State v. Vincent

714 September 5, 2024 No. 629

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SHAWN VINCENT,

aka Dutch McKenzie,

Defendant-Appellant.

Multnomah County Circuit Court

20CR58755; A177705

Heidi H. Moawad, Judge.

Argued and submitted September 18, 2023.

Zachary Lovett Mazer, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services.

Erica L. Herb, 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, Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

Cite as 334 Or App 714 (2024) 715

ORTEGA, P. J.

After the victim refused to let defendant’s girlfriend

merge into his lane on Interstate 5, defendant stood up

through the sunroof of the car she was driving and fired sev-

eral gunshots at the victim. For that conduct, a jury found

defendant guilty of attempted second-degree murder with

a firearm (Count 1), ORS 163.115; attempted first-degree

assault with a firearm (Count 2), ORS 163.185; and unlaw-

ful use of a weapon with a firearm (Count 3), ORS 166.220.1

On appeal, defendant raises four assignments of

error. In his first, he contends that the trial court erred when

it declined to instruct the jury that his girlfriend, Bratcher,

was an accomplice witness as a matter of law such that her

testimony must be corroborated and viewed with distrust.

In his second through fourth assignments, he contends that

the trial court erred in denying his motion for judgment of

acquittal on all three counts because, in his view, there was

insufficient evidence to corroborate Bratcher’s testimony

identifying him as the shooter. We conclude that the evi-

dence did not establish as a matter of law that Bratcher was

an accomplice and that the trial court therefore correctly

submitted the issue to the jury. We further conclude that

the state was not required to corroborate Bratcher’s testi-

mony and that it presented sufficient evidence to support

the guilty verdicts on all counts. We therefore affirm.

FACTS

The victim, Evans, testified that he was driving to

work early one afternoon through Portland and noticed a

silver Cadillac driving aggressively. A woman was driving

the Cadillac, and a man was in the front passenger seat. As

Evans crossed the Marquam Bridge, the Cadillac came up

behind him, “pretty fast on [his] bumper.” Evans pumped his

brakes and signaled to the Cadillac to back off. The Cadillac

tried to pass Evans on the right to merge in front of him,

but Evans did not allow it to merge and instead “flipped

[them] off.” The Cadillac then cut over behind Evans, sped

up, passed him on the left, and got about 300 to 400 feet

1

The trial court merged the verdicts on Counts 2 and 3 with the verdict on

Count 1.

716 State v. Vincent

in front of him as they drove uphill. The male passenger

stood up through the sunroof with a gun and shot several

bullets at Evans. Multiple shots hit Evans’s car, and two

of the bullets entered through the front windshield, nar-

rowly missing Evans but shattering both driver-side win-

dows. The Cadillac sped away, and Evans exited the freeway

and called police. He believed that the Cadillac had sped

up ahead of him to get into a better position to shoot down

at him. Evans acknowledged that he “d[id]n’t know what’s

going on in their head,” but believed that “they had known

that they had been in the wrong, clearly, and were trying to

get away from witnesses and/or police.”

An eyewitness testified that he was driving on I-5

just behind the Cadillac when the shooting occurred. He

described the shooter as a slim Caucasian man with very

short hair or a shaved head. The eyewitness took a photo-

graph of the Cadillac as it sped away, which he gave to police

along with pinpointing on a map where the shooting had

occurred. An officer later recovered four shell casings and

two deformed bullets from the freeway shoulder near the

Ross Island Bridge.

Portland Police Detective Brent Christiansen led

the investigation into the shooting. He testified that he

ran the license plate shown in the eyewitness’s photograph

through the Department of Motor Vehicles (DMV) database

and learned that Bratcher was the Cadillac’s registered

owner. Christiansen also learned that defendant was one of

Bratcher’s “associates,” and defendant’s DMV photo matched

the general description of the shooter. When Christiansen

spoke with Bratcher about a month after the shooting, she

told him that she had been driving the Cadillac and had

fled the scene after the shooting. Christiansen ruled out

Bratcher as an accomplice because she was cooperative and

her statements correlated with details that Evans had pro-

vided. Christiansen did not threaten to charge Bratcher

as an accomplice if she did not identify defendant as the

shooter or coerce her into making statements inculpating

defendant.

