State v. Escobar

                                       69

         Argued and submitted March 1, affirmed September 28, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                 JESSE ALEXANDER ESCOBAR,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       19CR28794; A173828
                                   

    Defendant appeals his conviction of crimes including first-degree robbery
and second-degree assault. First, defendant challenges the denial of his motion
to exclude eyewitness identification testimony. Second, defendant contends the
jury instructions on second-degree assault misstated the law because they did
not include a requirement that the state prove a mental state for the “causes serious physical injury” element. Held: The trial court erred in determining, under
the framework set out in State v. Lawson/James, 

, 

 (2012),
that the state met its burden under OEC 602 of establishing that two victims
had personal knowledge that provided a rational basis for their identification
of defendant. However, the erroneous admission of that identification evidence
was harmless because it was cumulative of other admitted evidence identifying
defendant as the assailant and linking him to the crimes and their location. In
light of State v. Owen, 

, 

 (2022), the jury instructions on
the elements of second-degree assault were erroneous. However, that error was
harmless because, based on other instructions provided, the jury would not have
found that defendant was unaware that his actions—which involved using a car
jack to attack the victims—would cause serious physical injuries.
    Affirmed.



    Douglas V. Van Dyk, Judge.
   Larry R. Roloff, argued the cause for appellant. On the
briefs were Marc Brown, Senior Deputy Defender and Ernest
G. Lannet, Chief Defender, Criminal Appellate Section,
Office of Public Defense Services.
   Jon Zunkel-deCoursey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
70               State v. Escobar

     PAGÁN, J.
     Affirmed.
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        PAGÁN, J.
         Defendant appeals his judgment of conviction of
crimes including first-degree robbery, second-degree assault,
felon in possession of a firearm, and unlawful entry into a
motor vehicle. Defendant assigns error to the trial court’s
denial of his motion to exclude eyewitness identification
testimony and he asks that we exercise our discretion to
correct plain error regarding the jury instructions for the
assault charge. For the reasons explained, we conclude that
the trial court erred in both respects, but the errors were
ultimately harmless and we therefore affirm.
         We proceed in two parts. First, we analyze whether,
under the contours of State v. Lawson/James, 

,

 (2012), there was sufficient basis for the trial
court to determine that the victims had personal knowledge that provided a rational basis for their identification
of defendant, despite the suggestive “showup” identification.
Second, we analyze whether the jury instructions which
did not include a requirement that the state prove a mental state for the “causes serious physical injury” element of
second-degree assault misstated the law.
          I.   EYEWITNESS IDENTIFICATION
         In defendant’s first assignment, he argues that the
state did not meet the threshold foundational requirements
under OEC 602 and OEC 701, as applied in Lawson/James,
to admit evidence of the victim’s identification of defendant,
and that even if such requirements were met, the court
abused its discretion by not excluding the identifications
as unfairly prejudicial under OEC 403. According to defendant, because the victims who identified him in the back of
a police car after his arrest did not testify at the pretrial
hearing, the state did not establish that the victims had the
personal knowledge necessary to make an identification.
        The state argues that defendant did not preserve
his argument that because the victims failed to testify at
the pretrial hearing the state failed to lay sufficient foundation. Instead, defendant’s argument in the trial court
focused on the suggestive nature of the showup identification and defendant asserted that the police should have
72                                           State v. Escobar

used a photographic identification instead. Moreover, the
state contends that regardless of preservation, the trial
court properly admitted the victim’s identifications of defendant because there was sufficient foundation for personal
knowledge under OEC 602, sufficient foundation for lay
opinion under OEC 701, and no abuse of discretion in OEC
403 balancing.

          We review a trial court’s admission of eyewitness
identification evidence for legal error and defer to the trial
court’s findings of fact as long as they are supported by any
evidence. State v. Harrell, 

, 

(2018). If the challenge to the admission of evidence is based
on unfair prejudice weighed against probative value under
OEC 403, we review for abuse of discretion. Lawson/James,

. In this appeal, as the decision to admit the
evidence was based on a pretrial motion, we review the
record, and state the facts, as of the time of that ruling, not
as the record later developed at trial. State v. Allen, 

, 

 (2021).

