State v. Allen

584

Submitted January 15, 2019; convictions on Counts 4 and 6 reversed and

remanded, remanded for resentencing, otherwise affirmed June 30, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

RACINA JEAN ALLEN,

Defendant-Appellant.

Klamath County Circuit Court

1402843CR; A164597

494 P3d 939

Defendant appeals a judgment convicting her, by unanimous jury verdict,

of second-degree assault and unlawful use of a weapon (UUW) (Counts 3 and

5); and, by nonunanimous verdict, of first-degree assault and UUW (Counts 4

and 6). Defendant argues that the trial court erred in admitting the eyewitness

identifications of defendant by two state witnesses, in failing to give defendant’s

proposed jury instruction on assessing eyewitness identification evidence, and

that it plainly erred in instructing the jury that it could return nonunanimous

verdicts and when it entered convictions based on that instruction. Held: First,

although the trial court erred in ruling that the test under State v. Lawson/

James, 352 Or 724, 291 P3d 673 (2012), for determining the admissibility of

eyewitness-identification evidence did not apply, the trial court did not err in

alternatively ruling that the evidentiary admissibility requirements were estab-

lished and allowing the testimony. Second, although the trial court erred in fail-

ing to give defendant’s proposed eyewitness-identification jury instruction, that

error was harmless on this record. Third, the Court of Appeals agreed with and

accepted the state’s concession that the trial court plainly erred in instructing

the jury that it could return a 10-2 verdict on the convictions that were based on

nonunanimous verdicts, but concluded that that error did not require reversal on

the convictions that were based on unanimous verdicts.

Convictions on Counts 4 and 6 reversed and remanded; remanded for resen-

tencing; otherwise affirmed.

Roxanne B. Osborne, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Mary M. Reese, Deputy Public Defender, Office

of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Timothy A. Sylwester, Assistant

Attorney General, filed the briefs for respondent.

Before DeHoog, Presiding Judge, and Ortega, Judge, and

Aoyagi, Judge.

Cite as 312 Or App 584 (2021) 585

ORTEGA, J.

Convictions on Counts 4 and 6 reversed and remanded;

remanded for resentencing; otherwise affirmed.

586 State v. Allen

ORTEGA, J.

While standing on a porch with friends, Barney and

Pelletier got into a confrontation with a woman later iden-

tified as defendant; each was stabbed shortly thereafter by

someone they identified as the same woman. A jury unani-

mously found defendant guilty of second-degree assault and

unlawful use of a weapon (UUW) for the stabbing of Barney

(Counts 3 and 5) and rendered nonunanimous guilty ver-

dicts against defendant for first-degree assault and UUW

for the stabbing of Pelletier (Counts 4 and 6). Defendant

appeals that judgment, raising three assignments of error:

that the trial court erred in (1) admitting as excited utter-

ances the statements of Pelletier, a nontestifying victim,

because his unavailability had not been sufficiently estab-

lished; (2) admitting the eyewitness identifications of defen-

dant by two state witnesses; and (3) failing to give defen-

dant’s proposed jury instruction on assessing eyewitness

identification evidence. In supplemental briefing, defendant

raises two additional assignments, arguing that the trial

court plainly erred when it instructed the jury that it could

return nonunanimous verdicts and when it entered convic-

tions based on that instruction. In defendant’s view, the giv-

ing of the instruction is structural error or, alternatively,

not harmless error.

We agree that the trial court plainly erred in

instructing the jury that it could return a nonunanimous

verdict, which requires us to reverse the convictions based

on nonunanimous verdicts (Counts 4 and 6). That error,

however, does not require us to reverse the convictions that

were based on unanimous verdicts (Counts 3 and 5). Because

we are reversing and remanding the convictions related to

victim Pelletier, and because defendant’s challenge to the

admission of Pelletier’s statements is directed only to those

convictions, we need not address that assignment of error.

We further conclude that the trial court ultimately did not

err in admitting eyewitness identification evidence, although

some of its legal conclusions along the way were erroneous

in ways that do not compel reversal as to admission of that

evidence. Finally, we conclude that the trial court erred in

refusing to give defendant’s requested jury instruction on

assessing eyewitness identification evidence. However, in the

Cite as 312 Or App 584 (2021) 587

context of the evidence adduced at trial, we conclude that

the error was harmless.

We begin by addressing defendant’s second assign-

ment, in which he challenges the trial court’s admission

of eyewitness identification evidence. In reviewing a trial

court’s admission of such evidence, we defer to the court’s

findings of fact 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 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 identification evidence, consistent with

that standard of review. See State v. Sperou, 365 Or 121,

137, 442 P3d 581 (2019) (explaining that an appellate court’s

“review of a trial court’s ruling is limited to the record as it

had developed at the time of the ruling”).

Victims Barney and Pelletier went to visit Phillip

Mosttler at his home one night. Phillip’s son Xavier1 was

there, along with another person, Rich. As Phillip, Xavier,

Barney, and Pelletier were all on the front porch smoking,2

they saw a woman, later identified as defendant, arguing

with and following a man, later identified as Brown, who

was shirtless and carrying a backpack. Barney and Pelletier

left the porch and began to follow them to make sure the

woman was safe and returned shortly thereafter. While

the group was on the porch finishing their cigarettes, the

woman approached and, standing at the steps to the porch,

began yelling at them for meddling in her business. Barney

and Pelletier argued with her while Phillip and Xavier were

standing “close.” The confrontation took place “right there

at [the] steps” of the porch. The group eventually walked

back into the house away from the woman. While inside,

the group began discussing who the woman might be, and

someone suggested defendant’s name.

Shortly after the group had walked back into the

house Barney walked back outside, returned with a stab

1

Because they share the same last name, for clarity we refer to the Mosttlers

by their first names, Phillip and Xavier.

2

It is unclear from the record whether Rich was also on the porch during

these events, but the record contains evidence that she was at the home on the

night of the incident.

588 State v. Allen

wound, and said, “she got me.” Pelletier then went outside,

returned with a stab wound, and said, “she got me.” Phillip

and Xavier attended to their wounds, and Rich called 9-1-1.

Rich gave the operator defendant’s name as the woman who

had just stabbed Barney and Pelletier.

Officers and paramedics responded to the home.

After Barney and Pelletier were transported to the hospi-

tal, Deputy Kaber spoke to Phillip and Xavier separately

about what had happened while other officers canvassed the

neighborhood looking for defendant. Phillip explained what

occurred at the home and provided a physical description

of the suspect as a “Native American female * * * between

5' 5'' [and] 5' 7'', and 170 pounds, wearing a dark gray or

black hooded sweatshirt and jeans.” Kaber asked Phillip

how the group had come up with defendant’s name as the

suspect, and he stated that “they all live in a tightknit com-

munity * * * and were talking about who it could have been

* * *, and her name was spoken.” Although Phillip could not

recall who first said defendant’s name, he told Kaber “that

they had collectively believed that she matched the descrip-

tion and they knew that she lived nearby.” Kaber understood

that “most of them knew the name more than they knew the

person.” Kaber next spoke to Xavier, and he gave a “nearly

identical” account to Phillip’s.

Kaber needed to compare the name given to the

9-1-1 operator with a photograph of that person to ensure

that he was sending officers to locate the right person. He

brought Phillip and Xavier to his patrol car and, while they

were standing together, showed them two photos of defen-

dant on his mobile computer terminal—a Department of

Motor Vehicles photo and a larger jail booking photo. He

showed them the first photograph and then the other and

asked them “if that was * * * the person that they had

named” and “who they thought was responsible for the stab-

bing.” They both responded that they were “95 percent” sure

that she was the same woman who had confronted them on

their porch and who they believed had stabbed Barney and

Pelletier.

Kaber visited Barney at the hospital that night.

Barney confirmed that the person who stabbed him was the

Cite as 312 Or App 584 (2021) 589

same woman he had seen following the shirtless man ear-

lier in the evening. Kaber asked him if he recognized defen-

dant’s name, and he responded that he knew the name only.

