668 August 20, 2025 No. 740
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL C. RAMIREZ,
aka Michael Christopher Ramirez,
Defendant-Appellant.
Multnomah County Circuit Court
19CR39534; A179810
Jerry B. Hodson, Judge.
Submitted November 19, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Oregon
Public Defense Commission, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
TOOKEY, P. J.
Affirmed.
Cite as 342 Or App 668 (2025) 669
TOOKEY, P. J.
Defendant appeals a judgment of conviction for two
counts of murder in the second degree with a firearm. The
first victim, P, was shot and killed on May 24, 2019, and the
second victim, G, was shot and killed a day later. Defendant’s
first assignment of error concerns the trial court’s denial of
his motion to exclude “firearms identification” or “toolmark
identification” evidence. Applying the Association of Firearm
and Toolmark Examiners method (the AFTE method), which
involved comparing patterns or marks on cartridge casings
and bullets, a forensic examiner determined that the casings
and bullets recovered from the two crime scenes were fired
from the same gun. In State v. Adams, 340 Or App 661, 663,
572 P3d 291 (2025), we recently held that the state failed to
show that the AFTE method is scientifically valid and that
evidence based on that method is inadmissible.
Applying the analysis set forth in Adams, we conclude that the trial court erred in failing to exclude the evidence showing that the cartridge casings and bullets were
fired from the same gun. However, considering the role that
the evidence played in this case, we conclude that the error
in admitting the evidence was harmless. The gun was never
recovered and there was no evidence connecting the cartridge casings or the bullets to defendant.1 The state relied
on the toolmark identification evidence to establish that
the same firearm was used in both shootings, but that evidence shed no light on who pulled the trigger. Instead, the
state relied primarily on eyewitness testimony to prove that
defendant shot both victims, and we are not persuaded the
jury would have viewed the toolmark identification evidence
as bolstering or corroborating the eyewitness accounts in
any significant way. As we explain in more detail below,
because the error in admitting the toolmark identification
evidence was not likely to have affected the jury’s verdict, it
was harmless. We also reject defendant’s second and third
assignments of error in which he argues that the trial court
erred in denying his demurrer and his motion to sever the
charges. We therefore affirm.
1
Because the gun was never recovered, we refer to the evidence in this case
as toolmark identification evidence rather than firearm identification evidence.
670 State v. Ramirez
I. FACTUAL AND PROCEDURAL BACKGROUND
Our account of the facts is based primarily on the
trial testimony of a number of witnesses. We provide a
detailed account of their testimony because it is relevant to
our analysis of whether the erroneous admission of the toolmark identification evidence was harmless.
In the early morning of May 24, 2019, defendant
and four others, Rosemary Ordenes, Michael James, Caleb
Meyer, and Jonathan Polk were “car prowling,” or breaking
into cars, in the Lents neighborhood of Portland. Ordenes
was James’s girlfriend. The group had been using methamphetamine and marijuana.
The victim, P, approached them and warned them
not to break into cars. P left but later returned at around
2:00 a.m. When P came back, defendant was inside a car.
Meyer, Polk, and James started to leave, but Ordenes waited
for defendant. She testified that defendant hopped out of the
car and started shooting at P. Ordenes saw a “muzzle flash.”
She heard four or five shots, she saw defendant and P moving towards the yard of a house, and then she heard more
shots. James, who had been walking away, heard eight shots,
with a pause of about 10 seconds between two groups of four
shots. Home security video footage captured the group leaving the area with defendant being the last to leave.
After fleeing the scene, defendant, James, Ordenes,
and Meyer met up nearby. Meyer testified that defendant
came running up to them saying he just killed someone.
James and Ordenes saw defendant stuff a gun into his fanny
pack. Defendant bragged about shooting P, saying that he
“dropped him.”
Although numerous people in the neighborhood
heard the shots, called the police, and came outside, P’s
body was not discovered immediately. Later that morning,
defendant, Ordenes, James, and Meyer drove back to the
scene of the shooting. Defendant said, “It’s 2019 and we’re
out here taking souls.” Surveillance video footage captured
their vehicle driving through the area. Shortly after the
group returned to the scene, P’s body was discovered in the
Cite as 342 Or App 668 (2025) 671
front yard of a house by residents who were waking up and
getting ready to go to work and school.