The state presented recordings of phone calls

between defendant and Bratcher leading up to her grand

Cite as 334 Or App 714 (2024) 717

jury and trial testimony. In those calls, defendant told

Bratcher, “don’t be around when they try and serve a sub-

poena”; told her that “if the main witness doesn’t come” he

would “get out” and that she would “put the nail in the cof-

fin” if she showed up at trial; and threatened, “If you fuck

me over, I’m not fucking with them kids no more either.”

Bratcher did not want to testify at trial, would

not have testified if the state had not subpoenaed her,

and responded with reluctance and, at times, hostility to

the prosecutor’s questions. She also struggled emotionally

during her testimony; at one point she broke down and

left the courtroom; and when she identified defendant as

the shooter, she cried, apologized, and told defendant she

loved him. Bratcher testified that at the time of the incident

defendant was her boyfriend and they lived together with

her two children, whom defendant helped raise. Bratcher

acknowledged that she knew that defendant frequently car-

ried a gun. She testified that defendant was in the front

passenger seat of her Cadillac and her two young children

were in the backseat when Evans cut her off on the highway,

flipped them off, and swore at her out his window. According

to Bratcher, she moved to the slow lane to let Evans pass

them, but defendant was “pissed off” and told Bratcher to

speed up. She testified that defendant then stood up through

the sunroof and shot at Evans. According to her testimony,

when she later spoke to Christiansen about the incident, he

did not threaten to charge her as an accomplice if she did

not identify defendant. She acknowledged that she had not

been charged with any crime related to the incident.

After the state rested, defendant moved for a

judgment of acquittal on all three counts. He argued that

Bratcher was an accomplice as a matter of law and that the

state had failed to adduce sufficient evidence to corroborate

her testimony. The trial court denied the motion. Defendant

then recalled Bratcher to the witness stand, and she tes-

tified that someone from the district attorney’s office had

threatened her with seven-and-a-half years in prison for her

involvement in the shooting.

After defendant rested, the trial court ruled that

it would give the accomplice witness jury instructions that

718 State v. Vincent

defendant had previously requested. See Uniform Criminal

Jury Instruction (UCrJI) 1054 (defining “accomplice”);

UCrJI 1055 (instructing that the defendant has the burden

to prove by a preponderance that a witness is an accomplice);

UCrJI 1056 (instructing that accomplice witness testimony

must be corroborated); UCrJI 1057 (instructing that accom-

plice witness testimony should be viewed with distrust).

The court explained that there was “sufficient evidence on

the record to put [the question of whether Bratcher was an

accomplice] to the trier of fact,” including Evans’s opinion

that the Cadillac sped up to get a better shot and Bratcher’s

testimony that she knew defendant carried a gun and that

she sped away after the shooting. Defendant then moved the

court to find that Bratcher was an accomplice as a matter of

law and to instruct the jury accordingly. See UCrJI 1058(2)

(“You are instructed as a matter of law that ___ is an accom-

plice in the commission of the crime of [crime with which

defendant is charged].”). The court declined to do so, agree-

ing with the state that the issue was in dispute and explain-

ing that Bratcher’s testimony that she was threatened with

potential prosecution did not make her an accomplice as a

matter of law.

The trial court delivered the accomplice jury

instructions that placed the burden on defendant to prove

that Bratcher was an accomplice. The jury convicted defen-

dant on all three counts, and this appeal followed.

