A Multnomah County, Ore. jury has found a 23-year-old Vancouver man guilty of knocking a cell phone out of a gay man’s hand as he spoke to 9-1-1, but cleared the defendant of charges that he punched, pushed or picked on the man because he thought he was gay.
Judge Adrienne Nelson sentenced Blake Andrew McCune to 18 months probation, 80 hours of community service and a $300 fine for the April 2009 incident outside of a gay-friendly nightclub in Old Town Portland.
During a two-day trial that ended Wednesday, the defense and the prosecution presented drastically different versions of what happened.
Airick Heater, a 42-year-old DJ and event promoter, testified that he heard a stranger he’d later learn was McCune lobbing homophobic slurs at a group of patrons outside Casey’s Nightclub. Among other bigoted words, Heater said he heard McCune tell the men they were “AIDS infested.”
“I said, ‘Is there a problem?'” Heater recounted. “That’s when Blake said ‘Are you one of them?’ And I said, ‘Yeah, I’m one of them.'”
Heater said McCune then repeated a homophobic slur, pushed him and walked into a nearby apartment building at Northwest Sixth Avenue and Couch Street. Heater said he and a few other men followed McCune and two of McCune’s friends inside the apartment’s lobby because they wanted to stop McCune from leaving and to call police. Heater testified that one of McCune’s friends tried to take a swing at their pursuers, so Heater pushed the friend against a wall. He dialed 9-1-1.
The dispatcher told Heater to separate himself from the group, so he stepped outside. McCune followed him, Heater said. That’s when Heater said McCune again lobbed a homophobic slur and punched him in the face, knocking the cell phone out of his hand.
But McCune told a much different story. He said he didn’t pick on Heater because he appeared to be gay — rather Heater was the one picking on him as he and his friends waited to be buzzed into the apartment building next to the club. McCune testified that the encounter started when one of his friends asked a group of people outside the club if he could have a cigarette. The people were rude, and told McCune’s friends to leave, McCune said.
“I said ‘Hey, you guys don’t have to be …to my friends,'” McCune recounted.
That’s when McCune said Heater, who has a bushy beard and tattoos, grabbed his shirt and said “You ever heard of the Hells Angels, bro?” McCune said he responded by saying that he had, and by using a slur for gay men to describe Heater. McCune said that’s the only time he used any sort of slur, and he regrets it.
McCune said he and his friends were buzzed into the apartment building, but were quickly followed by Heater and a “mob” as Heater exclaimed that McCune and his friends were going to be arrested. McCune said he saw Heater push his friend against the wall. McCune said he left the building and tried to walk away, but Heater wouldn’t let him. That’s when McCune said he knocked the phone out of Heater’s hand.
“It was my expression of frustration,” McCune said. “…He was directly in my way.”
McCune said he didn’t know that Heater was gay, a statement deputy district attorney Adam Gibbs quesitoned.
“He was wearing tight leather shorts and a sleeveless jacket, and you thought he might not be gay?” Gibbs asked.
“I don’t think he was wearing tight leather shorts and a sleeveless jacket,” McCune responded.
Within days of the incident, prosecutors charged McCune with multiple crimes. But a judge dismissed the case in January 2010 because prosecutors said they were unable to proceed. It’s unclear what happened, but clearly there was confusion about whether Heater was available to testify.
In June 2010, Heater, who was frustrated with the status of the case, went to a community forum about hate crimes against gays led by Portland Police Chief Mike Reese, Mayor Sam Adams and Deputy District Attorney Rod Underhill, among others.
Heater stood up and asked Underhill about his case. Underhill said he would look into it, and called Heater the next day. Underhill resuscitated the case. Underhill also took the unusual step of asking a police detective to try to track down witnesses and see what they knew — in hopes of bolstering the case well over a year after the incident.
Heater said he is frustrated that many of the witnesses that would have supported his story turned out to be unreachable 21 months after the incident, so they didn’t testify at trial.
But Lake Perriguey, a Portland attorney who advocated for Heater pro bono, said Heater is accepting of today’s verdict and glad that the details of the case were aired in court. The sentence, Perriguey noted, might have been the same had McCune been found guilty of both counts — interfering with making a police report as well as second-degree intimidation.
McCune’s attorney, Troy Pickard, said his client was relieved to be acquitted of the hate crime, second-degree intimidation.
“He felt like the fact that he wasn’t convicted of any bias crime was a resounding victory,” Pickard said. Pickard said McCune is a supporter of gay rights, and he plans on doing his community service at an agency that supports such rights “because that’s the kind of person he is.”