The following day, May 25, 2019, Ordenes, James,
and defendant met up with G and G’s girlfriend, Ashley
Panichello-Campbell. G and Panichello-Campbell were in a
stolen van, and they drove James, Ordenes and defendant to
a hospital parking lot, where they stole a truck. The group
later met in the parking lot of an apartment complex.
Around 7:55 p.m., in the parking lot, defendant and
G got into an argument and G challenged defendant to a
fight. G got out of the van, he walked to the driver’s side of
the truck, and he started yelling at defendant. Defendant
was in the driver’s seat of the stolen truck. G told defendant
that he would “beat his ass.” Defendant said to G, “I’m not
going to fight you, I will shoot you.” Ordenes was sitting in
the middle seat of the truck, and she saw defendant grab
his gun from his lap and shoot G in the chest. James and
Panichello-Campbell also testified that they saw defendant
shoot G. G ran a few paces and fell.
Panichello-Campbell exited the van and ran off.
Defendant pulled out of the parking lot quickly, hitting the
van in the process. After the shooting of G, defendant sent
Facebook messages and made calls trying to locate Panichello-Campbell and stating, “[y]ou know what had to happen.”
James heard defendant say, “that’s how you get away with
murder.” Ordenes heard defendant say, “this is what I do.”
On May 26, 2019, defendant was arrested at Nadaka
Park on an unrelated warrant. James and Ordenes were
with defendant. Ordenes testified that, when defendant was
arrested, he had the gun he used to shoot P and G, but he
left it in a car belonging to his “street mom.” She was a person who “looked after [defendant] on the streets,” she was
living out of her car, and she was not defendant’s biological
mother.
The gun was never recovered. On May 27, 2019,
defendant made a telephone call in which he stated that
he had nothing on him when he was arrested, that he put
“it” in his backpack, and he “left that shit with [his] street
mom.” On May 28, 2019, on a video call with his biological
672 State v. Ramirez
mother, defendant made a trigger-pulling motion with his
finger and asked, “You did—hey you throw that away?” His
mother responded that she was “trying to figure that out.”
The state charged defendant with two counts of
murder with a firearm and two counts of unlawful use of a
weapon with a firearm. Although the police never found the
gun, they did recover six cartridge casings and one bullet
from the scene of the P homicide. They also recovered one
shell casing from the scene of the G homicide and one bullet
was recovered from G’s body.
Before trial, the court held an OEC 104 hearing on
the admissibility of the toolmark identification evidence.2
Using the AFTE method, Leland Samuelson, a forensic scientist with the Oregon State Police (OSP), compared the
toolmarks on the casings recovered, and he determined that
five casings from the P homicide and the one casing from
the G homicide were fired from the same firearm. Using the
same method, he determined that the two bullets recovered
from the two separate scenes were fired from the same firearm. After hearing testimony and argument, the trial court
ruled that the toolmark identification evidence was admissible and that Samuelson could testify that the toolmarks
on the cartridge casings and bullets were “consistent with
being fired from the same firearm.”
During the trial, Samuelson testified that he
worked for the OSP as a “firearms and toolmark examiner.”
He explained the AFTE method of firearms analysis to the
jury. He explained that when a firearm is manufactured,
the process leaves marks on the firearm, and that the firearm also leaves marks on bullets and casings when they
are fired. Applying the AFTE method, Samuelson looked
for “class characteristics” of the bullets and casings—such
as their brand, diameter, or weight—to narrow down the
type of firearm that could have been used to fire the bullets
and casings. He then used a microscope to look for “individual characteristics” and to determine whether there were
2
Under OEC 104, preliminary questions concerning the admissibility of evidence shall be determined by the court. See State v. O’Key, 321 Or 285, 307 n 29,
899 P2d 663 (1995) (“When proffered scientific evidence raises issues of scientific
validity, those issues should be addressed by the trial court in a separate OEC
104(1) hearing, preferably in advance of trial.”).
