State v. Gocan

The Oregon Supreme Court has announced that “a ‘proper occasion’ to give the witness-false-in-part instruction exists when, considering the testimony and other evidence a party has brought to the court’s attention in support of the requested instruction, the trial court concludes that sufficient evidence exists for the jury to decide that at least one witness consciously testified falsely and that the false testimony concerns a material issue.” State v. Payne, 366 Or 588, 600, 468 P3d 445 (2020).

Defendant appealed a judgment of conviction for endangering a person protected by a Family Abuse Protection Act (FAPA) order, a judgment of contempt for violating a FAPA order, and a judgment revoking his probation. On appeal, Defendant raised a single assignment of error, challenging the trial court’s decision to not give the statutory witness-false-in-part jury instruction, ORS 10.095(3), in his criminal trial. Defendant argued that the key witness during trial offered two different recollections of the events that led to his arrest and, because “both things can’t be true,” Defendant argued that he was entitled to the instruction. In considering the requested instruction, the Court must view the evidence in the light most favorable to the requesting party and, in that light, the evidence must “amount to more than an honest mistake, confusion, or hazy recollection.” Payne, 366 Or at 608. The Court explained that “Defendant did not point to sufficient evidence to support an interference that [the witness] consciously testified falsely.” Thus, the Court concluded that the trial court did not err in refusing to give the witness-false-in-part jury instruction. Affirmed.