Defendant ultimately was charged with a number of

crimes for the stabbing of Barney and Pelletier. The defense

theory at trial was that someone other than defendant

was responsible for the stabbings and that defendant was

misidentified as the suspect. Consistent with that theory,

defendant moved to exclude the eyewitness identifications

by Phillip and Xavier as unreliable, arguing that the state

had not met the evidentiary requirements for admissibil-

ity under State v. Lawson/James, 352 Or 724, 291 P3d 673

(2012), including establishing that the witnesses identifica-

tions were based on their personal knowledge, OEC 602, or

were rationally based on their first-hand perceptions, OEC

701.

Kaber testified at the pretrial hearing on defen-

dant’s motion. In addition to the events described above,

Kaber explained that, when he arrived at the home, the

scene was chaotic, but that Phillip and Xavier were “very

cool, very even.” Kaber explained that “[t]here was some

alcohol involved” but not “anything that [he] thought was

in excess.” Kaber noted that it was dark out that night and

that the single streetlamp on the road did not provide any

ambient light where the incident occurred. He explained

that Phillip’s home is “pretty dark” because it sits on a cor-

ner and that “most of the light provided was out of the one

light that was on the porch of [Phillip’s] home.”

Kaber also testified that, about 20 minutes before

Rich called the police, a man, Brown, had also called the

police to report that defendant had tried to stab him with a

fork. Kaber spoke to Brown, who confirmed that he was at

defendant’s home when the fight with defendant broke out.

Although Brown couldn’t recall the exact address, Kaber

ultimately determined that the home was located a few

homes away from Phillip’s house. Brown also confirmed that

defendant had been chasing him down the street and that

he was shirtless and carrying a backpack.

Deputy Randall also testified. On the night of the

incident, Randall went to defendant’s home and spoke to her

590 State v. Allen

father, Allen. Allen told him that about 10 minutes before

the ambulance showed up down the street, defendant had

walked into the house and told him that “a guy had put

hands on her and that she had stabbed him.”

In response to defendant’s challenge to the admis-

sion of the identification evidence, the state first argued that

Lawson/James did “not apply in this situation,” because,

unlike in that case, which focused on suggestive police con-

duct in the process of obtaining a name for a suspect, here

the officers had received the name of the suspect before

any police action. The state further argued that, in any

event, even if Lawson/James did apply, the state had met

its burden to prove the admissibility of the identifications

by Phillip and Xavier and defendant had failed to show that

the probative value of those identifications was substantially

outweighed by the dangers of unfair prejudice because they

were corroborated by Brown and defendant’s father.

Defendant responded that the Lawson/James

test did apply and that the state had failed to establish

the admissibility of Phillip’s and Xavier’s identifications.

Defendant argued that the state had failed to establish

that the “linking of [defendant’s] photograph with what

they actually saw” was reliable and based on their own per-

sonal observations or perceptions. According to defendant,

because neither Phillip nor Xavier actually came up with

defendant’s name but, rather, an unnamed person in the

group did, it is unknown whether their identifications were

based on their perceptions or on “hearsay” from the group

discussion. Further, defendant contended that Kaber show-

ing two single photographs of defendant while Phillip and

Xavier were standing next to one another was suggestive.

Defendant also argued that the probative value of the evi-

dence was substantially outweighed by the dangers of unfair

prejudice because, given its unreliability, its probative value

was low, and that the witnesses’ statements that they were

“95 percent” certain that defendant was the assailant had

potential to influence and mislead the jury.

The trial court orally ruled that

“the fact pattern in this case does not fit within the frame-

work that is in [the Lawson/James line of] cases and so

Cite as 312 Or App 584 (2021) 591

the Court’s ruling is that [Lawson/James does not] apply.

And accepting the State’s argument that even * * * if it does

apply, that the State has met their burden.”

Following its oral ruling, the court issued written findings

of fact and an order denying defendant’s motion. The court

found that the “witnesses all had an adequate opportunity

to perceive * * * and did perceive” defendant when she came

back to the house to confront them, and that Barney saw her

when she stabbed him. The court further found that their

identifications were based on their own perceptions and not

based on suggestive police procedures. Regarding OEC 403

balancing, the written findings stated:

“[U]nder Lawson, the court must do an OEC 403 balanc-

ing test to determine if the probative value of the evidence

is substantially outweighed by unfair prejudice. The state

argued that in light of all of the other evidence establish-

ing that the defendant was the person who stabbed the two

victims, the probative value of the introduction of the iden-

tification testimony would not be substantially outweighed

by any risk of unfair prejudice.”

The written order concluded, again, that Lawson/James did

not apply but, even if it did, “the state has satisfied its bur-

den for the admission of the identification evidence.”

The case proceeded to a jury trial. Pelletier and

Xavier did not testify. Phillip testified that the woman in the

photos that Kaber showed him on the night of the incident

was the same woman who had approached and confronted

the group before Barney and Pelletier were stabbed and that

he had “no doubt” that defendant was that same woman.

Kaber testified that he showed Phillip and Xavier photos

of defendant and that they both confirmed that she was the

person who they believed had stabbed Barney and Pelletier.

Finally, Barney testified that defendant was the woman

who had stabbed him. As noted, the jury unanimously found

defendant guilty of second-degree assault (Count 3) and

UUW (Count 5) related to the stabbing of Barney, and guilty

by nonunanimous verdict of first-degree assault (Count 4)

and UUW (Count 6) for the stabbing of Pelletier.3

3

The jury found defendant not guilty of two counts of attempted murder

(Counts 1 and 2).

592 State v. Allen

In reviewing admission of the identification evi-

dence, we begin with a brief overview of Lawson/James, in

which the Supreme Court established the framework for

determining the admissibility of eyewitness identification

evidence. In Lawson/James, the court explains that “when

a criminal defendant files a pretrial motion to exclude eye-

witness identification evidence, the state—as the proponent

of the eyewitness identification—must establish all pre-

liminary facts necessary to establish admissibility” under

the applicable provisions of the Oregon Evidence Code. 352

Or at 761. If the pretrial challenge implicates OEC 6024 or

OEC 701,5 it is the state’s burden to provide “proof under

OEC 602 that the proffered eyewitness has personal knowl-

edge of the matters to which the witness will testify, and

proof under OEC 701 that any identification is both ratio-

nally based on the witness’s first-hand perceptions and help-

ful to the trier of fact.” 352 Or at 761-62. If the state satisfies

its burden, the burden then shifts to the defendant to prove

“under OEC 403[6] that, although the eyewitness evidence is

otherwise admissible, the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, misleading the jury, or by consider-

ations of undue delay or needless presentation of cumulative

evidence.” Id. at 762. If the defendant meets that burden,

the court has discretion to either exclude the identification

or implement another remedy short of exclusion. Id.

Lawson/James set forth two categories of factors

that affect the reliability, and thus probative value, of eye-

witness identification evidence: estimator variables and

4

OEC 602 provides:

“Subject to the provisions of Rule 703 (ORS 40.415), a witness may not

testify to a matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter. Evidence to

prove personal knowledge may, but need not, consist of the testimony of the

witness.”

5

OEC 701 states that the testimony of a nonexpert witness must be “[r]ation-

ally based on the perception of the witness” and “[h]elpful to a clear understand-

ing of testimony of the witness or the determination of a fact in issue.”

6

OEC 403 provides:

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay or needless

presentation of cumulative evidence.”

Cite as 312 Or App 584 (2021) 593

system variables. Estimator variables are the “characteris-

tics of the witness, the alleged perpetrator, and the environ-

mental conditions of the event that cannot be manipulated

or adjusted by state actors.” Id. at 740. Estimator variables

include the witness’s level of stress; the witness’s attention;

the duration of exposure; environmental viewing condi-

tions; the witness’s physical and mental characteristics; the

witness’s description of the perpetrator; the perpetrator’s

characteristics; the speed of the identification; the witness’s

confidence or certainty (which is not a reliable indicator of

accuracy); and memory decay. Id. at 744-46.

System variables are the “circumstances surround-

ing the identification procedure itself that are generally

within the control of those administering the procedure.”