Cite as
342 Or App 668 (2025) 673
reproducible or repeatable patterns or marks on the bullets
and the casings. He determined that there was “sufficient
agreement” regarding the individual characteristics to
conclude that they had been fired using the same firearm.
Samuelson acknowledged that the AFTE method could not
be used to determine who fired the gun.
The jury found defendant guilty of two counts of
second-degree murder with a firearm (Counts 1 and 3) and
two counts of unlawful use of a weapon (Counts 2 and 4).
The trial court merged the guilty verdicts for unlawful use
of a weapon with the guilty verdicts for second-degree murder. Defendant was sentenced to consecutive life sentences
with a minimum term of 25 years in prison.
II. ANALYSIS
On appeal, defendant raises three assignments of
error. We address each of those assignments in turn.
A. The trial court erred in admitting the toolmark identification evidence, but the error was harmless.
In his first assignment of error, defendant argues
that the trial court erred in admitting the toolmark identification evidence because the state failed to show that the
AFTE method is scientifically valid under the factors outlined in State v. O’Key, 321 Or 285,
899 P2d 663 (1995), and
State v. Brown,
297 Or 404,
687 P2d 751 (1984). In Adams,
340 Or App at 667-701, we recently analyzed the AFTE
method in detail. We determined that “the practitioner’s
decision on whether the degree of correspondence [between
shell casings or bullets] indicates a match ultimately
depends entirely on subjective, unarticulated standards and
criteria arrived at through the training and individualized
experience of the practitioner” and that the “method does
not produce consistent results when replicated because it
cannot be replicated.”
Id. at 667.
“[W]hen presented as scientific evidence, AFTE identification evidence—an ‘identification’ purportedly derived from
application of forensic science—impairs, rather than helps,
the truthfinding process because it presents as scientific a
conclusion that, in reality, is a subjective judgment of the
examiner based only on the examiner’s training and experience and not on any objective standards or criteria.”
674 State v. Ramirez
Id. at 668. The same reasoning applies here to Samuelson’s
application of the AFTE method to determine that the cartridge casings and bullets were fired from the same gun.
Indeed, the toolmark identification evidence at issue here
was arguably even less reliable that the evidence in Adams
because, in Adams, we explained that the AFTE method
involves test firing the firearm to obtain “knowns,” which
are bullets or cartridge cases that the examiner knows were
fired from the firearm in question, and which can be compared with the “unknowns,” or, in other words, with the bullets or casings recovered from the crime scene.
Id. at 670.
But here, of course, the gun was never recovered, so that
process of comparing knowns and unknowns did not occur.
During the trial, there was testimony that it was still possible to compare the casings and the bullets to determine
whether they were fired from the same gun.
For the reasons explained in Adams, 340 Or App at
688-701, including the AFTE method’s reliance on the subjective interpretations of the practitioner, its potential rates
of error, and its lack of testability or general acceptance
in the broader scientific community, we conclude that the
toolmark identification evidence in this case—which was
expressly based on the AFTE method—does not meet the
test for scientific validity laid out in Brown and O’Key. As a
result, the trial court erred when it admitted the evidence
to establish that the casings and bullets found at the scene
of the two shootings were fired from the same firearm.
Next, we consider whether the error in admitting
that evidence was harmless. We explained the harmless error
standard in State v. Davis, 336 Or 19,
77 P3d 1111 (2003):
“Oregon’s constitutional test for affirmance despite error
consists of a single inquiry: Is there little likelihood that
the particular error affected the verdict? The correct focus
of the inquiry regarding affirmance despite error is on the
possible influence of the error on the verdict rendered, not
whether this court, sitting as a factfinder, would regard the
evidence of guilt as substantial and compelling.”
Id. at 32. In determining whether the error affected the verdict, we must be careful not to reweigh the evidence or retry
the case to determine whether defendant is guilty.
Id.
Cite as
342 Or App 668 (2025) 675
“Rather, when we review the record, we do so in light of
the error at issue. We ask whether there was little likelihood that the error affected the jury’s verdict. We recognize
that, if the particular issue to which the error pertains has
no relationship to the jury’s determination of its verdict,
then there is little likelihood that the error affected the
verdict. However, that is not a finding about how the court
views the weight of the evidence of the defendant’s guilt. It
is a legal conclusion about the likely effect of the error on
the verdict.”
