State v. Jacobs

462 November 4, 2026 No. 1079 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. EUGENE ADAM JACOBS, Defendant-Appellant. Multnomah County Circuit Court 23CR48625; A186084 Kelly Skye, Judge. Submitted August 24, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. TOOKEY, P. J. Affirmed. Nonprecedential Memo Op: 354 Or App 462 (2026) 463 TOOKEY, P. J. In this criminal case, defendant appeals a judgment of conviction for three counts of unlawful use of a weapon (UUW), ORS 166.220, and three counts of menacing, ORS 163.190. Defendant was also charged with six counts of second-degree robbery; the state dismissed two counts and the jury acquitted him of four counts.1 On appeal, defendant assigns error to the trial court’s denial of his motion for a new trial, contending that the court was required to grant the motion because of a statutory discovery violation and a Brady violation. See generally ORS 135.805 - 135.873; Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963) (the federal Due Process Clause requires prosecutors to dis- close to a criminal defendant material, exculpatory evidence in the government’s possession). The state responds that the trial court was not required to grant a new trial. We affirm. We review the denial of a motion for a new trial for abuse of discretion. State v. Deloretto, 221 Or App 309, 321, 189 P3d 1243 (2008), rev den, 346 Or 66 (2009). However, a trial court must grant a motion for a new trial if it finds that the state committed a Brady violation and “there is a ‘reasonable probability’ that the suppressed evidence would have resulted in a different outcome.” Id. (quoting Untied States v. Bagley, 473 US 667, 682, 105 S Ct 3375, 87 L Ed 2d 481 (1985)). The charges here arose from defendant’s interac- tions with three women who were leaving a grocery store. Defendant approached them and asked for money. He had a knife that was at first hidden. According to the women, who testified at trial, defendant had the knife in his hand at times, and he was demanding money. He was angry and upset and he said rude things to them. In addition to their testimony, there was video of the entire interaction, cap- tured by the grocery store’s surveillance cameras. The video did not have an audio track, however. Another witness, a Portland Police Bureau officer who responded and was the arresting officer, testified that 1 The jury also acquitted defendant on one count of UUW and one count of menacing. 464 State v. Jacobs defendant made certain admissions to him after he was arrested. The officer testified: “Well, he—yeah. Well, he—what he basically said was he denied pulling a knife on anyone. He told me he ran after certain people, demanding money. He said he never pulled a knife, and then said, ‘I may have pulled the knife.’ And that’s a quotation there. And then he, again, said he just walked up and asked the subjects for money.” Later, defendant testified. He said that the incident occurred when he was experiencing psychosis. Defendant testified that he was “paranoid” and “in a psychosis” that caused him to believe that his sister was in danger and that the three women were involved. He testified that he never mentioned money, intended to steal from them, or intention- ally threatened them with the knife, but he acknowledged that the knife could have scared them. He also testified that when the officer handcuffed him, the officer twisted his wrist until it popped, which was painful. Defendant said that the officer refused to take a missing person report about defendant’s sister and told nearby witnesses to “shut up” and “mind their own business,” and defendant denied that he had told the officer that he asked the three women for money. During closing argument, the state argued that all three of the victims were credible, and that the officer was also credible, and that, therefore, the jury should return guilty verdicts on all counts. The state also argued, how- ever, that, if the jury believed defendant’s version of events, rather than the officer’s, it should still find defendant guilty of the UUW and menacing charges. Defendant argued to the jury that the video contradicted the victims’ testimony and that the officer’s testimony was uncorroborated. After deliberating, as previously noted, the jury found defendant not guilty of the robbery charges but found him guilty of three counts each of UUW and menacing. About a week after trial, a member of the jury con- tacted defense counsel. She asked for an update on defen- dant’s sentence, told defense counsel that she hadn’t trusted the officer’s testimony, and she told defense counsel that she had looked the officer up online after the trial and found Nonprecedential Memo Op: 354 Or App 462 (2026) 465 that there had been a 2011 civil suit against the Portland Police Bureau that was based on the officer’s conduct during an arrest. Defendant filed a motion for a new trial under ORCP 64 B, arguing that the state’s failure to disclose infor- mation about the 2011 civil suit constituted a Brady viola- tion, and that he was entitled to a new trial. He argued that if the state had disclosed the evidence, he would have been able to use it to impeach the officer by showing that he had an interest in the outcome of the case or was biased against “intoxicated people.” After a hearing on the new-trial motion, the trial court told the state that the lawsuit was “something that the state should know and should disclose,” but the court was not convinced that disclosure would have made a dif- ference in the case. The trial court reasoned, in part, that the officer’s testimony was relevant to the robbery charges alone, and defendant was acquitted on the robbery charges, so the officer’s testimony would not have resulted in a dif- ferent outcome. In addition, the trial court found that the evidence of the charges on which defendant was convicted was overwhelming, making it doubtful that impeachment evidence against the officer would have resulted in a differ- ent outcome. As the court noted, the jurors saw “three sep- arate victims testify,” they “had a video that corroborated their testimony,” defendant admitted in his testimony that he had had a knife, and it was visible in the video. The trial court denied the motion for a new trial. We begin our analysis by addressing preservation. On appeal, defendant argues that the state’s failure to dis- close the 2011 civil suit information was both a violation of state discovery statutes and a Brady violation. The state points out that defendant’s motion and argument below did not raise the statutory argument. We agree that that aspect of defendant’s arguments is not preserved. Accordingly, we do not further address the statutory argument. A defendant can establish that there has been a Brady violation by showing the following (1) “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching,” (2) that evidence must have been “suppressed by the State, either willfully 466 State v. Jacobs or inadvertently,” and (3) “prejudice must have ensued.” Strickler v. Greene, 527 US 263, 281-82, 119 S Ct 1936, 144 L Ed 2d 286 (1999). We agree with the trial court that any potential impeachment value of the lawsuit information would not have given rise to a reasonable probability that, had defendant been aware of the evidence, the outcome of the trial would have been different. See Deloretto, 221 Or App at 321 (requiring a reasonable probability of a differ- ent outcome). The officer’s testimony was most relevant to the robbery charges, and defendant was acquitted on those counts. And although the officer’s testimony had some rel- evance to the UUW and menacing charges, the state did not rely on it in arguing for convictions on those counts and there is not a reasonable probability that the potential impeachment value of the lawsuit information would have resulted in a different outcome in the case. Affirmed.