State v. Pozos

“ORS 10.095(3) requires an instruction when, ‘viewing the evidence in the light most favorable to the party requesting the instruction, the evidence is sufficient for the jury to decide that at least one witness consciously testified falsely concerning a material issue’”. State v. Howard, 325 Or App 696, 714.

Defendant appeals a judgement for conviction on seven counts of first-degree sexual abuse under ORS 163.427(1). Defendant assigned six errors to the trial court, reducing to three arguments: (1) erred in denying suppression of evidence because the interrogation was unlawful; (2) erred in denying “witness false in part” instruction because there was a factual contradiction as to a material issue; and, (3) erred in denying Defendant’s three motions for judgement of acquittal (MJOA) because there is insufficient evidence the victim was under 14 years of age for alleged conduct in counts one through three. “ORS 10.095(3) requires an instruction when, ‘viewing the evidence in the light most favorable to the party requesting the instruction, the evidence is sufficient for the jury to decide that at least one witness consciously testified falsely concerning a material issue’”. State v. Howard, 325 Or App 696, 714. The Court reasoned that the trial court was correct to deny suppression of evidence because the circumstances were not compelling to render the interrogation unlawful. The Court further reasoned that because the witness’ statement was a key piece of evidence, the trial court erred in denying the “witness false in part” instruction and the error was not harmless, and because there was ambiguity as to victims allegations, the trial court erred in denying Defendant’s three MJOAs. Therefore, the judgement is reversed and remanded for further proceedings.