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
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.
Ortega, Presiding Judge, and Hadlock, Judge, and Schuman,
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
Or.App. 206] ORTEGA, P. J.
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.
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).
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.
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.
Or.App. 207] About two hours after the men were detained,
Townley took the victim to three separate showups
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.
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 ...