ANALYSIS

The testimony of an accomplice has long been viewed

with suspicion in Oregon. See Frank E. Nash, Criminal

Law—Evidence—Accomplice’s Testimony, 17 Or L Rev 118

(1938) (discussing the origins of the common-law rule

regarding accomplice witness testimony and noting that the

Oregon legislature first enacted a statute adopting that rule

of evidence in 1864). That suspicion arises from a general

concern about the veracity of a witness who has admitted to

committing a crime and a specific concern that an accom-

plice might be induced by promises of leniency or immunity

to testify falsely against the defendant. State v. Oatney, 335

Or 276, 283, 66 P3d 475 (2003). Accordingly, ORS 136.440

provides that a defendant cannot be convicted solely by the

Cite as 334 Or App 714 (2024) 719

testimony of an accomplice witness and defines an accom-

plice as “a witness in a criminal action who, according to

the evidence adduced in the action, is criminally liable for

the conduct of the defendant under ORS 161.155 [criminal

liability for conduct of another] and 161.165 [exceptions].”

“[A] person is an ‘accomplice’ for purposes of the cor-

roboration requirement if ‘the evidence is legally sufficient to

justify an indictment of or information against a witness as

an accomplice to the offense charged against the defendant,

not necessarily to convict the witness of it.’ ” Oatney, 335 Or

at 284 (quoting State v. Hull, 286 Or 511, 516, 595 P2d 1240

(1979)). The standard “is not whether there is sufficient evi-

dence to convict the witness of being an accomplice of the

defendant, but whether there is probable cause to charge the

witness with the offense for which the defendant is on trial.”

Id. (emphasis in Oatney; internal quotation marks, citation,

and brackets omitted); see also State v. Miranda, 290 Or App

741, 745, 417 P3d 480 (2018) (explaining that there is suf-

ficient evidence to support a finding of probable cause to

charge the witness with the offense for which the defendant

is on trial if “there is a substantial objective basis for believ-

ing that, more likely than not,” that offense was committed

and the witness aided or abetted in its commission).

Here, the parties agree that Bratcher was an accom-

plice witness only if she intended to promote or facilitate

commission of the shooting. See ORS 161.155. Their dispute

concerns whether the trial court was required to find that

Bratcher was an accomplice as a matter of law, as defendant

contends, or whether, as the state argues, the trial court

correctly put the issue to the jury.

Where there is a factual dispute as to whether a wit-

ness was an accomplice, the jury decides the issue. Oatney,

335 Or at 284-85. A factual dispute exists if the facts them-

selves are in dispute or if the undisputed facts do not conclu-

sively establish the issue. State v. Carr, 28 Or 389, 395-96, 42

P 215 (1895) (“[W]here there is any conflict in the testimony

as to whether a witness is or is not an accomplice, the issue

must be submitted to the jury, under proper instructions of

the court; but where the facts are all admitted, and no issue

thereon is raised by the evidence, it then becomes a question

720 State v. Vincent

of law for the court as to the effect of the uncontradicted

testimony.” (Emphasis added.)). When the issue is put to the

jury, “it places the trial jury in the position of a grand jury

which is asked to decide whether there is probable cause to

charge the witness with the offense for which [the] defen-

dant is on trial, whether or not the evidence convinces them

that the witness is guilty.” Hull, 286 Or at 516.

By contrast, “if no facts bearing on the elements

needed to charge the witness are in dispute, the issue of

the potential criminal liability of the witness under ORS

161.155 is a question of law to be decided by the court.” Id.

at 517. That is because the submission of the question to

the jury under such circumstances is “equivalent to allow-

ing them to decide, in effect, whether the statute [requiring

corroboration] should be enforced or suspended.” Carr, 28 Or

at 398.

The trial court should determine that a witness is an

accomplice as a matter of law and instruct the jury accord-

ingly when the witness testimony amounts to an outright

admission to the crime for which the defendant is charged.