A.   Facts Introduced at Pretrial Hearing

          Milwaukie Police Officer Odem was called to reports
of a fight in a convenience store during an afternoon in April
2019. Officer Windholz also responded to the call. When the
officers entered the store, they found “two males inside.
[B] was bleeding from the head. … [M] appeared to be helping the person that was bleeding.” Odem did not communicate with the two men because they were speaking Spanish
but learned that the two men had not been fighting with each
other. Odem went back outside the store where he encountered Walsh, who had witnessed the fight. Walsh explained
that she saw several males fighting with each other, but that
she did not really know what happened. Walsh explained
that she “knew that there was a guy that ran out of the store
that had just assaulted one of the other gentlemen inside
the store.” She described the assailant who ran as a male,
“possibl[y] Hispanic,” and wearing a white shirt. Windholz
learned from the store owner that “a white male with brown
hair wearing a white shirt came into the store and hit …
the victim … on the head with something.”
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         Odem testified at the pretrial hearing that he
“believe[d]” that Windholz had received descriptions from
B and M that the person who assaulted them was a “white
male with brown hair, wearing a white shirt.” Odem believed
that he and Windholz had arrived on scene within a few
minutes of the assault occurring.

         While Odem was speaking with Walsh, he received
an alert that a robbery and assault had just taken place at
a nearby theater. Thinking that the robbery at the theater
might be connected to the assault at the convenience store,
Odem responded to the new call by driving to the theater in
his police car. When he arrived, a woman was outside, still
on the phone with 9-1-1, and she directed Odem to a gas
station where the subject of the robbery call had gone. At
the gas station, Odem found several employees who pointed
toward the south and one of the employees told Odem that
“[h]e’s wearing a blue tank top.” From Odem’s vantage
point, he saw a man in a blue tank top, carrying an item
of white clothing in his hand, walking across a bank parking lot. After briefly losing sight of the man, Odem saw the
man emerge from inside the bank, wearing a blue tank top
and still carrying the white clothing. Odem estimated that
approximately five minutes had passed from the time he initially arrived to the time he spoke with defendant in the
bank’s parking lot and took him into custody.

         In the meantime, B and M drove themselves to a
hospital about two miles away. Within the next 30 to 40 minutes, Odem drove defendant to the hospital where B and M
were being treated. Both of the victims came outside from
their hospital room to view defendant, who was in the back
of Odem’s patrol car. B identified defendant as the person
who had assaulted him and M identified defendant as the
person who had menaced him and assaulted B. Both B and M
said they were “a hundred percent” sure that defendant was
the person who had assaulted them in the convenience store.

         On cross-examination, Odem said that he was
familiar with making a photo lineup, consisting of a suspect
and five other people, but that he did not do that kind of
identification in this case. Instead, Odem had both B and M
74                                                State v. Escobar