Id. at 740. System variables include factors such as whether

the identification procedure was conducted by a person

who was unaware of the suspect’s identity; whether pre-

identification instructions were given to reduce the likeli-

hood of misidentification; the method used to construct and

administer the photograph lineup to the witness; whether

multiple viewings of the suspect led to source confusion;

whether suggestive wording or leading questions by inves-

tigators contaminated the witness’s memory; and whether

post-identification confirming feedback falsely inflated the

witness’s confidence in the accuracy of his or her identifica-

tion. Id. at 741-44.

On appeal, defendant argues that the trial court

erred in three ways when it failed to exclude Phillip’s

and Xavier’s out-of-court identifications of defendant and

Phillip’s in-court identification. First, according to defen-

dant, the court erred when it ruled that the Lawson/James

analysis did not apply because it applies when, as here, the

state administers suggestive pretrial procedures.

Second, defendant argues that the court erred when

it alternatively ruled that the state had met its burden to

establish the admissibility of the eyewitness identifications

under OEC 602 and OEC 701. Defendant notes that Phillip

and Xavier did not testify at the hearing, and Kaber testi-

fied to only the “bare facts.” Regarding OEC 602, defendant

contends that Kaber’s testimony did not establish facts from

594 State v. Allen

which a jury could find that Phillip and Xavier had an ade-

quate opportunity to observe, and did observe, the woman in

the street so that they could identify her based on their per-

sonal knowledge. Specifically, defendant asserts that there

was no evidence to establish that they had a good view of the

woman because the street was poorly lit; there was no evidence

presented that the porch light was on or how long or care-

fully Phillip and Xavier observed the woman; Phillip’s vague

description of the woman and Xavier’s lack of any description

indicates that they did not “pay that much attention to any

identifying characteristics”; and Kaber’s testimony indicated

that Phillip and Xavier might have been intoxicated.

Regarding OEC 701, defendant argues that the state

failed to adduce sufficient evidence to establish by a pre-

ponderance that Phillip’s and Xavier’s identifications were

rationally based on their own perceptions rather than on a

suggestive identification procedure. According to defendant,

the identification procedure was suggestive because Kaber’s

presentation of defendant’s photos was akin to the inher-

ently suggestive “suspect show-up” procedure. See Lawson/

James, 352 Or at 742-43 (defining a “showup” as presenting

an eyewitness with a single suspect for identification and

noting that showups are “generally regarded as inherently

suggestive—and therefore less reliable”). Compounding the

procedure’s suggestiveness, defendant continues, are the

facts that Phillip and Xavier had already decided from their

conversation with the group that defendant was the woman

whom they had seen earlier; before being shown the photo-

graphs, Kaber “readily accepted” that group identification

when he showed the men only photographs of defendant and

no other potential suspects; and Phillip and Xavier viewed

the photographs and made the identifications together.

Thus, according to defendant, because the state failed to

adduce sufficient facts that Phillip’s and Xavier’s personal

observations were sufficient to identify defendant, and

given the highly suggestive identification procedure used,

the state did not meet its burden to establish the admissi-

bility of their out-of-court eyewitness identifications.7 And,

7

Defendant does not challenge that the eyewitness identifications would

be helpful to the jury as required under OEC 701, obviating the need for us to

address that part of the analysis.

Cite as 312 Or App 584 (2021) 595

defendant continues, because Phillip’s in-court identification

relied on his pretrial identification, it was similarly unreli-

able under OEC 602 and OEC 701.

Third, defendant argues that the trial court erred

when it failed to conduct the requisite OEC 403 balanc-

ing and, as an alternative to his other requested remedies,

asks for a limited remand to allow the court to conduct the

balancing.

The state responds that the trial court did not err

in ruling that the Lawson/James test does not apply. Before

the trial court, the state argued that Lawson/James was not

implicated because Kaber had received defendant’s name

from the witnesses before police contact and not as a result

of any suggestive police conduct. On appeal, adjusting its

argument, the state’s view is that Phillip and Xavier knew

defendant and that the only identification problem was “in

attaching a name” to defendant’s face, which is “not the sort

of eyewitness identification that is subject to the Lawson/

James analysis.” (Emphasis in state’s brief.) In the state’s

view, it is “completely irrelevant” whether a witness knows

a suspect’s name if the witnesses can positively identify the

person as the suspect. In any event, the state contends, even

if Lawson/James applies, the trial court did not err in rul-

ing that it met its burden to establish the admissibility of

the eyewitness identifications. The state does not respond to

defendant’s argument that the court failed to conduct OEC

403 balancing.

Although we conclude that the trial court erred in

ruling that the Lawson/James test did not apply, we none-

theless conclude that the state met its burden to establish

that the eyewitness identifications were based on the wit-

ness’s personal observations and perceptions. We further

conclude that, contrary to defendant’s argument, the record

establishes that the trial court conducted the required OEC

403 balancing.

We begin with the applicability of the Lawson/

James framework. The state’s argument before the trial

court was that, when the police obtain a suspect’s name

from a witness, the eyewitness identification precedes police

questioning or state-administered identification procedures

596 State v. Allen

and, thus, as we understand it, cannot be the result of sug-

gestive police procedures implicating the Lawson/James

test. However, that view misunderstands the test.

Eyewitness identification evidence is the function

of two variables—memory and perception—and the focus of

the Lawson/James framework is on determining the reli-

ability of the eyewitness identification. See Lawson/James,

352 Or at 740 (looking to “scientific knowledge and empir-

ical research concerning eyewitness perception and mem-

ory” to establish the framework for assessing the reliabil-

ity and admissibility of eyewitness identification evidence).

Regarding memory, the concern with eyewitness identifica-

tions is that a witness’s original memory of an event may

be tainted by some other source, thus rendering the iden-

tification unreliable. See id. at 748 (“[O]nce contaminated,

a witness’s original memory is very difficult to retrieve; it

is, however, only the original memory that has any forensic

or evidentiary value.”). Although suggestive police conduct

is one source of memory contamination, it is not the only

source identified in Lawson/James. See id. at 753 (“[M]any

of the reliability concerns surrounding eyewitness identifi-

cation evidence stem from the basic premise that eyewit-

ness testimony can be led or prompted by suggestive identi-

fication procedures, suggestive questioning, and/or memory

contamination from other sources.” (Emphasis added.)); id. at

743 (explaining that one source of memory contamina-

tion is the way in which witnesses may “converse about

an event”); see also Christian Sheehan, Making the Jurors

the ‘Experts’: The Case for Eyewitness Identification Jury

Instructions, 52 B. C. L. Rev. 651, 653 (2011) (“Many inac-

curate identifications are caused not by any police actions,

however, but rather by psychological factors that affect

perception and memory.”). In fact, as we have previously

explained:

“In Lawson/James, the court held that the threshold

inquiry from Classen—whether there had been sugges-

tive police procedures—was unnecessary as a preliminary

and independent inquiry: ‘There is no reason to hinder

the analysis of eyewitness reliability with purposeless

distinctions between suggestiveness and other sources of

unreliability.’ ”

Cite as 312 Or App 584 (2021) 597

State v. Wesley, 254 Or App 697, 711, 295 P3d 1147, rev den,

354 Or 62 (2013) (quoting Lawson/James, 352 Or at 747).

Thus, whether the police involvement in this case could

be considered suggestive is not the dispositive question in

determining whether to apply the test outlined in Lawson/

James. Whether a particular case involves suggestive police

conduct, and, if so, how it might have affected the wit-

ness’s memory, is simply one factor the court must con-

sider in determining the admissibility of the eyewitness

identification evidence—it is not a prerequisite to applying

the Lawson/James test. See State v. Hickman, 355 Or 715,

726-49, 330 P3d 551 (2014), cert den, 577 US 896 (2015)

(applying Lawson/James test in determining the admissi-

bility of in-court identifications where there was “no sug-

gestive pretrial procedures” or any attempt to have the wit-

nesses identify the suspect before trial).

