State v. Allen

Decision Date30 June 2021
Docket NumberA164597
Citation312 Or.App. 584,494 P.3d 939
CourtOregon Court of Appeals
Parties STATE of Oregon, Plaintiff-Respondent, v. Racina Jean ALLEN, Defendant-Appellant.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the briefs for respondent.

Before DeHoog, Presiding Judge, and Ortega, Judge, and Aoyagi, Judge.

ORTEGA, J.

While standing on a porch with friends, Barney and Pelletier got into a confrontation with a woman later identified as defendant; each was stabbed shortly thereafter by someone they identified as the same woman. A jury unanimously found defendant guilty of second-degree assault and unlawful use of a weapon (UUW) for the stabbing of Barney (Counts 3 and 5) and rendered nonunanimous guilty verdicts against defendant for first-degree assault and UUW for the stabbing of Pelletier (Counts 4 and 6). Defendant appeals that judgment, raising three assignments of error: that the trial court erred in (1) admitting as excited utterances the statements of Pelletier, a nontestifying victim, because his unavailability had not been sufficiently established; (2) admitting the eyewitness identifications of defendant by two state witnesses; and (3) failing to give defendant's proposed jury instruction on assessing eyewitness identification evidence. In supplemental briefing, defendant raises two additional assignments, arguing that the trial court plainly erred when it instructed the jury that it could return nonunanimous verdicts and when it entered convictions based on that instruction. In defendant's view, the giving of the instruction is structural error or, alternatively, not harmless error.

We agree that the trial court plainly erred in instructing the jury that it could return a nonunanimous verdict, which requires us to reverse the convictions based on nonunanimous verdicts (Counts 4 and 6). That error, however, does not require us to reverse the convictions that were based on unanimous verdicts (Counts 3 and 5). Because we are reversing and remanding the convictions related to victim Pelletier, and because defendant's challenge to the admission of Pelletier's statements is directed only to those convictions, we need not address that assignment of error. We further conclude that the trial court ultimately did not err in admitting eyewitness identification evidence, although some of its legal conclusions along the way were erroneous in ways that do not compel reversal as to admission of that evidence. Finally, we conclude that the trial court erred in refusing to give defendant's requested jury instruction on assessing eyewitness identification evidence. However, in the context of the evidence adduced at trial, we conclude that the error was harmless.

We begin by addressing defendant's second assignment, in which he challenges the trial court's admission of eyewitness identification evidence. In reviewing a trial court's admission of such evidence, we defer to the court's findings of fact if they are supported by any evidence in the record. We review the trial court's evidentiary ruling for legal error. State v. Engle , 278 Or. App. 54, 55, 373 P.3d 1191, rev. den. , 360 Or. 465, 384 P.3d 154 (2016). We set out the following facts, as established at the pretrial hearing on defendant's motion to exclude eyewitness identification evidence, consistent with that standard of review. See State v. Sperou , 365 Or. 121, 137, 442 P.3d 581 (2019) (explaining that an appellate court's "review of a trial court's ruling is limited to the record as it had developed at the time of the ruling").

Victims Barney and Pelletier went to visit Phillip Mosttler at his home one night. Phillip's son Xavier1 was there, along with another person, Rich. As Phillip, Xavier, Barney, and Pelletier were all on the front porch smoking,2 they saw a woman, later identified as defendant, arguing with and following a man, later identified as Brown, who was shirtless and carrying a backpack. Barney and Pelletier left the porch and began to follow them to make sure the woman was safe and returned shortly thereafter. While the group was on the porch finishing their cigarettes, the woman approached and, standing at the steps to the porch, began yelling at them for meddling in her business. Barney and Pelletier argued with her while Phillip and Xavier were standing "close." The confrontation took place "right there at [the] steps" of the porch. The group eventually walked back into the house away from the woman. While inside, the group began discussing who the woman might be, and someone suggested defendant's name.

Shortly after the group had walked back into the house Barney walked back outside, returned with a stab wound, and said, "she got me." Pelletier then went outside, returned with a stab wound, and said, "she got me." Phillip and Xavier attended to their wounds, and Rich called 9-1-1. Rich gave the operator defendant's name as the woman who had just stabbed Barney and Pelletier.