Id.
Applying that standard here, we conclude that the
erroneous admission of the toolmark identification evidence
was harmless. We recognize that the evidence had some probative value in helping to establish that it was more likely
that the person who shot one of the victims was also the person who shot the other victim. But it played no significant
role in establishing who that person was. We also acknowledge that the jury would have perceived the evidence as scientific and that such evidence “possesses an unusually high
degree of persuasive power.” Jennings v. Baxter Healthcare
Corp., 331 Or 285, 303,
14 P3d 596 (2000) (internal quotation marks omitted). Nevertheless, it would have been persuasive regarding the question of whether the same gun was
used, not who fired the gun. Indeed, as defendant argued in
closing,
“that ballistics evidence doesn’t tell you a thing about
the person who pulled the trigger of the gun on May 24th
or May 25th. It tells you nothing about who did that.
“…
“And despite that determination by Mr. Samuelson that
the same gun fired these six shots, and despite his confidence in the art of ballistics matching, he couldn’t tell you
who pulled the trigger.”
We agree with that argument. Our review of the record indicates that the toolmark identification evidence did not play a
significant role in this case. It was mainly used by the state
to create a link or connection between the two shootings, but
it was not probative of who fired the gun on each occasion.
676 State v. Ramirez
In arguing that the erroneous admission of the evidence was not harmless, defendant claims that the state
“relied heavily” on the toolmark identification evidence “to
corroborate the eyewitness testimony, bolster the eyewitness’ credibility, and demonstrate that its case was based
on more than just the word of four teenagers who had been
high on drugs and may have had their own reasons to point
the finger at defendant[.]”
We have reviewed the record and conclude that the
erroneous admission of the toolmark identification evidence
was not likely to have affected the jury’s verdict. First,
addressing the shooting of P, there was testimony from multiple witnesses supporting the state’s theory that defendant
was the shooter and the toolmark identification evidence
had no clear relationship to that testimony. Ordenes was the
only person who actually saw defendant fire shots at P. She
testified that defendant “hopped out of the car and starting
shooting at him.” She heard gun shots and saw a “muzzle
flash.” After the shooting, she saw defendant stuffing a gun
in his fanny pack.
The group that was “car prowling” in the early
hours of May 24 included Meyer, who testified that he heard
gun shots and then defendant “came running around the
corner saying he just killed” someone. James also testified
about hearing the gun shots and that defendant was “bragging about it,” saying that “he dropped him,” which James
understood to mean that defendant had killed P. James saw
defendant tuck a gun into his fanny pack.
Addressing the later shooting of G, multiple eyewitnesses testified that defendant shot G. G’s girlfriend,
Panichello-Campbell, testified that G said, “he was gonna
beat [defendant’s] ass,” that defendant responded, “I’m not
gonna fight you, I will shoot you,” and then she heard and
saw defendant shoot G once in the chest and speed away in
the white truck. James testified that he heard the gun shot
and he saw “a bullet go through [G’s] chest.” And Ordenes saw
defendant grab the gun from his lap and shoot G in the chest.
In Davis, 336 Or at 32, the court explained that
“if the particular issue to which the error pertains has no
Cite as
342 Or App 668 (2025) 677
relationship to the jury’s determination of its verdict, then
there is little likelihood that the error affected the verdict.”
Here, we do not think that the erroneous admission of the
toolmark identification evidence—which was used to show
that the same gun was used in the two shootings—bore
any significant relationship to those eyewitness accounts
of defendant shooting both P and G. Regarding the shooting of G, evidence showing that the same gun was used in
another shooting a day earlier would not have made the jury
more likely to believe the three eyewitnesses, who expressed
no uncertainty about whether defendant was the shooter.
And although only Ordenes saw defendant shoot P, Meyer’s
and James’s testimony corroborated her account of what
occurred. Her testimony was also corroborated by surveillance video footage showing the group in the neighborhood
and returning to the area later the same morning. Because
the question of whether the same gun was used in both
shootings is sufficiently distinct from the question of who
fired the gun, we conclude that the erroneous admission of
the toolmark identification evidence in this case was harmless. See Davis,
336 Or at 32 (explaining that the correct
focus of the harmless-error inquiry is on “the possible influence of the error on the verdict rendered”).