The state’s argument on appeal is somewhat differ-

ent, and we address it only briefly. We understand the state

to argue that the Lawson/James framework is not implicated

because the witnesses knew defendant and, thus, the iden-

tification evidence was not memory-based. We reject that

argument. Defendant’s motion to exclude the eyewitness

identifications raises a number of challenges to the identi-

fications’ reliability, including whether they were based on

Phillip’s and Xavier’s personal knowledge, OEC 602, or their

own perceptions, OEC 701, or were adversely impacted by

co-witness contamination, suggestive identification proce-

dures, or environmental conditions surrounding the event.

Those challenges are precisely the type of issues that impli-

cate the Lawson/James test. See Lawson/James, 352 Or at

761-62 (explaining that, when “an issue raised in a pretrial

challenge to eyewitness identification evidence specifically

implicates OEC 602 or OEC 701,” it is the state’s burden

to establish the foundational facts required under OEC 602

and OEC 701). What effect the witness’s familiarity with

the suspect has on the reliability of the identification, like

whether suggestive police procedures were used, is simply

one of the many factors to consider in assessing the reli-

ability of the eyewitness identification. See State v. Calia,

15 Or App 110, 114-15, 514 P2d 1354 (1973), cert den, 417

US 917 (1974) (concluding that the defendant’s proposed

598 State v. Allen

eyewitness instruction, which included instructing the

jury that it should consider the witness’s familiarity with

the defendant, to be a correct statement of the law); United

States v. Telfaire, 469 F2d 552, 558 (DC Cir 1972) (providing

example of eyewitness-identification jury instruction that

includes considering “whether the witness had had occasion

to see or know the person in the past”); State v. Ollison, 16

Or App 544, 550, 519 P2d 393 (1974) (referring to Calia, 15

Or App 110, and Telfaire, 469 F2d 552, as examples of cor-

rect eyewitness-identification jury instructions). Therefore,

the trial court erred in ruling that the Lawson/James test

did not apply.

Nonetheless, we conclude that the state met its

burden to establish the foundational admissibility require-

ments, the first step in the Lawson/James test. Beginning

with defendant’s OEC 602 challenge, the state presented suf-

ficient facts to permit a reasonable juror to find that Phillip

and Xavier made the observations necessary to identify

defendant from the photos. The evidence showed that, while

Barney and Pelletier were arguing with defendant on the

front porch, Phillip and Xavier were standing on the porch

next to Barney and Pelletier and “close” to the confronta-

tion, and that the woman was standing “right there” at the

steps of the front porch. That evidence allows an inference

that Phillip and Xavier were close enough to view the wom-

an’s facial and physical features. See Lawson/James, 352 Or

at 766 (“[W]itnesses were face-to-face with the perpetrators

and had clear opportunities to observe their features[.]”).

Further, based on those close-range observations,

Phillip provided Kaber with a relatively thorough physical

description of defendant shortly after the incident, including

that she was between 5'5'' and 5'7'', weighed 170 pounds,

and was wearing a dark gray or black hooded sweatshirt

and jeans.8 See Lawson/James, 352 Or at 745 (“Accurate

identifications generally tend to be made faster than inac-

curate identifications.”); State v. Collins, 256 Or App 332,

344, 300 P3d 238 (2013) (accepting the trial court’s finding

that a “complete description” was provided, which included

the suspect’s “race, stature, and hair color”); but see Lawson/

8

Defendant does not challenge the accuracy of that physical description.

Cite as 312 Or App 584 (2021) 599

James, 352 Or at 745 (“Contrary to a common misconcep-

tion, there is little correlation between a witness’s ability to

describe a person and the witness’s ability to later identify

that person.”). Although Phillip also described the woman

as “Native American,” he provided no detail about what spe-

cific facial or physical features he was intending to identify

with that descriptor and, in these circumstances, we do not

rely on that aspect of his description in our analysis. See

Lawson/James, 352 Or at 755 (“[N]onfacial features like

race, height, weight, clothing, or hair color, generally lack

the level of distinction necessary to permit the witness to

identify a specific person as the person whom the witness

saw.”). And, although the scene was chaotic, Kaber tes-

tified that Phillip and Xavier were “very cool, very even.”

The record is therefore sufficient to support the trial court’s

factual determination that the witnesses had an adequate

opportunity to perceive and did perceive the facts necessary

to support their identifications of defendant.

Defendant challenges Phillip’s and Xavier’s ability

to personally observe the woman at the stairs because it was

dark out and, she contends, there was no evidence that the

porch light was on. That is one way to view the evidence—

but it is not the only way to view it. Kaber testified that

“most of the light provided was out of the one light that was

on the porch of [Phillip’s] home.” Although there was no evi-

dence indicating with certainty that the light was on at the

time of the events, Kaber’s testimony allows for an inference

that it was. Defendant also argues that Phillip and Xavier

might have been drinking. However, Kaber’s testimony

that, although there “was some alcohol involved,” it was not

“anything that [he] thought was in excess,” supports the

trial court’s implicit finding that alcohol did not adversely

affect their personal observations. Defendant further con-

tends that there was no evidence establishing how long or

how carefully Phillip and Xavier had observed the woman

at the stairs. Although there was no evidence presented in

that regard, the evidence that was presented, including that

they were standing “close” to the woman during the con-

frontation and that Phillip provided a relatively thorough

description of the woman shortly after the incident, was suf-

ficient to allow a jury to conclude that Phillip and Xavier had

600 State v. Allen

personal knowledge of defendant’s identity. See Hickman,

355 Or at 729 (“[A]n identification satisfies OEC 602 if the

eyewitness testifies to facts that, if believed, would permit

a reasonable juror to find that the eyewitness observed the

facts necessary to make the identification.”).

As for the OEC 701 inquiry, we conclude that the

state met its burden to show that the witnesses’ identifi-

cations were rationally based on their own perceptions.

Defendant argues that the police showup used in this case

was inherently suggestive. Although a photo showup like the

one Kaber used is generally problematic and can be inher-

ently suggestive, we conclude that it was not so here. First,

because the witnesses provided defendant’s name to the

9-1-1 operator, Kaber was not communicating to Phillip and

Xavier whom the police had targeted in the pursuit of iden-

tifying a suspect, which is the primary concern with show-

ups. See Lawson/James, 352 Or at 783 (“Showups are widely

regarded as inherently suggestive—and therefore less reli-

able than properly administered lineup identifications—

because the witness is always aware of who police officers

have targeted as a suspect.” (Emphasis added.)). Rather,

Kaber showed Phillip and Xavier a photo of the woman to

verify that the police were apprehending the correct per-

son whom the witnesses believed was the suspect. Second,

the showup here was done shortly after the incident, which

makes it more likely to be reliable. See id. at 743 (“A showup

is most likely to be reliable when it occurs immediately after

the witness has observed a criminal perpetrator in action

because the benefit of a fresh memory outweighs the inher-

ent suggestiveness of the procedure.”). Third, even assuming

that defendant’s name was first spoken by a co-witness other

than Phillip or Xavier, other factors allow for the inference

that their identifications were nonetheless based on their

own perceptions, including that Phillip provided a physical

description of the suspect after the incident independent

of the suspect’s name, which included her height, weight,

and clothing; they had a close view of the suspect’s face; and

Phillip and Xavier had seen defendant in the neighborhood

before and had some familiarity with her.

Further, Phillip’s and Xavier’s identifications were

corroborated by other evidence establishing defendant as

Cite as 312 Or App 584 (2021) 601

the perpetrator. First, in a phone call to the police 20 min-

utes before the 9-1-1 call, Brown reported that defendant

had been involved in another confrontation nearby, which

confirmed defendant’s presence in the neighborhood. In

addition, Brown’s report that defendant was chasing him

down the street in the neighborhood while he was shirtless

and carrying a backpack corroborated certain details that

Phillip and Xavier provided to the police about the events

leading up to the stabbing, as well as defendant’s identity.

Second, the record established that, 10 minutes before the

ambulance arrived, defendant walked into her home and

told her father that “a guy had put hands on her and that

she had stabbed him,” further corroborating Phillip’s and

Xavier’s identifications of defendant as the perpetrator.