identify defendant at the same time, standing right next to
each other, while defendant was handcuffed in the back of
Odem’s patrol car.
B.    Preservation
         After presentation of Odem’s testimony, defendant
argued that B and M should be precluded from identifying defendant at trial because the identification procedure
in this case was “highly suggestive” and undermined the
credibility of the identification. Defendant contended that
the showup identification was “so suggestive to undermine
credibility, both on [OEC] 602 and 701, but even … if not
there, when we get to 403, when we look at probative value.”
         The trial court stated that it was “looking for other
evidence of the probability that this identification is rationally based on the testimony of the witness and helpful to
the trier of fact and based on the alleged victim’s personal
knowledge.” After some explanation by the court about why
it was denying defendant’s motion to exclude, the state clarified that “Lawson/James is the case or the cases that now
dictate this area. And the argument I would have made is
very similar to the findings the Court’s already made here.”
The state continued:
        “And so the [Oregon Supreme Court] wanted the trial
     court to go through the analysis of is this relevant evidence
     under 401. It certainly seems that [the] court would—is
     finding that it is.
         “And, therefore, admissible under 402, that the individuals had personal knowledge as required by Rule 602, and
     then by a preponderance, there needs to be a demonstration that that personal knowledge is that the inference of
     their identification was based on their perceptions.
        “And I believe that’s what the court’s finding here.”
         As we understand this colloquy, defendant raised
the broader issue of the admissibility of eyewitness identifications when suggestive procedures are implicated, and
raised the legal rules of OEC 602, 701, and 403—the exact
formulation and sequence of analysis prescribed by Lawson/
James. The state and the court responded with argument
and findings that invoked the Lawson/James framework.
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          As we read Lawson/James, there is no requirement
that the eyewitnesses themselves testify in a proceeding
to establish admissibility. Rather, the state must provide
“proof under OEC 602 that the proffered eyewitness has
personal knowledge of the matters to which the witness will
testify, and proof under OEC 701 that any identification is
both rationally based on the witness’s first-hand perceptions
and helpful to the trier of fact.” Lawson/James, 

. And we understand defendant’s argument on appeal
to be focused first on the OEC 602 prong, explaining that
because the witnesses did not testify at the pretrial hearing,
the state failed to clear the OEC 602 threshold. We conclude
that defendant properly preserved his argument for appeal,
first by raising the issue and second by identifying the source
of his position. See State v. McKinney, 

, 

 (2022) (citing State v. Hitz, 

, 

 (1988) for tripartite framework for preservation).
C. Lawson/James Framework
          We begin with a brief overview of Lawson/James, in
which the Supreme Court established the analytical framework for determining the admissibility of eyewitness identification evidence. The framework involves the interplay
between several provisions of the Oregon Evidence Code:
   “[W]hen a criminal defendant files a pretrial motion to
   exclude eyewitness identification evidence, the state as the
   proponent of the eyewitness identification must establish
   all preliminary facts necessary to establish admissibility of
   the eyewitness evidence. See OEC 104; OEC 307. When an
   issue raised in a pretrial challenge to eyewitness identification evidence specifically implicates OEC 602 or OEC 701,
   those preliminary facts must include, at minimum, proof
   under OEC 602 that the proffered eyewitness has personal
   knowledge of the matters to which the witness will testify,
   and proof under OEC 701 that any identification is both
   rationally based on the witness’s first-hand perceptions
   and helpful to the trier of fact.”

Lawson/James, 

. If the state satisfies its
burden that the evidence is admissible, the defendant may
establish that the otherwise admissible evidence should be
limited or excluded under OEC 403. 

.
76                                               State v. Escobar

          Lawson/James acknowledges two categories of variables that affect the reliability, and therefore the probative
value, of eyewitness identification evidence: estimator variables and system variables. Estimator variables “generally
refer to characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be manipulated or adjusted by state actors.” 

.
These factors include things such as level of stress in the
eyewitness, the witness’s attention during the opportunity
to observe, environmental conditions, the physical and mental condition of the eyewitness, characteristics of the perpetrator, speed of identification, and passage of time between
perception and identification. 

. To be sure, some
of those estimator variables bear on a witness’s opportunity
to perceive events and ability to recall those events—the
OEC 602 inquiry—but most of the estimator variables bear
on the reliability of the identification. As noted, reliability is
itself related to the probative value of evidence, which is balanced against the prejudicial effect in the OEC 403 inquiry,
which is the final step of the Lawson/James sequence.
        “System variables refer to the circumstances surrounding the identification procedure itself that are generally within the control of those administering the procedure” and include factors such as whether the identification
was administered “blind”, preidentification instructions,
lineup construction, simultaneous versus sequential lineups, showup identifications, multiple viewings, suggestive
questioning or other sources of post-perception memory contamination, and suggestive feedback. 

