State v. Walker

“In determining whether a case presents a ‘proper occasion’ to give the instruction described in ORS 10.095(3), the court must ‘determine, from all the testimony, whether or not there has been sufficient evidence for the jury to decide that at least one witness consciously testified falsely.’” State v. Roman, 288 Or. App. 441, 445, 406 P.3d 1119, 1121-22 (2017).

Defendant appealed a judgement of conviction of a single count of first-degree theft. Defendant asserted the trial court erred by giving Uniform Criminal Jury Instruction 1029, known as the “witness-false-in-part” instruction, to the jury. Defendant argued that any discrepancy in the testimony was minimal and did not rise to the level of willful falsity required for the instruction to be given to the jury. In response, the State argued the trial court was correct to give the instruction because Defendant’s trial testimony conflicted with another witness’s testimony, and that inconsistency sufficiently established Defendant consciously testified falsely. “In determining whether a case presents a ‘proper occasion’ to give the instruction described in ORS 10.095(3), the court must ‘determine, from all the testimony, whether or not there has been sufficient evidence for the jury to decide that at least one witness consciously testified falsely.’” State v. Roman, 288 Or. App. 441, 445, 406 P.3d 1119, 1121-22 (2017). The Court of Appeals found that the trial court erred in giving the instruction, because whatever inconsistency that might have been inferred between the witness’s description of the scene and Defendant’s testimony, it did not constitute sufficient evidence from which a jury could find that one witness consciously testified falsely. Reversed and remanded.