Thus, the accuracy of Phillip’s and Xavier’s photo identifi-

cation of defendant as the woman who had confronted them

earlier and whom they believed had stabbed the victims

was corroborated by other evidence. See Lawson/James, 352

Or at 733-34; 767 (concluding that details provided by the

eyewitnesses, including items stolen and found on suspects,

and the suspect’s clothing, confirmed their identifications);

Collins, 256 Or App at 335 (concluding that the defendant’s

response to the police when they told him that they planned

to show the victim a photo of the defendant corroborated

the victim’s identification of the defendant where he stated,

“ ‘Of course [the victim] will recognize me. I was there.’ ”). As

such, the state met its burden to show by a preponderance of

the evidence that the witnesses’ out-of-court identifications

were based on their personal knowledge, OEC 602, and per-

ceptions, OEC 701. Because defendant’s argument regard-

ing the unreliability of Phillip’s in-court identification rests

entirely on the asserted unreliability of the out-of-court

identification, we come to the same conclusion regarding

Phillip’s in-court identification. Therefore, the trial court

did not err in concluding that the state met its burden to

establish the reliability of the identifications.

We turn next to the second step under the Lawson/

James framework—the required OEC 403 balancing. Defen-

dant does not argue that the trial court abused its discre-

tion in conducting the OEC 403 balancing test. Rather,

defendant argues that the trial court failed to conduct any

602 State v. Allen

balancing at all. We disagree. The trial court’s written

findings, viewed in light of the parties’ arguments, reflect

that the court conducted OEC 403 balancing. See State v.

Anderson, 363 Or 392, 406, 423 P3d 43 (2018) (“A court will

make a sufficient record [of balancing the OEC 403 factors]

if the trial court’s ruling, considered in light of the parties’

arguments, demonstrates that the court balanced the appro-

priate considerations.”).

In defendant’s memorandum to the trial court, she

argued that the probative value of the evidence was sub-

stantially outweighed by the danger of unfair prejudice

because the identifications were unreliable and the wit-

nesses statements that they were “95 percent” certain of

defendant’s identity had potential to influence and mislead

the jury. Before the presentation of evidence at the pretrial

hearing, the trial court sought clarification on who had the

burden of proof, and defendant responded, “once the State

meets [its] burden[ ] under 602 and 701, then the burden

shifts for prejudice.” Further, during the pretrial hearing,

defendant alerted the court that she had concerns about

the state eliciting testimony on the substance of Brown’s

conflict with defendant. The state responded that it was

trying to “discount[ ] the 403 issue over the prejudicial. I

think it is important to find out what the officers did with

the information they had to confirm that this identifica-

tion was correct * * * in anticipation of the 403 argument.”

The court allowed the testimony. Additionally, defendant

later objected to the state eliciting testimony about defen-

dant’s inculpatory statements to her father after the stab-

bings. The state responded that the evidence goes “to the

403 weighing test that must be done.” The court overruled

the objection. Lastly, during argument, the state contended

that “the 403 balancing test would be in favor of the State

* * * because there is the external evidence to confirm these

identifications.” Specifically, the state argued, “[w]e had the

call that came in prior regarding * * * Brown, he confirmed

that he was the guy that had his shirt off, he was being

chased by [defendant]; we have the statements from the

father.”

The court’s written findings and order noted that

it “must do an OEC 403 balancing test to determine if the

Cite as 312 Or App 584 (2021) 603

probative value of the evidence is substantially outweighed

by unfair prejudice.” It further referenced the state’s argu-

ment that “in light of all of the other evidence establishing

that the defendant was the person who stabbed the two vic-

tims, the probative value of the introduction of the identifi-

cation testimony would not be substantially outweighed by

any risk of unfair prejudice.”

The record shows that the trial court conducted

OEC 403 balancing. Defendant argued that the eyewit-

ness identifications had little probative value because they

were unreliable and identified prejudicial risks of the evi-

dence. See Lawson/James, 352 Or at 757 (nothing that the

persuasive force, or probative value, of eyewitness identi-

fication testimony is directly linked to its reliability). The

state disagreed, highlighting that the eyewitness identifi-

cations were corroborated by other evidence. Further, the

court’s written order expressly noted that it was required

to conduct an OEC 403 balancing, and it identified the cor-

rect legal standard and the state’s argument regarding the

probative nature of the evidence. We acknowledge that the

court’s written order does not expressly identify the unfairly

prejudicial effect of the evidence or how it balanced the rel-

evant OEC 403 factors, and it refers to the state satisfying

its burden for the admission of the identification evidence

where defendant has the burden under OEC 403. However,

on this record, in light of the parties’ arguments, its written

findings and order establish that the court conducted OEC

403 balancing. See Anderson, 363 Or at 409 (“[I]n assess-

ing the sufficiency of a trial court’s explanation of its OEC

403 ruling, appellate courts should consider the trial court’s

ruling in light of the arguments that the parties made on

the merits of the issues raised by an OEC 403 objection, as

well as whether either party asked the court to provide a

more complete explanation of its ruling.”). As noted, because

defendant does not argue that the trial court abused its dis-

cretion in conducting OEC 403 balancing, we do not address

the merits of the balancing.

We turn to defendant’s third assignment, in which

she argues that the trial court erred in failing to give her

requested jury instruction on eyewitness identification evi-

dence. We review “a trial court’s refusal to give a requested

604 State v. Allen

jury instruction for errors of law.” State v. McNally, 361 Or

314, 320, 392 P3d 721 (2017). “In determining whether evi-

dence supports giving the defendant’s proposed instruction,

we view the facts in the light most favorable to giving that

instruction.” State v. Roberts, 293 Or App 340, 341, 427 P3d

1130 (2018). Further, in assessing the harmlessness of any

error, we look to the trial record as a whole. State v. Prieto-

Rubio, 262 Or App 149, 155, 324 P3d 543 (2014), aff’d, 359

Or 16, 376 P3d 255 (2016). We provide the following facts

accordingly.

During trial, defendant contested the sufficiency

of the evidence to establish that she was the person who

had stabbed the victims. The parties focused their witness

examinations and arguments on the circumstances sur-

rounding the identifications of defendant by Phillip, Xavier,

and Barney. Although that evidence was largely consistent

with the evidence that was developed at the pretrial hear-

ing, it was more developed on certain legal points. Kaber’s

testimony, for example, established the timeline of events:

he was dispatched to the home at 9:39 p.m. and arrived at

10:04 p.m., and he departed for the hospital at 11:10 p.m.

Kaber also confirmed that defendant lived on the same block

as Phillip.

Phillip’s more developed or varying testimony

included that he had not been drinking; that the confronta-

tion at the porch lasted one and a half to two minutes; that

he could see the woman very clearly during the confronta-

tion because his porch is “really, really small” with “three

little tiny steps,” and she was standing three to four feet

away from him; and that, although his street is dark, his

porch light is bright. Further, although he recalled giving

Kaber a physical description of the woman on the night of

the incident, he could not recall the details that he provided

to him; he acknowledged that someone else in the group who

he could not recall had suggested defendant’s name after

the incident, but he nonetheless recognized the woman’s face

because he knew she had been staying next door and had

“seen her walking up and down the street a few times”; after

Kaber showed him and Xavier defendant’s photograph, they

were both “95 percent sure” it was the same woman, and he

had “no doubt” that defendant was the same woman.

Cite as 312 Or App 584 (2021) 605

Barney’s testimony also was more developed at

trial. He testified that he was intoxicated on the night of the

incident; that when he and Pelletier had followed the cou-

ple to ensure the woman’s safety, she became upset and an

argument ensued, which continued until the three arrived

at Phillip’s front porch; that the porch light was on; that

during that argument, which lasted a total of two to four

minutes, Barney ended up face-to-face with the woman—

who at this point he recognized but did not know her

name—and he pushed her to the ground twice. Further, he

testified to being six to eight inches taller than the woman;

that someone other than Barney first suggested defendant’s

name after the group left the porch and went back inside the

home; that Barney went back outside and got into a second

confrontation with the woman and, while standing face-to-

face, she stabbed him; that, at the time she stabbed him, he

had no doubt that it was the same woman from the earlier

confrontation because, although she was wearing a black

hoodie with the hood up, he could still see her face and he

recognized the white design on the black sweatshirt; and

that he knew her face because he had seen it before, includ-

ing in photos with his brothers. After being shown Kaber’s

police report to refresh his memory, Barney testified, “I’m

pretty, I’m positive [the woman] said * * * something about

putting your hands on a woman or I think that was all that

was really said,” which he understood to be a reference to

when he pushed her.

