State v. Escobar, A173828

Citation322 Or.App. 69,519 P.3d 137
Docket NumberA173828
Decision Date28 September 2022
Parties STATE of Oregon, Plaintiff-Respondent, v. Jesse Alexander ESCOBAR, Defendant-Appellant.
CourtCourt of Appeals of Oregon

322 Or.App. 69
519 P.3d 137

STATE of Oregon, Plaintiff-Respondent,
Jesse Alexander ESCOBAR, Defendant-Appellant.


Court of Appeals of Oregon.

Argued and Submitted March 1, 2022.
September 28, 2022

Larry R. Roloff, Eugene, argued the cause for appellant. On the briefs were Marc Brown, Senior Deputy Defender and Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.


519 P.3d 140
322 Or.App. 71

Defendant appeals his judgment of conviction of crimes including first-degree robbery, second-degree assault, felon in possession of a firearm, and unlawful entry into a motor vehicle. Defendant assigns error to the trial court's denial of his motion to exclude eyewitness identification testimony and he asks that we exercise our discretion to correct plain error regarding the jury instructions for the assault charge. For the reasons explained, we conclude that the trial court erred in both respects, but the errors were ultimately harmless and we therefore affirm.

We proceed in two parts. First, we analyze whether, under the contours of State v. Lawson/James , 352 Or. 724, 291 P.3d 673 (2012), there was sufficient basis for the trial court to determine that the victims had personal knowledge that provided a rational basis for their identification of defendant, despite the suggestive "showup" identification. Second, we analyze whether the jury instructions which did not include a requirement that the state prove a mental state for the "causes serious physical injury" element of second-degree assault misstated the law.


In defendant's first assignment, he argues that the state did not meet the threshold foundational requirements under OEC 602 and OEC 701, as applied in Lawson/James , to admit evidence of the victim's identification of defendant, and that even if such requirements were met, the court abused its discretion by not excluding the identifications as unfairly prejudicial under OEC 403. According to defendant, because the victims who identified him in the back of a police car after his arrest did not testify at the pretrial hearing, the state did not establish that the victims had the personal knowledge necessary to make an identification.

The state argues that defendant did not preserve his argument that because the victims failed to testify at the pretrial hearing the state failed to lay sufficient foundation. Instead, defendant's argument in the trial court focused on the suggestive nature of the showup identification and defendant asserted that the police should have

322 Or.App. 72

used a photographic identification instead. Moreover, the state contends that regardless of preservation, the trial court properly admitted the victim's identifications of defendant because there was sufficient foundation for personal knowledge under OEC 602, sufficient foundation for lay opinion under OEC 701, and no abuse of discretion in OEC 403 balancing.

We review a trial court's admission of eyewitness identification evidence for legal error and defer to the trial court's findings of fact as long as they are supported by any evidence. State v. Harrell , 292 Or App 348, 349, 424 P.3d 817 (2018). If the challenge to the admission of evidence is based on unfair prejudice weighed against probative value under OEC 403, we review for abuse of discretion. Lawson/James , 352 Or. at 762, 291 P.3d 673. In this appeal, as the decision to admit the evidence was based on a pretrial motion, we 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 Hearing

Milwaukie Police Officer Odem was called to reports of a fight in a convenience store during an afternoon in April 2019. Officer Windholz also responded to the call. When the officers entered the store, they found "two males inside. [B] was bleeding from the head. * * * [M] appeared to be helping the person that was bleeding." Odem did not communicate with the two men because they were speaking Spanish but learned that the two men had not been fighting with each other. Odem went back outside the store where he encountered Walsh, who had witnessed the fight. Walsh explained that she saw several males fighting with each other, but that she did not really know what happened. Walsh explained that she "knew that

519 P.3d 141

there was a guy that ran out of the store that had just assaulted one of the other gentlemen inside the store." She described the assailant who ran as a male, "possibl[y] Hispanic," and wearing a white shirt. Windholz learned from the store owner that "a white male with brown hair wearing a white shirt came into the store and hit * * * the victim * * * on the head with something."

322 Or.App. 73

Odem testified at the pretrial hearing that he "believe[d]" that Windholz had received descriptions from B and M that the person who assaulted them was a "white male with brown hair, wearing a white shirt." Odem believed that he and Windholz had arrived on scene within a few minutes of the assault occurring.

While Odem was speaking with Walsh, he received an alert that a robbery and assault had just taken place at a nearby theater. Thinking that the robbery at the theater might be connected to the assault at the convenience store, Odem responded to the new call by driving to the theater in his police car. When he arrived, a woman was outside, still on the phone with 9-1-1, and she directed Odem to a gas station where the subject of the robbery call had gone. At the gas station, Odem found several employees who pointed toward the south and one of the employees told Odem that "[h]e's wearing a blue tank top." From Odem's vantage point, he saw a man in a blue tank top, carrying an item of white clothing in his hand, walking across a bank parking lot. After briefly losing sight of the man, Odem saw the man emerge from inside the bank, wearing a blue tank top and still carrying the white clothing. Odem estimated that approximately five minutes had passed from the time he initially arrived to the time he spoke with defendant in the bank's parking lot and took him into custody.

In the meantime, B and M drove themselves to a hospital about two miles away. Within the next 30 to 40 minutes, Odem drove defendant to the hospital where B and M were being treated. Both of the victims came outside from their hospital room to view defendant, who was in the back of Odem's patrol car. B identified defendant as the person who had assaulted him and M identified defendant as the person who had menaced him and assaulted B. Both B and M said they were "a hundred percent" sure that defendant was the person who had assaulted them in the convenience store.

On cross-examination, Odem said that he was familiar with making a photo lineup, consisting of a suspect and five other people, but that he did not do that kind of identification in this case. Instead, Odem had both B and M

322 Or.App. 74

identify defendant at the same time, standing right next to each other, while defendant was handcuffed in the back of Odem's patrol car.

B. Preservation

After presentation of Odem's testimony, defendant argued that B and M should be precluded from identifying defendant at trial because the identification procedure in this case was "highly suggestive" and undermined the credibility of the identification. Defendant contended that the showup identification was "so suggestive to undermine credibility, both on [OEC] 602 and 701, but even *** if not there, when we get to 403, when we look at probative value."

The trial court stated that it was "looking for other evidence of the probability that this identification is rationally based on the testimony of the witness and helpful to the trier of fact and based on the alleged victim's personal knowledge." After some explanation by the court about why it was denying defendant's motion to exclude, the state clarified that " Lawson/James is the case or the cases that now dictate this area. And the argument I would have made is very similar to the findings the Court's already made here." The state continued:

"And so the [Oregon Supreme Court] wanted the trial court to go through the analysis of is this relevant evidence under 401. It certainly seems that [the] court would—is finding that it is.

"And, therefore, admissible under 402, that the individuals had personal knowledge as required by Rule 602, and then by a preponderance, there needs to be a demonstration that that personal knowledge is that the inference of their identification was based on their perceptions.
519 P.3d 142
"And I

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