. System
variables bear almost exclusively on the reliability analysis,
and thus are properly considered in the final step of Lawson/
James. Accord State v. Hickman, 

, 

 (2014), adh’d to as modified on recons, 

, 

, cert den, 

 (2015).
        The first step of the Lawson/James inquiry requires,
as does almost every other piece of testimonial evidence
about a fact, that the witness have personal knowledge of
the matter. OEC 602 provides, in part:
        “[A] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the
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   witness has personal knowledge of the matter. Evidence to
   prove personal knowledge may, but need not, consist of the
   testimony of the witness.”
          That rule generally captures the idea that in order
to testify about a fact, a witness must have both been able to
perceive the fact and did actually perceive the fact. Hickman,

 (citing Legislative Commentary to OEC 602).
“[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.” 

.
         Our recent case of State v. Allen, 

,

 (2021), is instructive as to the quality and
quantity of information sufficient to provide the required
foundation under OEC 602. In Allen, the defendant challenged the trial court’s admission of eyewitness identification, in part arguing that the state had not met its OEC
602 burden. We concluded that the evidence adduced at the
pretrial hearing was sufficient to “permit a reasonable juror
to find that [witnesses] made the observations necessary to
identify defendant from the photos.” 

. We specifically highlighted evidence that showed that the witnesses
were arguing with and standing in close proximity to the
suspect—that is, we concluded evidence that the victims
standing “on the porch next to [others] and ‘close’ to the
confrontation, and that the [female suspect] was standing
‘right there’ at the steps of the front porch” was sufficient
to infer that the witnesses were close enough to view the
suspect’s facial and physical features. 

 Another witness
testified that the challenged eyewitnesses were “very cool,
very even”, despite the “chaotic” scene, and we cited that
demeanor as supporting the required inference of perception. 

. Although it was dark outside during the
argument, another witness explained that the porch was
illuminated by a porch light, which supported an inference
that the light was on and that there was adequate illumination to perceive the suspect. 

 In sum, the facts of duration of the encounter (long enough to have an argument),
close proximity between the witnesses and the suspect
(standing next to one another), adequate illumination, and
calm demeanor allowed a nonspeculative inference that the
78                                                     State v. Escobar

challenged witnesses had an opportunity to and did perceive
the suspect. 

; see also State v. Jesse, 

, 

 (2016) (facts of conditional relevance may
be “established by reasonable inferences, but not through
speculation”).
         In contrast, in this case, Odem testified that he
“found a lot of confusion” upon arriving at the convenience
store. One of the victims was bleeding from the head and
the other was helping the injured man, but Odem was not
sure if those were the individuals who were fighting. Odem
testified that he did not communicate with either B or M
until he brought defendant to the hospital for the showup
identification.
         Recounted through Odem’s testimony, Walsh said
that she saw several males fighting with each other, but
“didn’t really know what happened.” At that time, Walsh
did not describe what she meant by saying one man had
assaulted another. Odem talked with Walsh outside of the
store, while the altercation appears to have occurred inside.
There was no information to determine whether Walsh saw
the males fighting with each other from inside the store,
outside the store, with a clear vantage, or one that was
obscured. Odem asserted that Walsh was “describing somebody having assaulted one of the individuals in the back.”
That assertion is ambiguous because Walsh could have been
describing the location within the store or where on B’s body
the assault was made, and Odem’s testimony never clarified that point.1 The information Walsh provided did little to
explain how B or M were situated in relation to the assailant, what they were paying attention to, how long the altercation lasted, or how B was assaulted.
          The store owner provided information to Windholz
that a “white male with brown hair wearing a white shirt
came into the store and hit [B] on the head with something.”
That information, like the information Walsh provided, did
little to establish that B and M had the opportunity to or did
actually perceive the assailant.
    1
      If Walsh had meant the back side of B, that would undercut an inference
that B had an opportunity to observe the assailant because the assault would
have happened from behind.
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         Finally, the information that B and M provided
to Windholz about the assailant being a “white male with
brown hair wearing a white shirt” was minimal, which supports some inference, but not an inference that each had an
adequate opportunity to perceive the assailant. To be sure,
that B and M provided a basic description is probative of the
fact that they made some perception of the assailant, however, “nonfacial 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.” Lawson/James, 

.
B and M may have just as easily perceived the characteristics they provided to the police as the assailant ran away
from the fight.