The court excluded any details of Brown’s call but

allowed Kaber to testify that a separate 9-1-1 call had

come in involving defendant, the time of that call, and that

defendant’s address in the neighborhood was subsequently

located. Defendant’s inculpatory statements to her father

did not come in at trial.

During closing argument, both the state and defen-

dant focused on the evidence surrounding the reliabil-

ity of identifications of defendant as the perpetrator by

Phillip, Xavier, and Barney. Defendant argued that, in con-

sidering the weight to give to the eyewitness statements,

the jurors should consider the witnesses’ “unfamiliarity

with [defendant], but also the environment.” Defendant

emphasized that the scene was chaotic, it was dark out,

606 State v. Allen

the street was poorly lit, and that both Phillip and Barney

received defendant’s name from someone else in the group.

Regarding Phillip, defendant challenged his ability to suf-

ficiently see the assailant during the confrontation before

the stabbing because of the distance between the two at the

porch. Regarding Barney, defendant challenged his abil-

ity to observe his assailant, arguing that her hood was up

during the final confrontation; Barney had been drinking,

which affects a person’s judgment and memory; he was emo-

tional from the confrontation; and the angle between the

two was “not face-to-face” because Barney is taller than

the woman. Defendant challenged the amount of time that

Barney and Phillip had to observe the woman, arguing that

each confrontation happened quickly. Defendant also chal-

lenged Kaber’s photo-presentation procedure, noting that

Phillip learned defendant’s name from the group before he

viewed the photos, and then Kaber, having received defen-

dant’s name as the suspect, showed Phillip a single photo of

defendant instead of multiple photos of potential suspects.

Defendant asked the jurors to think about whether “what

came out of both [Barney’s and Phillip’s] mouth[s were] from

their own thought process, from their own witnessing, from

their own piecing things together and not from somebody

else that gave them the name.”

The parties discussed how the jury should be

instructed. Defendant requested a special jury instruction

regarding eyewitness identification testimony, citing

Lawson/James, 352 Or 724. Defendant’s requested jury

instruction is the Ninth Circuit Model Criminal Jury

Instruction 4.11 Eyewitness Identification (MCJI 4.11), and

states:

“You have heard testimony of eyewitness identification.

In deciding how much weight to give to this testimony,

you may consider the various factors mentioned in these

instructions concerning credibility of witnesses.

“In addition to those factors, in evaluating eyewitness

identification testimony, you may also consider:

“(1) the capacity and opportunity of the eyewitness

to observe the offender based upon the length of time for

observation and the conditions at the time of observation,

including lighting and distance;

Cite as 312 Or App 584 (2021) 607

“(2) whether the identification was the product of the

eyewitness’s own recollection or was the result of subse-

quent influence or suggestiveness;

“(3) any inconsistent identifications made by the eye-

witness;

“(4) the witness’s familiarity with the subject identified;

“(5) the strength of earlier and later identifications;

“(6) lapses of time between the event and the identifi-

cation[s]; and

“(7) the totality of circumstances surrounding the eye-

witness’s identification.”

Defendant argued that the standard jury instruc-

tion for assessing eyewitness testimony was not specific

enough and that her requested special instruction would

help the jury understand how to assess eyewitness identifi-

cation evidence. The state responded that the jury instruc-

tion was inappropriate because the Lawson/James frame-

work did not apply and that the instruction amounts to an

improper comment on the evidence.9 The court denied defen-

dant’s request, concluding that, although it “was a close

issue” and the requested instruction was “neutral,” it was

unnecessary.

Upon agreement of the parties, the court provided

several uniform jury instructions (UCrJI) to guide the jury

on how to evaluate the evidence. The court instructed on

UCrJI 1006, evaluating witness testimony, which states:

“The term ‘witness’ includes every person who has tes-

tified under oath in this case. Every witness has taken an

9

The state also alerted the court that the comment to the MCJI 4.11 Ninth

Circuit jury instruction “recommended against giving of an eyewitness identi-

fication instruction.” However, we note that that MCJI 4.11 comment no longer

contains that recommendation. See Ninth Circuit Jury Instructions Committee,

Manual of Model Criminal Jury Instructions for the District Courts of the Ninth

Circuit § 4.11 cmt. (2010) (approved June 2019); United States v. Valencia-Cortez,

769 F Appx 419, 422 (9th Cir 2019) (explaining that the court was “troubled by

the comment” to the MCJI 4.11, which recommends “ ‘against the giving of an

eyewitness identification instruction,’ ” and “encourage[d] the Jury Instructions

Committee to reassess their comment as it is inconsistent with legal precedent

and growing scientific evidence”).

608 State v. Allen

oath to tell the truth. In evaluating each witness’s testi-

mony, however, you may consider such things as:

“(1) The manner in which the witness testifies.

“(2) The nature or quality of the witness’s testimony.

“(3) Evidence that contradicts the testimony of the

witness.

“(4) Evidence concerning the bias, motives, or interest

of the witness.”

(Emphasis in original.) The court also instructed on UCrJI

1008 and UCrJI 1025. UCrJI 1008, inferences, states:

“In deciding this case you may draw inferences and

reach conclusions from the evidence, if your inferences and

conclusions are reasonable and are based on your common

sense and experience.”

UCrJI 1025, direct and circumstantial evidence, provides:

“There are two types of evidence. One is direct evi-

dence—such as the testimony of an eyewitness. The other

is circumstantial evidence—the proof of a chain of circum-

stances pointing to the existence or nonexistence of a cer-

tain fact. You may base your verdict on direct evidence or

on circumstantial evidence.”

Additionally, consistent with the “Functions of the

Court and Jury” instruction, the court explained that the

jury “must evaluate the evidence to determine how reliable

or how believable that evidence is,” and that, in “deciding

this case, you are to consider all the evidence you find wor-

thy of belief.” Further, the court stated, “It is your duty to

weigh the evidence calmly and dispassionately and to decide

this case on its merits,” and not based on “bias, sympathy, or

prejudice.” Finally, the court instructed that “the testimony

of any witness whom you believe is sufficient to prove any

fact in dispute. You are not simply to count the witnesses,

but you are to weigh the evidence.”

After the court instructed the jury, defendant

objected to the court’s failure to give MCJI 4.11.

On appeal, defendant argues that the trial court

erred in failing to give her special jury instruction because it

Cite as 312 Or App 584 (2021) 609

accurately stated the law and the evidence supported giving

it; she contends that failure to give the instruction, which

would have helped the jury assess the evidence related to

the critical issue in the case—defendant’s identification—

likely affected the verdict. The state counters that, even if

defendant’s proposed instruction was a correct statement of

the law and it would have been permissible for the court to

give it, the instruction was not necessary. The state argues

that the factors listed in defendant’s proposed instruction

were “common-sense considerations that jurors might choose

to apply in the consideration of a witness’s testimony,” that

the uniform instructions the court gave “covered the same

ground,” and that defendant could argue the same factors to

the jury.

A party is generally entitled to a jury instruction on

the law that supports that party’s theory of the case when

“(1) there is evidence to support that theory and (2) the

requested instruction is a correct statement of the law.” State

v. Harryman, 277 Or App 346, 356, 371 P3d 1213, rev den,

360 Or 401 (2016).

“However, a trial court does not err in refusing to give a

proposed instruction—even if legally correct—if the sub-

stance of the requested instruction is covered fully by other

jury instructions given by the trial court or if the requested

instruction is not necessary to explain the particular issue

or point of law to the jury.”

Id. at 356 (internal quotation marks and ellipses omitted).

We conclude that the trial court erred in failing to give

defendant’s requested jury instruction.

