and Submitted April 26, 2017
County Circuit Court 15CR09582; Pat Wolke, Judge.
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
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.
DeHoog, Presiding Judge, and James, Judge, and Haselton,
Senior Judge. [*]
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.
Or. 442] JAMES, J.
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.
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.
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.
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 ...