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State v. Hunter

Court of Appeals of Oregon

September 26, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
TORRANCE ALEXANDER HUNTER, aka Torrance Alexander Hunter, Jr., Defendant-Appellant.

          Argued and submitted July 27, 2017

          Multnomah County Circuit Court 14CR29076, 130130173; Thomas M. Ryan, Judge.

          Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.

         Case Summary: Defendant seeks reversal of a judgment of conviction for one count of felon in possession of a frearm, ORS 166.270, and a judgment revoking his probation. He assigns error to the trial court's denial of his motion to exclude a witness's out-of-court identification. Held: The Court of Appeals need not decide if the trial court erred in admitting the identification evidence because, on this record, any error in admitting the evidence was harmless.

         Affirmed.

         [294 Or.App. 206] ORTEGA, P. J.

         Defendant seeks reversal of a judgment of conviction for one count of felon in possession of a firearm, ORS 166.270, and a judgment revoking his probation. He assigns error to the trial court's denial of his motion to exclude a witness's out-of-court identification. We conclude that we need not decide if the trial court erred in admitting the identification evidence because, on this record, any error in admitting the evidence was harmless. 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." State v. Engle, 278 Or.App. 54, 55, 373 P.3d 1191, rev den, 360 Or. 465 (2016). And, in our assessment of whether the admission of the identification evidence was harmless, "we describe and review all pertinent portions of the record, not just those portions most favorable to the state." State v. Maiden, 222 Or.App. 9, 11, 191 P.3d 803 (2008), rev den, 345 Or. 618 (2009).

         After two men pistol-whipped a victim and stole his Acura and most of his personal belongings, the victim called 9-1-1 to report the incident. Officer Townley responded to the call. The victim described one of the men, whom he knew as "Babyface," as a black male, around five feet 11 inches tall and weighing about 160 pounds, but could only describe the other person as a black male in his twenties. Townley related that information and a description of the Acura to other officers over radio.

         Officer Wilbon responded by pursuing a car that he first thought was the Acura, but then realized it was a Lincoln carrying four or five young black men. Wilbon followed the Lincoln but lost sight of it; he later found it crashed and noticed three of the men fleeing, including defendant. The three men were detained, and another officer searched the Lincoln and found most of the victim's property, two loaded handguns, and a cellphone with defendant's fingerprints on it.

         [294 Or.App. 207] About two hours after the men were detained, Townley took the victim to three separate showups [1] to identify the men who had beaten and robbed him. In the course of those showups, the victim stated that he was "eight out of ten" sure that defendant was involved in the robbery because he "recognize[d] his face." Defendant was ultimately charged with several counts of robbery, assault, kidnapping, unauthorized use of a vehicle, and felon in possession of a firearm.

         Defendant moved to exclude the identification evidence before trial on several grounds, but the court denied his motion and the case proceeded to trial. The jury found him guilty only on one count of felon in possession of a firearm and further concluded that defendant did not ...


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