State v. McGee

No. 528 June 11, 2025 237 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MENPHREY DOUGLAS McGEE, Defendant-Appellant. Multnomah County Circuit Court 19CR22915, 19CR58662, 19CN03969; A178091 (Control), A178092, A177818 Jerry B. Hodson, Judge. Argued and submitted June 14, 2024. Mark Kimbrell argued the cause for appellant. Also on the briefs was Michael R. Levine. Menhrey McGee filed the supplemental brief pro se. Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Pagán, Presiding Judge, Lagesen, Chief Judge, and O’Connor, Judge.* PAGÁN, P. J. In Case No. 19CR22915, convictions on Counts 2, 6, 10, 11, 12, and 13 reversed and remanded; otherwise affirmed. In Case No. 19CR58662, reversed and remanded. In Case No. 19CN03969, affirmed. ______________ * Lagesen, Chief Judge vice Hadlock, Judge pro tempore; O’Connor, Judge vice Mooney, Senior Judge. 238 State v. McGee Cite as 341 Or App 237 (2025) 239 PAGÁN, P. J. In this consolidated criminal case, defendant appeals from two judgments of conviction relating to the alleged sex- ual abuse of his daughter, K, and associated witness tamper- ing based on letters he sent from jail to his wife, K’s mother. In Case No. 19CR22915, defendant was found guilty of seven counts of first-degree sexual abuse, ORS 163.427 (Counts 2, 3, 6, 7, 10, 11, and 13) and one count of luring a minor, ORS 167.057 (Count 12).1 The court merged Count 3 into Count 2 and Count 6 into Count 7, and sentenced defendant to an aggregate term of 225 months in prison, with 45 months of post-prison supervision. In Case No. 19CR58662, defendant was found guilty and convicted of two counts of tampering with a witness, ORS 162.285, and was sentenced to 30 months of incarceration, to be served consecutively to his other term.2 In three counseled assignments of error, defendant challenges the denial of a motion to suppress and multiple evidentiary rulings. In a supplemental pro se brief, defen- dant raises seven additional assignments. We conclude that the seizure and search of defendant’s cell phone were lawful, and therefore the trial court did not err in denying his motion to suppress. However, we conclude that the trial court erred in admitting “other acts” evidence, and therefore reverse and remand for retrial. That decision obviates the need to address defendant’s third counseled assignment of error and most of defendant’s pro se assignments. As to the remainder of defen- dant’s pro se assignments, we have reviewed the arguments and are unconvinced that any of them present reversible error. I. FACTS AND PROCEDURAL HISTORY This case arises from allegations that defendant sex- ually abused his daughter on multiple occasions. On the eve- ning of April 2, 2019, K, who was nine years old at the time, sent a text message to her mother, Wilson, that said: “Mom, 1 The jury acquitted defendant of one count of first-degree unlawful sexual penetration, ORS 163.411 (Count 9). The jury was unable to reach a verdict on two counts of first-degree rape, ORS 163.375 (Counts 1 and 5) and two counts of incest, ORS 163.525 (Counts 4 and 8), and those counts were therefore dismissed. 2 In a third case, Case No. 19CN3969, the court found defendant in contempt on 22 counts, ORS 33.065. Defendant has not challenged the contempt findings on appeal. 240 State v. McGee Dad had sex with me.” Wilson called the police. Portland Police Officer Brian Powell responded to the family home. Prior to responding, Powell learned that there was an out- standing warrant for defendant’s arrest out of Colorado for failure to register as a sex offender. When Powell arrived, defendant was outside of the house, and when Powell called out to defendant, he ran and hid in bushes behind the house, despite Powell’s direction to stop. A K-9 unit was deployed and located defendant, at which point he was arrested on the outstanding warrant and for interfering with a police officer (for not obeying Powell’s order to stop). Powell searched defendant and removed a cell phone and charger from his pajama pocket, placed them in an evidence bag, and transported them to the precinct with defendant. At the precinct, defendant was interviewed by Detectives Coffey and Manus, detectives with the child abuse team. During the course of that interview, defendant con- sented to a search of his home and to DNA swabs, and signed consent forms for those searches. When the