Beginning with whether the facts supported giving

the instruction, we readily conclude that they did. Defendant

challenged the witness identifications based on a number

of factors related to the reliability of the identification evi-

dence, including that Phillip’s, Xavier’s, and Barney’s mem-

ories of the event could have been contaminated by their dis-

cussions with the group and, regarding Phillip and Xavier,

that Kaber’s identification procedure was problematic, and

that their perceptions of the event were adversely impacted

due to environmental factors surrounding the event, includ-

ing that the street was dark and alcohol was involved. The

610 State v. Allen

parties elicited evidence addressing those challenges and,

viewing that evidence in the light most favorable to defen-

dant, the record permitted the jury to conclude that certain

factors called into question the reliability of the identifica-

tions. The record supported giving the instruction.

We further conclude that defendant’s proposed

instruction was a correct statement of the law. The instruc-

tion provided the jury with factors to consider when assess-

ing the weight of the eyewitness identification evidence,

including: (1) the “capacity and opportunity of the eyewit-

ness to observe the offender based upon the length of time for

observation and the conditions at the time of observation”;

(2) “whether the identification was the product of the eyewit-

ness’s own recollection or was the result of subsequent influ-

ence or suggestiveness”; (3) “any inconsistent identifications

made by the eyewitness”; (4) “the witness’s familiarity with

the subject identified”; (5) “the strength of earlier and later

identifications”; (6) “lapses of time between the event and

the identifications[s]”; and (7) “the totality of circumstances

surrounding the eyewitness’s identification.” Factors (1), (2),

and (6) substantively mirrored the system and estimator

variables identified in Lawson/James as relevant to assess-

ing the reliability of eyewitness identification evidence. See

Lawson/James, 352 Or at 741-46 (discussing system vari-

ables that are relevant to determining whether an identifi-

cation was the product of the eyewitness’s own recollection

or was the result of subsequent influence of suggestiveness,

including various suggestive eyewitness-identification pro-

cedures or post-identification events; discussing estimator

variables that are relevant to a witness’s capacity and oppor-

tunity to perceive a suspect, including the duration of expo-

sure and environmental viewing conditions; and discussing

estimator variables that are relevant to considerations of

the lapse of time between the event and the identification,

including the speed of the identification and memory decay).

Therefore, those factors are a correct statement of the law.

See also Calia, 15 Or App at 114-15 (concluding that those

factors, in largely the same form, were a correct statement

of the law).

Further, although factor (4) is not explicitly addressed

in Lawson/James, a witness’s familiarity with a suspect is

Cite as 312 Or App 584 (2021) 611

relevant to the reliability of an eyewitness identification, as

we have discussed. If a witness has seen a suspect previ-

ously, the witness may, depending on other relevant circum-

stances surrounding the identification, be more able to eas-

ily identify the person at a later time, further increasing the

identification’s reliability. That factor is a correct statement

of the law. See Calia, 15 Or App at 114-15 (concluding that

defendant’s proposed eyewitness instruction, which included

instructing the jury that it should consider the witness’s

familiarity with the defendant, was a correct statement of

the law).

Lawson/James did not explicitly include factors (3),

(5), and (7) of defendant’s proposed instruction as estimator

or system variables. However, Lawson/James did not fore-

close consideration of other factors that may be relevant to

determining the reliability of an eyewitness identification.

See Lawson/James, 352 Or at 740-41 (acknowledging that

the research discussed in the opinion was “not intended to

preclude any party in a specific case from validating scien-

tific acceptance of further research or from challenging par-

ticular aspects of the research described in this opinion”).

Moreover, those factors address the relevant considerations

that were articulated more broadly in Lawson/James. In

other words, Lawson/James explained how application of

certain system or estimator variables that may be present in

a case, as applied to the broad considerations articulated in

those factors, may indicate either a reliable or an unreliable

identification. For example, if an eyewitness made a prior

inconsistent identification of a suspect, factor (3), that could

indicate that the witness’s memory of the event has been

altered by memory contamination. See, e.g., Lawson/James,

352 Or at 764-65 (concluding that the victim’s “statements

over time are indicative of a memory altered by suggestion

and confirming feedback” where she was unable to identify

the defendant from a photograph following the incident but,

after she was subjected to several subsequent showings of

the defendant and leading questions regarding the defen-

dant’s involvement in the crime, the victim ultimately iden-

tified the defendant as the perpetrator).

Further, factor (5) instructed the jury that it could

consider “the strength of earlier and later identifications” in

612 State v. Allen

assessing the identification evidence. That factor was likely

communicating that, if a witness was unable to make, or

was uncertain of, an earlier identification, but then later

made or became more certain of an identification, that later

identification could be viewed with distrust if circumstances

adversely affecting the witness’s memory of the event were

present. See, e.g., Lawson/James, 352 Or at 743-44, 788

(describing variables that may affect an earlier and later

identification, including (1) viewing a suspect multiple times

throughout the course of an investigation, which may result

in the “witness’s inability to discern the source of his or her

recognition of the suspect”; (2) “[p]ost-identification con-

firming feedback,” which “tends to falsely inflate witnesses’

confidence in the accuracy of their identifications, as well

as their recollections concerning the quality of their oppor-

tunity to view a perpetrator and an event”; and (3) “[t]he

way in which witnesses are questioned or converse about

an event can alter their memory of the evident”). Although

factors (3) and (5) lacked clear explanations of how the sys-

tem and estimator variables should be applied, for exam-

ple, to assess the strength of earlier and later identifica-

tions in assessing the identification’s reliability, they were

not likely to confuse or mislead the jury. And, for the rea-

sons previously noted, they otherwise correctly stated the

law.

Lastly, instructing the jury that it could consider

the totality of the circumstances surrounding the identi-

fication, factor (7), correctly stated the law. As previously

explained, Lawson/James did not foreclose consideration of

other factors that may be relevant in assessing a witness’s

memory and perception of an event to evaluate the reliabil-

ity of an identification, and consideration of any relevant fac-

tor would clearly be appropriate. Therefore, for all of those

reasons—and the state does not present any argument

asserting otherwise—defendant’s proposed instruction cor-

rectly stated the law.

We next consider whether the generalized jury

instructions were sufficient to inform the jury of the vari-

ables it should consider in assessing the reliability of eye-

witness identification evidence. “A defendant is not entitled,

Cite as 312 Or App 584 (2021) 613

in every case, to a special instruction that is tailored to the

particular facts at issue.” Roberts, 293 Or App at 346. “In

the end, what matters is whether the requested instruction

is necessary to adequately inform the jury of the applicable

law or to avoid confusing or misleading the jury.” Id. (inter-

nal citation omitted).

The jury was instructed that “[i]n evaluating each

witness’s testimony,” they could consider “[t]he manner in

which the witness testifies,” “the nature or quality of the wit-

ness’s testimony,” “[e]vidence that contradicts the testimony

of the witness,” and “[e]vidence concerning the bias, motives,

or interest of the witness.” The court also instructed the jury

that it could “draw inferences and reach conclusions from

the evidence if your inferences and conclusions are reason-

able and are based on your common sense and experience.”

Lastly, the jury was instructed that it could consider both

direct and circumstantial evidence.

None of those instructions speak to the factors that

affect the reliability of eyewitness identification evidence.

In fact, although the inferences instruction tells the jurors

they may rely on their common sense, many of the assump-

tions related to the Lawson/James factors are contrary to

jurors’ common understandings of that type of evidence.

See, e.g., Lawson/James, 352 Or at 745, 778 (explaining that

jurors “consistently tend to overvalue” the certainty vari-

able even though it is “not a good indicator of identification

accuracy,” and “[c]ontrary to a common misconception, there

is little correlation between a witness’s ability to describe a

person and the witness’s ability to later identify that per-

son”). Therefore, the generalized jury instructions were not

a sufficient substitute for defendant’s proposed eyewitness-

identification jury instruction. See Lawson/James, 352 Or at

759 (“[G]eneralized jury instructions * * * frequently are not

adequate to inform factfinders of the factors affecting the

reliability of such identifications.”).