         Although the line between permissible inference
and impermissible speculation “is difficult to articulate with
precision, “Jesse, 

 n 7, the logical links between
the facts introduced and the required inference of personal
knowledge are stretched beyond reasonable bounds in this
case. From each starting point of the evidence of what
B, M, Walsh, or the store owner perceived, we must assume
an intermediate fact that is not supported by the evidence
introduced to reach the required finding under OEC 602
and OEC 104(2). B and M minimally described the assailant, but this record does not demonstrate that either had
the opportunity to observe more than the assailant’s gender, hair color, race, or clothing. The store owner said that
the assailant “came into the store and hit [B] on the head
with something,” but did not say whether B or M saw the
attack coming—an intermediate fact that would help close
the logical loop on the opportunity to perceive the assailant. The evidence from Walsh fails to support the same
intermediate fact—that B or M were looking in a direction
to perceive the assailant—because her statements do not
provide any context for the fight inside the store. Although
the evidence introduced in this case confirms that B and M
probably had some opportunity to perceive the assailant,
the evidence does not have similar qualitative parameters
of physical proximity, duration of exposure, or illumination,
as in Allen, which supported an inference that the eyewitnesses had adequate opportunity to perceive the defendant
80                                            State v. Escobar

in that case. 

 (evidence of close-range
observations sufficient to support inferences required under
OEC 602); see also Hickman, 

 (challenged
eyewitnesses provided information about ability to view and
where attention was directed). That difference is sufficient
to transform the required inferences we discussed in Allen,
supported by logical probability, into inferences supported
merely by logical possibility, or put differently, speculation.
Accord Jesse, 

; see also State v. Bivins, 

, 

 (2004) (evidence insufficient
when it requires stacking of inferences).
        Our conclusion is narrow. We do not decide whether,
given an adequate foundation, B or M’s identification could
have been admitted, merely that provided the limited evidence in the record, the state did not meet its burden under
OEC 602, and thus the first step in Lawson/James. The
state thus failed to establish the admissibility of the proffered eyewitness testimony.
D. Harmless Error
         The state argues that even if the identification evidence from B and M was erroneously admitted, the error was
harmless. Evidentiary error is not presumed to be prejudicial, and thus a defendant must demonstrate that the error
affected a substantial right. State v. Carter, 

, 

 (2021). In assessing whether a defendant
has met that burden, “we consider whether the evidence was
cumulative of other evidence admitted without objection,
which includes assessing any differences in the quality of
the erroneously admitted or excluded evidence as compared
to the other evidence on the same issue.” State v. Simon, 

, 

 (2018), rev den, 

(2019). If there is “little likelihood that the particular error
affected the verdict” we will affirm despite the error. State v.
Davis, 

, 

 (2003). In contrast to our
limited review of the evidence provided during the pretrial
hearings, when considering prejudice we review all pertinent portions of the record, but we do not “usurp the role of
the factfinder and determine if [the] defendant is guilty or
reweigh the evidence.” Carter, 

 (internal
quotation marks omitted).
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         At trial, the state called multiple witnesses and
introduced photographic, video, and physical evidence that
tied defendant to the store where the assault took place and
to M’s van, parked outside the store. Setting aside B and M’s
identification of defendant, we summarize the additional
facts adduced at trial.