E.g., Oatney, 335 Or at 288-89 (witness was an accomplice as

a matter of law where the witness testified that he and the

defendant had committed the charged crimes together, even

though the defendant’s theory was that the witness acted

alone); State v. Gowin, 241 Or 544, 547, 407 P2d 631 (1965)

(“When a witness for the state testifies he knowingly and

voluntarily assists a person in the commission of a crime, it

then becomes the duty of the trial court to instruct the jury

that such witness is an accomplice and his evidence must be

corroborated as required by” statute.).

A trial court should also determine that a witness

is an accomplice as a matter of law when the state charges

the witness with the same crime for which the defendant is

charged and the witness’s testimony inculpates the defen-

dant. E.g., State v. Simson, 308 Or 102, 109-10, 775 P2d 837

(1989) (it was error to instruct the jury that three witnesses

were accomplices as a matter of law where the witnesses

had been charged and convicted of the same offense as the

defendant but their testimony did not inculpate the defen-

dant, because the instruction cast doubt on their favorable

Cite as 334 Or App 714 (2024) 721

testimony and “effectively instructed the jury that the crime

was in fact committed”); State v. Parkerson, 310 Or App 271,

278, 484 P3d 356 (2021), rev den, 369 Or 505 (2022) (a wit-

ness was an accomplice as a matter of law where the witness

was charged with the same crimes as the defendant, even

though the charges were dropped by mutual agreement

with the state, because “a grand jury * * * found probable

cause to indict” the witness); State v. Torres, 207 Or App

355, 363, 142 P3d 99 (2006) (a witness was an accomplice as

a matter of law where the witness was indicted for the same

crimes as the defendant, even though the witness had been

acquitted).

Finally, the court should determine that a witness

is an accomplice as a matter of law when the undisputed

facts compel the conclusion that the witness is an accom-

plice. E.g., Carr, 28 Or at 396 (a witness was an accomplice

as a matter of law where “there was no conflict in the evi-

dence or issue raised thereby as to the capacity or knowledge

of [the witness], or the part she took in the commission of the

crime” such that “the question presented was purely one of

law, and not of fact” given “there can be no escape from the

conclusion that on this record she was an accomplice of the

defendant”); State v. Fitzgerald, 14 Or App 361, 367-68, 513

P2d 817 (1973) (a witness was an accomplice as a matter of

law where his testimony that he passed a hacksaw blade

back and forth between the defendant and another inmate

“amounted to aiding and abetting the attempted escape”;

although there was no direct evidence of the witness’s men-

tal state, “the only inference that can be drawn from his

acts * * * is that he did intend to promote or facilitate the

planned crimes”).

None of those circumstances is present here. First,

Bratcher’s testimony did not implicate her in the shooting as

a matter of law because she did not outright admit that she

intended to help defendant commit the shooting. Second,

the state did not charge Bratcher with any crime, let alone

any of the crimes for which defendant was charged. Even if

someone at the district attorney’s office threatened to charge

Bratcher as an accomplice, as Bratcher testified and which

the jury was free to disbelieve, that would not establish as a

722 State v. Vincent

matter of law that a grand jury would have found probable

cause to do so.

Third and finally, we agree with the state and the

trial court that the evidence did not compel a conclusion

that Bratcher was an accomplice. To be sure, a jury reason-

ably could have concluded that there was probable cause to

charge Bratcher as an accomplice to the shooting; the jury

could have found that there was a substantial objective basis

to believe that Bratcher more likely than not intended to

help defendant commit the shooting based on the evidence

that she knew defendant frequently carried a gun, that she

drove in a manner that facilitated the shooting, and that

she fled the scene afterwards. But the jury could also have

found that there was not probable cause to charge her as

an accomplice to the shooting based on that same evidence,

because it also supports contrary factual findings, viz., that

she did not know defendant was carrying a gun at the time,

that she sped up because he told her to, and that she sped

away because she was scared. Cf. State v. Broadsword, 32

Or App 331, 337, 574 P2d 670, rev den, 282 Or 537, cert den,

439 US 870 (1978) (a witness was not an accomplice as a

matter of law when there was evidence from which the jury

could have inferred that the witness agreed to facilitate the

charged robbery, but those “were not the only inferences

which could have been drawn from the evidence”).