Because evidence supported giving defendant’s

proposed jury instruction, it was a correct statement of the

law, and the generalized jury instructions did not suffi-

ciently address the complex factors affecting the eyewitness

614 State v. Allen

identification evidence, the trial court erred in failing to

give defendant’s requested jury instruction.10

We must next determine if there was “little likeli-

hood that the particular error affected the verdict[.]” State

v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). In making that

determination, we consider “the instructions as a whole and

in the context of the evidence and record at trial, including

the parties’ theories of the case with respect to the various

charges and defenses at issue.” State v. Ashkins, 357 Or 642,

660, 357 P3d 490 (2015).

As previously noted, the state argued that (1) defen-

dant’s proposed instruction included “common-sense consid-

erations that jurors might choose to apply in the consider-

ation of a witness’s testimony,” (2) the uniform instructions

the court gave “covered the same ground,” and (3) defendant

could argue the same factors to the jury. For the reasons pre-

viously explained, we reject the state’s arguments that the

uniform instructions were a sufficient substitute for defen-

dant’s proposed jury instruction and that the jury instruc-

tion was not necessary because the factors were “common

sense” considerations. We also reject the state’s assertion

that defendant’s closing argument was a sufficient substi-

tute for defendant’s proposed jury instructions. See State v.

Payne, 366 Or 588, 611, 468 P3d 445 (2020) (“ ‘[N]either the

sufficiency of the evidence nor the completeness of counsel’s

arguments concerning that evidence is a substitute for the

sufficiency of the instructions.’ ” (Quoting State v. Brown, 310

Or 347, 356, 800 P2d 259 (1990).)). Nonetheless, we conclude

that the error was harmless.

Here, defendant’s requested instruction included

several factors that are relevant to assessing the reliabil-

ity of eyewitness-identification evidence. However, given

the evidence adduced at trial, even viewed in the light most

favorable to defendant, there is little likelihood that the

jury would have found the identifications to be unreliable.

10

Cf. State v. Martin, 290 Or App 851, 857, 417 P3d 505 (2018) (conclud-

ing that the trial court did not err in refusing to give the defendant’s proposed

eyewitness-identification instruction because it was written in a nonneutral way

that “drew the jury’s attention to certain factors bearing on the lack of reliability

of eyewitness testimony”).

Cite as 312 Or App 584 (2021) 615

Therefore, we conclude that the failure to give defendant’s

jury instruction had little likelihood of affecting the verdict.

Defendant argued in closing that the witnesses did

not have a sufficient opportunity to observe the assailant

because the confrontations happened quickly, the street was

poorly lit and it was dark out, there was too much distance

between the assailant and Phillip and Xavier, her hood was

up during the second confrontation with Barney, and Barney

and the assailant were not face-to-face because Barney was

taller. However, contrary to defendant’s arguments, the evi-

dence showed that, although the street was poorly lit and it

was dark out, Phillip’s porch light was bright and on, and

Phillip was only three to four feet away from the woman and

observed her for up to two minutes during the confrontation.

Further, the evidence showed that Barney was face-to-face

with the assailant twice: during their first argument, which

lasted two to four minutes, he was close enough to push her

to the ground twice; and during their second argument, they

were close enough for her to stab him and for him to recog-

nize the white design on her sweatshirt. Moreover, Phillip’s

and Xavier’s identifications occurred shortly after the event

when their memories were still fresh, and they all had some

familiarity with defendant’s face because she had been liv-

ing on Phillip’s block. Thus, even acknowledging defendant’s

arguments that Barney was intoxicated and emotional and

the scene was chaotic, there is little likelihood that the jurors

would have found the witnesses’ identifications of defendant

to be unreliable given the totality of the evidence.11

Viewed in the light most favorable to defendant,

the record is susceptible to an inference that the witnesses

may have obtained defendant’s name as a result of a con-

versation with other co-witnesses. Nonetheless, the totality

of the evidence suggests that the identifications were based

on the witnesses memory and perception and not due to any

11

We also note that, after Barney’s memory was refreshed, he testified, “I’m

pretty, I’m positive” that the woman said “something about putting your hands

on a woman,” which he understood to be a reference to him pushing her earlier.

Although that testimony expresses some degree of doubt and is not necessary

to our conclusion given the totality of the other evidence, if that testimony were

credited, it would serve to corroborate and substantially increase the reliability

of Barney’s identification.

616 State v. Allen

suggestibility. Phillip testified that he knew the assailant’s

face because she had been staying next door and he had seen

her walking down the street a few times, which was corrobo-

rated when Kaber learned that defendant lived on the same

block. Barney likewise recognized her face because he had

seen her in photographs with his brothers. Although they did

not know defendant’s name, they had seen her face before,

which would have increased their ability to identify her fea-

tures based on their own memory rather than any perceived

suggestibility. Therefore, considering the witnesses’ famil-

iarity with defendant, in combination with the evidence

presented that the witnesses had a sufficient opportunity to

observe and did observe the woman, we conclude that there

was little likelihood that the jury would have found the iden-

tifications to be unreliable had the jury been instructed as

defendant requested.

In sum, given the totality of the evidence regarding

the reliability of the identifications, viewing that evidence

in the light most favorable to defendant, we conclude that

the failure to give defendant’s requested instruction had lit-

tle likelihood of affecting the verdict. We pause to empha-

size that trial courts in general should readily give properly

tailored, case-specific jury instructions when challenges

to eyewitness identifications are raised. As Lawson/James

explained, jurors are not aware of many of the factors that

affect the reliability of eyewitness testimony; some of those

factors are in fact contrary to common assumptions, and

generalized jury instructions, cross-examinations, and clos-

ing arguments are often not sufficient to inform jurors of the

complex issues related to the reliability of eyewitness identi-

fication evidence. 352 Or at 759-61. Further, because studies

show that, “[n]ationally, 69% of DNA exonerations—252 out

of 367 cases—have involved eyewitness misidentification,

making it the leading contributing cause of these wrong-

ful convictions,” educating juries on the various factors that

affect the reliability of eyewitness identification evidence

has never been more important. Innocence Project Staff,

How Eyewitness Misidentification Can Send Innocent People

to Prison (Apr 15, 2020), https://innocenceproject.org/how-

eyewitness-misidentification-can-send-innocent-people-

to-prison/#:~:text=Nationally%2C%2069%25%20of%20DNA

Cite as 312 Or App 584 (2021) 617

%20exonerations,based%20exonerations%20involving%20

eyewitness%20misidentification (accessed June 23, 2021).

However, for all of the reasons discussed, we conclude that

the trial court’s error here had little likelihood of affecting

the verdict.

We turn to defendant’s supplemental assignments

of error asserting that the trial court plainly erred in

instructing the jury that it could convict defendant by a

10-2 verdict and when it entered convictions based on that

instruction. As the state correctly concedes, under Ramos v.

Louisiana, 590 US ___, 140 S Ct 1390, 1401-08, 206 L Ed 2nd

583 (2020), and State v. Ulery, 366 Or 500, 503-05, 464 P3d

1123 (2020), defendant is entitled to a reversal of her con-

victions on Counts 4 and 6, which were based on nonunan-

imous verdicts, and we exercise our discretion to correct

the error. However, defendant is not entitled to reversal of

the remaining convictions based on unanimous verdicts,

because the instructional error is not structural and was

otherwise harmless beyond a reasonable doubt. See State v.

Kincheloe, 367 Or 335, 339, 478 P3d 507 (2020), cert den, ___

US ___, ___ S Ct ___, ___ L Ed 2d ___, No. 20-8126, WL

2519403 (June 21, 2021); State v. Flores Ramos, 367 Or 292,

319, 478 P3d 515 (2020). Because defendant is entitled to a

new trial on the counts involving victim Pelletier, Counts 4

and 6, we need not address defendant’s assignment of error

challenging those convictions based on the admission of

Pelletier’s statements as excited utterances due to Pelletier’s

unavailability, as that issue may not arise on remand or, if it

does, a different record may develop.

Convictions on Counts 4 and 6 reversed and

remanded; remanded for resentencing; otherwise affirmed.