In arguing otherwise, defendant focuses on
Ordenes’s testimony, and he argues that the toolmark evidence “purporting to show that the same firearm was used
in both murders was powerful physical evidence bolstering
Ordones’s testimony that defendant committed both murders with the same firearm that she saw defendant put in
the car belonging to his ‘street mom.’ ” We do not think that
argument has merit.
First of all, the toolmark identification evidence
did not bolster Panichello-Campbell’s or James’s eyewitness
accounts of defendant shooting G in the chest. It also bore
no clear relationship to Meyer’s or James’s accounts of what
occurred a day earlier or to James’s testimony that he saw
defendant stuff a gun in a fanny pack. We recognize that the
toolmark identification evidence may have provided some
minimal corroboration for Ordenes’s testimony because
she was the only eyewitness who saw defendant shoot both
678 State v. Ramirez
victims. But whatever value it may have had in corroborating her testimony did not rise to the level of creating a
likelihood that it affected the verdict. Her eyewitness testimony was direct evidence—not circumstantial evidence—
that defendant was the shooter, and her account of what
occurred was consistent with the testimony of numerous
other witnesses.
At trial, in seeking to undermine the eyewitness
testimony, defendant argued or suggested that Panichello-Campbell’s testimony that defendant shot her boyfriend was
not credible because she was “kidnapped” after the shooting
of G by a close friend of the victim, and her phone was taken
from her and handed over to the police. Defendant sought to
use those facts to suggest that the police did not sufficiently
investigate all possible leads. Whether or not that argument
had any value in undermining the credibility of Panichello-Campbell’s eyewitness account of defendant shooting G, it
certainly had no relationship to whether the same gun was
used in another shooting a day earlier.
Similarly, at trial, in seeking to attack Ordenes’s
credibility, defendant argued that she stole a gun about
10 days before the shootings, and defendant questioned
Ordenes’s claim that it had been sold before the shootings.
Once again, that attempt to undermine Ordenes’s credibility had no clear relationship to the toolmark identification
evidence, which was merely used to establish that the gun
used in both shootings was identical.
Defendant argues that the erroneous admission of
the evidence must have affected the jury’s verdict because
the state relied on that evidence during closing arguments.
Having reviewed the closing arguments, we observe that
the state relied on surveillance video footage to bolster the
eyewitness testimony of who shot the two victims, but it
did not rely on the toolmark identification evidence to do
so. Instead, it relied on the toolmark identification evidence
to argue that the casings and bullets were fired from the
same gun and to establish a link or connection between the
two shootings. In rebuttal, in response to defendant’s argument that the state had no physical evidence, the prosecutor
pointed once again to the toolmark identification evidence.
Cite as 342 Or App 668 (2025) 679
However, in doing so, the prosecutor emphasized that that
evidence established that the same gun was used in both
shootings, not that defendant was the shooter.
In concluding that the error in failing to exclude the
toolmark identification evidence was harmless, we emphasize that we have taken care not to reweigh the evidence
or retry the case. See, e.g., State v. Zaldana-Mendoza, 299
Or App 590, 613,
450 P3d 983 (2019) (explaining that when
conducting a harmless-error analysis, “we do not usurp the
role of the factfinder and determine if defendant is guilty
or reweigh the evidence”). Instead, we have focused on the
possible influence of the erroneous admission of the toolmark identification evidence on the jury’s assessment of the
other evidence. Here, the toolmark identification evidence
addressed a peripheral issue; namely, whether the same gun
was used in both shootings. But the eyewitness accounts
of Panichello-Campbell, James, Meyer, and Ordenes concerned the central factual issue—whether defendant pulled
the trigger. The erroneous admission of evidence tending to
show that the same gun was used in both shootings was not
likely to have significantly affected the jury’s assessment of
their testimony, each of whom provided evidence supporting the state’s case that defendant was the shooter. See, e.g.,
State v. Hickman,
355 Or 715, 749,
330 P3d 551 (2014), adh’d
to as modified on recons,
356 Or 687,
343 P3d 634, cert den,
577 US 896 (2015) (concluding that any error in admitting a
witness’s in-court identification of the defendant was harmless because other witnesses identified the defendant as the
perpetrator and there was DNA evidence connecting the
defendant to the shooting).