         B and M worked together at a food packing facility
in Milwaukie. After starting work early in the morning of
April 30, B and M left work around 3:00 p.m. and went to
the Town Grocery & Deli in Milwaukie to get something to
eat and drink. M drove his van with B as a passenger and
left the van unlocked when they parked outside the store.
B was in the store determining what he wanted to order
when he was struck on the head. M was in the corner of the
store getting a bottle of water when B was hit on the head;
he did not see the assault, but he heard the store owner
screaming. When M turned around, he saw a man with a car
jack threatening him and demanding the keys to the van.

          Walsh had stopped at the Town Grocery to get
a drink and snacks on her way to a 4:00 p.m. class at
Clackamas Community College. Walsh was already inside
selecting her items near the back of the store when B and M
entered. As Walsh was getting ready to head to the front of
the store, somebody came in after B and M and screamed
“Give me the fucking keys.” Walsh said that she saw B get
struck with something and she called 9-1-1. Walsh identified
defendant as the person who was “throwing punches” and
had “attacked” B. Although she said that B, M, and defendant were fighting, Walsh did not consider it “mutual combat”; B and M were trying to defend themselves and “[i]t was
very much [B that] was attacked.” Walsh saw B get struck
with a “car jack, you know the part that actually lifts the
car when you have to change the tire.” Walsh also testified
that she saw the assailant take off a belt and hit B with it,
“[l]ike it was a whip.”

         B noted that after the altercation, he ended up with
a belt that did not belong to him, and he was not sure where
it came from. The belt was described as a black leather belt
commonly worn with pants with belt loops.
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          M identified the jack that was used to strike B as
the one that he kept in his van, which was parked, unlocked,
outside the store. Although M did not check his van at the
time, he immediately recognized the jack as belonging to
him. M said that a day or two after the attack, he found a
left-foot boot in his van that did not belong to him. After
finding the boot, M and B took it to the police.
        Oregon City Police Officer Horton testified about
a security camera video of defendant loading things into a
backpack or bag from a white Nissan that was parked at
a gas station in Milwaukie. Horton said that he had been
involved in a short pursuit with defendant in the white
Nissan a few hours earlier after trying to stop defendant
for speeding. It appeared to Horton that the occupant of
the vehicle had gathered his belongings from the car before
walking away from it. The white Nissan was towed from
the gas station parking lot within two blocks of the Town
Grocery & Deli about 45 minutes after the occupant left
it.
        Windholz explained that later in the evening of the
same day, he was called to a parking lot behind the Town
Grocery & Deli to collect a black duffel bag as “found property.” When Windholz looked inside the bag the next day,
he found some loose clothing, a right-foot boot, some notebooks, and a photo ID, birth certificate, and other identifying documents for defendant. According to Windholz, with
the exception of different laces, the right-foot boot he found
in the duffel bag and the left-foot boot M found in his van
were identical.
         During closing statements, the state argued that
defendant had eluded police in Oregon City earlier in the
day and had parked his car at the gas station about two
blocks away from the Town Grocery & Deli in Milwaukie.
Defendant took about 20 minutes clearing his belongings
out of the car and putting them in the bag that was later
found by Windholz. Somewhat later, defendant saw B and
M park the van in front of the store; defendant then broke
into the van, dropped the left-foot boot, and picked up the
car jack. Knowing that B and M had just parked the van,
he followed them into the store to get the keys. Once inside
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the store, defendant attacked B with the car jack, striking
him in the back of the head. M came over to intervene and
stop defendant from continuing to assault B. After a struggle with M, defendant eventually ran outside and went to
a nearby theater, where employees called 9-1-1 to report a
robbery. Odem was able to track down and eventually arrest
defendant. And despite spending several hours with Odem,
defendant never claimed that he had just been assaulted
and robbed.