Officers and paramedics responded to the home. After Barney and Pelletier were transported to the hospital, Deputy Kaber spoke to Phillip and Xavier separately about what had happened while other officers canvassed the neighborhood looking for defendant. Phillip explained what occurred at the home and provided a physical description of the suspect as a "Native American female * * * between 5' 5'' [and] 5' 7'', and 170 pounds, wearing a dark gray or black hooded sweatshirt and jeans." Kaber asked Phillip how the group had come up with defendant's name as the suspect, and he stated that "they all live in a tightknit community * * * and were talking about who it could have been * * *, and her name was spoken." Although Phillip could not recall who first said defendant's name, he told Kaber "that they had collectively believed that she matched the description and they knew that she lived nearby." Kaber understood that "most of them knew the name more than they knew the person." Kaber next spoke to Xavier, and he gave a "nearly identical" account to Phillip's.

Kaber needed to compare the name given to the 9-1-1 operator with a photograph of that person to ensure that he was sending officers to locate the right person. He brought Phillip and Xavier to his patrol car and, while they were standing together, showed them two photos of defendant on his mobile computer terminal—a Department of Motor Vehicles photo and a larger jail booking photo. He showed them the first photograph and then the other and asked them "if that was *** the person that they had named" and "who they thought was responsible for the stabbing." They both responded that they were "95 percent" sure that she was the same woman who had confronted them on their porch and who they believed had stabbed Barney and Pelletier.

Kaber visited Barney at the hospital that night. Barney confirmed that the person who stabbed him was the same woman he had seen following the shirtless man earlier in the evening. Kaber asked him if he recognized defendant's name, and he responded that he knew the name only.

Defendant ultimately was charged with a number of crimes for the stabbing of Barney and Pelletier. The defense theory at trial was that someone other than defendant was responsible for the stabbings and that defendant was misidentified as the suspect. Consistent with that theory, defendant moved to exclude the eyewitness identifications by Phillip and Xavier as unreliable, arguing that the state had not met the evidentiary requirements for admissibility under State v. Lawson/James, 352 Or. 724, 291 P.3d 673 (2012), including establishing that the witnesses identifications were based on their personal knowledge, OEC 602, or were rationally based on their first-hand perceptions, OEC 701.

Kaber testified at the pretrial hearing on defendant's motion. In addition to the events described above, Kaber explained that, when he arrived at the home, the scene was chaotic, but that Phillip and Xavier were "very cool, very even." Kaber explained that "[t]here was some alcohol involved" but not "anything that [he] thought was in excess." Kaber noted that it was dark out that night and that the single streetlamp on the road did not provide any ambient light where the incident occurred. He explained that Phillip's home is "pretty dark" because it sits on a corner and that "most of the light provided was out of the one light that was on the porch of [Phillip's] home."

Kaber also testified that, about 20 minutes before Rich called the police, a man, Brown, had also called the police to report that defendant had tried to stab him with a fork. Kaber spoke to Brown, who confirmed that he was at defendant's home when the fight with defendant broke out. Although Brown couldn't recall the exact address, Kaber ultimately determined that the home was located a few homes away from Phillip's house. Brown also confirmed that defendant had been chasing him down the street and that he was shirtless and carrying a backpack.

Deputy Randall also testified. On the night of the incident, Randall went to defendant's home and spoke to her father, Allen. Allen told him that about 10 minutes before the ambulance showed up down the street, defendant had walked into the house and told him that "a guy had put hands on her and that she had stabbed him."

In response to defendant's challenge to the admission of the identification evidence, the state first argued that Lawson/James did "not apply in this situation," because, unlike in that case, which focused on suggestive police conduct in the process of obtaining a name for a suspect, here the officers had received the name of the suspect before any police action. The state further argued that, in any event, even if Lawson/James did apply, the...

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3 cases
  • State v. Lockhart
    • United States
    • Oregon Court of Appeals
    • April 13, 2022
    ...are two types of evidence, and "[o]ne is direct evidence—such as the testimony of an eyewitness." UCrJI 1025; see State v. Allen , 312 Or. App. 584, 608, 494 P.3d 939 (2021) (determining UCrJI 1025 applicable to facts). Because it was eyewitness testimony, K's testimony was direct evidence.......
  • State v. Escobar, A173828
    • United States
    • Oregon Court of Appeals
    • September 28, 2022
    ...review the record, and state the facts, as of the time of that ruling, not as the record later developed at trial. State v. Allen , 312 Or App 584, 587, 494 P.3d 939 (2021).A. Facts Introduced at Pretrial HearingMilwaukie Police Officer Odem was called to reports of a fight in a convenience......
  • State v. Escobar
    • United States
    • Oregon Court of Appeals
    • September 28, 2022
    ...P.3d 939 (2021), is instructive as to the quality and quantity of information sufficient to provide the required foundation under OEC 602. In Allen, the challenged the trial court's admission of eyewitness identification, in part arguing that the state had not met its OEC 602 burden. We con......

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