State v. Engle, 115573FE

CourtCourt of Appeals of Oregon
Writing for the CourtEGAN, J.
Citation373 P.3d 1191,278 Or.App. 54
PartiesSTATE of Oregon, Plaintiff–Respondent, v. Justin James ENGLE, Defendant–Appellant.
Docket Number115573FE,A153188.
Decision Date04 May 2016

278 Or.App. 54
373 P.3d 1191

STATE of Oregon, Plaintiff–Respondent
Justin James ENGLE, Defendant–Appellant.


Court of Appeals of Oregon.

Argued and Submitted Jan. 29, 2015.
Decided May 4, 2016.

373 P.3d 1192

Robin A. Jones, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HADLOCK, Chief Judge, and EGAN, Judge.*


278 Or.App. 55

A jury found defendant guilty of a number of crimes, including assault in the second degree, ORS 163.175, which is the only conviction that defendant challenges on appeal. During defendant's trial, the state called a witness to the charged assault. The witness was unable to identify anyone in the courtroom, including defendant, as the person who had committed the assault. The state then showed the witness a photograph of defendant's face. A small portion of the collar of defendant's jail-issued shirt and sweatshirt were also visible in the photograph. The witness identified the person in the photograph as the person who committed the assault. On appeal, defendant argues that the court erred by admitting the photograph into evidence in violation of the prohibition against improperly suggestive identifications described in State v. Lawson/James, 352 Or. 724, 291 P.3d 673 (2012). The state responds that defendant did not argue below that the witness's identification of the person in the photograph was not reliable and, consequently, that issue is not preserved on appeal. Moreover, the state argues that, even if that issue was preserved, the court did not abuse its discretion when it admitted the photograph. We conclude that defendant preserved the issue of reliability; however, we agree with the state that the court did not abuse its discretion. Accordingly, we affirm.

In reviewing a trial court's admission of eyewitness identification evidence, we defer to the court's findings of fact as long as they are supported by any evidence in the record; we review the trial court's evidentiary ruling for legal error. State v. Collins, 256 Or.App. 332, 334, 334 n. 3, 300 P.3d 238 (2013) (applying Lawson/James ). If a defendant seeks to exclude identification evidence on the ground that it is unfairly prejudicial, and the trial court rules otherwise, we review that ruling for abuse of discretion. State v. Hickman, 355 Or. 715, 724, 726, 330 P.3d 551 (2014).

The facts are procedural and undisputed. During its case-in-chief, the state called a witness. The witness testified that she had schizophrenia and was living in a group home at the time of the trial. However, at the time of the assault she had been living near the Budget Inn, the motel

278 Or.App. 56

where the assault occurred. She further testified that on the night of the assault she had been walking home when she encountered two men:

“[WITNESS]: I was at the—I had never met them before. I was at the little
373 P.3d 1193
market walking home and there was two guys on foot, I guess it was Justin and his friend, I don't know his name. I probably couldn't tell you what they look like now.

“[PROSECUTOR]: So you just said the name Justin.[1 ] Do you recall—

“[WITNESS]: That's the name that was given to me a week ago or a couple weeks ago.

“[PROSECUTOR]: But when you met these two males do you remember what they said their names were?

“[WITNESS]: No. I don't even remember.

“[PROSECUTOR]: Okay. All right, go ahead.

“[WITNESS]: And they asked me if I wanted to go to the Budget Inn. I just thought they were on foot and I'm like, ‘Yeah, but I've got to go to my apartment.’ So, we went there and one of the guys went into the bathroom and the guy named Justin was with me, we were just talking.

“[PROSECUTOR]: So, what's this guy named Justin, who are you referring to?

“[WITNESS]: Well, I think it's the guy—I think it's the guy that had hit the—

“[PROSECUTOR]: Well, let me ask you, do you—

“[WITNESS]: I don't know.

“[PROSECUTOR]:—do you recognize anybody in the courtroom today when you saw—


“[PROSECUTOR]: Okay. Let me show you a photo. Does this person look familiar to you?

“[WITNESS]: Yeah. That's the guy. I think that's Justin.

278 Or.App. 57
“[WITNESS]: Is that—?


“[WITNESS]: That's the guy.

“[PROSECUTOR]: Hold on just one second, [witness].

“[WITNESS]: I'm sorry.

