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State v. Roman

Court of Appeals of Oregon

October 25, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ABRAHAM ROMAN, Defendant-Appellant.

          Argued and Submitted April 26, 2017

         Josephine County Circuit Court 15CR09582; Pat Wolke, Judge.

          Brett J. Allin, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Nathan Riemersma, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and James, Judge, and Haselton, Senior Judge. [*]

         Case Summary:

Defendant appeals a judgment of conviction on one count of driving under the influence of intoxicants, ORS 813.010(4), one count of reckless driving, ORS 811.140, and one count of failure to perform the duties of a driver, ORS 811.700. On appeal, defendant argues that the court erred in giving Uniform Criminal Jury Instruction (UCrJI) 1029, known as the "witness-false-in-part" instruction, to the jury.
Held: The court did not err in giving UCrJI 1029 because the court could have reasonably concluded, based upon the physical evidence, that there was sufficient evidence for the jury to decide that at least one witness consciously testified falsely and therefore, the factual predicate to give the instruction was met.

         Affirmed.

         [288 Or. 442] JAMES, J.

         Defendant appeals from a judgment of conviction of one count of driving under the influence of intoxicants, ORS 813.010(4), one count of reckless driving, ORS 811.140, and one count of failure to perform the duties of a driver, ORS 811.700. On appeal he raises two assignments of error. We reject without discussion defendant's first assignment of error, and write only to address his second in which he claims the trial court erred in giving Uniform Criminal Jury Instruction (UCrJI) 1029, known as the "witness-false-in-part" instruction, to the jury.

         The state responds that the trial court was correct to give the instruction because defendant's trial testimony can be interpreted as consciously false when viewed against his prior statements to law enforcement. Additionally, the state offers an alternative basis for affirmance: that the trial court could reasonably conclude that the physical evidence at trial was sufficient for the jury to find that defendant had consciously testified falsely. We agree with the state and affirm on the alternative basis.

         The relevant factual background is largely undisputed by the parties. In the early morning hours of March 9, 2015, an ambulance crew reported that a damaged pickup truck pulled into a Shell station and two occupants fled on foot. Grants Pass Police Officer Anuschat and his partner responded and saw a truck at the station with extensive front-end damage and a tire missing. The officers contacted defendant and another man, Williams, walking about a block from the Shell station. Defendant appeared visibly intoxicated.

         Upon questioning, defendant twice told the officers that he had been driving, but changed his statement and denied driving after Ansuchat confronted him with the extensive damage to the truck. Later in the encounter, after defendant had been detained in a patrol car, Officer Perkins confronted defendant with his ...


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