about witness credibility
Whether prior specific incidents described by father converted opinion into impermissible inquiry into specific acts	Specific incidents may suggest motive but extrinsic inquiry into specific acts is prohibited absent proper foundation	Father’s opinion was based on sustained, recent contact and permissible under OEC 608(1) despite mentioning incidents	Foundation was otherwise adequate; the court should have admitted the opinion and allowed cross-examination rather than exclusion

Key Cases Cited

State v. Park, 140 Or. App. 507 (describing standard for viewing trial evidence after conviction)
State v. Eckert, 220 Or. App. 274 (explaining review of harmless evidentiary error)
State v. Paniagua, 268 Or. App. 284 (foundation requirements for OEC 608(1) opinion testimony)
State v. Maxwell, 172 Or. App. 142 (distinguishing adequate vs. inadequate foundation for character-opinion testimony)
State v. Colon, 251 Or. App. 714 (discussing acquaintance and personal contact as foundation for OEC 608(1))
State v. Caffee, 116 Or. App. 23 (contacts must be sufficiently recent to support opinion)
State v. Romero, 236 Or. App. 640 (an exercise of discretion based on an erroneous legal premise is abuse of discretion)
State v. Davis, 336 Or. 19 (excluded evidence more likely harmless when merely cumulative)