479 P.3d 335
Or. Ct. App.2020Background
- Defendant Mark Daly was convicted of fourth-degree assault for allegedly punching neighbor Thomas; both lived in motor homes on shared property.
- At trial Thomas (victim) and Warren (owner of the motor home) testified for the State; Thomas said Daly attacked him and later threatened to kill Daly after retrieving a knife.
- Kessler testified for Daly that she saw Thomas holding a knife before any attack and that Thomas had sent her threatening texts/voicemails urging her to "tell the truth" and saying a person named "Jerica" would "beat [her] up" if she testified.
- Thomas denied threatening Kessler and denied threatening her through any third party; the conflict concerned whether Thomas had threatened Kessler before her testimony.
- Daly requested the uniform witness-false-in-part instruction (UCrJI 1029); the trial court denied it, Daly was convicted, and he appealed arguing the instruction should have been given.
- The Court of Appeals reversed and remanded, holding that, viewed in the light most favorable to Daly, there was sufficient evidence that at least one witness consciously testified falsely about the alleged threats and that the error was not harmless to the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing the witness-false-in-part instruction (UCrJI 1029) | The record shows conflicting perceptions, not conscious falsity; general credibility instructions suffice | Kessler's account (texts/voicemail that "Jerica" would beat her up) vs Thomas's categorical denials supports a jury finding one witness lied about threats; instruction required | Reversed: under Payne II standard, sufficient evidence existed to let jury decide conscious falsity on a material issue; trial court erred and error was not harmless |
| Challenge to restitution amount ($1,212.21) | Restitution was proper (State) | Daly challenged amount | Not reached—court reversed conviction and remanded, so sentencing issue was not considered |
Key Cases Cited
- State v. Payne, 366 Or 588 (2020) (establishes when witness-false-in-part instruction is proper: sufficient evidence a witness consciously testified falsely on a material issue; legal-error review)
- State v. Payne, 298 Or App 438 (2019) (earlier appellate decision discussed but later reversed by Payne)
- State v. Kinstler, 307 Or App 517 (2020) (applies Payne II standard; view evidence most favorably to party requesting instruction)
- State v. Davis, 336 Or 19 (2003) (harmless-error standard: error harmless only if little likelihood it affected verdict)
- State v. Ashkins, 357 Or 642 (2015) (instructs that instructional error is assessed in context of instructions, evidence, and parties’ theories)
- Ireland v. Mitchell, 226 Or 286 (1961) (older standard requiring abuse-of-discretion review; noted as overruled by Payne II)