         During his closing statement, defendant argued
that this was a case of confirmation bias—where Odem had
already concluded that the same person was involved with
the robbery call at the theater and the assault at the store.
The employee at the theater misunderstood defendant’s
actions; defendant was not there to rob the theater, rather,
he had just been robbed—a fact defendant claims was supported by his actions on video from the theater and that
explained his behavior at the theater. According to defendant, when Windholz found defendant’s duffel bag near the
Town Grocery, that was another instance of confirmation
bias because he ignored the possibility that whoever had
robbed defendant had placed it there. Walsh’s identification
where she described the assailant as looking like M was
suspect because M is shorter and thinner than defendant,
never wore a goatee like defendant, never had longer hair
like defendant, and has a darker complexion than defendant.
Moreover, defendant argued that common sense dictated
that the black leather belt could not have been his because
he was arrested wearing athletic shorts with no belt loops.
Defendant offered no explanation for the boot found in M’s
van.

         As defendant framed his theory of the case, someone else assaulted B and M in the Town Grocery & Deli. We
understand the harmless error analysis therefore to turn on
questions of identity. To be sure, the identifications M and B
made both at the hospital showup and later at trial were
important to establishing defendant as the assailant inside
the store. But those identifications were far from the only
evidence that either directly placed defendant in the store
attacking B and M or that circumstantially put defendant
84                                                       State v. Escobar

in M’s van and the immediate area at the time of the attack.
To that extent, the erroneous admission of B and M’s identification was cumulative of other evidence admitted without
objection. See State v. Stewart, 

, 

, rev den, 

 (2015) (erroneously admitted evidence that is cumulative is generally harmless). Nor can we
say that B and M’s identifications were qualitatively different than Walsh’s—indeed, for many of the reasons discussed
in Lawson/James, Walsh’s identification may well have been
more reliable than either identification from B or M.2
         And then there is the boot. One half of a pair of
boots was located in a duffel bag containing multiple forms
of defendant’s identification. The other half of the pair of
boots was found inside the van where the car jack used in
the attack was taken. The right and left boot, taken as a
pair, tied defendant’s identification documents to the assault
weapon.
         That B and M’s identifications were only a portion
of the state’s theory of the case helps us conclude that the
erroneous admission of the identifications was harmless.
State v. Maiden, 

, 

 (2008),
rev den, 

 (2009) (collecting instances where erroneously admitted evidence was central to theory of case and
therefore more likely to affect outcome). In Maiden, we concluded that the erroneous admission of a crime laboratory
report indicating that a substance was methamphetamine
was not central to the state’s case because the defendant
had described himself as a “meth junkie” and had admitted
using the drug earlier in the day, in addition to a presumptive positive field test result and paraphernalia consistent
with methamphetamine use. Id. at 12, 14. Additionally, we
concluded that the dispute at trial was over whether the
defendant had possessed the substance, not whether the
substance was in fact methamphetamine, and therefore, the
identity of the controlled substance was not a central factual
issue of the case. Id. at 16.
    2
      For example, because Walsh was not injured in the attack, as was B, nor
did her testimony indicate any sort of weapon focus, as did M’s, several of the
Lawson/James estimator variables suggest her identification was more reliable.
There was also no suggestion of system variables that would have reduced the
reliability of Walsh’s identification.
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         In contrast, in State v. Perkins, 

, 

 (2008), we concluded that erroneously
admitted evidence that a coffee cup contained alcohol was
central to the state’s theory of the case because that coffee
cup was highlighted in the state’s opening argument, and
in direct examination of the arresting officer, and the prosecutor “explicitly invited the jury to rely on that evidence”
as indication of driving under the influence. Moreover, the
“potential visceral impact” of the open container within the
driver’s reach—a “quintessential ‘smoking gun’ in a DUII
prosecution”—was so great that the state introduced the
coffee cup as its first exhibit. 

         Unlike in Perkins, we conclude here that the erroneous admission of B and M’s identification of defendant
had little likelihood of affecting the verdict. As the state
in this case argued, those identifications were only part of
the theory of criminal liability. Aside from those identifications, there was also Walsh’s identification, M’s identification of the jack from his van, a pair of boots directly linking defendant’s personal documents to the van where the
jack was purloined, and defendant’s quick arrest in close
proximity to the store where the assault occurred. In the
overall context of the case, including the other direct and
circumstantial evidence, there is little likelihood that the
admission of B’s and M’s identification affected the jury’s
verdict. The error in admitting those identifications was
harmless.

