State v. West

There are two requirements for prevailing on a request for a "less satisfactory evidence" jury instruction, a party must establish that: “other evidence was reasonably available on a fact in issue and that there is a basis for the jury to conclude that the other evidence is stronger and more satisfactory than the evidence offered.” State v. McDonnell, 313 Or 478, 500 (1992).

Defendant appealed from a conviction for unlawful use of a vehicle, ORS 164.165, and first-degree theft by receiving, ORS 164.055. Defendant assigned error to the trial court's refusal to provide the "less satisfactory evidence" jury instruction. On appeal, Defendant argued that because the contested evidence was stronger than what the State submitted, the trial court should have granted Defendant's request for the instruction. In response, the State argued that the provided evidence was not weaker than the contested evidence, and even if there was an error, it was harmless. There are two requirements for prevailing on a request for a "less satisfactory evidence" jury instruction, a party must establish that: “other evidence was reasonably available on a fact in issue and that there is a basis for the jury to conclude that the other evidence is stronger and more satisfactory than the evidence offered.” State v. McDonnell, 313 Or 478, 500 (1992). The Court of Appeals concluded that Defendant failed to show that the contested evidence was "stronger ... than the unimpeached eye-witness testimony" provided at trial. Accordingly, the Court held that the trial court did not err in refusing to provide the instruction. Affirmed.