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State v. Payne

Court of Appeals of Oregon

July 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ISAIAH K. PAYNE, aka Isaiah Khalil, Defendant-Appellant.

          Argued and submitted May 8, 2019

          Multnomah County Circuit Court 15CR60083; Jerome E. LaBarre, Judge.

          Sara 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 Services.

          Rolf 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.

          Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.

         Affirmed.

         Case 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.

         [298 Or.App. 439] LANDAU, S. J.

         Defendant 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 affirm.

         At 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.

         The 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.

         On the 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 event differently.
"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 ...

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