                II. JURY INSTRUCTIONS

         In his second assignment of error, defendant argues
that the jury was improperly instructed on the elements
of second-degree assault, specifically whether the “ ‘knowing’ mental state for assault in the second degree applies
to [the] ‘causes serious physical injury’ ” element of that
crime. Defendant acknowledges that his argument was not
preserved and requests plain error review. For its part, the
state now concedes that the instructions were error, but
argues that the error was harmless. For the following reasons, we agree that the instructions were erroneous but conclude that the error was harmless.
86                                                 State v. Escobar

        After this case was argued and submitted on appeal,
the Oregon Supreme Court issued State v. Owen, 

,

 (2022), which overruled in part State v. Barnes,

, 

 (1999). Owen overruled Barnes
to the extent Barnes held that “no culpable mental state
attaches to the result element of second-degree assault,” and
required the state prove at least the “criminally negligent”
mental state with respect to the injury. Owen, 

. In light of the jury instructions given in this case,
which omitted any specific mental state for the injury result
element of second-degree assault, we accept the state’s concession as well taken.
        In affirming the conviction in Owen despite the
erroneous instruction, the Oregon Supreme Court reasoned:
         “The jury found that defendant was aware that his conduct was ‘assaultive.’ Because defendant was charged with
     using weapons in his assault of D, the jury was instructed
     that the state was required to prove that defendant ‘knew’
     that his boots and the pavement ‘would be readily capable
     of causing serious physical injury in the manner in which
     it was used.’ The trial court also instructed that ‘knew’ in
     that context meant that ‘defendant acted with an awareness.’ The jury therefore found that defendant was aware
     while using his boots and the pavement against D that they
     were readily capable of causing her serious physical injury,
     and the jury heard evidence of D’s significant injuries. …
     [I]n view of the jury’s findings that defendant engaged in
     assaultive conduct toward D and knowingly used his boots
     and the ground as dangerous weapons, the jury would not
     have found that defendant was unaware that his actions
     would cause D physical injuries. Thus, the jury would have
     found that, at least, he was criminally negligent in failing
     to appreciate the risk of injury to D.”

.
         The same is true here. As in Owen, the jury in
this case was instructed that it must find that defendant
“act[ed] with an awareness that his conduct [was] assaultive.” Likewise, the jury was instructed that the state must
prove that defendant assaulted B “[b]y means of a dangerous weapon” and that “[t]he term dangerous weapon means
an instrument, article, or substance which, under the
Cite as 

 (2022)                               87

circumstances in which it is used, attempted to be used, or
threatened to be used, is readily capable of causing death or
serious physical injury.” The state argued to the jury that
the defendant must have known that using a car jack to
assault someone would have likely resulted in not only serious physical injury, but death. The jury therefore must have
concluded that defendant knowingly employed a weapon
in an act that he was aware was assaultive against B.
As in Owen, the jury would not have found that defendant
was “unaware that his actions would cause [B] physical
injuries.” 

 With defendant’s awareness of the nature of
the car jack as a dangerous weapon, and that jack being
knowingly used to assault B, the jury found that defendant
was, at minimum, “criminally negligent in failing to appreciate the risk of injury to [B].” 

 Stated differently, even
if the jury had been properly instructed as to the criminal
negligence mental state for the injury element, the outcome
would not be different. There is perhaps a scenario where a
jury could reasonably find that a defendant used a weapon
while not being at least criminally negligent to the fact that
doing so could cause physical injury, but that scenario is not
presented here where defendant opted to use an ostensibly lethal weapon like a car jack. The instructional error is
therefore harmless.
        Affirmed.