State v. McNassar
| Decision Date | 08 January 1986 |
| Citation | 77 Or.App. 215,712 P.2d 170 |
| Parties | STATE of Oregon, Respondent, v. Alice Carmel McNASSAR, Appellant. M436157, M436159; A35922. |
| Court | Oregon Court of Appeals |
William Uhle, Portland, argued the cause and filed the brief, for appellant.
Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on brief were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem.
Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.
Defendant appeals her convictions for driving under the influence of intoxicants (DUII) and reckless driving, both arising out of the same incident; the court sentenced her only for DUII. She assigns as error the court's refusal to give a less satisfactory evidence instruction. We affirm.
Officer Venemon of the Portland Police Bureau saw defendant driving a car and swerving back and forth for a number of blocks. She ultimately stopped defendant and, after further investigation, arrested her. Venemon testified that, when she stopped her, defendant was mentally and physically out of control and had a strong alcohol odor on her breath; her descriptions of defendant's speech and walk indicate that she was intoxicated. Defendant testified that she had had only two glasses of wine some time before driving and that she was in good condition. Defendant's sister and brother-in-law, with whom she had spent the evening, corroborated her statements. Defendant testified that her erratic driving was the result of the emotions she felt after driving past the hospital where her father had recently died.
Although other police officers were also present at various times after defendant's arrest, they were on leave at the time of the trial and did not testify. The state did not call the tow truck driver who removed defendant's car or the taxi driver who took her home. The city had decided not to equip its police cars with cameras or tape recorders and Venemon therefore did not take defendant's picture or record their conversation. Defendant argued that the state's failure to gather or produce all of the aforementioned witnesses and other evidence justified her request for the following uniform instruction: 1
Defendant's argument appears to misunderstand the purpose of the less satisfactory evidence instruction and of the statutory requirement that it be given on all proper occasions. ORS 10.095(7), (8); State v. Brock, 53 Or.App. 785, 790, 633 P.2d 805 (1981), aff'd. 294 Or. 15, 653 P.2d 543 (1982). The instruction does not penalize a party for failing to produce all available evidence. Rather, it...
To continue reading
Request your trial
-
State v. McDonnell
...persuasive several Court of Appeals decisions concerning the giving of the "less satisfactory evidence" instruction: In State v. McNassar, 77 Or.App. 215, 712 P.2d 170, rev. den. 300 Or. 704, 716 P.2d 758 (1986), the defendant was convicted of driving under the influence of intoxicants and ......
-
State v. Palacios-Romero
...the evidence would be adverse to the party —that is, when it appears that the party may be trying to hide something." State v. McNassar , 77 Or.App. 215, 218, 712 P.2d 170, rev den , 300 Or. 704, 716 P.2d 758 (1986) (emphases in original); see also McDonnell , 313 Or. at 503, 837 P.2d 941 (......
-
State v. West, A161366
...the evidence would be adverse to the party—that is, when it appears that the party may be trying to hide something. State v. McNassar , 77 Or.App. 215, 218, 712 P.2d 170, rev. den. , 300 Or. 704, 716 P.2d 758 (1986).In this case, there is nothing in the record that discloses how the video w......
-
State v. Ockerman
...to hide something.'" Id. at 567 (quoting State v. McNassar, 77 Or.App. 215, 218, 712 P.2d 170, rev den, 300 Or. 704 (1986) (emphasis in McNassar)). was charged with DUII based on evidence that he drove his motorcycle while intoxicated. The state's primary witnesses were the investigating of......