B. The trial court did not err in denying defendant’s demurrer or his motion to sever the two sets of charges.
We turn to defendant’s second and third assignments of error. Defendant filed a pretrial demurrer and
motion to sever Counts 1 and 2 (relating to the P homicide)
from Counts 3 and 4 (relating to the G homicide). Defendant
argues that the trial court erred in denying those motions
because the offenses were not of the same or similar character and joinder of the charges caused him substantial prejudice. The state responds that the trial court correctly ruled
680 State v. Ramirez
that the two murders could at least possibly be of the same
or similar character and that defendant’s assertions of prejudice were insufficient to require severance. We agree with
the state.
We begin with defendant’s challenge to the trial
court’s denial of his demurrer in which he argued that the
two sets of offenses were improperly joined in the indictment. “We review a trial court’s determination that the
state met the statutory requirements for joinder of charges
for legal error.” State v. Brown, 326 Or App 46, 50,
531 P3d
178, rev den,
371 Or 332 (2023) (internal quotation marks
omitted). “[T]here are two requirements for the state to
charge multiple offenses in the same indictment: the state’s
basis for joining the offenses must be ‘possible, given the
offenses and facts alleged,’ and the state’s basis for joining
the offenses must be alleged.” State v. Taylor,
364 Or 364,
373,
434 P3d 331 (2019) (quoting State v. Warren,
364 Or
105, 122,
430 P3d 1036 (2018)).
Here, the indictment expressly alleged a statutory basis for joinder; namely, that the conduct alleged in
Counts 1 and 2 was of “the same and similar character” as
the conduct alleged in Counts 3 and 4. And the state’s basis
for joining the offenses was “possible” because the indictment alleged that the two sets of crimes occurred only a
day apart, that they were committed by the same defendant,
and the indictment also alleged that the two murders were
committed using a firearm. In arguing against the trial
court’s denial of his demurrer, defendant relies primarily
on State v. Garrett, 300 Or App 671,
455 P3d 979 (2019),
rev den,
366 Or 827 (2020), but defendant’s reliance on that
case is misplaced because, in Garrett, the indictment did not
allege that the charges were of the same or similar character. Id. at 679. We conclude the trial court did not err in
ruling that the two sets of charges could be joined pursuant
to ORS 132.560.
In his third assignment of error, defendant argues
that he suffered substantial prejudice as a result of the denial
of his motion to sever Counts 1 and 2 from Counts 3 and 4.
A defendant “seeking severance under ORS 132.560(3) must
identify a case-specific theory of substantial prejudice that
Cite as 342 Or App 668 (2025) 681
is more than the prejudice that is inherent whenever joined
charges allow the jury to hear that the defendant may have
committed other bad acts.” State v. Delaney,
370 Or 554, 556,
522 P3d 855 (2022). We review the trial court’s conclusion
with respect to whether a defendant has established substantial prejudice for errors of law.
Id.
Here, the trial court determined that defendant
failed to establish substantial prejudice under ORS 132.560.
The trial court explained:
“In this case the evidence will be mutually admissible.
The evidence is sufficiently simple and distinct that the
jury will be able to consider the offenses separately. And
the joinder rule’s underlying purpose of judicial economy is
significantly served by trying these charges together.”
The trial court did not err in its determinations. On appeal,
defendant argues that the defenses of self-defense and mistaken identity were “available” to defendant regarding the
P shooting, but not regarding the G shooting. But defendant
fails to explain how or why a joint trial impaired his ability to present different defenses to each set of crimes. We
reject defendant’s contention that trying the cases together
allowed the jury to “impermissibly infer defendant’s bad
character” or led to “impermissibly cumulative evidence,”
because those arguments do not articulate a case-specific
theory of prejudice that goes beyond the prejudice inherent
in any case in which the charges are joined. Delaney, 370
Or at 556. Defendant also fails to explain why trying the
charges together infringed on his right to testify.
Affirmed.
