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State v. Walker

Court of Appeals of Oregon

April 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN KEVIN WALKER, Defendant-Appellant.

          Submitted November 29, 2017

          Washington County Circuit Court C150990CR; Janelle F. Wipper, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction of a single count of first-degree theft, ORS 164.055. On appeal, 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 argues that the trial court was correct to give the instruction, because defendant's trial testimony conflicted with the testimony of another witness, and that inconsistency sufficiently established that defendant consciously testified falsely. Defendant disagrees, arguing that any discrepancy in the testimony was minimal and did not rise to the level of willful falsity required for the instruction. Held: The trial erred in giving UCrJI 1029, because whatever inconsistency that might have been inferred between the witness's description of the scene and defendant's, it did not constitute sufficient evidence from which a jury could find that one witness "consciously testified falsely." State v. Roman, 288 Or.App. 441, 447, 406 P.3d 1119 (2017). It was, rather, the type of inconsistency common to mistake, confusion, or the differences in recollection that are innate to human perception.

         Reversed and remanded.

         [291 Or.App. 189] JAMES, J.

         Defendant appeals from a judgment of conviction of a single count of first-degree theft, ORS 164.055. On appeal, 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 argues that the trial court was correct to give the instruction, because defendant's trial testimony conflicted with the testimony of another witness, and that inconsistency sufficiently established that defendant consciously testified falsely. Defendant disagrees, arguing that any discrepancy in the testimony was minimal and did not rise to the level of willful falsity required for the instruction. We agree with defendant and reverse and remand.

         The underlying facts are largely undisputed by the parties. On March 30, 2015, the complainant, A, visited a dental office in Hillsboro, Oregon, for an appointment for her children. A sat in a chair in Exam Room 3 with one child on her lap, while a dental assistant worked on the other child. Beside her, she placed her wallet that contained $1, 815 in cash. During the appointment, Exam Room 2 became open, so A took her other child to that room, leaving her wallet behind. The first child's appointment ended around the same time, and A stayed in Exam Room 2 with her children for about an hour.

         Clinic staff cleaned Exam Room 3 around the patient's chair, but not the guest chair; they did not recover As wallet. Defendant, the next scheduled patient, entered the room about 20 minutes after the A and her children left and he stayed in the room for about half an hour. Part of the time, a hygienist was with defendant; part of the time, he was alone.

         After As children's appointments concluded, A went to the front desk, where she realized that she no longer had her wallet. The clinic staff began searching the office for the wallet. After several minutes, a hygienist looking for the wallet looked into Exam Room 3. That witness, while "narrating" a security video being shown to the jury, [1] testified at trial as follows:

[291 Or.App. 190] "[WITNESS]: I'm contemplating where that wallet may be, and I'm staring into that room. And I notice [defendant] messing with the chair. So I go to the room, and he bee-lines out of the room at the same time. Because I ...

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