State v. Engle
| Decision Date | 04 May 2016 |
| Docket Number | 115573FE,A153188. |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Justin James ENGLE, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
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.*
, J.
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 where the assault occurred. She further testified that on the night of the assault she had been walking home when she encountered two men:
The court excused the jury, and defendant argued that the photograph should not be admitted into evidence:
(Emphases added.)
The court permitted defendant to ask questions in aid of objection outside the presence of the jury:
The court questioned the witness and ruled on the objection:
(Emphasis added.)
On cross examination, defendant elicited from the witness that, aside from having schizophrenia
, the witness was using methamphetamines when she observed the charged assault. Defendant also elicited inconsistent statements regarding how well the witness recalled what the perpetrator looked like. In closing, defendant argued that the witness was “easily confused” and “easily susceptible to questioning” and that her identification was tainted by her conversations with her caseworker.
We begin our analysis with a brief overview of the relevant case law as it touches upon the issue of preservation. In Lawson/James, issued 13 days after the judgment was entered in this case, the Oregon Supreme Court revised the earlier test for the admissibility of a suggestive identification, which was first formulated in State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979)
. After noting that the test articulated in Classen was “somewhat at odds with * * * current Oregon evidence law,” the Lawson/James court revised the test “based on the generally applicable provisions of the OEC.” Lawson/James, 352 Or. at 746–50, 291 P.3d 673. Specifically, the Lawson/James court rooted the revised test in OEC 602, which requires personal knowledge; OEC 701, which describes the conditions for admissible lay opinion testimony; and OEC 403, which provides a basis for excluding otherwise relevant evidence. Id. at 752–59, 291 P.3d 673.
The state argues that defendant failed to preserve the issue of the reliability of the witness's identification of the photograph because defendant's argument to the trial court focused on the foundational issues involved in the analysis of a potentially suggestive identification—issues that the Lawson/James court would link to OEC 602
and OEC 701. 352 Or. at 752–56, 291 P.3d 673. The state further argues that defendant's “objections did not identify OEC 403 or contest reliability or...
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State v. Allen
...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......
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...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 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......
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