and submitted May 8, 2019
Multnomah County Circuit Court 15CR60083; Jerome E. LaBarre,
F. Werboff, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
C. Moan, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and James, Judge, and Landau,
Summary: Defendant appeals from a judgment of conviction for
third-degree sexual abuse. He assigns error to the trial
court's failure to give a witness-false-in-part jury
instruction. Held: Even assuming that the trial
court erred in failing to give the witness-false-in-part
instruction, any such error was harmless. Because defendant
challenged the victim's credibility in closing arguments,
the trial court's failure to deliver the instruction did
not deprive him of the argument that the victim's
testimony was not credible.
Or.App. 439] LANDAU, S. J.
appeals a judgment of conviction for third-degree sexual
abuse. ORS 163.415. He advances a number of assignments of
error, all but one of which we reject without discussion. We
write to address only his contention that the trial court
erred in failing to deliver a witness-false-in-part jury
instruction. We conclude that, even assuming for the sake of
argument that the trial court erred in failing to deliver the
instruction, any such error was harmless. We therefore
trial, the victim testified that she and defendant knew each
other socially. She said that, one evening after chatting
outside, they agreed to continue their conversation in
defendant's car. She testified that, once in the car,
defendant began propositioning her sexually and ultimately
exposed himself, grabbed her hand, placed it on his erect
penis, and caused her to masturbate him. She said that she
was afraid of defendant and did not get out of the car
because she knew defendant to carry a firearm.
victim explained that she later reported the incident to the
police. The police report stated that she had told Officer
Buck that she did not get out of the car because, "if I
ran, a strong muscular black man could catch me." At
trial, however, the victim said that, "I did not say it
like that. I said a man with his size and structure-his
stature, if I was to just lean over, just have this much
space and have to hop down, how could he not grab me too.
I'm pretty sure he's bigger than me, and he can run
faster than me." She said that she did not remember
saying anything about defendant being black.
basis of the victim's testimony, defendant requested the
uniform witness-false-in-part instruction, which provides:
"Sometimes a witness may give incorrect or even
inconsistent testimony. This does not necessarily constitute
lying on the part of the witness. The witness's testimony
may be an honest mistake or confusion. The witness may simply
forget matters, or his or her memory of an event may contain
honest inconsistencies or contradictions. Also, [298 Or.App.
440] different witnesses may observe or recount the same
"However, if you find that a witness has intentionally
lied in part of his or her testimony you may but are not
required to, distrust other portions of ...