State v. Serini

Aug 19, 2026

A186029

Versions:352 Or App 377

PER CURIAM

Affirmed.

PER CURIAM

Defendant appeals his conviction for driving while suspended (DWS), ORS 811.182. In his sole assignment of error, he challenges the denial of his motion to exclude a deputy sheriff‘s eyewitness identification of him. See State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012) (regarding admissibility of eyewitness identifications). The state argues that the trial court did not err and that, in any event, any error would be harmless. We need not address whether the court erred (and express no opinion on that issue) because we agree that any error would be harmless. Accordingly, we affirm.

Around midnight on March 16, 2023, a dark-colored SUV eluded an attempted traffic stop and, shortly thereafter, nearly collided with Washington County Sheriff‘s Deputy Waldron while he was parked near a roundabout. Waldron briefly saw the driver‘s face as the SUV sped past at 84 miles per hour. Waldron tried and failed to stop the SUV. Later, the police located a black Mazda SUV parked about four miles away. It was emanating heat and a “heavy brakes” smell, and they thought it was the SUV at issue, even though it had a different license plate number than Waldron called in. The registered owner was defendant‘s mother, with whom defendant lived. Waldron requested a photo of defendant and, upon seeing it, identified him as the person driving the SUV that sped past him. Defendant was found walking about half a mile from where the Mazda was parked (and about a mile and a half from his home). He was arrested.

Defendant was charged with two counts of fleeing or attempting to elude law enforcement, reckless driving, and DWS. All the charges except the DWS charge relied heavily on Waldron‘s identification of defendant as the person who sped past him. As to the DWS charge, in March 2023, defendant‘s driving privileges were suspended. His mother nonetheless let defendant borrow the Mazda to drive to his night job in Portland, so long as he returned it before she had to leave for work in the morning. Defendant‘s mother reluctantly admitted that defendant had borrowed the car at some point on the night in question, although she could not recall the specific time.

During deliberations, the jury asked a question that led the trial court to instruct it that “on or about March 16, 2023” meant that any crime proved by the state had to have “occurred between March 15, 2023 and March 17, 2023.” The jury subsequently found defendant guilty of DWS and not guilty of all other charges.

Defendant contends that the trial court should have excluded Waldron‘s eyewitness identification of him based on the principles articulated in Lawson/James. But we agree with the state that any error would be harmless on this record. “Evidential error is not presumed to be prejudicial.” OEC 103(1). We must affirm if an error was harmless, i.e., if there is “little likelihood” that it affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, any error in admitting Waldron‘s identification was harmless as to the DWS charge. The jury acquitted defendant of all charges dependent on the identification, suggesting that it found the identification unreliable and did not credit it. The jury found defendant guilty only of DWS, a charge for which there was a separate body of evidence. Defendant‘s license was suspended in March 2023. He was nonetheless borrowing his mother‘s Mazda SUV on a regular basis to drive to work at night, he borrowed the Mazda at some point that night, and he was found walking a half mile from where the recently driven Mazda was parked. It was irrelevant to the DWS charge whether the Mazda was the vehicle that sped by Waldron—all that mattered was whether defendant had driven a vehicle in the relevant date range. There is little likelihood that any error regarding the admission of Waldron‘s identification affected the verdict on the DWS charge.

Affirmed.