In urging a different result, defendant contends

that the instruction he requested is a statutory instruction

that must be given “on all proper occasions” under ORS

10.095 and that, under State v. Payne, 366 Or 588, 468 P3d

445 (2020), we must view the evidence and draw all rea-

sonable inferences in his favor as the party requesting the

instruction. In defendant’s view, “[t]he evidence in this case

was sufficient to establish that Bratcher could have been

charged as an accomplice, and that is all the record needs to

show to declare a witness an accomplice as a matter of law.”

We disagree with the underlying premise of defendant’s

argument.

As noted above, it is well established under Oregon

law that the trial court should determine that a witness is

an accomplice as a matter of law—and thereby take the issue

Cite as 334 Or App 714 (2024) 723

away from the jury—only when “no facts bearing on the ele-

ments needed to charge the witness are in dispute.” Hull,

286 Or at 517. That is consistent with ORS 10.095(4), which

provides that the jury is “to be instructed by the court on all

proper occasions * * * [t]hat the testimony of an accomplice

ought to be viewed with distrust.” ORS 10.095(4) does not

provide that a court should instruct the jury that a specific

witness is an accomplice as a matter of law or that the jury

ought to view a specific witness’s testimony with distrust. To

the extent ORS 136.440 and ORS 10.095(4) together require

the court to do so, a “proper occasion” to do so is when there

is no factual dispute bearing on the elements needed to

charge the witness as an accomplice, not when the evidence

raises a factual issue for the jury.

Payne is consistent with our understanding of the

appropriate role of the trial court and the jury in determin-

ing whether a witness is an accomplice. In Payne, the defen-

dant requested the uniform witness-false-in-part instruc-

tion based on ORS 10.095(3), which provides that the jury

is “to be instructed by the court on all proper occasions * * *

[t]hat a witness false in one part of the testimony of the

witness may be distrusted in others.” 366 Or at 592-93.

Crucially, the uniform instruction the defendant requested

in Payne did not instruct the jury that a specific witness

had intentionally lied in part of their testimony or that it

was required to distrust other portions of a specific witness’s

testimony. Id. (“In support of his request, defense counsel

argued that the uniform instruction did not direct the jury

to conclude that any witness had lied and instead offered

guidance.”) Rather, the requested uniform instruction

stated that “if you [the jury] find that a witness has inten-

tionally lied in part of [their] testimony, you may, but are

not required to, distrust other portions of that witness’s tes-

timony.” Id. The court held that “a ‘proper occasion’ to give

that statutory witness-false-in-part instruction exists when,

considering the testimony and other evidence viewed in the

light most favorable to the party requesting the instruc-

tion, the trial court concludes that sufficient evidence exists

for the jury to decide that at least one witness consciously

testified falsely and that the false testimony concerns a

material issue.” Id. at 607 (quoting ORS 10.095; emphasis

724 State v. Vincent

added). In further concluding that the failure to give the

instruction warranted reversal, the court emphasized that

the witness-false-in-part instruction “serves an important

advisory function because it informs a jury of its duty to

scrutinize a witness’s testimony * * * and permits the jury

to draw an inference that a willfully false witness who has

violated [their] oath in one particular may well have done so

in others.” Id. at 610 (emphasis added).

As we have acknowledged and the trial court ruled,

there was sufficient evidence here to instruct the jury that

an accomplice witness’s testimony must be corroborated and

should be viewed with distrust while leaving it to the jury to

decide whether Bratcher was an accomplice. ORS 10.095(4)

and Payne do not advance defendant’s position.

We therefore conclude that the trial court did not err

in failing to instruct the jury that Bratcher was an accom-

plice witness as a matter of law. We further conclude that

the state was not required to corroborate Bratcher’s testi-

mony under ORS 163.440 and that it presented sufficient

evidence to support the guilty verdicts on all counts.

Affirmed.