and submitted January 20, 2017
Washington County Circuit Court C140113CR Eric Butterfeld,
Scott argued the cause and fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Susan G. Howe, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals a judgment of conviction for eight
counts of felony public indecency, arguing, among other
things, that the trial court erred in declining to give his
requested jury instruction on eyewitness identifications.
According to defendant, he was entitled to the instruction
because it correctly stated the law, as it was based on
relevant factors set out in State v. Lawson/ James,
352 Or. 724, 291 P.3d 673 (2012).
The trial court did not err in declining to give
defendant's requested jury instruction. Because the
instruction selected certain Lawson/James factors
that were not appropriately cabined to objectively evaluate
the eyewitness identification of defendant, the instruction
was unduly slanted toward defendant's view of the
evidence as a whole.
Or.App. 852] TOOKEY, J.
appeals a judgment of conviction for eight counts of felony
public indecency, ORS 163.465(2)(b), raising five assignments
of error. We write only to address defendant's first
assignment of error, in which he argues that the trial court
erred in declining to give defendant's special jury
instruction on eyewitness identifications, and reject without
discussion defendant's remaining assignments of error.
For the reasons that follow, we affirm.
was charged with eight counts of public indecency. At trial,
the state called seven female witnesses; each witness
testified to similar circumstances concerning her encounter
witness worked at a different drive-through service window of
a coffee or fast-food restaurant. In each instance, defendant
pulled up to the drive-through window. As defendant
approached the window, each witness saw a partially clothed
white man. Defendant, who was masturbating in the front seat
of his car, stared at each witness without speaking.
witnesses testified that they distinctly remembered
defendant's eyes. In some of the encounters, defendant
obscured his face with his hand or hat. Several witnesses
testified that defendant had light hair, was overweight, and
was in his late thirties to mid-fifties. Several witnesses
testified that defendant drove a sedan with no visible
license plate and that its headlights were off. The length of
the encounters varied from three seconds to two minutes.
of an investigation, several witnesses were asked to
participate in a "photo throw-down." Before each photo
throw-down, each witness signed a statement agreeing that she
would review all of the photographs before making any
comment. The statement also instructed each witness that she
was not required to identify anyone. In [290 Or.App. 853]
each instance, the police officer who administered the ...