“[PROSECUTOR]: I am marking what you just looked at as State's Exhibit No. 43.

“[DEFENSE COUNSEL]: We object, Your Honor. Not proper foundation in regards to this.”

The court excused the jury, and defendant argued that the photograph should not be admitted into evidence:

“[DEFENSE COUNSEL]: Your Honor, we're objecting to that photograph being entered into evidence based on a number of reasons. One, * * * [the witness] has already stated that she did not know the people, that she didn't recognize the person, that the only time that she'd ever heard of that person was when she had been directed by somebody, and we're not sure who, about a week ago as far as the person's name. So she didn't—

“THE COURT: Well, she didn't quite say it that way but I understand what you're saying.

“[DEFENSE COUNSEL]: * * * [S ]he already has stated that she didn't see that person here today and she already looked around the—you know, around the room and stated that. So, she didn't take the picture. The photograph obviously is, well, somebody in jail clothing[2 ] and she doesn't have the memory—it's a lack of memory also, Your Honor, and she's got the lack of memory that she doesn't recall exactly what occurred on that date let alone what the people looked like or what happened.”

(Emphases added.)

The court permitted defendant to ask questions in aid of objection outside the presence of the jury:

373 P.3d 1194
278 Or.App. 58
“[DEFENSE COUNSEL]: Do you remember what happened that day?



“[THE WITNESS]: The reason why I'm here, yeah.

“[DEFENSE COUNSEL]: Okay. Have you been—have you talked to people about what happened that day, what you remember from that day?

“[WITNESS]: A little bit in Heinz with my caseworker.

“[DEFENSE COUNSEL]: Okay. So you talked to your caseworker about this?

“[WITNESS]: A little bit, yeah.

“[DEFENSE COUNSEL]: And is that where you got the name from?

“[WITNESS]: Yeah. Yeah.

“[DEFENSE COUNSEL]: Okay. And do you remember talking to Detective Ivens on the phone?

“[WITNESS]: No, but my caseworker did.

“[DEFENSE COUNSEL]: Okay. You don't remember a phone call with Detective Ivens?

“[WITNESS]: Oh, the female?


“[WITNESS]: Yeah, I remember.


“[WITNESS]: And I told her everything that I remembered.


“[WITNESS]: Yeah.

“[DEFENSE COUNSEL]: At that time you didn't recall any names, right?

“[WITNESS]: No. I didn't recall any names.
278 Or.App. 59
“[DEFENSE COUNSEL]: Okay. And at that time you didn't recall what these people looked like? That's what you stated to Detective Ivens?

“[WITNESS]: That's true. That's true.”

The court questioned the witness and ruled on the objection:

“THE COURT: Do you know if your identification of this person as a person you saw on that date—

“[WITNESS]: Yeah.

“THE COURT:—is that based on what you recall or is it somehow—do you recognize him sitting at counsel table where you didn't before?

“[WITNESS]: Well, I—yeah, I didn't—I didn't—I didn't before. I—I—when I was trying to think back I couldn't recall their faces, the two guys that were there.

“THE COURT: Are you talking about your phone call with Detective Ivens or are you talking about this—just a moment ago?

“[WITNESS]: Even before I came in here I wouldn't have been able to recognize the faces.

“THE COURT: So what makes you able to recognize them now?

“[WITNESS]: Because I remember.

“THE COURT: It does go to weight. I'm going to allow it. And I don't think this is

To continue reading

Request your trial
5 cases
  • State v. Allen, A164597
    • United States
    • Court of Appeals of Oregon
    • June 30, 2021
    ...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 d......
  • Jones v. Randle, 130303420
    • United States
    • Court of Appeals of Oregon
    • May 4, 2016
    ...that was longer than would otherwise have occurred merely as a result of the automatic stay through the filing of the bankruptcy petition.373 P.3d 1191 Here, we agree with plaintiff that the automatic stay that resulted from the filing of the bankruptcy petition is not a benefit derived fro......
  • State v. Allen, 451
    • United States
    • Court of Appeals of Oregon
    • June 30, 2021 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 P3d 1191, rev den, 360 Or 465 (2016). We set out the following facts, as established at the pretrial hearing on defendant's motion to exclude eyewitness iden......
  • State v. Harrell, A162126
    • United States
    • Court of Appeals of Oregon
    • June 13, 2018 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). However, when a defendant challenges the admissibility of the identificati......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT